Setting the Record Straight on the Puerto Rican Plebiscite

by

Rafael Cox-Alomar

as published in 

JURIST

JURIST Guest Columnist Rafael Cox-Alomar, the Popular Democratic Party candidate for Resident Commissioner of Puerto Rico, argues that Congressman Pedro Pierluisi’s recent JURIST article on the upcoming Puerto Rico status referendum fails to take into account another viable alternative to statehood that has greater support on the island and would allow greater preservation of social and cultural aspirations…

Resident Commissioner Pedro Pierluisi, in an article recently published in JURIST, “Puerto Rico Status Referendum is Historic,” (and on the Commissioner's website - OTR) has written an undeserved ode to the virtues of the Puerto Rico status plebiscite currently scheduled to be held on election day this coming November 6, 2012. 

This is not surprising, as the proposed plebiscite is Pierluisi’s consolation prize after Congress and the Obama administration rejected his attempt to hold a federally-sanctioned plebiscite in Puerto Rico designed to stack the deck in favor of statehood (introduced as HR 2499 in the 111th Congress). What is surprising is that, notwithstanding this rejection, statehood advocates have doubled-down locally on what they could not achieve at the federal level, pushing on Puerto Ricans a local status plebiscite that betrays traditional American notions of democracy and fair play.

In HR 2499, deceptively named the “Puerto Rico Democracy Act,” Pierluisi called for a federally-sanctioned status plebiscite solely designed with one purpose in mind: to artificially manufacture an electoral victory for statehood, a victory that that has so far eluded the island’s statehood movement ever since its inception in 1900. 

The plebiscite was structured as a two-round electoral process in which Puerto Ricans would first be asked to determine whether they were “satisfied” with the existing Commonwealth relationship (which is intentionally mischaracterized in the ballot as a territorial relationship bound by Congress’s plenary powers under the US Constitution’s Property Clause), followed by a second round in which Puerto Ricans would be able to choose between statehood, independence and a modality of associated independence, leaving the Commonwealth option completely off the ballot. 

The trick is simple: Commonwealth now commands a plurality, just short of an outright majority of the vote. By defeating Commonwealth on the first round, pro-statehood forces would be able to eliminate Commonwealth from the ballot entirely and manufacture a statehood victory with the support of less than a plurality of the electorate.

Both Congress and President Obama were wary outcome-determinative nature of the proposed set up and killed the so-called “Puerto Rico Democracy Act.” The White House Task Force Report, which Pierluisi extensively cites, states in no uncertain terms that “removing the Commonwealth option [from the ballot] would raise real questions about the vote’s legitimacy.” 

In fact, the report explicitly considered, and rejected, Pierluisi’s proposed approach in HR 2499, highlighting that “how the votes are ordered may favor one outcome over others.” More importantly, the report did not, as Pierluisi claims, conclude that enhanced Commonwealth status was not a “viable status option.” 

To the contrary: the Task Force Report explicitly contemplates avenues of growth for Commonwealth status, including the possibility of congressional legislation that would establish a process by which Puerto Rico could obtain relief from specific Federal laws, or enhance authority for the government of Puerto Rico to join certain international organizations and to engage in international cultural and economic outreach efforts so long as such activities were authorized by the Federal Government as consistent with the foreign relations of the United States.

Notwithstanding the clear presidential message sent by Task Force Report, statehood advocates have decided to push forward with a discredited approach. Pierluisi attempts to sidestep the implications of the report by acknowledging that the upcoming referendum may not be “the only possible way to structure a self-determination process.” But Law 283, the legislation authorizing the local plebiscite that Pierluisi champions, is a carbon copy of HR 2499, preserving the delegitimized two-step process designed to make Puerto Rico the fifty-first US state by procedurally decapitating Commonwealth status.

More cynically, the plebiscite will be held on the same date as the gubernatorial election, a fact that some political analysts have identified as a ploy to boost statehood-supporter turnout and, consequently, the electoral prospects of the pro-statehood New Progressive Party, which, according to all recent public polling, is expected to be swept out of office due to severe ongoing recession and record crimes rates in Puerto Rico.

The most alarming aspect of the proposed plebiscite, couched as an opportunity for Puerto Ricans to exercise their right to self-determination, is that it would keep the plurality of Puerto Ricans from exercising that right. Any fair self-determination process must include the option of an enhanced Commonwealth, the status alternative that has been consistently favored by the people of Puerto Rico and that has won each status plebiscite celebrated on the island. 

Pierluisi’s article neglects to mention that Puerto Ricans favored the enhancement of the present Commonwealth relationship over statehood and independence in the 1967 and 1993 plebiscites. In the 1998 plebiscite, another electoral farce rigged to deliver a statehood victory by (again) excluding the option of enhanced Commonwealth, the “None of the Above” option, supported by Commonwealth advocates, prevailed with more than 50 percent of the vote (this “None of the Above” option has been conveniently removed from Law 283). 

Voters have consistently backed enhanced Commonwealth status because it balances competing economic, social and cultural aspirations. The majority of Puerto Ricans have consistently rejected statehood precisely because statehood fails to fulfill these aspirations. The fact that statehood advocates, like Pierluisi, disagree with the democratic will of the Puerto Rican people does not give them the right to undermine it.

Unable to beat Commonwealth through the ballot box, opponents have worked hard to delegitimize it. In particular, they have constructed artificial legal and constitutional roadblocks to the enhancement or development of Commonwealth status. But the only barrier to the development this status is the political will of Congress at a certain point in time, not manufactured and allegedly immutable constitutional impediments.

Pierluisi claims that the November status referendum “will be a meaningful vote with real implications for Puerto Rico’s political future.” The reality is that Congress and the president will rightfully ignore the results of a process it has already rejected as biased, flawed and undemocratic. All Puerto Ricans agree that the present political status must change, but they disagree vigorously as to the nature and direction of such change. Puerto Rico deserves a process that allows all Puerto Ricans to meaningfully exercise their right to vote and that honors America’s democratic traditions. The proposed plebiscite is only “historic” in the fraud it perpetrates on the Puerto Rican and American people.

Rafael Cox-Alomar is the 2012 Popular Democratic Party candidate for Resident Commissioner, Puerto Rico’s nonvoting delegate to the US House of Representatives. He is running against incumbent Pedro Pierluisi in November. Cox-Alomar has worked on dispute resolution and transactional cases since graduating from Harvard Law School in 2004. He is also the author of Revisiting the Transatlantic Triangle: The Constitutional Decolonization of the Eastern Caribbean.