3.5 Million People With No Vote: Puerto Rico’s Legal Status

By Halah Elchorbagy

As Election Day approaches, many Americans are heading to the polls to cast their ballots for the candidates that best represent their interests. However, although all individuals born in Puerto Rico are U.S. citizens, the adult citizens living in Puerto Rico do not have the right to vote for the President of the United States. They are limited to voting for one non-voting member of the House of Representatives and are only allowed to vote in the presidential primaries. Puerto Rico is also not included in the Electoral College, and therefore does not receive electoral votes in the presidential election like states and the District of Columbia.

Electoral votes are apportioned based on the state’s total population. Wyoming has the smallest population, a total population of 568,300 people, and receives three electoral votes. This translates into one electoral vote for every 189,433 people. Connecticut’s total population is 3,581,628, and Connecticut receives seven electoral votes. This translates into one electoral vote for every 511,661 people, which is close to the national average of 574,690 people per electoral vote. If Puerto Rican citizens living in Puerto Rico were allowed to vote and Puerto Rico was apportioned electoral votes based on its total population of close to 3.5 million people, it would likely have the same voting clout as Connecticut. Puerto Rico’s population is greater than many of the states including “swing” or “battleground” states such as Iowa, Nevada, and New Hampshire. As it stands, the 2.7 million adult citizens living in Puerto Rico do not have the right to vote in the presidential election even though Puerto Rico’s population is 6 times greater than Wyoming’s population.

To put this in perspective, Puerto Ricans will not have a say on who will be appointing the next Supreme Court Justice. Although Puerto Ricans can serve in the military and can be drafted by the President to go to war, Puerto Ricans cannot vote for the Commander in Chief. Puerto Ricans cannot vote in the November election based on which candidate will represent their interests; this is especially important as Puerto Rico faces many concerns including an economic crisis.

How is it possible that as U.S. citizens, Puerto Ricans do not possess the right to vote in federal elections? The United States Supreme Court recently had the opportunity to discuss Puerto Rico’s history and legal status in Puerto Rico v. Sanchez Valle, a case involving the Double Jeopardy Clause, and a decision that has been referred to as a “blow to Puerto Rican sovereignty.” The case arose from the indictment of two defendants for selling firearms in violation of Puerto Rican law. While those charges were pending, the defendants were also indicted by the U.S. federal government for violating the equivalent federal gun trafficking law. The defendants pled guilty to the federal charges, and moved to dismiss the pending charges from Puerto Rico on the grounds that the Double Jeopardy Clause of the Fifth Amendment applied. Although the Double Jeopardy Clause bars prosecuting defendants more than once for the “same offense,” under the dual-sovereignty doctrine, “a single act gives rise to distinct offenses” and “violates the laws of separate sovereigns.”

To determine whether double jeopardy applied, the Court had to first determine whether Puerto Rico is a separate sovereign from the U.S. federal government. The Court explained that this determination is not based “on the degree to which the second entity is autonomous from the first or sets its own political course” as the word “sovereignty” might suggest. The decision turned on a narrow historical determination based on “whether the prosecutorial powers of the two jurisdictions have independent origins—or, said conversely, whether those powers derive from the same ‘ultimate source.’”

The Court outlined Puerto Rico’s history beginning from when Puerto Rico became a territory of the United States in 1898, after the Spanish-American War. Congress established a civil government for Puerto Rico and had authority over Puerto Rico’s internal affairs. The President later appointed a “governor, supreme court, and the upper house of the legislature,” and the Puerto Rican people elected the lower house. Federal statutes applied at that point (and still apply), but the new Puerto Rican legislature could enact their own local laws. In 1917, a federal statute gave all Puerto Ricans U.S. citizenship and allowed them to elect their own senateors. In 1947, by an amendment to the federal statute granting citizenship, Puerto Ricans were allowed to elect their own governor, which the Court noted was a right “never before accorded in a U.S. territory.” Three years later, Puerto Rico’s autonomy was further expanded when Congress enacted Public Law 600 which allowed Puerto Rico to “organize a government pursuant to a constitution of their own adoption” within the terms specified by the statute. The constitution would only be effective after Congressional approval. Congress did approve the constitution, after removing and adding some provisions, and Puerto Rico became the Commonwealth of Puerto Rico.

The Supreme Court distinguished State and Native American sovereignty from Puerto Rico’s for the purposes of Double Jeopardy. The Court explained that “the States are separate sovereigns from the Federal Government (and from one another)” because the States “entered the Union with their sovereignty intact.” State prosecutorial power is therefore derived from an “inherent sovereignty” that “pre-exist[ed]” the U. S. Congress. The Court further explained that the Native American Tribes, although subject to Congressional control, are separate sovereigns for double jeopardy purposes, because “the tribes were self-governing sovereign political communities” with the “inherent power to prescribe laws for their members and to punish infractions of those laws” before the United States was formed.

In contrast, Puerto Rico’s autonomy was likened to that of a municipality. Since a municipality derives its power from the state, it “could not bring successive prosecutions for a like offense.” The Court also stated that in Grafton v. United States, the Supreme Court held that U.S. territories, which include “an earlier incarnation of Puerto Rico,” are not separate sovereigns from the United States and could not successively prosecute a defendant.

The Court acknowledged that Puerto Rico “has a distinctive, indeed exceptional, status as a self-governing Commonwealth,” but that the U.S. Congress is the “ultimate source” of Puerto Rico’s prosecutorial power when a historical approach is taken. A U.S. territory would not have been able to “legally initiate” the constitution-making process on its own; Congress authorized it through Public Law 600 and later amended the charter before approving it. The Court concluded that, “[p]ut simply, Congress conferred the authority to create the Puerto Rico Constitution, which in turn confers the authority to bring criminal charges. That makes Congress the original source of power for Puerto Rico’s prosecutors,” and therefore the Double Jeopardy Clause bars both Puerto Rico and the federal government from prosecuting “a single person for the same conduct under equivalent criminal laws.”

The Decision’s Significance

The decision has been taken as an insult to Puerto Rico by many. It has been referred to as a “constitutional diss” since the decision leaves Puerto Rico as “a de facto colony” despite having its own constitution. Jose Aponte-Hernandez, a state representative and the former Speaker of the House in Puerto Rico wrote, “[a]gain, we are a colony, the world’s oldest one.” In light of this decision and another Supreme Court decision holding that Puerto Rico cannot restructure its debt without help from Congress, he argues that it is time for “Congress and the White House to map out a detailed plan to grant Puerto Rico statehood. There are no more excuses, no more delays.” In an article entitled “Puerto Rico Belongs to Congress,” the author points out that from a legal standpoint, Puerto Rico is in many ways a colony “with little real self-governing power and with a different set of rules––including the lack of the right to vote in federal elections.” The author goes on to note that in denying Puerto Rico “any real sense of sovereignty” the Supreme Court is undermining the United Nations Declaration of 1953.

Article 73 of the United Nations Charter requires “[m] embers of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government” to file reports regularly regarding the “economic, social, and educational conditions” of the territories that they are responsible for. In 1953 the United States informed the United Nations that it no longer needed to file the reports pursuant to Article 73 of the charter because Puerto Rico was now a self-governing entity. The General Assembly resolution stated that “the General Assembly recognizes that . . . in the framework of their Constitution and of the compact agreed upon with the United States of America, the people of the Commonwealth of Puerto Rico have been invested with attributes of political sovereignty which clearly identify the status of self-government attained by the Puerto Rican people as that of an autonomous political entity.”

According to a Puerto Rican nationalist website, the Supreme Court’s decision does not just undermine the U.N. Declaration of 1953, but is a “repudiation”; the site called on the United Nations to declare Puerto Rico a colony and place it back on the list of non-self-governing territories. As one article notes, some Puerto Ricans want to keep their “special status,” and if Puerto Rico wants to be sovereign, “its people will need to insist on it.”

How can the people of Puerto Rico “insist” on being recognized as sovereign? Puerto Rico’s current status leaves Puerto Rico disenfranchised and divided in many ways. Puerto Rican mainlanders can vote, while the islanders cannot unless they relocate and establish residency in one of the fifty states. Puerto Rican local political parties remain divided in three ways, supporting either Puerto Rico moving towards statehood, the status quo as a Commonwealth, or Puerto Rican independence. Without a voting representative in Congress, and without the right to vote in the presidential election, it is difficult to see how the voices of Puerto Rican islanders will be heard.