By: Hannah Whiteker

In January of this year, Puerto Rico’s Governor, Alejandro Garcia Padilla, made an announcement that would be political suicide for any politician in the mainland United States. Garcia Padilla, standing beside President Danilo Medina of the Dominican Republic, announced a proposal to broaden the voting franchise to include every resident of Puerto Rico, regardless of legal status. It is an established fact that illegal immigrants cannot vote in U.S. elections. This is also the current law in Puerto Rico. However, Garcia Padilla expressed his opinion that since every person who chooses Puerto Rico as his or her home is affected by the decisions that the government makes,  all residents should have the right to participate in deciding who governs. So far, neither the Governor nor the members of his political party, the Popular Democratic Party (PPD), has drafted a bill on this issue. However, the Governor’s proposal sparked discussions about the constitutionality of giving illegal immigrants the right to vote, particularly given Puerto Rico’s relationship with U.S.

Although Garcia Padilla paints a harmonious picture about inclusion and democracy, it is likely that the Governor, who is up for reelection in 2016, sees this as an opportunity to gain political support. In Puerto Rico, the largest immigrant group is from the neighboring Dominican Republic. El Nuevo Dia newspaper conservatively estimates that Garcia Padilla could gross an additional 110,000 votes in the 2016 election from undocumented Dominican residents in Puerto Rico. In the gubernatorial election of 2012, he only narrowly won by a margin of 11,000 votes, so these new voters would greatly increase his chances in 2016.

If this proposal becomes law, it would likely cause a windfall of support for the Governor because the new voters would owe their voting rights to him. So as expected, politicians from the opposing party, the New Progressive Party (PNP), quickly voiced their criticisms. The most vocal critic of the proposal is PNP party president and current Puerto Rican Resident Commissioner to the U.S. Congress, Pedro Pierluisi. He stated that the proposal is unconstitutional because it would violate the Puerto Rican Constitution, the Jones-Shafroth Act, and the Puerto Rico Federal Relations Act of 1950.

So is Pierluisi right that the proposal would be unconstitutional if it becomes law? It is unlikely that the proposal would violate the Jones Act or the Federal Relations Act, both of which regulate Puerto Rico’s relationship to the U.S. The United States Supreme Court and the Puerto Rican Supreme Court have legal precedents indicating that the Puerto Rican government has the authority to restrict and expand the franchise in elections of representatives of the Puerto Rico government. To explain these precedents, a little background is necessary. Puerto Rico has been a possession of the United States since in 1898 when Spain ceded it to the U.S. at the end of the Spanish-American War. Thus, Puerto Ricans never had a chance to voice their opinions about whether to become a part of the United States or choose independence. In 1917, the Jones-Shafroth Act gave Puerto Ricans American citizenship. Though American citizenship gave Puerto Ricans access to the mainland, not all Puerto Ricans wished to become U.S. citizens. Throughout the 20th century, there were various uprisings against United States’ control of the island and violence and propaganda tactics utilized by the United States to destroy the independence movement. Juan Mari Bras was the leader of the “Independentistas” during the second half of the century, and in 1994, he sought to officially renounce his U.S. citizenship in protest of American occupation.

After Mari Bras travelled to Venezuela to formally renounce his citizenship at the U.S. embassy, a Puerto Rican pro-statehood attorney, Miriam J. Ramirez de Ferrer filed a complaint against Mari Bras before Mari Bras’ local electoral board, alleging that he was not eligible to vote because he was not an American citizen. The case was appealed several times and eventually made its way to the Puerto Rico Supreme Court. The justices of the Court found that “as a citizen of Puerto Rico,” Mari Bras was eligible to vote in Puerto Rico government elections. The Court explained that only the government of Puerto Rico has the authority to decide who may or may not vote in Puerto Rico’s elections.

The U.S. Supreme Court also recognized the Puerto Rican government’s exclusive authority to regulate the right to vote in Puerto Rico. In 1982, Chief Justice Warren Burger wrote in Rodríguez v. Popular Democratic Party that, “absent some clear constitutional limitation, Puerto Rico is free to structure its political system to meet its special concerns and political circumstances.” Thus, Pierluisi’s argument that the Governor’s proposal violates federal law does not take into account clear federal and state precedent.

But would the proposal violate Puerto Rico’s constitution? The Puerto Rican government in writing their constitution, restricted the franchise to “ciudadanos” or citizens. Act 78-2011 Section 6.003 currently defines “ciudadano” as “Any citizen of the United States of America and of Puerto Rico who is legally domiciled in the Island’s jurisdiction…” Therefore, the legislature would need to change the language in Act 78-2011 so that it does not limit the right to vote to individuals who are both U.S. citizens and P.R. citizens. However, as long as the definition of “ciudadano” is changed to include non-citizen residents, there should not be a constitutional concern.

All in all, Garcia Padilla’s proposal is an interesting one that is likely constitutional, but we will have to wait and see if it can gain traction in the legislature before his 2016 reelection bid.

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