Academic journal article The William and Mary Bill of Rights Journal

Puerto Rico, Inc.: Implicit Incorporation and Puerto Rico's Right to Vote for Presidential Electors

Academic journal article The William and Mary Bill of Rights Journal

Puerto Rico, Inc.: Implicit Incorporation and Puerto Rico's Right to Vote for Presidential Electors

Article excerpt

Por donde quiera que ande, porque lo llevo en la sangre, por la herencia de mis padres, y con orgullo repito: Yo te quiero Puerto Rico, yo te quiero Puerto Rico. (Translation: For wherever I walk, because I carry it in my blood, for the heritage of my parents, and with pride I repeat: I love you Puerto Rico, I love you Puerto Rico).

-Marc Anthony, Preciosa1


In 2017, the centennial anniversary of the grant of United States citizenship to Puerto Ricans, the people on the island experienced quite a year. Two powerful hurricanes, Irma and Maria, rocked Borinquén,2 the latter leaving Puerto Rico torn apart and one million people without electricity and many without access to food or clean drinking water.3 Four months after Hurricane María hit, much of the island still lacked access to vital resources. This was due to botched Federal Emergency Management Agency (FEMA) contracts for both electricity and food, which left half of the island without power and 29,950,000 meals undelivered.4 Additionally, a recent update to the death toll from Hurricane Maria placed the death toll at 2,975 people,5 a significant increase from the initial number of sixty-four.6

One cannot help but wonder how an island full of united states citizens could find themselves in this position.7 Many argue that statehood would solve the issue, bringing this second class citizenry onto an equal playing field with most of its countrymen.8 A major roadblock on the path to statehood, however, is that the island's population is split on the issue.9 In the meantime, however, this Note argues the most effective method of providing aid to Puerto Rico is a right enshrined in the American Revolution and the minds of the Founding Fathers: the right to vote.

By expanding presidential voting rights to Puerto Rico, the population would step into the light of political relevance and toward equal participation in the American democracy instead of being left in the shadows of a former tax haven and popular tourist destination. As of now, residents of Puerto Rico can vote in presidential primaries but not in the general election in November.10 With sixty-seven votes in the Democratic primary, Puerto Rico played a hefty role in Hillary Clinton's nomination fight and eventual victory,11 so the question remains: how would the 2016 election have turned out if the residents of Puerto Rico had been able to play a part?

The answer: not a whole lot differently. Given the difference in make-up of Puerto Rico's party system and that of the mainland, the partisan affiliation likely would not match up exactly.12 Based on voting records of Puerto Ricans on the mainland (who, yes, can vote for president),13 however, Clinton would have likely won the island's seven electoral votes.14 Those votes, however, would not have made a significant impact on Trump's margin of victory.15

The real value in providing the residents of Puerto Rico with the right to vote in presidential elections is not that it would provide either party with huge Electoral College gains.16 Rather, the value would be in giving a full voice to an island whose residents have fought for the American military and have the highest voter turnout rates in the United States (in non-presidential elections).17 In order to create this right to vote, many assume that a constitutional amendment is necessary, but this Note will argue that there are already existing constitutional provisions and legal precedents that would suffice to expand the franchise to residents of Puerto Rico. This Note is specifically limited to Puerto Rico because its residents have been citizens for longer than any other territory without a solution to this disenfranchisement problem.18 Additionally, as the argument for implicit incorporation will reveal below, Puerto Rico has been treated as a state in many statutes and in administrative law, giving it a unique and nebulous status compared with the other territories. …

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