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Legal Commentary

: Balkinization

Puerto Rico and the d(D)emocratic process

By Jack M. Balkin

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In an earlier post, I noted the possibility that Clinton and Obama might be paying visits to Puerto Rico. That now seems almost certain, given the closeness of the race and the fact that Puerto Rico has 53 delegates at the Democratic convention, only four less than Iowa's and 23 more than New Hampshire's (to mention only the two most notorious states in the primary process). For reasons given in that post, I'm actually quite pleased that the two candidates will be forced to offer some cogent comments about the world's largest remaining colony.

An enduring issue within American constitutional law involves the juristic location of Puerto Rico. Is it really part of the United States (like, say, Hawaii, far more distant from the US mainland than Puerto Rico), or is simply a "possession" of the US, with no right to participate in the nation's decisionmaking process? University of Virginia political scientist LarrySabato (who also, incidentally, believes that we need a new constitutional convention to correct the deficiencies of the existing Constitution, but I digress....) has written a column mentioning this point for the BBC, which includes the following:

An ancillary issue is whether the U.S. territories, none of which has electoral college votes in November, should even be included in the party nominating system.
In an extremely close race, their delegates could decide the outcome of a presidential nomination, and potentially the Presidency itself. Should Puerto Rico, voting on 1 June, have more delegates than half the American states, as the Democrats have assigned?
Neither Clinton nor Obama will raise this concern, of course, but unbiased observers ought to do so. In most conventions, the territorial votes are a harmless matter, but every now and then, the unintended consequences of their inclusion could become enormous.

This is, of course, an extremely controversial, as well as interesting, issue. What he is suggesting, basically, is that Puerto Rican participation, like DC's electoral vote or, to take a closer example, student representation on faculty appointments committees or university boards of trustees, is really intended to be only "symbolic," not actually having any operative importance. (This obviously turned out almost to be not true in 2000, but, thanks to the Supreme Court, DC's 3 electoral votes turned out to be, as no doubt intended, irrelevant.) At no point in the past has anyone really had to be concerned with Puerto Rico's views re the parties' nominees. This will certainly be the case with Puerto Rico's 14 delegates to the Republican convention. One can be absolutely confident that straight-talking John McCain will say absolutely nothing interesting about the future of the world's largest remaining colony, since he has no incentive to do so. And, of course, this will be true in the final election, when Puerto Rico will return to the shadows of American politics. To take up Prof. Sabato's criticism is, I believe, to say that Puerto Rico should indeed remain only in the shadows. But the American president, whoever he or she turns out to be, will, for better and for worse, be Puerto Rico's president as well. As of October 15, 2007, "an estimated 68 Puerto Ricans have given their lives for Bush?s war against terror." That is only one reason that they are every bit as entitled as anyone living in one of the states to have views on who should occupy that office.

Full post as published by Balkinization on April 28, 2008 (boomark / email).