Petitioners Brief On The Merits, Rossello v. United States

BEFORE THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS

ORGANIZATION OF AMERICAN STATES
PEDRO ROSSELLÓ
and
THE UNFINISHED
BUSINESS OF AMERICAN
DEMOCRACY COMMITTEE,
in their individual capacities
and on behalf of approximately
THREE-AND-A-HALF MILLION
U.S. CITIZENS RESIDING IN THE
COMMONWEALTH OF PUERTO RICO,
Petitioners
v.
UNITED STATES OF AMERICA

State.
Case No. 13.326
PETITIONERS’ OBSERVATIONS
REGARDING THE MERITS OF THEIR CASE
ORLANDO E. VIDAL
Norton Rose Fulbright (Middle East) LLP
4th Floor, Gate Precinct Building 3
Dubai International Financial Centre
PO Box 103747
Dubai, United Arab Emirates
Tel +971 4 369 6398
Mob +971 56 682 7388
Fax +971 4 369 6350
orlando.vidal@nortonrosefulbright.com
___________________________________________________________________________
October 3, 2017
TABLE OF CONTENTS
Page
I. OPENING STATEMENT ............................................................................................. 1
II. INTRODUCTION .......................................................................................................... 4
III. PRELIMINARY MATTERS ........................................................................................ 7
IV. PROCEDURAL BACKGROUND.............................................................................. 11
V. HISTORICAL BACKGROUND ................................................................................ 19

A. From 1493 to 1898 .............................................................................................. 20
B. The Treaty of Paris .............................................................................................. 22
C. The Territorial Clause ......................................................................................... 22
D. The Foraker Act................................................................................................... 24
E. “The Insular Cases” ........................................................................................... 25
F. Gonzales v. Williams ........................................................................................... 31
G. Citizenship: The Jones Act................................................................................. 32
H. 1947: The Right to Elect the Governor .............................................................. 33
I. The Commonwealth ............................................................................................ 35
J. From 1952 to 2016 .............................................................................................. 41
1. Congress Extends Most Federal Laws to Puerto Rico............................... 42
2. Congress Discriminates Against Its Citizens in Puerto Rico..................... 46
(a) Taxation............................................................................................ 47
(b) No Supplemental Security Income................................................... 48
(c) Less Medicare................................................................................... 51
(d) Less Medicaid................................................................................... 51
(e) Less Health-Insurance Subsidies...................................................... 52
(f) Less Aid to Families with Dependent Children ............................... 53
(g) Fewer Food Stamps .......................................................................... 55
i
(h) No Earned Income Tax Credit and a Limited Right
to the Child Tax Credit ..................................................................... 57
(i) Billions Less ..................................................................................... 58
K. The Legal Status of Puerto Rico.......................................................................... 58
L. Not Only in Peace but Also in War..................................................................... 59
M. Puerto Rico’s Political Parties............................................................................. 62
N. Referendums and Plebiscites............................................................................... 63
O. The President’s Task Force on Puerto Rico’s Status .......................................... 65
P. Public Law 113-76 .............................................................................................. 65
Q. Continuing Lack of Sovereignty: The Two Most Recent U.S. Supreme

Court Decisions on Puerto Rico. ......................................................................... 66
1. Commonwealth of Puerto Rico v. Sanchez Valle....................................... 66
2. Commonwealth of Puerto Rico v. Franklin California Tax-

Free Trust................................................................................................... 69
R. A “Tennessee Plan”............................................................................................. 70
S. Today: Puerto Rico Under PROMESA.............................................................. 72
VI. RELEVANT U.S. LEGAL FRAMEWORK.............................................................. 78

A. The Right to Vote in the 50 States ...................................................................... 79
1. The Right to Vote Under U.S. Law ........................................................... 79
2. The Electoral College ................................................................................ 81
3. Congressional Voting Rights ..................................................................... 82
B. The Lack of a Right to Vote at the National Level in Territories ....................... 83
C. The Limited Parliamentary Rights of the Resident Commissioner..................... 87
VII. HUMAN-RIGHTS STANDARDS ............................................................................. 89
A. General International Standards .......................................................................... 89
1. The Universal Declaration of Human Rights............................................. 90
2. The International Covenant on Civil and Political Rights ......................... 91
3. The Charter of the OAS ............................................................................. 93
ii
4. The American Convention on Human Rights............................................ 94
5. The Inter-American Democratic Charter ................................................... 96
B. The American Declaration of the Rights and Duties of Man.............................. 99
1. Article II—Right to Equality Before Law ............................................... 100
2. Article XVII—Right to Personal Recognition and to Basic

Civil Rights .............................................................................................. 100
3. Article XX—Right to Vote and to Participate in Government................ 100
C. Precedent ........................................................................................................... 101
D. Articulation of Applicable Legal Tests ............................................................. 111
VIII. ARGUMENT ............................................................................................................. 113
A. The United States Is Violating the Human Right of Its Citizens in Puerto
Rico to Vote and to Participate in Government. ............................................... 114
1. The United States Has Limited or Restricted the Right of Its

Citizens in Puerto Rico to Vote and to Participate in Their
National Government............................................................................... 114
2. The Limitations or Restrictions Imposed by the United States

“Curtail the Very Essence and Effectiveness” of the U.S.
Citizens of Puerto Rico’s Right to Vote and to Participate in
Their Government.................................................................................... 117
3. The United States Cannot Meet Its Burden to Show that the
Voting Limitations or Restrictions It Imposes on Its Citizens
in Puerto Rico Are Otherwise Reasonable, Objective, and
Proportionate............................................................................................ 119
B. The United States Is Unlawfully Discriminating Against Its Citizens in

Puerto Rico in Violation of Their Human Right to Equal Treatment
Under the Law. .................................................................................................. 123
1. The Differential Treatment to which the United States

Subjects Its Citizens in Puerto Rico Is Not Based Upon Any
Legitimate Factual Differences Between Its Citizens on the
Island and Those on the Mainland. .......................................................... 124
2. Despite the United States’ Acknowledged Prerogative to

Choose Its Own Political Institutions, There Is No
Reasonable Relationship of Proportionality Between Any
Differences, Which in Any Event Do Not Exist, Between the
U.S. Citizens of Puerto Rico and Those on the Mainland and
Whatever Aims the United States Could Possibly Articulate
iii
to Otherwise Legitimately Justify Depriving Its Citizens in
Puerto Rico of the Right to Vote for and to Participate in
Their Government.................................................................................... 127
C. The United States Is Failing to Recognize Petitioners and Three-And-a-

Half Million Other Citizens as “Person[s] Having Rights,” and Is
Violating Their Basic Civil Rights.................................................................... 129
1. The U.S. Citizens of Puerto Rico Are “Person[s] Having

Rights.” .................................................................................................... 130
2. The United States Is Failing to Recognize Its Citizens in

Puerto Rico as Deserving of Such Rights. ............................................... 131
3. The Rights to Vote and to Participate in Government, and to

Equal Treatment Under the Law, Are Basic Civil Rights. ...................... 132
D. The Human Rights of the U.S. Citizens of Puerto Rico Do Not Depend
on the Territorial Status of the Commonwealth nor on the Consent of a
Few to Their Deprivation. ................................................................................. 134
IX. NEXT STEPS ............................................................................................................ 136
X. CONCLUSION .......................................................................................................... 139
iv
EXHIBITS
Exhibit Description
1 Puerto Rico Law No. 30-2017 (June 5, 2017)
2 Treaty of Peace, 30 Stat. 1754; Treaty Series 343 (“Treaty of Paris”)
3 The Organic Act Pub., L. 56-191, 31 Stat. 77 (April 12, 1900) (“Foraker Act”)
4 Downes v. Bidwell, 182 U.S. 244 (1896)
5 Gonzales v. Williams, 192 U.S. 1 (1904)
6 The Jones-Shafroth Act, Pub. L. 64-368, 39 Stat. 951 (March 2, 1917) (“Jones Act”)
7 The Elective Governor Act of 1947, P.L. 80-362, August 5, 1947
8 Puerto Rican Federal Relations Act 64 Stat. 319 (“P.L. 600”) (July 3, 1950)
9 Pub. L. 82-447, 66 Stat. 327 (July 3, 1952)
10 Constitution of the Commonwealth of Puerto Rico
11 Califano v. Torres, 435 U.S. 1 (1978)
12 Harris v. Rosario, 446 U.S. 651 (1980)
13 U.S. President’s Task Force on Puerto Rico’s Status, Report by the President’s Task
Force on Puerto Rico’s Status (Washington: December 2005)
14 U.S. President’s Task Force on Puerto Rico’s Status, Report by the President’s Task
15 U.S. President’s Task Force on Puerto Rico's Status, Report by the President’s Task
16 Pub L. 113-76, 128 Stat. 5 (January 17, 2014)
17 Commonwealth of Puerto Rico v. Sanchez Valle, 579 U.S. ___; 136 S. Ct. 1863; 195
L. Ed. 2d 179 (2016)
18 Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, 579 U.S. ___;
136 S. Ct. 1938; 195 L. Ed. 2d 298 (2016)
19 H.R. 260—Puerto Rico Admission Act (January 4, 2017)
20 The Puerto Rico Oversight, Management, and Economic Stability Act, 130 Stat. 549;
48 U.S.C. §§ 2121-2241 (June 30, 2016) (“PROMESA”)
21 Davis, Christopher M., Parliamentary Rights of the Delegates and the Resident
Commissioner from Puerto Rico, Congressional Research Service, R40170 (January 5,
2017)
v
BEFORE THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS
ORGANIZATION OF AMERICAN STATES
_______________________________________________
:
PEDRO ROSSELLÓ and THE UNFINISHED :
BUSINESS OF AMERICAN DEMOCRACY :
COMMITTEE, in their individual capacities :
and on behalf of approximately THREE-AND- :
1
A-HALF MILLION U.S. CITIZENS RESIDING :
IN THE COMMONWEALTH OF PUERTO RICO, : Case No. 13.326
:
Petitioners :
:
v. :
:
UNITED STATES OF AMERICA :
:
State. :
_______________________________________________ :
PETITIONERS’ OBSERVATIONS
REGARDING THE MERITS OF THEIR CASE
In compliance with the Inter-American Commission on Human Rights’2 invitation to
make our substantive submissions, please accept these observations in support of petitioners’
case on the merits.
I. OPENING STATEMENT
The Commission faces in this case a question that is as straightforward as it is
important:
The American Declaration of the Rights and Duties of Man3 recognizes and
protects the right to equality before the law,4 the right to juridical
1
For a discussion why petitioners have now changed the caption in their case from “approximately
FOUR MILLION U.S. CITIZENS RESIDING IN THE COMMONWEALTH OF PUERTO RICO” to
“approximately THREE-AND-A-HALF MILLION,” please read discussion in section entitled “Preliminary
Matters,” infra at pp. 9- 10 (discussion of most current population estimate).
2
“Commission.”
3
“American Declaration.”
1
personality and to basic civil rights,5 and the right to vote and to participate
in government.6 The three-and-a-half million American citizens who reside
in Puerto Rico do not have the right to vote for their nation’s President and
Vice President, nor do they have in the United States’ Congress the right to
voting Representatives in the House nor to any Senators, while federal law
applies with its full force and effect in Puerto Rico and to its residents.7 Is
the United States violating the protections of the American Declaration by
denying its citizens in Puerto Rico the right to vote at the federal level?
That is the straightforward but important question that petitioners present this
Commission in this case. The question is straightforward despite, surprisingly, the fact that,
before the filing of petitioners’ case,8 the Commission had not previously been asked the
question nor otherwise expressed an opinion notwithstanding that the American citizens of
Puerto Rico have been discriminated in this way for over 100 years,9 the last 57 of which have
been under the Inter-American Human Rights System set up by the Organization of American
States,10 including this Commission, which (as the Commission knows) began operations in
1959.11 And the question is of great importance not only to petitioners and the millions in
Puerto Rico who are the ones being immediately, directly, and very seriously affected, but
(petitioners submit) also to the rest of their fellow citizens in the United States (or it should
be) and, more broadly, to all democracy-loving peoples not only in the American hemisphere
but the whole world.
Petitioners submit—with the confidence of their heartfelt conviction and, as discussed
below, fully supported by the facts and the applicable legal standards and precedents—that
4
American Declaration, Art. II, see infra at p. 100.
5
Id. at Art. XVII, see infra at p. 100.
6
Id. at Art. XX, see infra at p. 100.
7
As will be discussed in detail below, see infra at pp. 42-46.
8
And also a related but narrower case filed a few weeks before petitioners filed theirs. See Case No. P-
776-06: Igartúa v. United States of America before the Inter-American Commission on Human Rights (narrower
because, as far as petitioners are aware, the Igartúa petition only relates to the right to vote for President/Vice
President but not Congressional voting rights).
9
As discussed below (see infra at pp. 32-33), Puerto Ricans were granted U.S. citizenship in 1917.
10
“OAS.”
2
this Commission should answer their question in the affirmative: in denying its citizens in
Puerto Rico any voting rights at the federal level, the United States is indeed—regrettably and
shamefully—violating petitioners’ rights and the rights of all those millions similarly situated
to equality before the law, to juridical personality and to basic civil rights, and to vote and to
participate in government protected by the American Declaration.
Petitioners respectfully request that the Commission so declare, that it call on the United
States to fully and effectively remedy these violations consistently with the United States’
obligations under the American Declaration and all other applicable principles of human
rights, and that the Commission lend its aid and support to the parties to effectuate that
remedy as soon as possible.
What follows are petitioners’ Observations in support of the full merits of their case and
the relief they have requested, presented herein for the Commission’s consideration as
efficiently and succinctly—or so petitioners have endeavored—as it is possible. We hope that
these observations, along with all prior submissions in support of the admissibility of the
petitioners’ case, which are hereby fully incorporated herein, as well as the additional findings
of any on-site investigation that, as discussed below, petitioners are aware that the
government of Puerto Rico will be requesting that the Commission conduct, along with any
additional evidence presented in an eventual hearing on the merits, will all satisfy the
Commission that the pled violations have occurred and, unless and until remedied by the
United States, will regrettably continue. With such a declaration the Commission will be
fulfilling its role to promote and protect human rights, including democratic rights, in the
American hemisphere.
11
See http://www.oas.org/en/iachr/mandate/what.asp.
3
II. INTRODUCTION
These are petitioners’ Observations in support of the full merits of their case, filed in
response to the Commission’s request for additional observations from petitioners made on
March 3, 2017, though not received by petitioners until March 20, 2017, and which on May
30, 2017 petitioners informed the Commission they would submit on this day, October 3,
2017.
As the Commission is aware, the individual petitioners in this case are: the former
Governor of Puerto Rico, Pedro Rosselló, and the Unfinished Business of American
Democracy Committee, which is a committee within the Harlan Group for Civil Rights, Inc.,
which in turn is a human-rights organization established as a nonprofit corporation under
Puerto Rico law. Petitioner Committee is made up of individual American citizens all of
whom reside in Puerto Rico. The Chairman of petitioner Committee is Luis Berríos-Amadeo,
also a U.S. citizen residing in Puerto Rico.
Both petitioner Rosselló and petitioner Committee brought this case in their names and
as representatives of a class composed of all American citizens of Puerto Rico. As discussed
later below,12 as of the filing of petitioners’ case 11 years ago, Puerto Ricans in the island
numbered close to four million. Now, however, 11 years later, and as a result of relocation to
the mainland United States mostly for economic reasons, the number has dropped in that
relatively short amount of time to approximately three-and-a-half million.13
For most of his 73 years, petitioner Rosselló, first as a private citizen and pediatric
surgeon, then as President of the Partido Nuevo Progresista (as discussed later,14 one of the
12
See infra at pp. 9-10.
13
The estimated number of Puerto Ricans on the mainland is 5,1 million, see Mark Hugo Lopez and
Molly Rohal, Hispanics of Puerto Rican Origin in the United Stated, 2013: Statistical Profile, Pew Research
Center (2015), available at http://www.pewhispanic.org/ 2015/09/15/hispanics-of-puerto-rican-origin-in-the-
united-states-2013/.
14
See infra at pp. 62-63.
4
main political parties in Puerto Rico), as the seventh and two-term Governor of Puerto Rico
(from 1993 to 2001), as Puerto Rico Senator (2005-2009), as academic, lecturer, and author,
and now as confirmed President of the Puerto Rico Equality Commission—a Commission
established this year (2017) by act of the Puerto Rico legislature15 and made up of seven
members named by the Governor with the advice and consent of both chambers of the Puerto
Rico legislature to act as Puerto Rico’s shadow delegation before the United States Congress,
with two Senators and five Representatives—has fought for equality for the U.S. citizens of
Puerto Rico within the American system of government.
Similarly, many members of petitioner Committee have also dedicated their lives, time,
efforts, and resources, to achieving in their lifetimes or their children’s lifetimes equality for
the U.S. citizens of Puerto Rico. That includes petitioner Committee’s Chairman, Mr.
Berríos-Amadeo, a distinguished lawyer in Puerto Rico, who as with every other U.S. citizen
in the island has no right to vote at the federal level. This, despite the fact that Mr. Berríos-
Amadeo served his country with distinction in the U.S. Army, from which he retired with the
rank of Colonel, and also in the positions of Acting Commander, Deputy Commander, and
Chief of Staff of the U.S. Army Reserve Command, in Fort Buchanan, Puerto Rico. Despite
the fact that he served in the U.S. Army for 30 years, he has never had the right, as a resident
of Puerto Rico, to cast a vote for his Commander-in-Chief, the President of the United States.
This case represents an important part of the abiding quest of petitioner Rosselló, Mr.
Berríos-Amadeo, and the other members of petitioner Committee to achieve equality for the
U.S. citizens of Puerto Rico within their own nation. To aid the Commission in its
consideration of the weighty matters at issue in this case, in what follows:
1. in § III, we briefly address some preliminary matters that the

Commission should consider before delving into the substance of
petitioners’ claims, the main two being the recent hurricane that has
15
Puerto Rico Law No. 30-2017 (June 5, 2017), see Exhibit 1.
5
devastated much of the island and the massive and continuing
population decline that Puerto Rico has and is still experiencing and
that has necessitated amending petitioners’ caption in this case to
reference approximately three-and-a-half million citizens instead of
the approximately four million who petitioners had referenced in their
original filings;
2. in § IV, we briefly describe for the Commission’s benefit the

procedural background of this case, from the filing of the petition on
October 17, 2006 up to the filing today, October 3, 2017—almost 11
years to the day of their first filing—of petitioners’ submission on the
merits;
3. in § V, we proceed to a brief exposition of the historical background

that has brought the U.S. citizens of Puerto Rico to this juncture, from
Puerto Rico’s “discovery” and Spanish rule, to U.S. occupation
starting in 1898, to Puerto Rico’s territorial status for the past 119
years, which has and is still depriving them of voting rights at the
national level, despite their otherwise enjoyment of American
citizenship for more than 100 years, to the establishment today by
Congress of a Fiscal Control Board—made up of members appointed
by the President of the United States and the U.S. Congress, which the
U.S. citizens of Puerto Rico have no domestic legal right to elect—
with vast powers over the daily lives of each and every one of those
American citizens in Puerto Rico;
4. in § VI, we review the constitutional framework surrounding voting

rights at the federal level in the United States, followed by an
exposition of the lack of voting rights for U.S. citizens in the
territories, focusing specifically on Puerto Rico, including a review of
the extremely limited parliamentary rights of the Resident
Commissioner from Puerto Rico in Congress;
5. in § VII, we review the applicable international legal standards,

focusing on Articles II, XVII, and XX of the American Declaration,
all applicable legal precedent, and the legal tests petitioners must meet
in order to make out the claims that they are asserting;
6. in § VIII, we apply those legal tests to the facts in Puerto Rico,

meeting each and every element and establishing the actual violations
to petitioners’ fundamental rights to vote and to participate in
government, to equal treatment under the law, and to juridical
personality and basic civil rights;
7. in § IX, we describe the next steps petitioners believe the Commission

should take in the adjudication of this case, including granting
petitioners a hearing and conducting an on-site investigation in Puerto
Rico; and
6
8. in § X, we conclude by reiterating petitioners’ position and restating
the relief we have requested.
III. PRELIMINARY MATTERS
Before addressing the full merits of their claim, there are three preliminary matters that
petitioners wish to address with the Commission, one urgent, a second one quite significant,
and a third one admittedly minor but nevertheless appropriate to raise now as well. We
address them briefly in turn.
First, the Commission would be aware that early on September 20th of this year (2017),
a powerful Category 4 hurricane with 150 mph winds made direct landfall on Puerto Rico,
following a path of destruction that devastated the U.S. Virgin Islands and several Caribbean
nations and other territories. What has happened in Puerto Rico is catastrophic. Experts
believe the death toll could reach into the hundreds,16 but that will not become clear until
some normalcy is restored. As of the filing of this brief, today, October 3, 2017, two weeks
later, 8,800 remain in shelters, 95% of the island still has no electricity, and more than half
have no running water. Authorities believe power will be out for months in some places.17
Hospitals have had to turn away patients, and there are reports of people dying because of
lack of diesel fuel at the hospitals that could have kept the generators running to maintain life-
support systems. Thankfully, 46 of the 48 dialysis centers in the island are, as of the filing of
this brief, now operating using diesel-fuel generators. Chains of supply for water, food, and
fuel are still disrupted. Thirty-five percent of gas stations are still closed. Cellphone towers
were knocked out (approximately 1,360 out of 1,600 in the island), and communication
remains difficult. Puerto Rico’s agriculture has been decimated; so, obviously, has the
16
See What Every American Needs to Know About Puerto Rico’s Hurricane Disaster, Vox (September
28, 2017), at https://www.vox.com/science-and-health/2017/9/26/16365994/hurricane-maria-2017-puerto-rico-
san-juan-humanitarian-disaster-electricty-fuel-flights-facts.
17
See https://www.nytimes.com/2017/10/01/us/puerto-rico-ricardo-rossello-storm-
recovery.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=rank&
module=package&version=highlights&contentPlacement=2&pgtype=sectionfront.
7
tourism industry. Moody’s Analytics estimates that the damage could be as high as $95
billion, which represents almost an entire year’s economic output for Puerto Rico.18 This is
all happening at the same time the island faces the largest bankruptcy in U.S. history, with
more than $70 billion in debt and, as discussed later in these submissions, under the
management and supervision of a federally appointed Fiscal Control Board.19
The federal government has been slow to respond to this unprecedented situation.
Unfortunately, still today, after 119 years as a territory of the United States and more than 100
years as citizens, only 54% of Americans, according to a recent New York Times poll,20 even
know that Puerto Ricans are U.S. citizens. Some publications have now begun to refer to
Puerto Ricans as “the forgotten Americans.”21 That is not far from the truth. No one can
seriously doubt that if Puerto Ricans in the island had the right to vote for President, Vice
President, Representatives, and Senators, their voices would have been heard sooner (perhaps
they could have even had in place the personnel and resources necessary before the storm hit)
and the government would have been under pressure to react more quickly.
Puerto Ricans hope that Congress will take up this month of October 2017 a hurricane
relief package for the island.22 Whether it will be sufficient or not, time will tell. But what is
important now for the purpose of these submissions is for this Commission to be fully aware
that the U.S. citizens of Puerto Rico will not have any direct say whatsoever in Congress as to
18
See http://money.cnn.com/2017/09/28/news/economy/puerto-rico-hurricane-maria-damage-estimate/
index.html.
19
See, infra, pp. 72-78.
20
See Nearly Half of Americans Don’t Know Puerto Ricans Are Fellow Citizens, The Upshot, The New
York Times, September 26, 2017, at https://www.nytimes.com/2017/09/26/upshot/nearly-half-of-americans-dont-
know-people-in-puerto-ricoans-are-fellow-citizens.html; see also same at https://morningconsult.com/.
21
See, e.g., The Editors: We Need to Rally Around the Forgotten Americans of Puerto Rico, American:
The Jesuit Review, September 25, 2017, at https://www.americamagazine.org/politics-society/2017/09/25/
editors-we-need-rally-around-forgotten-americans-puerto-rico; see also The Forgotten Americans: Why Did
U.S. media Ignore U.S. Virgin Islands Devastated by Irma, Democracy Now, September 15, 2017, at
https://www.democracynow.org/2017/9/15/the_forgotten_americans_why_did_us.
22
See http://www.politico.com/story/2017/09/26/trump-us-funding-puerto-rico-aid-243166.
8
what that package will look like. In fact, as discussed later throughout these submissions,
Puerto Rico has never had and still does not have any real say on any decision Congress
makes.
On September 12, 2017, even before this hurricane hit Puerto Rico and following this
season’s previous hurricanes, this Commission issued a press release expressing its deepest
solidarity with the people affected by the recent natural disasters and calling on the States
affected and the international community to take steps to address the situation.23 That was the
right thing for this Commission to do, and was much appreciated by petitioners and many
others. But this Commission should also consider now what it, itself, can do, in addition to
issuing sympathetic press releases, to—in the Commission’s own words—“address the
situation of those affected.”24
The most significant thing this Commission can do to address the situation of those
affected in Puerto Rico is to rule on the merits of their claims as quickly as possible by
recognizing that the U.S. citizens of Puerto Rico have, under international human-rights
law, the right to vote for and to participate in their own federal government, the right to the
same treatment of all other U.S. citizens in the 50 States and the District of Columbia, and
the right to be recognized as citizens deserving of those rights, which are (after all) among
the most basic of civil rights. Ruling as quickly as possible may afford the United States an
opportunity to remedy this situation in time for these U.S. citizens of Puerto Rico to vote in
the next Congressional elections in 2018, and then in the next Presidential elections in 2020.
Second, Puerto Rico’s most recent natural disaster will only exacerbate the huge
problem it has been experiencing for the past decade, and that is the massive exodus of its
23
See IACHR Expresses Solidarity with People Affected by Earthquake and Hurricanes in Countries of
the Region and Urges States and the International Community to Take Steps to Address the Situation of Those
Affected, Inter-American Commission on Human Rights, Press Release dated September 12, 2017, at
http://www.oas.org/en/iachr/media_center/PReleases/2017/139.asp.
24
Id.
9
population to the mainland. When petitioners first filed their case with the Commission in
October 2006 (almost exactly 11 years ago), the population of Puerto Rico stood at
approximately 3,912,054, according to the then most recent survey conducted by the U.S.
Census Bureau.25 That is why petitioners captioned their case to have been brought on behalf
of almost four million U.S. citizens. Today, however—or, more accurately, as of its last
estimate in 2016—, the U.S. Census Bureau estimates that the population stands at
approximately 3,411,307.26 More dramatically still, the U.S. Census Bureau projects the
population of Puerto Rico will fall below three million by 2025 and to just over two million
by 2050.27 The main reason is the outmigration to the mainland United States as a result of
the deteriorating economic conditions on the island.
In a very real sense, not only have these Puerto Ricans secured for themselves the
possibility of better economic futures by relocating to the mainland, but they have also bought
with their one-way tickets out of Puerto Rico political equality for themselves within their
own nation, as they immediately acquire full political rights to vote for President, Vice
President, Representatives, and Senators upon establishing residence in one of the 50 States.
As a result of this historic depopulation, petitioners have taken the liberty to restyle their
caption by referring to the most recent figures of close to three-and-a-half million U.S.
citizens, though (as discussed) the population is still expected to decrease significantly.
Third, and finally, on May 30, 2017, petitioners’ counsel wrote to the Commission
asking, among other things, that the Commission amend its Report on Admissibility28 to
25
Petition at 6, n. 15.
26
See https://www.census.gov/quickfacts/PR.
27
See https://www.census.gov/population/international/data/idb/region.php?N= %20Results%20&T=
13&A=separate&RT=0&Y=2026,2027,2028,2029,2030,2031,2032,2033,2034,2035,2036,2037,2038,2039,2040,
2041,2042,2043,2044,2045,2046,2047,2048,2049,2050&R=-1&C=RQ.
28
Petition P-1105-06, Report No. 17/17 (January 27, 2017).
10
reflect the correct spelling of the lead petitioner in this case, Pedro Rosselló. Though a minor
issue, obviously, we hope that the Commission will, in time, be able to make that correction.
IV. PROCEDURAL BACKGROUND

As the Commission is aware, petitioners filed their petition on October 17, 2006. On
April 23, 2009, this petition was transmitted to the government of the United States, whose
response was required within two months. Following the Commission’s refusal to grant a
second extension to file that response, the United States submitted its response on June 28,
2010. This was received by petitioners on July 14, 2010, more than a year after it was due.
Petitioners promptly replied to the United States’ response on August 16, 2010, with the
Commission requesting a response from the United States within a month. Eight months later,
the United States presented its observations on April 14, 2011 to which petitioners responded
on June 1, 2011. The Commission approved its Report on Admissibility on January 27, 2017,
and provided this report to petitioners in a communication dated March 3, 2017 and received on
March 20, 2017.
As the Commission is also aware, a report on admissibility will only be approved if the
petition meets the admissibility requirements set forth in Articles 46 of the American
Convention on Human Rights,29 in accordance with the procedure established in Articles 30 to
36 of this Commission’s Rules of Procedure.30 According to Article 46 of the American
Convention, the petition must meet the following requirements:
1. The remedies under domestic law must have been pursued and
exhausted in accordance with generally recognized principles of
international law.31 The Commission excused petitioners from
this requirement pursuant to Article 31.2(a) of the Commission’s
Rules of Procedure, which states that an exemption from this
requirement exists when “the domestic legislation of the State
29
“American Convention.”
30
“Commission’s Rules of Procedure.”
31
American Convention, Art 46(2)(a).
11
concerned does not afford due process of law for protection of
the right or rights that have allegedly been violated.”32
Petitioners submitted that the current domestic legislation of the
United States does not afford due process of law to bring about
the right to vote for President, Vice President, and voting
representation in Congress; and that multiple attempts to seek
judicial redress had been undertaken with futile results. The
United States did not challenge this allegation regarding the
exhaustion of domestic remedies. The Commission was
therefore satisfied that the claims of petitioners regarding the
right to vote would have no reasonable prospect of success
through further domestic proceedings.
2. The petition must be lodged within a period of six months from

the date on which the party alleging violation of his rights was
notified of the exhaustion of domestic remedies.33 The
Commission was satisfied that the United States’ alleged
violations are of an ongoing nature as they began when Puerto
Rican residents became U.S. citizens and have allegedly
continued during the period in which the United States has been
a Member of the OAS and up to the date of the Report on
Admissibility. Therefore, since the petition was presented on
October 17, 2006, the Commission concluded that the claims
were lodged within a reasonable period of time.
3. The subject of the petition or communication is not pending in

another international proceeding for settlement.34 The
Commission found no duplication of procedures nor any
international res judicata in the petition.
4. The petition contains the name, nationality, profession,

domicile, and signature of the person or persons or of the legal
representative of the entity lodging the petition.35 The
Commission found that the petition also met this requirement.
In light of the substantial work required for a complete and thorough submission,
petitioners informed the Commission that their Observations would be filed on October 3,
2017.
In support of this petition, on September 7, 2017, petitioners requested a meeting with
the Executive Secretary of the Commission. This meeting request was accepted by the
32
Commission’s Rules of Procedure, Art. 31.2(a).
33
American Convention, Art 46(2)(b).
34
Id. at Art 46(2)(c).
12
Commission on September 13, 2017 and is confirmed for October 9, 2017 at the
Commission’s headquarters in Washington D.C. At the meeting on October 9, 2017,
petitioners and, depending on the currently ongoing hurricane-recovery efforts, several
representatives from the government of Puerto Rico, will personally invite the Commission to
invoke Article 39 of the Commission’s Rules of Procedure in order to carry out, at its earliest
convenience, an on-site investigation in Puerto Rico.
In petitioners’ counsel’s communication dated May 30, 2017, it was noted that some
of the dates recorded in section II of the Report on Admissibility on “Procedure before the
IACHR” do not match petitioners’ records and there were several other submissions and
numerous communications not reflected. In order to provide a corrected and fuller picture of
the procedural background of this case, petitioners present below a detailed chronology. This
chronology does not include the numerous face-to-face meetings held between the
Commission, petitioners, and petitioners’ counsel in attempts to progress this case.
Item Date Event

No.
1. October 17, 2006 Petitioners file the petition.
2. 2007 Puerto Rico House of Representatives passes resolution in

support of the petition.
3. July 14, 2007 League of United Latin American Citizens passes

resolution in support of the petition.

resolution to continue support of the petition.

resolution to continue support of the petition.
6. April 23, 2009 Commission transmits the petition to the United States.
[although the Commission
35
Id. at Art 46(2)(d).
13
states this was done on
April 29, 2009]
7. May 13, 2009 Petitioners’ counsel provides additional information to

the Commission regarding the petition.
8. June 2, 2009 The Commission acknowledges receipt of petitioners’

counsel’s communication dated May 13, 2009, providing
additional information regarding the petition.
9. June 24, 2009 Petitioners’ counsel provides additional information to

the Commission regarding the petition.
10. The Commission asks the United States to present its

response to the petition.
11. July 1, 2009 The Commission acknowledges receipt of petitioners’

counsel’s communication dated June 24, 2009, providing
additional information regarding the petition and
confirms that it has requested that the United States
present its response to the petition.
12. July 8, 2009 The Commission informs petitioners of the grant of an

extension of time (until July 23, 2009) to the United
States to respond to the petition.
13. September 8, 2009 The United States informs the Commission it will submit
[Communication dated its response to the petition when its review is complete.
September 8, 2009 and
received by the
Commission on September
14, 2009]
14. The Commission forwards to petitioners’ counsel the

letter dated September 8, 2009, from the United States in
which it informs the Commission it will submit its
September 17, 2009 response to the petition when its review is complete.
15. The Commission denies the United States’ request for an

additional extension of time to file its response to the
petition.
16. June 28, 2010 The Commission receives the United States’ first
substantive response to the petition.
17. July 12, 2010 The Commission forwards the first substantive response
[Communication dated of the United States to petitioners’ counsel.
July 12, 2010 and
transmitted by the
Commission via fax on
14
July 14, 2010]
18. August 16, 2010 Petitioners file Observations to the Response of the
United States and Renewal of Requests for Precautionary
Measures and a Hearing.
19. August 19, 2010 The Commission acknowledges receipt of the

Observations to the Response of the United States and
Renewal of Requests for Precautionary Measures and a
Hearing from petitioners dated August 16, 2010.
20. September 7, 2010 The Commission denies petitioners’ request for

[Communication dated precautionary measures contained in the communication
September 7, 2010 and dated August 16, 2010.
transmitted by the
Commission via fax on
September 9, 2010].
21. September 9, 2010 Petitioners’ counsel objects to the Commission’s decision

to deny precautionary measures in the communication
dated September 7, 2010, and in light of that decision,
requests expedited consideration of the petition.
22. November 3, 2010 Petitioners’ counsel informs the Commission of, among
[Communication dated other things, the Congressional elections in which
November 3, 2010 and petitioners have no right to participate.
received by the
Commission on November
4, 2010]
23. November 11, 2010 The Commission acknowledges receipt of petitioners’

counsel’s communication regarding the Congressional
elections in which petitioners have no right to participate
dated November 3, 2010.
24. April 14, 2011 The United States files its Observations to the petition.
[Communication dated
April 14, 2011 and
received by the
Commission on April 15,
2011].
25. April 27, 2011 The Commission forwards the United States’
[Communication dated Observations to the petition to petitioners’ counsel.
April 27, 2011 and
received by Petitioners’
counsel on April 29,
2011].
15
26. June 1, 2011 Petitioners file Reply to the United States’ Observations
to the petition.
27. June 9, 2011 Puerto Rico Senate passes resolution in support of the
petition.
28. June 12, 2011 Petitioners’ counsel forwards the Puerto Rico Senate
resolution in support of the petition to the Commission.
29. June 21, 2011 The Commission acknowledges receipt of the

communication from petitioners’ counsel dated June 12,
2011, enclosing the Puerto Rico Senate resolution in
30. July 4, 2011 Petitioners’ counsel requests a hearing during the

Commission’s 143rd period of sessions and working
meetings, forwards the translation of the Puerto Rico
Senate resolution in support of the petition, and requests
acknowledgement of petitioners’ Reply to the United
States’ Observations to the petition dated June 1, 2011.

Reply to the United States’ Observations to the petition
dated June 1, 2011.

dated counsel’s communication dated July 4, 2011 which
[Communication
July 8, 2011 and received requested, among rdother things, a hearing during the
by Petitioners’ counsel on Commission’s 143 period of sessions and working
meetings.
July 22, 2011]
33. July 22, 2011 The Commission replies to petitioners’ counsel’s

telephone call of July 20, 2011, acknowledging receipt of
petitioners’ Reply to the United States’ Observations to
the petition dated “June 1, 2010” [SIC; meaning June 1,
2011], and stating that the Commission acknowledged
receipt of such Observations on “July 7, 2011” [SIC;
meaning July 8, 2011].
34. August 19, 2011 The Puerto Rico House of Representatives presents
amicus brief in support of the petition.
35. August 23, 2011 Center for Voting and Democracy (FairVote) presents
amicus brief in support of the petition.
36. The Commission informs petitioners of the amicus brief

filed by the Center for Voting and Democracy (FairVote)
16
in support of the petition.
September 12, 2011
37. The Commission informs petitioners of the amicus brief
filed by the Puerto Rico House of Representatives in
38. September 27, 2011 The Commission denies petitioners’ request dated July 4,
2011 for a hearing during the Commission’s 143rd period
of sessions and working meetings.
39. December 9, 2012 In a letter addressed to the Commission’s Executive

Secretary, petitioners’ counsel requests that the
Commission admit the petition.
40. January 7, 2013 Petitioners’ counsel requests acknowledgment from the

Commission of the communication dated December 9,
2012 requesting that the petition be admitted.
41. January 8, 2013 The Commission acknowledges receipt of petitioners’

counsel’s communication dated December 9, 2012 in
which petitioners requested that the petition be admitted.
42. January 9, 2013 Petitioners’ counsel requests for a hearing during the
Commission’s 147th period of sessions and working
meetings.
43. February 8, 2013 The Commission acknowledges receipt of petitioners’

counsel’s communication dated January 9, 2013
requesting a hearing during the Commission’s 147th
period of sessions and working meetings.
44. February 21, 2013 The Commission denies petitioners’ request for a hearing
during its 147th period of sessions and working meetings.
45. June 8, 2013 Petitioners’ counsel requests updates on the status of the
petition from the Commission.
46. June 25, 2013 Petitioners’ counsel requests updates on the status of the
petition from the Commission.
47. July 26, 2013 The Commission informs petitioners’ counsel that the
petition remains in the stage of analysis of admissibility.
48. February 11, 2014 Petitioners’ counsel urges the Commission to admit the
petition at its 150th period of sessions and working
meetings.
49. February 25, 2014 Petitioners’ counsel requests acknowledgement of the

communication dated February 11, 2014 in which it urged
17
the Commission to admit the petition at its 150th period of
sessions and working meetings.
50. April 11, 2014 The Commission acknowledges receipt of petitioners’

[Communication dated counsel’s communication dated February 11, 2014
April 11, 2014 and sent by requesting that the Commission admit the petition at its
th
150 period of sessions and working meetings.
the Commission as an
attachment to an email
communication dated
April 24, 2014]
51. September 16, 2016 Petitioners’ counsel transmits a memorandum informing

the Commission of two relevant and recent United States
Supreme Court cases and the passage of the Puerto Rico
Oversight, Management, and Economic Stability Act
(PROMESA).
52. November 23, 2016 Petitioners’ counsel urges the Commission to admit the
petition at its 159th period of sessions and working
meetings.
53. December 8, 2016 Petitioners’ counsel requests confirmation that the

petition was heard at the Commission’s 159th period of
sessions and working meetings and, if not, urges the
Commission to admit the petition at its 160th period of
sessions and working meetings.
54. December 11, 2016 The Commission confirms that the petition is scheduled
for a draft report by January 2017.
55. January 9, 2017 Petitioners’ counsel’s request confirmation that the draft
report will be taken up at the January 2017 working
meetings.
56. January 20, 2017 The Commission confirms that efforts are underway to
ensure the petition is heard during the January 2017
working meetings.
57. January 27, 2017 The Commission approves the Report on Admissibility.
58. February 28, 2017 The Commission confirms that the petition was
considered at the January 2017 working meetings and that
the Report on Admissibility will be provided shortly.
59. March 3, 2017 The Commission transmits the Report on Admissibility

and reminds petitioner of the availability of a friendly
settlement.
60. April 6, 2017 The Puerto Rico Senate passes a concurrent resolution
authorizing the President of the Senate and the Speaker of
18
the House to invite the Commission to conduct an on-site
investigation in Puerto Rico.
61. Petitioners’ counsel responds to the Commission’s

communication dated March 3, 2017, and attaches the
concurrent resolution authorizing the President of the
Senate and the Speaker of the House to invite the
May 30, 2017 Commission to conduct an on-site investigation.
62. Petitioners request an extension to file their Observations

on the merits of their petition until October 3, 2017 and
confirm their willingness to initiate a friendly settlement.
63. The Commission acknowledges receipt of petitioners’

communication dated May 30, 2017, stating petitioners’
July 6, 2017
willingness to pursue a friendly settlement.
64. The Commission invites the United States to pursue a

friendly settlement.
65. September 7, 2017 Petitioners’ counsel requests a meeting with the full
Commission.
66. September 13, 2017 The Commission acknowledges receipt of petitioners’

counsel’s communication dated September 7, 2017, and
accepts the meeting request.
67. September 14, 2017 Petitioners’ counsel acknowledges the Commission’s

communication dated September 13, 2017, and confirms
the meeting at the Commission’s headquarters on October
9, 2017.
68. October 3, 2017 Petitioners file their Observations on the merits of their
petition.
V. HISTORICAL BACKGROUND
These Observations on the merits are not the time or place for a detailed lesson on the
expansionist history of the United States, which of course began in the 17th century as the
original 13 colonies on the east coast of North America,36 that eventually declared, fought for,
and won independence from Great Britain, and ended, through the relocation of many native
populations, through treaties, and by force of wars, as a continental nation expanding east to
19
west, from the Atlantic to the Pacific, and now encompassing 50 states, including the two
non-contiguous states of Alaska and Hawaii, the District of Columbia, five organized
territories, the largest of which is Puerto Rico, and eleven other minor territories.37 This brief
is also not the time or place for a detailed exposition of the colonial history of Puerto Rico.
Those two histories, though fascinating, are readily available elsewhere and go well beyond
what the Commission needs to consider in order to answer the main question posed by
petitioners in this case. Nevertheless, the Commission would benefit from a basic
understanding of how it is that we have arrived at this point in time when, today, already well
into the 21st century, three-and-a-half million Americans are still disenfranchised at the
national level in their own country. The basic story can be summarized as follows.
A. From 1493 to 1898
In 1493, during his second voyage of discovery, Christopher Columbus landed on the
island38 that the indigenous Taíno people called “Borikén” and that he first named “San Juan
Bautista” but later became, through a cartographical accident that switched the names of the
island and its capital, “Puerto Rico.”
Not long after, the natives were mostly decimated in direct killings during the initial
years of rebellion and resistance, from European diseases (especially smallpox), and from
hard labor, and those who survived eventually mixed with the Spanish arrivals and later
36
Georgia, the last of the 13, was actually founded in the 18th century (1732).
37
In addition to Puerto Rico, U.S. territories include Guam, American Samoa, the Virgin Islands, and the
Northern Mariana Islands. The United States also exercises supremacy and dominion over 11 small
“unorganized” island territories: three in the Caribbean (Bajo Nuevo, Navassa Island, and Serranilla Bank) and
eight in the Pacific (Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll,
Palmyra Atoll, and Wake Atoll). See Thornburgh, Dick, Puerto Rico’s Future, A Time to Decide, p. 31, Center
for Strategic and International Studies, Washington, D.C. (2007); but see the information provided by the Office
of Insular Affairs of the Department of the Interior, which only identifies 13 territories altogether:
http://www.doi.gov/oia/index.html.
38
Puerto Rico actually consists of 143 islands and numerous cays and islets, the main islands consisting
of the mainland of Puerto Rico proper, the islands of Vieques and Culebra, and the Isla Mona. See
https://islandsofpuertorico.com/islands/.
20
“criollos” (those born in the island of Spanish descent), and thereafter with imported African
slaves.
Puerto Rico effectively remained a Spanish colony for 405 years, i.e., until 1898. It is a
matter of historical fact that, during the 19th century, Puerto Rico had differing, though by no
means democratic, levels of representation before the Spanish Courts. In 1897, however, and
to ease an active insurrection in Cuba and some frictions in Puerto Rico, Spain declared both
of these territories “Overseas Provinces”39 and, for the first time, extended universal suffrage
to their male citizens above 25 years old, including the right to send Deputies and Senators to
the Spanish Courts.
In Puerto Rico, those Deputies and Senators were elected in March 1898 but never
actually made it to Spain. Following the explosion of the battleship Maine in Havana harbor
in February of that year, the U.S. Congress declared war on Spain on April 25, 1898. In May,
the U.S. Navy began bombarding San Juan. The new government of Puerto Rico did not
actually begin functioning until July 21, 1898. Four days later, on July 25th, U.S. infantry
soldiers disembarked in the south of Puerto Rico. Several battles from forces loyal to the
Spanish Crown took place in several towns throughout the island as the U.S. forces
approached the capital. Although many (if not most) joyfully welcomed the Americans and
the invading forces encountered minimum resistance, the campaign for Puerto Rico lasted 19
days. An armistice was agreed on August 12, 1898. On September 29, 1898, Spanish
authorities in Puerto Rico announced that Spain would officially cede Puerto Rico to the
United States. Then, on December 10, 1898, the United States and Spain signed the Treaty of
39
The Autonomic Charters of November 25, 1897, see http://www.nytimes.com/books/first/m/monge-
puertorico.html?mcubz=3.
21
Paris, officially ending the Spanish-American War and beginning a new chapter in the history
of Puerto Rico.40
B. The Treaty of Paris
The Treaty of Paris41 granted the United States temporary control over Cuba and ceded
to the United States ownership of Puerto Rico, Guam, and (for a handsome payment to Spain)
the Philippines. For present purposes, the most significant part of the Treaty of Paris is that it
explicitly provided that “[t]he civil and political status of the native inhabitants of the
territories hereby ceded to the United Sates [including Puerto Rico] shall be determined by the
Congress.”42
Since then, as will be discussed throughout these submissions, that has not changed:
Congress still has that full authority and responsibility over Puerto Rico and its inhabitants,43
which it first assumed in the Treaty of Paris. Eventually, Cuba and the Philippines became
independent nation-states;44 Guam (with today approximately 167,000 inhabitants45) and
Puerto Rico (as seen, with its current approximate population of three-and-a-half million)
have remained U.S. territories. Needless to say, Puerto Rico remains the oldest, largest, and
most populous United States territory.
C. The Territorial Clause
Importantly, petitioners need to mention here, early in this brief, that the United States
Constitution contains a provision, aptly known as the “Territory Clause” or the “Territorial
40
See Scarano, Francisco A., Puerto Rico: Cinco Siglos de Historia (McGraw-Hill, 2d ed., 2000). The
U.S. Senate ratified the Treaty of Paris on February 6, 1899. Congress passed an act to carry out is obligations
under the Treaty on March 2, 1899. The ratifications were exchanged and the treaty finally proclaimed on April
11, 1899.
41
See Exhibit 2.
42
Treaty of Paris, Art. IX (emphasis added).
43
And also over Guam and its inhabitants. They gained U.S. citizenship in 1952.
44
Cuba gained formal independence in 1902, see https://history.state.gov/countries/cuba. The United
States granted the Philippines independence in 1946, see https://www.loc.gov/rr/frd/cs/profiles/Philippines.pdf.
22
Clause,” that has provided Congress the legal authority to acquire, hold, administer, and
dispose of territories and other possessions in the 229 years since its ratification46119 years
(i.e., more than half of the nation’s history) during which Puerto Rico has been part of the
United States. Specifically, the Territorial Clause provides: “The Congress shall have Power
to dispose of and make all needful Rules and Regulations respecting the Territory or other
Property belonging to the United States. . . .”47 Other than the authority that the U.S.
Constitution gives the Senate to advise and consent to treaties entered into by the President of
the United States,48 the Territorial Clause of the U.S. Constitution is the sole legal authority
that the United States had (and still has) to have assumed, in the first place, in the Treaty of
Paris, and to have bound Congress to “determine”49 “[t]he civil and political status of the
native inhabitants of”50 Puerto Rico.
It is recognized that, under that Territorial Clause—specifically the language that grants
Congress the power to make “all needful Rules and Regulations” 51—, the U.S. Congress has
“plenary authority” over its territories.52 In this context, “plenary” means full, complete,
unrestricted, and absolute, as opposed to partial, incomplete, restricted, or limited.53
45
The estimated population of Guam is 167,358. See https://www.cia.gov/library/publications/the-world-
factbook/geos/gq.html.
46
The U.S. Constitution was ratified on June 21, 1788 when the ninth state, New Hampshire, approved
it. See U.S. Const. VII (“The Ratification of the Conventions of nine States, shall be sufficient for the
Establishment of this Constitution between the States so ratifying the Same.”).
47
U.S. Const. Art. IV, § 3, cl. 2.
48
See Id. at Art. II, § 2 (“He [the President of the United States] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . . .”).
49
Treaty of Paris, Art. IX.
50
Id.
51
U.S. Const. Art. IV, § 3, cl. 2 (emphasis added).
52
Under Art. I, § 8, cl. 3, the U.S. Constitution also gave Congress plenary authority over Native
Americans. Thus, for example, the U.S. Supreme Court has held that Congress has plenary authority to limit,
modify, and even eliminate the powers of local self-government that the tribes otherwise possess. See, e.g.,
Talton v. Mayes, 163 U.S. 376, 376 (1896); United States v. Kagama, 118 U.S. 375, 379–381 (1886); Cherokee
Nation v. Hitchcock, 187 U.S. 294, 305–307 (1902).
53
See, e.g., Garner, Bryan A., A Dictionary of Modern Legal Usage (Oxford University Press, 2nd Ed.,
2001).
23
Territories are fully subordinate to the federal government, and any law a territory makes in
the exercise of self-government may be overridden by the federal government at any time.
Indeed, the federal government may deny a territory self-government entirely and impose all
of its laws from Washington, D.C. with no input whatsoever from the people who live there.54
In actuality, the U.S. Supreme Court has established somewhat of a limit to the otherwise
unrestricted exercise of such authority, which is the rationality test.55 As long as Congress is
justified by some reason, as opposed to a compelling or heightened state interest that would
otherwise and in other contexts require strict or intermediate scrutiny by the courts, anything
that Congress wants to do, Congress essentially gets to do with its territories. And that has
been the case with Puerto Rico, as is discussed below.
D. The Foraker Act
From 1898 to 1900, Puerto Rico was under military occupation overseen by four
successive generals and was the immediate responsibility of the United States Department of
War’s Division of Insular Affairs. In 1900, however, Congress established a civilian
government when it approved the Organic Act of 1900, now known as “the Foraker Act.”56
The Foraker Act recognized “Puerto Rican” (as opposed to “Spanish”) citizenship for
the inhabitants of Puerto Rico and established a new local government in the island consisting
of: (1) a Governor; (2) an 11-member Executive Council; (3) a 35-member House of
Delegates; (4) a Supreme Court; (5) a United States (i.e., federal) district court; and (6) a
Resident Commissioner in Congress. The Governor, the Executive Council members, the
Supreme Court Justices, and the then single federal district court judge were all appointed by
the President of the United States with the advice and consent of the U.S. Senate. The 35
54
See, e.g., United States v. Sanchez, 992 F.2d 1143, 1152-53 (11th Cir. 1993) (“Congress may
unilaterally repeal the Puerto Rico Constitution . . . and replace [it] with any rules or regulations of its choice.”).
55
See, infra, pp. 25-31 (discussion of Insular Cases).
24
representatives in the House of Delegates and the Resident Commissioner were popularly
elected by the eligible and registered male citizens of Puerto Rico. Together, the Executive
Council and the House of Delegates were known as the “legislative assembly of Porto [SIC]
Rico.”57 Judges, other than the Justices of the Puerto Rico Supreme Court, were appointed by
the Governor with the advice and consent of the Executive Council. The Foraker Act further
provided for the federal appointment and remuneration of numerous other local government
officials.
While granting them a limited level of local control, the Foraker Act did not grant
Puerto Ricans U.S. citizenship nor did it grant them federal voting rights. Rather, and
significantly for our purposes, Section 14 of the Foraker Act provided that “the statutory laws
of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise
provided, shall have the same force and effect in Porto [SIC] Rico as in the United States. . .
.”58
E. “The Insular Cases”
The question as to what, if any, status the newly acquired territories and their people
would have within the United States soon reached the Supreme Court. In a series of cases
decided in 1901,59 which has become known as the Insular Cases, the Court settled two major
56
Pub. L. 56-191, 31 Stat. 77 (April 12, 1900) (after its sponsor, Ohio Senator Joseph B. Foraker), see
Exhibit 3.
57
Pub. L. 56-191, 31 Stat. 77, § 27, see Exhibit 3. In 1932, the U.S. Congress officially back-corrected
the former Anglicization of “Porto Rico” into the Spanish name “Puerto Rico.” See Malavet, Pedro A.,
America’s Colony: the Political and Cultural Conflict Between the United States and Puerto Rico, N.Y.U.
Press, p. 43, 181 n. 76 (2004).
58
The Foraker Act, Pub. L. 56-191, 31 Stat. 77, § 14 (April 12, 1900).
59
In addition to the original six, some legal scholars include under the name “Insular Cases” other cases
similarly dealing with territories decided after 1901. However, “strictly speaking[,] the Insular Cases are the
original six opinions issued concerning acquired territories as a result of the 1898 Treaty of Paris.” See
Torruella, Juan, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal, Editorial de la
Universidad de Puerto Rico (1988). These cases are: De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United
States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United States, 182 U.S.
243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); and Huus v. New York and Porto Rico Steamship Co., 182
U.S. 392 (1901).
25
issues that have not changed since then with respect to Puerto Rico: (1) unless and until
Congress otherwise provides, Puerto Rico is an “unincorporated,” as opposed to an
“incorporated,” territory of the United States; and (2) not all federal constitutional rights need
be extended to Puerto Ricans or the peoples of the other acquired territories, but only those
deemed, ultimately by the U.S. Supreme Court,60 to be fundamental. The distinction between
“incorporated” and “unincorporated” depended on whether a particular territory is or not
necessarily destined for statehood. This distinction is now one generally recognized61 to have
been wholly unsupported by anything explicitly provided for in the written text of the U.S.
Constitution and instead was one cut out of whole cloth by the U.S. Supreme Court to justify
the United States’ overseas expansion and to facilitate the administration of these new lands
and their inhabitants.62
60
Generally, the question of whether a constitutional guarantee applies to Puerto Rico is ultimately
subject to determination by the Supreme Court of the United States, see Torres v. Com. of Puerto Rico, 442 U.S.
456, 478 (1979), in the exercise of its authority “to say what the law is.” See Marbury v. Madison, 5 U.S. 137,
177 (1803).
61
See Soltero, Carlos R., The Supreme Court Should Overrule the Territorial Incorporation Doctrine and
End One Hundred Years of Judicially Condoned Colonialism, Chicago-Latino Law Review 22(1), 1-2 (2001)
(“The year 2001 is the 100th anniversary of the notorious Insular Cases in which the Supreme Court, by judicial
fiat, created the Territorial Incorporation Doctrine (‘TID’) and the status of ‘unincorporated
territory.’ According to some, the TID is as invidious a doctrine as that which the same Supreme Court
announced in Plessy v. Ferguson. The creation of this doctrine ran contrary to prior established law and has
condemned Puerto Rico to colonial status for 100 years.”); see also Boumediene v. Bush, 553 U.S. 723, 726
(2008) (“Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies’
civil-law system into an Anglo-American system, the Court adopted the doctrine of territorial incorporation,
under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in
part in unincorporated Territories.”).
62
The incorporation doctrine that the U.S. Supreme Court eventually adopted in the Insular Cases was
first proposed by Harvard Law Professor Abbott Lawrence Lowell in an article appearing in the Harvard Law
Review in 1899, one of several articles that year that explored what the United States should do with its newly
acquired possessions. See Lowell, Abbott Lawrence, The Status of Our New Posessions—A Third View, 13
Harv. L. Rev. 155, 171 (1899). Recently, just this past April 2017, the Harvard Law Review attempted to
essentially apologyze for those articles, including Professor Lowell’s. As the editors of the April 2017 edition
wrote, this is “a time this journal might rather forget.” Developments in the Law, U.S. Territories, Introduction,
130 Harv. L. Rev. 1617, 1617 (April 10, 2017); see also id. at 1626 (“While it seems unlikely that Lowell could
foresee the full legacy of his work—and in particular the longstanding ‘unincorporated’ status of Puerto Rico
and other territories later acquired—he knew he was leaving this question in the hands of the federal political
branches, in which the territories had no representation. Regardless of where one stands on the responsibility
scholars—and their publishers—have to consider the consequences of their ideas, one must acknowledge that
these ideas have consequences. And in the case of the U.S. territories, the consequences have largely been bad
ones.”).
26
Some have justifiably recognized the Insular Cases as the extension of the racial (and
racist) segregationist separate-but-equal doctrine to the citizens of the territories.63
Interestingly, the same Justice who authored the majority opinion in Plessy v. Ferguson64—
the case that established that doctrine—, Henry Billings Brown, authored what most consider
the main 5-4 opinion in the Insular Cases, one dealing with Puerto Rico: Downes v.
Bidwell.65
Most revealing for purposes of this discussion is the following quote towards the end of
Justice Brown’s majority opinion in Downes as to the authority of the United States to acquire
overseas territories and, specifically, as to the new status of Puerto Rico and its people:
Patriotic and intelligent men may differ widely as to the desirableness of

this or that acquisition, but this is solely a political question. We can only
consider this aspect of the case so far as to say that no construction of the
Constitution should be adopted which would prevent Congress from
considering each case upon its merits, unless the language of the instrument
imperatively demand it. A false step at this time might be fatal to the
development of what Chief Justice Marshall called the American empire.
Choice in some cases, the natural gravitation of small bodies towards large
ones in others, the result of a successful war in still others, may bring about
conditions which would render the annexation of distant possessions
desirable. If those possessions are inhabited by alien races, differing from
us in religion, customs, laws, methods of taxation, and modes of thought, the
administration of government and justice, accordingly to Anglo-Saxon
principles, may for a time be impossible; and the question at once arises
whether large concessions ought not be made for a time, that ultimately our
own theories may be carried out, and the blessings of a free government
under the Constitution extended to them. We decline to hold that there is
anything in the Constitution to forbid such action.66
Leaving aside the clearly racist and xenophobic statement that referred to “alien races,
differing from us [i.e., the Anglo-Saxons] . . . [even in] modes of thought”—as if Puerto
Ricans were not only culturally different but almost like beings from another galaxy—, the
63
See, e.g., Torruella, Juan, The Supreme Court and Puerto Rico: The Doctrine of Separate and
Unequal, Editorial de la Universidad de Puerto Rico (1988).
64
163 U.S. 537 (1896), rev’d Brown v. Board of Education, 347 U.S. 483 (1954).
65
182 U.S. 244 (1896), see Exhibit 4.
66
Id. at 286-287 (italics and underlining added).
27
“large concessions” that Justice Brown and the Court were willing to make, they were willing
to and did make, as he twice made clear for himself and the Court in the quoted paragraph,
only “for a time.” That time, in the case of Puerto Rico, has thus far lasted 119 years, “the
question at once [then] aris[ing]”—to borrow Justice Brown’s own language—how much
longer ought these “large concessions” be allowed to remain? This is a question that to this
day only Congress can answer.
The four-Justice dissent, on the other hand, was almost prophetic. In rejecting the
majority view, these four dissenting Justices were concerned—nay, very and we would also
say justifiably alarmed—by the implication that, “if an organized and settled province of
another sovereign [as was indeed the case for Puerto Rico] is acquired by the United States,
Congress has the power to keep it, like a disembodied shade, in an intermediate state of
ambiguous existence for an indefinite period. . . .”67 That description of Puerto Rico as a
“disembodied shade, in an intermediate state of ambiguous existence for an indefinite period,”
could not have been, as events have unfolded over 119 years, more spot-on.
The dissenters also rejected the “theory . . . that the Constitution created a government
empowered to acquire countries throughout the world, to be governed by different rules than
those obtaining in the original states and territories, and substitutes for the present system of
republican government a system of domination over distant provinces in the exercise of
unrestricted power.”68 But that again, unfortunately, remains today the law of the land.
To his historical credit, and just like he did in Plessy,69 Justice John Marshall Harlan
filed a separate dissenting opinion. While he concurred with the other four dissenting
67
Id.
68
Id. at 373.
69
See Plessy v. Ferguson , 163 U.S. 537, 163 (1896), (“In the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and neither
knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The
humblest is the peer of the most powerful. . . . The arbitrary separation of citizens on the basis of race, while
28
Justices, he felt it important to “add some observations,” as he wrote, “[i]n view . . . of the
importance of the question in this case, and of the consequences that will follow any
conclusion reached by the court. . . .”70 In Justice Harlan’s opinion, “Congress has no
existence and can exercise no authority outside of the Constitution.”71
Rejecting the “colonial system[s] . . . that exist[] under monarchical governments,”
Justice Harlan wrote: “The idea that this country may acquire territories anywhere upon the
earth, by conquest or treaty, and hold them as mere colonies or provinces,—the people
inhabiting them to enjoy only such rights as Congress chooses to accord to them,—is wholly
inconsistent with the spirit and genius, as well as with the words, of the Constitution.”72
Moreover, the “principles of natural justice inherent in [the] Anglo-Saxon character,”73
that the majority opinion had chauvinistically referred to, gave Justice Harlan little comfort.
Those who held that view should have “well remembered that Anglo-Saxons across the ocean
had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons on
this continent, and had sought, by military force, to establish a government that could at will
destroy the privileges that inhere in liberty.”74 In Justice Harlan’s judgment, “the Constitution
does not sustain any such theory of our governmental system.”75 He forcefully stated in his
dissent that, “[i]f the Constitution is in force in any territory, it is in force there for every
purpose embraced by the objects for which the government was ordained.”76 And he
they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality
before the law established by the Constitution. It cannot be justified upon any legal grounds.”).
70
Downes v. Bidwell, 182 U.S. at 376.
71
Id. at 380.
72
Id. at 381.
73
Id.
74
Id.
75
Id. at 384.
76
Id. at 385.
29
admonished the nation not to “violate the Constitution in order to serve particular interests in
our own or in foreign lands.”77
Justice Harlan “reject[ed] altogether the theory that Congress, in its discretion, can
exclude the Constitution from a domestic territory of the United States, acquired, and which
could only have been acquired, by virtue of the Constitution.”78 How Puerto Rico can
simultaneously be both “domestic” for some things and not “domestic for others,” “is more
than . . . [Justice Harlan and many more since] can understand.”79 He concluded, sorely
lamenting the Court’s newly drawn distinction between an “incorporated” and an
“unincorporated” territory, hinting politely, almost sotto voce, to the prejudices that seemed
to have motivated the majority’s decision: “I am constrained to say that this idea of
‘incorporation’ has some occult meaning which my mind does not apprehend. It is enveloped
in some mystery which I am unable to unravel.”80
It may be interesting for this Commission to learn that the second petitioner in this case,
the Unfinished Business of American Democracy Committee, belongs (as previously
mentioned) to the Harlan Group for Civil Rights, Inc., which group is named in memory of
Justice Harlan and his two dissents in Plessy and Downes.
Shamefully, the Insular Cases remain the law in the United States. To this day, Puerto
Rico is treated, in some things, like part of the United States, and yet in others it is
discriminated against as something different and separate. And to this day, not all federal
constitutional rights have been extended to Puerto Rico and the legacy of the Insular Cases
continues. If this is not second-class citizenship, that expression has no meaning. It has been
Congress’s unwillingness for the past 119 years to change that status that has frustrated Puerto
77
Id.
78
Id. at 386.
79
Id.
80
Id. at 391.
30
Rico from becoming a state equal to the other 50, which in turn is the reason under the highest
domestic law of the United States, i.e., its Constitution, as discussed later below,81 that the
U.S. citizens of Puerto Rico still today have no voting rights whatsoever at the federal level.
F. Gonzales v. Williams
In 1902, Isabel González Dávila, already a 20-year old widow, mother of one and again
pregnant, in search of the father of her unborn child, travelled on the S.S. Philadelphia from
San Juan to New York and, upon arriving there, and subsequently being transferred to Ellis
Island, was denied entry into the United States on account of her being an “alien immigrant”82
and under the then in effect Act of Congress that “excluded from admission into the United
States, . . . all idiots, insane persons, paupers, or persons likely to become a public charge,”83
this last status the ground upon which she was denied entry and detained by the Immigration
Commissioner. She challenged the detention and the matter eventually reached the U.S.
Supreme Court.
Before the U.S. Supreme Court, Mrs. González Dávila argued that she, like all other
residents of Puerto Rico, had necessarily become United States citizens upon the United
States’ acquisition of the island and the passage of the Foraker Act, and as such should be
permitted free access to and movement within the United States. The U.S. Supreme Court
disagreed that Puerto Ricans had automatically become American citizens but nevertheless
created a new category of “noncitizen nationals,” those who like Mrs. González were not
“passenger[s] from a foreign port, . . . [but instead were] passenger[s] ‘from territory or other
place’ subject to the jurisdiction of the United States.”84 That status for Puerto Ricans of
81
82
Gonzales v. Williams, 192 U.S. 1, 192 (1904), see Exhibit 5.
83
Id.
84
Id.
31
“noncitizen nationals” within the United States changed in 1917 with the passage of the Jones
Act.
G. Citizenship: The Jones Act
The Jones-Shafroth Act, now more commonly known simply as “the Jones Act,”85 was
passed by the U.S. Congress and signed by President Woodrow Wilson on March 2, 1917. It
superseded the Foraker Act and, most significantly, granted U.S. citizenship to anyone born in
Puerto Rico on or after April 25, 1898 (the day, as previously mentioned, that the United
States Congress had declared war on Spain). The Act also established a federal Bill of Rights
for the new U.S. citizens of Puerto Rico.
The Jones Act kept the office of the Governor, who the President of the United States
would continue to appoint with the advice and consent of the U.S. Senate. The Act also
created a local Senate of Puerto Rico, consisting of 19 members, and a 39-member House of
Representatives (both locally elected). Together, Senate and House, would be known as “the
[l]egislature of Porto [SIC] Rico.”86 If the Governor vetoed a law passed by the legislature,
and the legislature in turn reapproved the law by a two-thirds majority of both of its houses,
but the Governor again refused to approve it, the Governor was to send the law to the
President of the United States for his consideration, and the President of the United States
would then approve or disapprove the measure. Furthermore, “[a]ll laws enacted by the
Legislature of Porto [SIC] Rico . . . [were to be] reported to the Congress of the United States,
. . . which . . . reserve[d] the power and authority to annul the same.”87
As under the Foraker Act, under the Jones Act the Justices of the Puerto Rico Supreme
Court, as well as the then still single judge at the federal district court in Puerto Rico, were
85
Pub. L. 64-368, 39 Stat. 951 (March 2, 1917), 8 U.S.C. § 1402, see Exhibit 6 (named after its sponsors
Representative William Atkinson Jones and Senator John Shafroth).
86
Id. at § 25.
87
Id. at § 34.
32
appointed by the President of the United States with the advice and consent of the U.S.
Senate. Appeals from the federal district court of Puerto Rico were and since then have been
taken to the First Circuit Court of Appeals located in Boston, Massachusetts, and/or (as
appropriate) to the U.S. Supreme Court. The Jones Act also provided that appeals from the
Puerto Rico Supreme Court were to be taken to the First Circuit Court of Appeals and/or the
U.S. Supreme Court.
The Jones Act, like the Foraker Act before it, provided for a Resident Commissioner
elected by the eligible and properly registered male U.S. citizens of Puerto Rico, but increased
the term of the Commissioner from the two years previously provided for to four years.
While granting Puerto Ricans U.S. citizenship and somewhat extending local self-
government, the Jones Act (like, as previously discussed, its predecessor the Foraker Act) did
not grant these now new U.S. citizens of Puerto Rico any federal voting rights. Nevertheless,
and as with the Foraker Act before it, the Jones Act still explicitly provided: “[t]hat the
statutory laws of the United States not locally inapplicable, except as hereinbefore or
hereinafter otherwise provided, shall have the same force and effect in Porto [SIC] Rico as in
the United States. . . .”88
H. 1947: The Right to Elect the Governor
On August 5th, 1947, the U.S. Congress amended the Foraker Act by permitting the
duly qualified and registered U.S. citizens of Puerto Rico, who by then included women,89 to
democratically elect their own Governor.90 The qualifications for the position were
88
Id. at § 9.
89
Puerto Rican women who could read and write were locally enfranchised in 1929. In 1935, all adult
women were locally enfranchised regardless of their literacy level. See http://p-www.iwate-
pu.ac.jp/~shigaki/profile/papers/PRW.html.
90
Elective Governor Act of 1947 (also known as the Crawford-Butler Act), P.L. 80-362, (August 5,
1947) § 1, see Exhibit 7.
33
established by federal law, and they included the ability to read and write the English
language.91
Also by function of federal law, the Governor could be subject to impeachment only by
the Puerto Rico House of Representatives, with the Puerto Rico Senate having the right to
conduct the trial. The law also provided that the heads of the territorial executive departments
would henceforth be appointed by the Governor with the advice and consent of the Puerto
Rico Senate (up to that time, as previously discussed, they had been appointed by the U.S.
President with the advice and consent of the U.S. Senate).92 The Elective Governor Act
provided for the orderly succession of the Governor if the position became vacant.
The law also created the position of a Coordinator of Federal Agencies in Puerto Rico,
whose main official would be appointed by the President of the United States with the advice
and consent of the U.S. Senate. The law also granted the President of the United States the
authority to “promulgate Executive orders expressly excepting Puerto Rico from the
application of any Federal law.”93 Finally, the law provided that “[t]he rights, privileges, and
immunities of citizens of the United States shall be respected in Puerto Rico to the same
extent as though Puerto Rico were a State of the Union and subject to the provisions of
paragraph 1 of section 2 of article IV of the Constitution of the United States.”94 In all other
respects, most significantly that federal law would have “the same force and effect in Porto
[SIC] Rico as in the United States,”95 the law remained unchanged.
91
Id.
92
Id. at § 3.
93
Id. at § 6.
94
Id. at § 7, see also U.S. Const., Art. IV, § 2, ¶ 1 (“The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.”).
95
The Foraker Act, Pub. L. 56-191, 31 Stat. 77 §14 (April 12, 1900).
34
The first election for Governor took place in 1948, and Luis Muñoz Marín was elected.
He assumed the position on January 2, 1949, and held it for sixteen years.96
I. The Commonwealth
In 1950, again exercising its authority over Puerto Rico, the U.S. Congress passed and
President Harry Truman signed Public Law 600, which is now popularly known as the
“Puerto Rican Federal Relations Act.”97 The Puerto Rican Federal Relations Act granted the
U.S. citizens of Puerto Rico the right to establish, “on matters of purely local concern,”98 a
constitution for the internal administration of the territorial government.
Following a local referendum on June 4, 1951, the Constitutional Convention of Puerto
Rico was assembled and began deliberations in September of that year. Puerto Ricans
approved their constitution in a referendum held in the island in March 1952. As required by
federal law, the constitution was then presented to and for review by the U.S. President and
the U.S. Congress, which the latter amended in two respects,99 and then both approved it on
July 3, 1952.
On July 10, 1952, the Constitutional Convention of Puerto Rico reconvened and
approved a resolution accepting the conditions established by Congress, and later on
November 4th of that year, another referendum ratified the new constitution. By then, the then
Governor of Puerto Rico, Luis Muñoz Marín, had already declared on July 25, 1952 the new
constitution in effect and the new Commonwealth of Puerto Rico was born.
96
Thereafter, 11 other governors have followed him including petitioner Pedro Rosselló and, most
recently and currently in office, Ricardo Rosselló, petitioner Pedro Rosselló’s son.
97
See 64 Stat. 319 (July 3, 1950) (popularly known as “P.L. 600” (P.L. 81-600)); and 66 Stat. 327,
respectively, see Exhibit 8.
98
48 U.S.C. § 731b and House Report No. 2275.
99
Congress struck Section 20 of Article II, which had contained a provision recognizing various social
welfare rights (including entitlements to food, housing, medical care, and employment) and added text to Section
3 of Article VII of the final draft. See Pub. L. 82-447, 66 Stat. 327 (July 3, 1952) see Exhibit 9. This additional
text prohibits the restauration of the struck welfare-rights section and requires that “[a]ny amendment or revision
of this constitution . . . be consistent with . . . the Constitution of the United States, . . . the Puerto Rican federal
Relations Act and with Public Law 600. . . .”
35
“The Commonwealth of Puerto Rico” is Puerto Rico’s official name in English. Four
states in the United States also call themselves “commonwealths”: Kentucky, Massachusetts,
Pennsylvania, and Virginia. In the United States, and in English, there is no distinction
whatsoever between a “commonwealth” and a “state.” On the other hand, the name Puerto
Rico adopted for itself in Spanish is and has remained quite problematic: “Estado Libre
Asociado,” the literal translation of which is “Free Associated State.” One can say without
any hesitation whatsoever that such a name is highly misleading, for Puerto Rico is neither a
“State” of the United States, nor a “Free” or independent country, nor strictly speaking
“Associated” on any equal terms with, but instead (as seen) belongs as property and territory
under the U.S. Constitution to, the United States.
The approved Commonwealth constitution100 established the structure for constitutional
government in respect of local, internal affairs without altering Puerto Rico’s fundamental
political, social, and economic relationship with the United States and without restricting the
authority of Congress under the Territorial Clause to determine the application of federal law
to Puerto Rico, resulting in the present “Commonwealth” structure for local self-government.
Under the Commonwealth, Puerto Rico remains an unincorporated territory of the United
States and does not have the status of “free association” with the United States as that status is
defined under United States law or international practice.101
After Puerto Rico ratified its constitution in 1953, and in that same year, the United
States transmitted to the Secretary-General of the United Nations for circulation to its
Member States a formal notification that the United States would no longer transmit
information regarding Puerto Rico to the United Nations pursuant to Article 73(e) of its
100
See Exhibit 10.
101
See Res. 1541 (XV) of the UN General Assembly, Principle VII (December 15, 1960) (“Free
association should be the result of a free and voluntary choice by the peoples of the territory concerned
expressed through informed and democratic processes….”) available at https://documents-dds-
ny.un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/NR015315.pdf?OpenElement.
36
Charter concerning non-self-governing territories.102 The formal United States notification
document informed the United Nations that the cessation of information on Puerto Rico was
based on the “new constitutional arrangements” in the territory, and the United States
expressly defined the scope of the “full measure” of local self-government in Puerto Rico as
extending to matters of “internal government and administration, subject only to compliance
with applicable provisions of the Federal Constitution, the Puerto Rico Federal Relations Act
and the acts of Congress authorizing and approving the Constitution, as may be interpreted by
judicial decision.”103 Thereafter, based upon the United States’ explanation of the new status
as approved by Congress, the General Assembly of the United Nations adopted Resolution
748 (VIII) by a vote of 22 to 18 with 19 abstentions, thereby accepting—we submit
mistakenly—the United States’ determination to cease reporting to the United Nations on the
status of Puerto Rico.104 Since then, however, and most recently in 2016, the United Nations
Special Committee on Decolonization has called on the United States government to expedite
a process for self-determination in Puerto Rico.105
102
Article 73(e) of the U.N. Charter provides that:
Members 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 recognize the principle that the interests of the inhabitants of these territories
are paramount, and accept as a sacred trust the obligation to promote to the utmost, within
the system of international peace and security established by the present Charter, the well-
being of the inhabitants of these territories, and, to this end: . . . (e) to transmit regularly to
the Secretary-General for information purposes, subject to such limitation as security and
constitutional considerations may require, statistical and other information of a technical
nature relating to economic, social, and educational conditions in the territories for which
they are respectively responsible. . . .
See http://www.un.org/en/sections/un-charter/chapter-xi/index.html.
103
See Government of the United States, Memorandum to the United Nations Concerning the Cessation
of Transmission of Information under Article 73(e) of the Charter with Regard to the Commonwealth of Puerto
Rico (1953, Annex II, UN Doc A/AC 35/2 121), 8.
104
See United Nations, General Assembly, “Cessation of the Transmission of Information under Article
73e of the Charter in Respect of Puerto Rico,” in Resolutions Adopted by the General Assembly at Its Eighth
Session During the Period from 15 September to 9 December 1953 (New York: General Assembly Official
Record, 1953), Supplement No. 17 (A/2630), pp. 25-26.
105
See United Nations, Special Committee on Decolonization, “Special Committee on Decolonization
Approves Text Calling Upon United States Government to Expedite Self-Determination Process for Puerto
Rico,” press release, June 20, 2016, http://www.un.org/press/en/2016/gacol3296.doc.htm.
37
In any event, the 1953 constitution of what became the Commonwealth of Puerto Rico
established a government that, for the first time, as authorized by and always subject to the
authority of the U.S. Congress, would have authority over purely local, domestic matters.
National matters, of course, remained then and now, matters for the federal government.
As the Commission is fully aware, the United States’ national system of governance is
federal in nature, with split sovereignty between the federal government on the one hand, and
State governments on the other. The U.S. Constitution identifies the powers of Congress to
legislate on matters the original drafters believed properly belong to the national
government.106 As explicitly provided for in the Constitution, such powers include, for
example, the powers to regulate interstate commerce, to regulate immigration and emigration,
to provide for bankruptcies, to coin money and regulate the currency, to administer customs,
to establish post offices and roads, to protect patents and copyrights, to establish lower federal
courts, to legislate on matters related to “the high Seas[] and . . . the Law of Nations,”107 to
raise armies and declare war, and several others, including the power “[t]o make all Laws
which shall be necessary and proper for carrying into Execution the foregoing Powers, and all
other powers vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.”108
In the United States, the courts, especially the federal courts, draw the line between
what belongs to the federal government and what belongs to the states. What is federal and
what is state/local in the United States is an ongoing debate that usually ends up in litigation
throughout the country, with the U.S. Supreme Court sitting as the ultimate arbiter of the
boundaries between these two concurrent and often competing sovereignties. But it is fair and
accurate to say that, since the drafting of the original Constitution, particularly since the New
106
See, e.g., U.S. Const., Art. I, § 8.
107
See, e.g., id. at Art. I, § 10.
38
Deal of 1933 to 1942, the U.S. Supreme Court has viewed federal powers as vast and
expansive, and now include a great many number of other powers that the framers had not
originally envisioned—the whole apparatus of the administrative, regulatory, and welfare
state being but one although an important example.
One thing is clear, and was actually quite clear from the beginning: federal law in the
United States is above State law, as the U.S. Constitution itself explicitly provides in what is
called its “Supremacy Clause”:
[t]his Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby; any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.109
For anything else, in matters not federal, i.e., state/local matters, “[t]he powers not delegated
to the United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.”110
Except—significantly—for the right of its citizens to vote for the Congress that passes
those federal laws, and the President who executes them, Puerto Rico is quite similar to any
other State of the United States.111 Provided Congress does not otherwise legislate to the
contrary under the Territorial Clause of the U.S. Constitution—which power Congress most
recently exercised towards the end of 2016 in establishing the Fiscal Control Board through
which the federal government now also exercises effective control over all local and domestic
108
See, e.g., id. at Art. I, § 8, cl. 18.
109
See, e.g., id. at Art. VI.
110
Id. at Amend. X.
111
But see Franklin California Tax-Free Trust v. Puerto Rico, 805 F.3d 322, 344-345 (1st Cir. 2015)
(emphasis added) (citation omitted), citing United States v. Lopez Andino, 831 F.3d 1164, 1172 (1st Cir. 1987)
(Torruella, J., concurring), where, in declining to interpret a federal bankruptcy statute to avoid Tenth
Amendment concerns, the First Circuit indicated that “[t]he limits of the Tenth Amendment do not apply to
Puerto Rico, ‘which is constitutionally a territory,’ because Puerto Rico’s powers are not those reserved to the
States, but those specifically granted to it by Congress under its constitution.”
39
matters on the island and that we will discuss later below112—the Commonwealth (at least in
theory and as long as Congress allows it) can do what a State can do, and it cannot do what a
State cannot.
The Constitution of the Commonwealth of Puerto Rico explicitly pledges the Puerto
Rican people’s “loyalty to the principles of the Federal Constitution.”113 Subject to those
principles, the Commonwealth provided for: (1) a democratically elected Governor; (2) a
democratically elected Senate, normally with 27 Senators (although the current one has 30 on
account of certain minority-party protections established in the Puerto Rico constitution);114
(3) a democratically elected House with 51 Representatives;115 and (4) a nine-member
Supreme Court whose Justices are appointed by the Governor with the advice and consent of
the Puerto Rico Senate.116 As to the decisions of the Puerto Rico Supreme Court, writs may
be filed directly with the U.S. Supreme Court, just like for the other States in the Union.117
All other “state,” i.e., local, Commonwealth government officials, including the rest of the
judiciary and the administrative apparatus, are also locally appointed. Puerto Rico still also
has a federal district court, now composed of seven authorized active judges, in addition to
three senior judges, all appointed, like all other federal judges, by the President of the United
112
113
P.R. Const., Preamble.
114
Id. at Art. III (The Legislature), §§ 2 and 7.
115
Id.
116
The Puerto Rico Constitution only requires a Chief Justice and four Associate Justices, but permits the
number to be “changed only by law upon request of the Supreme Court.” See P.R. Const., Art. V (The
Judiciary), § 3. The Puerto Rico Commonwealth Judiciary Act of 2003 provided for a Chief Justice and eight
Associate Justices.
117
See 28 U.S.C. § 1258 (“Final judgments or decrees rendered by the Supreme Court of the
Commonwealth of Puerto Rico may be reviewed by the [U.S.] Supreme Court by writ of certiorari where the
validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of the
Commonwealth of Puerto Rico is drawn in question on the ground of its being repugnant to the Constitution,
treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under,
the United States.”).
40
States with the advice and consent of the U.S. Senate.118,119 The decisions of the U.S. District
Court for the District of Puerto Rico may still be appealed to the First Circuit Court of
Appeals (unless a direct right of review otherwise lies with the U.S. Supreme Court) and,
thereafter, by writ, to the U.S. Supreme Court.120
Although, under the Commonwealth arrangement, Puerto Rico did achieve some level
of local control—which, again, changed in 2016 with the federally appointed Fiscal Control
Board that, again, is discussed later below121—, it is worth repeating that the establishment of
Puerto Rico as a Commonwealth did not change the territorial arrangement. Puerto Rico is
still very much subject to the Territorial Clause of the U.S. Constitution. And, as first under
the Foraker Act and then under the Jones Act, under the Commonwealth, despite the fact that
none of its U.S. citizens have the right to vote for President, Vice President, Representatives,
or Senators: “[t]he statutory laws of the United States not locally inapplicable, except as
hereinbefore or hereinafter otherwise provided [by Congress], shall have the same force and
effect in Puerto Rico as in the United States . . . .”122
J. From 1952 to 2016
The 64-year period between 1952 and 2016—from the approval by the U.S. Congress of
the Puerto Rico Constitution to the congressionally imposed Fiscal Control Board, which we
118
On September 12, 1966, the U.S. Congress enacted a law that provided that all future appointments to
the U.S. District Court for the District of Puerto Rico would hold office “during good behaviour,” establishing
for the first time the P.R. district court as a constitutional court pursuant to Article III of the U.S. Constitution (as
opposed to merely as an Article I court). See Public Law 89-571, 80 Stat. 764; see also Examining Bd. of
Engineers Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 595 n.26 (1976) (“The reason given for
this [law] was that the Federal District Court in Puerto Rico ‘is in its jurisdiction, powers, and responsibilities the
same as the U.S. district courts in the (several) states’.”).
119
In addition to the U.S. District Court judges, the federal district court has four U.S. Magistrate Judges.
And Puerto Rico also has a United States Bankruptcy Court currently also composed of four judges. See
http://www.prb.uscourts.gov/.
120
See 28 U.S.C. § 1294 (“appeals from reviewable decisions of the district and territorial courts shall be
taken to the courts of appeals as follows: (1) from a district court of the United States to the court of appeals for
the circuit embracing the district. . . .”); see also 28 U.S.C. § 41 (“The thirteen judicial circuits of the United
States are constituted as follows: . . . First: Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island.
. . .”).
121
41
discuss later below123—is the story of the rise and decline of the Commonwealth of Puerto
Rico. On the one hand (and one could say, perhaps, “generously,” although without any input
whatsoever from any U.S. citizens of Puerto Rico in the form of a vote in the Congress that
passed such laws or for the President who signed and executes them), Congress has extended
almost every single federal law it has passed to Puerto Rico and its citizens. On the other
hand, consistent with its status as an unincorporated territory of the United States with limited
federal constitutional rights, and again without any input from any U.S. citizens of Puerto
Rico in the form of any vote in Congress or for President, Congress has also exercised its
prerogative to exclude Puerto Rico and its citizens from some—although not all—federal
programs and from full funding for yet other programs.
1. Congress Extends Most Federal Laws to Puerto Rico.
It is an almost truly impossible task to collect all of the federal laws, Presidential
Executive Orders, federal administrative rules and regulations,124 federal case law, and federal
court orders that apply to the U.S. citizens residing in the Commonwealth of Puerto Rico, all
without their consent in the form of the right to vote, as it is virtually all of them.125 In the
United States, federal statutes are compiled and codified in the Code of Laws of the United
122
48 U.S.C. § 734.
123
124
On November 30, 1992, President George H.W. Bush issued a memorandum to heads of executive
departments and agencies establishing the current administrative relationship between the Federal Government
and the Commonwealth of Puerto Rico. This memorandum directs all federal departments, agencies, and
officials to treat Puerto Rico administratively as if it were a State insofar as doing so would not disrupt federal
programs or operations. President Bush’s memorandum remains in effect until federal legislation is enacted to
alter the status of Puerto Rico in accordance with the freely expressed wishes of the people of Puerto Rico. See
Memorandum on the Commonwealth of Puerto Rico, 30 November 1992, 57 F.R. 57093.
125
In an example of a failed attempt to tally up the number of laws on a specific subject area, in 1982
the U.S. Department of Justice tried to determine the total number of criminal laws. In a project that lasted two
years, the Department compiled a list of approximately 3,000 criminal offenses. This effort, headed by Ronald
Gainer, a Justice Department official, is considered the most exhaustive attempt to count the number of federal
criminal laws. In a Wall Street Journal article about this project, he is quoted as saying that “this effort came as
part of a long and ultimately failed campaign to persuade Congress to revise the criminal code, which by the
1980s was scattered among 50 titles and 23,000 pages of federal law.” Mr. Gainer characterized this fruitless
project as follows: “[y]ou will have died and [been] resurrected three times,” and still not have an answer to this
question.” See https://blogs.loc.gov/law/2013/03/frequent-reference-question-how-many-federal-laws-are-there/.
42
States of America, most commonly known as the “United States Code,” and it alone presently
stands at 54 titles.126 (Uncodified laws are found elsewhere: in the United States Statutes at
Large.)
And we cannot even begin to describe for present purposes in any detail what we would
reasonably expect to be the millions of pages that cover the other sources of domestic federal
laws, federal orders, federal regulations, and other federal legal obligations in the United
States to which the U.S. citizens of Puerto Rico are also subject and that are published, for
example, pursuant to the Federal Register Act,127 such as Presidential Executive Orders of
general applicability, or otherwise included in the 50 titles of the Code of Federal
Regulations, or the reports, decisions, and orders of the U.S. Supreme Court, of the U.S.
Court of Appeals for the First Circuit, of the U.S. District Court for the District of Puerto
Rico, and all other reports, decisions, and orders from any other federal circuit court of
appeals and federal district courts otherwise directly applicable to, or of precedential or
persuasive value in Puerto Rico.
But suffice it here to say that, during the 64 years of the Commonwealth, between 1952
and 2016, and still through today, myriads of federal laws, rules, and regulations have been
extended to cover Puerto Rico and its citizens. This Commission can get a good, general
sense of what those federal laws and regulations relate to just by reading the names of some of
the titles of the United States Code and the Code of Federal Regulations.128 They relate to,
for example:
126
More accurately, the United States Code has 53 Titles as Title 34 has been repealed, see
https://www.gpo.gov/help/about_united_states_code.htm.
127
Pub. L. 74-220, 49 Stat. 500-503 (H.R. 6323) (July 26, 1935).
128
See http://uscode.house.gov/download/download/shtml (list of individual titles in the United States
Code); https://www.law.cornell.edu/cfr/text (list of individual titles in the U.S. Code of Federal Regulations).
43
 the general functioning  Employee Benefits
of the federal
government (the  Energy
Congress, the President,
and the Judiciary)  Protection of the
Environment
 Domestic Security
 Food and Drugs
 Agriculture
 Foreign Relations
 the treatment of Aliens
and Nationality  Foreign Trade
 the availability of  Highways

Arbitration as an
alternative source of  Hospitals and Asylums
conflict resolution
 Housing and Urban
 the Armed Forces Development
 Bankruptcy  Alcohol, Tobacco, and

Firearms
 Banks and Banking
 Labor
 Business Credit and
Assistance  Mineral Resources
 the Census  Money and Finance
 the Coast Guard  National Defense,

including the National
 Commerce Guard
 Commodity and  Navigation and

Security Exchanges Navigable Waters
 Conservation of Power  Law Enforcement

and Water Resources
 National Holidays
 Copyrights, Patents, and
Trademarks  Pay and Allowances for
those in the Uniformed
 Crimes and Criminal Services
Procedure
 Pensions
 Customs Duties
 Veterans’ Benefits
 Education
 Postal Service
44
 federal Public Buildings,  Shipping
Properties, Works, and
Management  Telecommunications
 federal Public  War and National

Contracting Defense
 Public Health  Aeronautics and Space
 Public Welfare  National Parks and

Forests
 federal Public Lands
 Wildlife and Fisheries
 Transportation
Again, most if not all of these laws and regulations apply to and in Puerto Rico, without
any of its U.S. citizens having had any right to vote in Congress for (or against) any of them
or for the President who in turn is charged—under the United States’ highest domestic law,
i.e., the U.S. Constitution—with the executive function, including the administration and
enforcement of those laws and the promulgation of those regulations.
Moreover, during the same period (1952 to 2016, and today) all federal agencies have
expanded to include operations in Puerto Rico, where they function just as they do in the 50
States.129 They include hundreds of departments, agencies, and other federal offices, with
aggregate personnel located in Puerto Rico in the thousands,130 such as, for example:
 the U.S. Department of  the U.S. Department of

Agriculture Education
 the U.S. Department of  the U.S. Department of

Defense (in all of its Energy
branches:
Army/Navy/Air  the U.S. Environmental
Force/Coast Guard) Protection Agency
 the U.S. Department of

Commerce
129
For a full listing of Federal Agencies, Departments, and Commissions, see. https://www.USA.gov.
130
As of March 2017, which are the latest available statistics published by the Office of Personnel
Management, the number of federal employees in Puerto Rico is approximately 9,571. See
https://www.fedscope.opm.gov/ibmcognos/cgi-bin/cognosisapi.dll.
45
 the U.S. Department of say—the Federal Bureau
Health and Human of Investigation, a local
Services U.S. Attorney’s Office,
federal Marshals, parole
 the U.S. Department of officers, etc.)
Homeland Security
 the U.S. Department of Labor
Housing and Urban
Development  the U.S. Department of
State
the Interior  the U.S. Department of
Transportation
 the United States
Department of Justice  the U.S. Department of
(in all of its the Treasury
subdivisions,
including—needless to  the U.S. Department of
Veterans Affairs
The point here is to illustrate for the Commissions’ benefit how virtually all federal
laws, rules, regulations, cases, and orders have been extended to and apply in Puerto Rico—
all of them without the consent of any U.S. citizen in the island that would have been granted
by the extension of the right to vote at the federal level to the people of Puerto Rico.
2. Congress Discriminates Against Its Citizens in Puerto Rico.
In the exercise of its plenary authority under the Territorial Clause of the U.S.
Constitution and—as is always the case—without a single vote from any citizen of the United
States residing there, throughout the Commonwealth’s history, Congress has excluded Puerto
Rico, one could say with impunity, from the application of certain laws, refused to extend
certain federal programs to the island, or otherwise provided less funding for those programs
than it does, on a per capita or needs-basis, to the rest of the States. “There are at least 40
federal programs that either do not include Puerto Rico at all, or pay less to Puerto Rico and
46
its residents than a State with a similar population would receive.”131 We briefly discuss a
few such instances below.
(a) Taxation
First, some brief words on taxes. With respect to Commonwealth taxes—i.e., what in
the States would be called “state” taxes—, this Commission should first recognize that the
original authority of the government of Puerto Rico to levy them on its own population is one
first delegated to Puerto Rico by the U.S. Congress itself.132 And those Commonwealth taxes,
including a sales tax, are significantly higher than the state taxes to which state residents are
exposed.133 On the other hand, the general belief on the mainland United States is that Puerto
Ricans in the island pay no federal taxes. This is incorrect.
It is true that most Puerto Ricans on the island (who are not otherwise employed there
by the federal government134) are exempt from the federal personal income tax. However,
Puerto Ricans on the island still pay other federal taxes such as, for example, federal Social
Security taxes, federal Medicare taxes, federal unemployment insurance payroll taxes, federal
import taxes, federal export taxes, and federal commodity taxes. Moreover, all residents of
Puerto Rico pay federal income taxes on any worldwide income and income earned in any of
the States. And residents who move to Puerto Rico from the States, though they immediately
lose their voting rights upon establishing residence in the Commonwealth, are nevertheless
still subject to federal estate and gift taxes.135
131
Inequality in Puerto Rico, Puerto Rico Report, June 2, 2017, at Error! Hyperlink reference not valid..
132
See P.R. Const., Art. VI, approved by the U.S. Congress on December 10, 1961 authorizing the
Commonwealth of Puerto Rico to impose and collect taxes.
133
See http://www.pr51st.com/taxes-in-puerto-rico-update/.
134
Individuals employed by the federal government or federal contractors in Puerto Rico are required to
pay federal personal income taxes.
135
For more background on tax law regarding the territories, see, e.g., Lowry, Sean, Tax Policy and U.S.
Territories: Overview and Issues for Congress, Congressional Research Service, CRS Report No. R44651
(October 7, 2016); Internal Revenue Service (IRS), Tax Guide for Individuals with Income from U.S.
Possessions (Publication 570), at https://www.irs.gov/pub/irs-pdf/p570.pdf; IRS, Tax Information for Residents
of Puerto Rico, at https://www.irs.gov/taxtopics/tc900; IRS, Individuals Living or Working in U.S.
47
Interestingly, a 2015 analysis136 based on data appearing in The Economist137 indicates
that, in fact, for the period 1990 to 2009 Puerto Rico paid more in federal taxes ($73.7 billion)
than six States did—despite the fact that it is poorer than every State in the country: more
than South Dakota ($64.7 billion); more than Alaska ($63.2 billion); more than Montana
($60.8 billion); more than Vermont ($54.7 billion); more than North Dakota ($53.9 billion);
and more than Wyoming ($51.3 billion).138
Unfortunately, the exclusion by Congress of most residents of Puerto Rico from the
federal personal income tax, regardless of the fact that—as previously mentioned—they are
still required to and do pay other federal taxes, is then often used by the very same Congress
to justify the discriminatory exclusion of Puerto Rico and its residents from certain federal
programs or the capping of benefits received under those programs. This is discussed next.
(b) No Supplemental Security Income
In 1935, when Congress first passed the Social Security Act creating, for the first time
in the United States, a basic federal right to a pension in old age and to insurance against
unemployment,139 it did not originally extend the benefits of the law to the U.S. citizens of
Puerto Rico. In 1950, however, and thanks to the efforts of politicians from districts with
strong Puerto Rican constituencies, like Rep. Vito Marcantonio from East Harlem, New
York—who on the House floor warned his colleagues that “[n]ot to do so w[ould] only mean
Territories/Possessions, at https://www.irs.gov/Individuals/International-Taxpayers/Individuals-Living-or-
Working-in-US-Possessions; Joint Committee on Taxation (JCT), Federal Tax Law and Issues Related to the
Commonwealth of Puerto Rico, JCX-132-15, September 28, 2015, p. 11, at
https://www.jct.gov/publications.html?func=startdown&id=4840; JCT, Federal Tax Law and Issues Related to
the United States Territories, JCX-41-12, May 14, 2012, at
https://www.jct.gov/publications.html?func=fileinfo&id=4427.
136
See https://www.puertoricoreport.com/puerto-rico-paid-federal-taxes-six-states/#.Wcc1SVV95EY.
137
See https://www.economist.com/blogs/dailychart/2011/08/americas-fiscal-union.
138
Also, interestingly, 17 states and the District of Columbia receive more net federal expenditures per
capita than Puerto Rico does. MacEwan, Arthur and Hexner, J. Tomas, Including Puerto Rico in the Earned
Income Tax Credit and Full Child Tax Credit, at http://www.puertoricoreport.com/wp-
content/uploads/2016/09/Including-Puerto-Rico-in-EITC-and-CTC.pdf.
48
an intensification of the discrimination that exists against Puerto Rico under the present
colonial system”140 —, Congress extended the law to also cover Puerto Rico.141 Then, in
1972, Congress again expanded the Act this time to include an entitlement to what is referred
to as “Supplemental Security Income.”142 SSI refers to the federal program that provides
stipends to low-income people (citizens and legal aliens) who are either aged 65 or older,
blind, or disabled to help them meet the costs of their basic needs for food, shelter, and
clothing. Congress refused to extend this then new entitlement to the U.S. citizens of Puerto
Rico.
Three citizens who moved to Puerto Rico from the mainland and who, upon their
relocation, immediately lost the right to receive SSI benefits challenged their exclusion as
unconstitutional. In light of the constitutional challenge, a three-judge federal district court
panel was specifically convened to adjudicate the suit. The court applied strict scrutiny in
search for a compelling governmental interest that justified such an exclusion. The court did
not find any and, accordingly, declared the law unconstitutional. A direct appeal to the U.S.
Supreme Court was granted and the U.S. Supreme Court reversed the decision.
In the 1978 per curiam decision, Califano v. Torres,143 the U.S. Supreme Court held
that the exclusion of the U.S. citizens of Puerto Rico from SSI benefits was not
unconstitutional. Refusing to apply the more exacting strict-scrutiny test applied by the lower
court, the Supreme Court instead applied a rationality test.144 The U.S. government had
139
The Social Security Act of 1935, Pub. L. 74–271, 49 Stat. 620 (August 14, 1935) (codified at 42
U.S.C. § 702).
140
Quoted in Newkirk II, Vann R., The Historical Exclusion Behind the Puerto Rico Bankruptcy Crisis,
The Atlantic (May 2, 2017), at https://www.theatlantic.com/politics/archive/2017/05/medicaid-funding-cap-
puerto-rico/524973/.
141
See H.R. 6000, the Social Security Act Amendments of 1950.
142
“SSI;” see 42 U.S.C. §§ 1381-1383f.
143
435 U.S. 1 (1978), see Exhibit 11.
144
Id. at 5.
49
advanced before the Court three reasons for the exclusion of the U.S. citizens of Puerto Rico
from receiving SSI benefits: “First, because of the unique tax status of Puerto Rico, its
residents do not contribute to the public treasury. Second, the cost of including Puerto Rico
would be extremely great. . . . Third, inclusion in the SSI program might seriously disrupt the
Puerto Rican economy.”145 The Court found those reasons sufficient enough to meet the
government’s low burden.146 Moreover, and in a footnote nonetheless, the Court agreed with
the view that “Congress has the power to treat Puerto Rico differently, and that every federal
program does not have to be extended to it.”147
To this day, the U.S. citizens of Puerto Rico who are poor, unemployed, old, blind, and
disabled, and who would otherwise meet the requirements of the law if they lived in one of
the 50 States or the District of Columbia, are excluded from the SSI program. It has been
estimated that, if Congress did not discriminate against these needy U.S. citizens of Puerto
Rico in the way that it does under the Commonwealth, approximately 320,000 of them would
receive SSI funds worth approximately $1.8 billion a year.148
145
Id. at 5, n. 7.
146
We have previously discussed why the first reason is not exactly accurate. The U.S. citizens of Puerto
Rico do contribute to the U.S. Treasury to the extent required by federal law. The second reason is similarly
invalid. The fact that the cost of including Puerto Rico within the SSI program “would be extremely great” does
not legally justify its exclusion just like the large cost of including any other state would similarly not
constitutionally justify that state’s exclusion from the same federal program. And the third reason is, to put it
generously, outrageously vague as the Court never explained how the greater benefits to already unemployed
old, blind, and disabled people would somehow disrupt the Puerto Rican economy.
147
Califano, 435 U.S. at 3, n. 4.
148
See, supra, n. 131; see also United States Government Accountability Office, Report to Congressional
Requesters, Puerto Rico: Information on How Statehood Would Potentially Affect Selected Federal Programs
and Revenue Sources, GAO-14-31, March 2014 at http://www.gao.gov/assets/670/661334.pdf; U.S. General
Accounting Office, Report to the Acting Chairman, Subcommittee on Public Assistance and Unemployment
Compensation, Committee on Ways and Means, House of Representatives, Welfare and Taxes: Extending
Benefits and Taxes to Puerto Rico, Virgin Islands, Guam, and American Samoa, September 1987, at
http://www.gao.gov/assets/150/145625.pdf.
50
(c) Less Medicare
Medicare is the federal program in the United States that provides health insurance for
the disabled and for those Americans aged 65 and older.149 It consists of four parts (“A”
through “D”), and it covers hospitalizations, physician services, prescription drugs, skilled
nursing facility care, home-health visits, and hospice care, among other services. Congress
first established it in 1965 and it did include Puerto Rico. However, unlike for the residents
of the 50 States and the District of Columbia, Congress made an exception for Puerto Rico by
excluding its residents from certain features of the program (such as, for example, excluding
beneficiaries in Puerto Rico from the otherwise available Medicare savings programs) and by
establishing a cap on its benefits. The intricacies of the program are quite technical, but
suffice it here to say that today the elderly and disabled U.S. citizens of Puerto Rico receive
approximately $1.5 billion less a year than they would otherwise be entitled to if they lived in
any of the 50 States or the District of Columbia.150
(d) Less Medicaid
Medicaid is the main federal program in the United States that provides medical and
health-related services for low-income people. Congress also established it in 1965, and also
included Puerto Rico as part of the program. However, and just like with Medicare, Congress
established a fixed dollar limit (or cap) for federal funds assigned to the implementation of the
program on the island. Unlike for States, which receive a federal matching percentage for
every dollar they spend on Medicaid enrollees, the match rate for Puerto Rico (and the other
territories) is much lower, and there is a global cap on the amount of funds they can receive
every year. As an example, in 2015 that cap was $329 million for Puerto Rico, which was
149
Medicare also provides health insurance to people with end-stage renal disease and amyotrophic
lateral sclerosis. See https://en.wikipedia.org/wiki/Medicare_(United_States).
150
See, supra, n. 131.
51
good for only 14% of the total costs of that year.151 In fact, the federal government pays less
per enrollee in Puerto Rico than it does for any of the poorest States.152 It has been estimated
that if Puerto Rico were treated like a state, it would receive $3 billion a year more in
Medicaid healthcare for the poor, covering up to 1.1 million more Puerto Ricans and saving
$358 million for the Government of Puerto Rico.153
(e) Less Health-Insurance Subsidies
The Patient Protection and Affordable Care Act,154 more commonly known in the
United States by its nickname “Obamacare,” was passed by Congress and signed by then
President Barack Obama in 2010. It represents the most significant regulatory overhaul and
expansion of the U.S. healthcare system since the passage of Medicare and Medicaid in 1965.
By regulation, however, the U.S. Department of Health and Human Services excluded from
the law’s application Puerto Rico and the other four major territories.155 Puerto Ricans (and
these other territorial residents), accordingly, were not given access to the health-insurance
exchange centers created by Obamacare in every State for citizens to search for their
insurance plans. Therefore, they are also excluded from the subsidies offered by the federal
government to aid in the acquisition of health insurance. It has been estimated that that
exclusion from those subsidies cost approximately 160,000 middle-income families in Puerto
Rico approximately $1.5 billion a year.156
151
See, supra, n.140.
152
Id.
153
See, supra, n. 131.
154
Pub. L. 111–148, 124 Stat. 782 (March 23, 2010).
155
See letter from Marilyn Tavenner, Administrator of the Centers for Medicare & Medicaid Services,
U.S. Department of Health & Human Services, dated July 16, 2014 to Commissioner Gregory R. Francis, from
the Office of the Lieutenant Governor in the U.S. Virgin Islands, at https://www.cms.gov/
CCIIO/Resources/Letters/Downloads/letter-to-Francis.pdf.
156
See, supra, n. 131.
52
(f) Less Aid to Families with Dependent Children
Congress first enacted the Aid to Families with Dependent Children’s157 program in
1935.158 (The program, which lasted until 1996, provided financial assistance to children
whose families had low or no income.) Not surprisingly, when it was first approved,
Congress excluded Puerto Rico. Fifteen years later, in 1950, Congress expanded AFDC to
include Puerto Rico. Exercising again its plenary authority over Puerto Rico, however,
Congress established in the AFDC Act a lower level of reimbursement in Puerto Rico than
was otherwise in effect in the 50 States and the District of Columbia.
In 1980, the issue was taken to the U.S. Supreme Court, which was asked whether the
lower level of reimbursement provided to Puerto Rico violated the Fifth Amendment’s equal-
protection guarantee. In another per curiam decision, Harris v. Rosario,159 the Court ruled
that it did not.
Specifically, the Court held that “Congress, which is empowered under the Territory
Clause of the Constitution, U.S. Const., Art. IV, § 3, cl. 2, to ‘make all needful Rules and
Regulations respecting the Territory . . . belonging to the United States,” may treat Puerto
Rico differently from States so long as there is a rational basis for its actions.”160 Relying on
exactly the same three reasons offered by the government two years earlier in Califano to
exclude Puerto Ricans from SSI benefits—mainly that “Puerto Rican residents do not
contribute to the federal treasury; the cost of treating Puerto Rico as a State under the statute
would be high; and greater benefits could disrupt the Puerto Rican economy”161—the Court
157
“AFDC.”
158
49 Stat. 627.
159
446 U.S. 651 (1980), see Exhibit 12.
160
Id. at 651-52.
161
Id. at 652.
53
found “no reason to depart from . . . [its] conclusion . . . that they suffice to form a rational
basis for the challenged statutory classification.”162
It might be of interest to the Commission to learn that Justice Thurgood Marshall
dissented from the per curiam opinion in Harris. In his dissent, Justice Marshall thought it
“important to remember at the outset that Puerto Ricans are United States citizens.”163 As
such, he disagreed with the view that “Congress needs only a rational basis to support less
beneficial treatment for Puerto Rico, and the citizens residing there, than is provided to the
States and citizens residing in the States.”164 Instead, Justice Marshall would have applied
“[h]ightened scrutiny.”165 (Incidentally, he also questioned the continuing validity of the
Insular Cases.166)
Taking particular issue with the majority’s view that Congress could be permitted to
provide less AFDC benefits to the otherwise eligible U.S. citizens of Puerto Rico to avoid any
“disruptions” to the Puerto Rican economy, Justice Marshall eloquently wrote:
I also object to the Court’s reliance on the effect greater benefits could have
on the Puerto Rican economy. This rationale has troubling overtones. It
suggests that programs designed to help the poor should be less fully
applied in those areas where the need may be the greatest, simply because
otherwise the relative poverty of recipients compared to other persons in the
same geographic area will somehow be upset. Similarly, reliance on the
fear of disrupting the Puerto Rican economy implies that Congress intended
to preserve or even strengthen the comparative economic position of the
States vis-a-vis Puerto Rico. Under this theory, those geographic units of
the country which have the strongest economies presumably would get the
most financial aid from the Federal Government, since those units would be
the least likely to be “disrupted.” Such an approach to a financial assistance
program is not so clearly rational as the Court suggests, and there is no
citation by the Court to any suggestion in the legislative history that
Congress had these economic concerns in mind when it passed the portion
of the AFDC program presently being challenged. Nor does appellant refer
162
Id.
163
Id. at 653.
164
Id. at 654.
165
Id.
166
Id.
54
to any evidence in the record supporting the notion that such a speculative
fear of economic disruption is warranted. In my view, it is by no means
clear that the discrimination at issue here could survive scrutiny under even
a deferential equal protection standard.167
Justice Marshall concluded his dissent in Harris by stating that the “case raise[d] the
serious issue of the relationship of Puerto Rico, and the United States citizens who reside
there, to the Constitution,”168 expressing the sentiment that he wished the Court had given
“more careful attention”169 to this matter “than it has received.”170
The AFDC program was replaced in 1996 by the Temporary Assistance for Needy
Families171 program. Unlike the 50 States and the District of Columbia, Puerto Rico is not
eligible under TANF for any supplemental grants, contingency funds, or childcare funds, and
is still subject to a discriminatory cap under TANF just like it was under the AFDC
program.172 These restrictions and the cap cheat these needy citizens of potentially hundreds
of millions of dollars every year.
(g) Fewer Food Stamps
Another example is food stamps. Food stamps have been issued in the United States
since World War II, but—as has been the pattern—the program initially excluded Puerto
Rico. In 1970, then Puerto Rico Governor Luis Ferré pleaded with then President Richard
Nixon to include Puerto Rico in the program. As a result, Congress passed and the President
signed U.S. Public Law 91-671 of January 11, 1971 and Public Law 93-86 of November 1,
1974 partially extending the Food Stamp Program to U.S. territories. “Theoretically, the
167
Id. at 655-56 (citations omitted).
168
Id. at 656.
169
Id.
170
Id.
171
“TANF;”, see Robert A. Moffitt, Means-Tested Transfer Programs in the United States (University of
Chicago Press, January 2003) 331.
172
See TANF-ACF-PI-1997-11 (Funding Guidance to Territories for TANF and Other Programs Subject
to the Funding Ceiling in Section 1108 of the Social Security Act, as Amended by the Personal Responsibility
55
program was to be phased in over time, but when the mayor of San Juan, and later also Puerto
Rico Governor Carlos Romero Barceló sued the federal government for equal access to food
stamps, a federal court ordered, in 1974, that the program be extended to every city, town and
barrio in Puerto Rico.”173 The Food Stamp program was later expanded to provide full
coverage and benefits to Puerto Rico and other territories under Section 19 of the Food Stamp
Act of 1977.
By then, 1977, the Food Stamp Program in Puerto Rico was already larger, in terms of
both the percentage of the population participating and expenditures, than any of the programs
operating in the 50 States, with 56% of the Puerto Rican population participating in the
program.174 In total, it accounted for approximately 8% of the national program’s
beneficiaries, and its operations and benefits awarded accounted for 8% of the national
program’s total federal expenditures.175
To address these cost issues, the 1981 Omnibus Budget Reconciliation Act eliminated
Puerto Rico from the national food stamp program and, instead, created the Nutrition
Assistance Program176 for Puerto Rico as a block grant. It has been estimated that, under this
block grant, the U.S. citizens of Puerto Rico are presently underfunded, as compared to State
citizens, by approximately $700 million a year, meaning that 496,000 more Puerto Ricans
could be receiving that assistance right now but are not because Congress has chosen to treat
Puerto Rico differently under the Commonwealth than any other State.177
and Work Opportunity Reconciliation Act of 1996 (PRWORA)), at https://www.acf.hhs.gov/

ofa/resource/policy/pi-ofa/1997/pi9711htm.
173
Méndez-Méndez, Serafín with Fernández, Ronald, Puerto Rico Past and Present, an Encyclopedia,
p. 177 (2nd Ed., Greenwood Publ., 2015).
174
See, e.g., https://en.wikipedia.org/wiki/Nutrition_Assistance_for_Puerto_Rico#cite_note-FANRR-19-
3_286.3-10.
175
Id.
176
Omnibus Budget Reconciliation Act, Pub. L. 97-35, 95, Stat. 357-933 § 2605 (August 13, 1981).
177
See, supra, n. 131.
56
(h) No Earned Income Tax Credit and a Limited Right to the Child
Tax Credit
The Earned Income Tax Credit178—a refundable tax credit for low- to moderate-income
working individuals and couples, particularly those with children—is not available to the U.S.
citizens of Puerto Rico. Similarly, the Child Tax Credit179—a credit that reduces taxpayer’s
total tax liability dollar-for-dollar—is available to families in Puerto Rico only if they have
three or more children (whereas families in the States with any number of children are eligible
for the CTC).
The argument against extending these credits to the U.S. citizens of Puerto Rico is that
they are not liable for federal income taxes and, thus, do not normally file federal income-tax
returns. However, the fact is that most current recipients of EITC and CTC in the States do
not pay any federal income taxes either simply because their incomes are too low.180
To make the differential treatment as concrete as possible the Commission should
consider the following analysis:
Consider two families whose members are all citizens of the United States.
One family is in the states and one in Puerto Rico. Each consists of two
parents and two young children. Both families have earned income of
$28,000 in 2015. Each family pays $1,736 in Social Security taxes and
$406 in Medicare taxes. Neither family has any federal income tax liability,
the Puerto Rican family because it is not covered by federal income tax
requirements and the family in the states because its income is so low.
The family in the states, however, receives an EITC of $4,622 and a CTC of
$2,000. Thus, after federal taxes and credits, this family has income of
$32,480.
The family in Puerto Rico, not eligible for the EITC and CTC, after federal
taxes and federal credits (i.e., none) has an income of $25,858.
178
“EITC;” see The United States Revenue Act of 1978, Pub. L. 95–600, 92 Stat. 2763 § 103 (November
6, 1978).
179
“CTC;” see 26 U.S.C. § 24.
180
“TANF;” see Arthur MacEwan and J. Tomas Hexner, Including Puerto Rico in the Earned Income
Tax Credit and Full Child Tax Credit, available at http://www.puertoricoreport.com/wp-
content/uploads/2016/09/Including-Puerto-Rico-in-EITC-and-CTC.pdf.
57
The family in Puerto Rico, earning the same as the family in the states, and
the same as the family in the states in terms of family members and earned
income, has an income $6,622 less than the family in the states after both
families’ tax and credit interaction with the federal government. (In
percentage terms, the family in the states has a 26% greater income than the
Puerto Rican family after federal taxes and credits.)181
If Congress did not discriminate against the U.S. citizens of Puerto Rico and, instead,
extended to them the Earned Income Tax Credit and the Child Tax Credit, 355,000 low-
income working families would benefit to the tune of approximately $837 million a year.182
Under the Commonwealth, however, they do not.
(i) Billions Less
Altogether, Congress discriminates against its citizens of Puerto Rico to the tune of
billions of dollars every year. There can be no reasonable doubt that if the U.S. citizens of
Puerto Rico had the right to voting representation in Congress, and the right to vote for the
President who signs and executes all laws, this state of affairs where Puerto Rico is either
excluded from or underfunded in federal programs would not be allowed to exist. But lest
petitioners give this Commission the wrong impression, they wish to make clear that the point
here is not about more welfare funding for Puerto Rico but about basic fairness and human
rights and, specifically, how the lack of voting rights at the federal level has had and
continues to have the gravest of consequences for the U.S. citizens of Puerto Rico.
K. The Legal Status of Puerto Rico
The legal status of Puerto Rico is not technically at issue in this case, although
obviously it is the main reason for and informs the curious and unfortunate—to say the
least—situation in which the U.S. citizens of Puerto Rico find themselves.
We have said it before, but it is worth repeating: from the moment of its invasion by the
United States in 1898, through the Foraker Act of 1900, the Jones Act of 1917, the Elective
181
See, supra, n. 138.
58
Governor Act of 1947, the Puerto Rican Federal Relations Act of 1950, and the establishment
in 1952 of its present day Commonwealth status, Puerto Rico has remained an unincorporated
territory of the United States subject to the plenary powers of Congress, whose authority
derives, as previously discussed, from the Territorial Clause of the U.S. Constitution.183 That
has not changed. It has not changed for 119 years.
But the internationally recognized human rights of its U.S. citizens to vote and to
participate in government, to equality under the law, and to juridical personality and basic
civil rights do not depend on the legal status of the Commonwealth of Puerto Rico, as will be
discussed in the argument section of this brief.184 If citizenship means anything, it should
mean having the right to vote at the national level; it should mean equal treatment of all
citizens under the law, not the permanent creation of a group of second-class citizens—as has
happened in the case of the U.S. citizens of Puerto Rico—today three-and-a-half million of
them—excluded from participating in national politics and from exercising influence and
power for their and their nation’s benefit within the domestic and otherwise democratic
institutions that the United States has set up for itself; and it should mean civil rights for all.
As discussed next, many from Puerto Rico have paid the ultimate price for their U.S.
citizenship despite the indignity of their second-class status and the discrimination to which
they are still subjected every day.
L. Not Only in Peace but Also in War
We take this important aside to make clear to the Commission that, despite the fact that
they have never enjoyed the right to vote for the President of the United States, who the
United States Constitution names the “Commander in Chief”185 of the armed forces, nor for
182
See, supra, n. 131.
183
U.S. Const., Art. IV, § 3, cl. 2.
184
185
U.S. Const., Art. II, § 2.
59
any voting Member of Congress, on which the same Constitution exclusively places the
power to declare war,186 the American citizens of Puerto Rico have served, bravely and with
distinction, by the thousands, voluntarily and through conscription, been wounded and
disabled, and died for their country in every armed conflict since they were first granted
citizenship in 1917.
The United States is now served by an all-volunteer army.187 That was not always the
case. The original grant of U.S. citizenship to Puerto Ricans in 1917 coincided with and was
at least partially motivated by a desire to draw volunteers and conscripts from Puerto Rico to
fight in World War I (with a total of 236,853 Puerto Rican males registering – 104,550 of
them alone on the first day set by Presidential proclamation as registration day in Puerto Rico
(July 5, 1917)188 and 18,000 serving in that war189). Since then, thousands of Puerto Ricans
served in World War II (with over 65,000 volunteers and conscripts, 2,560 wounded, and 37
dead from Puerto Rico190), the Korean War (with 61,000 volunteers and conscripts, over
3,000 wounded, and 764 dead from Puerto Rico191), and the Vietnam War (with
approximately 48,000 volunteers and conscripts, another 3,000 wounded, 345 dead, and 17
missing in action from Puerto Rico192). In fact, from 1940 until 1973, when the draft ended,
186
Id. Art. I, § 8, cl. 11.
187
To be understood here in the broadest sense to include not only the Army, but also the Navy, the Air
Force, the Marine Corp, and the Coast Guard.
188
See Franqui-Rivera, Harry, National Mythologies: U.S. Citizenship for the People of Puerto Rico and
Military Service, at http://www.scielo.org.co/scielo.php?script=sci_arttext&pid=S1794-88862013000
300004#n_1.
189
See https://en.wikipedia.org/wiki/Puerto_Ricans_in_World_War_I. Unfortunately, it is impossible to
determine the exact number of Puerto Ricans who perished in WWI because the War Department did not keep
those statistics. However, it is well know that the United States conducted chemical-gas experiments in Panama
that wounded 335 Puerto Ricans soldiers.
190
See https://www.usatoday.com/story/news/world/2017/09/26/yes-puerto-rico-part-united-states/
703273001/.
191
See https://www.archives.gov/files/research/military/korean-war/casualty-lists/pr-alpha.pdf.
192
See https://www.archives.gov/files/research/military/vietnam-war/casualty-lists/pr-alpha.pdf; see also
https://www.puertoricoreport.com/puerto-rico-a-proud-tradition-of-military-service/#.WcIUhlV95EY.
60
during both peacetime and periods of conflict, several hundred thousand Puerto Ricans
volunteered or were drafted in the U.S. armed forces.
Since 1973, Puerto Ricans have voluntarily served in every armed conflict in which the
United States has been involved, including the most recent wars in Iraq and Afghanistan,
where 8,700 American citizens from Puerto Rico have served.193 In Iraq, 239 soldiers have
been wounded and 50 have been killed.194 In Afghanistan, 42 soldiers have been wounded
and 26 have died.195
Still today, by federal law,196 every male U.S. citizen, including every male U.S. citizen
in Puerto Rico,197 upon turning 18 years old, must register with the United States Selective
Service. Failure to register is a felony punishable by up to five years imprisonment or a
$250,000 fine.198 Failure to register also has other consequences such as ineligibility for
educational financial aid, most federal employment, some state employment, security
clearance for all federal and some state contractors, and federal job-training opportunities.199
Today, in Puerto Rico, there are approximately a total of 174,057 registered males,200
20,715201 active military service members, and 10,000202 in reserve military forces.
193
See “‘War is the Antithesis of Motherhood:’ A Voice From Puerto Rico,” published by
Commondreams.org (https://www.commondreams.org/views/2014/09/27/war-antithesis-motherhood-voice-
puerto-rico).
194
See Congressional Research Service , Operation Iraqi Freedom (OIF): Military Deaths as of April
24, 2017, available at (https://fas.org/sgp/crs/natsec/RL32492.pdf); see also http://icasualties.org
/Iraq/ByState.aspx.
195
See Congressional Research Service Operation Enduring Freedom (OEF): Military Deaths as of
April 24, 2017, available at (https://fas.org/sgp/crs/natsec/RL32492.pdf); see also http://icasualties.org/OEF/US
CasualtiesByState.aspx.
196
The Military Selective Service Act 50 U.S.C §§ 3801, et seq.
197
The law also actually extends to male immigrant non-citizens. See U.S.C. § 3802.
198
See https://www.sss.gov/Registration/Why-Register/Benefits-and-Penalties.
199
Id.
200
See Selective Service System, Annual Report to the Congress of the United States Fiscal Year 2016,
27.
201
See U.S. Department of Defense (https://www.defense.gov/News/Special-Reports/Hispanic-
Heritage/videoid/428 334/#DVIDSVideoPlayer6659).
61
M. Puerto Rico’s Political Parties
Although it does not impact on the decision it is called to make, it might interest the
Commission to know that politics in Puerto Rico break down along the different status
options and, thus, there are today in Puerto Rico three major political parties: (1) the New
Progressive Party (the “Partido Nuevo Progresista” or PNP), which advocates for statehood
for Puerto Rico on equal terms with the other 50 States of the United States; (2) the Popular
Democratic Party (“Partido Popular Democrático” or PPD) with different factions with some
who favor the current status quo, others who favor an “enhanced” Commonwealth status with
additional powers (which several U.S. Administrations have already clearly stated is not
possible within the U.S. Constitutional framework203), and still others who favor sovereignty
in association with the United States; and (3) the Puerto Rico Independence Party (“Partido
Independentista Puertorriqueño” or PIP), which favors complete separation and independence
from the United States and Puerto Rico assuming the status of a separate and equal member of
the nation-states of the world.
Since the establishment of the Commonwealth, Puerto Rico’s Governorship and
legislature have bounced between the PPD and the PNP. Currently, the PNP holds both. The
PIP, though standing for a respectable and dignified alternative, as opposed to those who
favor the present territorial status, is a small party in Puerto Rico, even often losing its
registration status for not having achieved in the general elections the bare minimum
percentage required for recognition as an official party.
202
See “Voices: Too Many Of Puerto Rico’s Veterans Are Moving Away,” published by NBC News on
May 28, 2017 (https://www.nbcnews.com/news/latino/voices-too-many-puerto-rico-s-veterans-are-moving-
away-n764676); “Puerto Rico and the US military facts,” published by the Puerto Rican Military Heroes
Foundation (http://militaryheroespr.com/about-us/).
203
See U.S. President’s Task Force on Puerto Rico’s Status, Report by the President's Task Force on
Puerto Rico’s Status (Washington: December 2005); U.S. President’s Task Force on Puerto Rico’s Status,
Report by the President's Task Force on Puerto Rico’s Status (Washington: December 2007); and U.S.
President’s Task Force on Puerto Rico's Status, Report by the President’s Task Force on Puerto Rico’s Status
(Washington: December 2011).
62
Finally, as it concerns national politics, the national Democratic and Republican parties
both operate in Puerto Rico. Perhaps understandably, members of the PIP refuse to
participate in national politics. In light of the official support of the Republican Party for
statehood, members of the PPD have traditionally been Democrats. PNP members are either
members of the national Democratic Party (which favors self-determination for Puerto Rico,
which also includes statehood if that is the preference of the majority of Puerto Rico’s
residents–as has been expressed in the last three referendums or plebiscites and is discussed in
the next subsection of this brief) or the national Republican Party (which, as mentioned,
officially supports statehood). For example, Puerto Rico’s current PNP Governor, Ricardo
Rosselló Nevares, is a Democrat, while Puerto Rico’s current PNP Resident Commissioner,
Jennifer González Colón, is Republican. While they cannot vote for President or Vice
President, and have no voting representation in either chamber of Congress, Puerto Ricans in
the island do have the right to participate as members of the national parties and to cast votes
as part of their “state” delegation in the quadrennial party conventions that elect the respective
Presidential and Vice Presidential candidates.
N. Referendums and Plebiscites
Puerto Rico has held six referendums or plebiscites, all locally authorized by the Puerto
Rico legislature and none Congressionally sponsored. These votes were held in 1967, 1991,
1993, 1998, 2012, and this year 2017.
Though it can be said that the definitions given to some of the different options, the
actual questions presented to the electorate, and the very participation of that electorate were
open to manipulation by the usual local political processes and that the results of these
referendums and plebiscites are, accordingly, somewhat open to interpretation—most
vigorously from each side of the political divide between those who favor the current
territorial status and those who favor statehood for the island—here are the bare results:
63
 In the 1967 plebiscite 60.5% favored the Commonwealth status,
38.9% favored statehood, and 0.5% favored independence;
 In 1991 a constitutional referendum was held in Puerto Rico where the

electorate was presented with amendments that would have
guaranteed the rights of the people of Puerto Rico to freely and
democratically determine Puerto Rico’s political status; to choose a
dignified, non-colonial, non-territorial status not subordinate to the
plenary powers of Congress; to vote for three alternatives; that only
results with a majority will be considered triumphant in a plebiscite;
that any status would protect Puerto Rico’s culture, language, and
identify, and continued independent participation in international
sporting events; and that any status would guarantee all individuals’
rights to American citizenship. The constitutional changes were
rejected by 54.1% of voters;
 In the 1993 referendum, 48.6% favored the Commonwealth status,

46.4% favored statehood, and 4.5% favored independence;
 In the 1998 referendum, 46.5% favored statehood, 2.5% favored

independence, 0.02% favored free association, and 0.01% favored the
Commonwealth status. By quite a cynical order of the then
Commonwealth-leaning Puerto Rico Supreme Court, this referendum
also included the option, which was and remains not an option in any
real sense, of “none-of-the-preceding,” which secured 50.2% of the
votes cast;
 In 2012, voters were asked two questions: (1) whether they wished to
maintain Puerto Rico’s current political status; and (2) regardless of
the choice in the first question, whether they preferred statehood,
independence, or to become a “sovereign free associated state.”
According to the results certified by the Puerto Rico State Elections
Commission, approximately 54% of those who cast ballots answered
“no” to the first question. In the second question, approximately
61.2% of voters chose statehood, 33.3% chose “free association,” and
5.5% chose independence; and
 Most recently, earlier this year, on June 11, 2017, a plebiscite was
held in which voters were presented with three options: statehood,
free association/independence, and the current territorial status.
97.2% of voters chose statehood. 1.5% of voters chose free
association/independence. And 1.3% of voters chose the current
territorial status.
64
O. The President’s Task Force on Puerto Rico’s Status
The President’s Task Force on Puerto Rico’s Status204 was first created in December
2000 by President William (“Bill”) J. Clinton through Executive Order 13183. As
established, the Task Force’s sole focus was to examine proposals for Puerto Rico’s future
status and for a process by which Puerto Ricans could choose a status option. On December
3, 2003, President George W. Bush amended Executive Order 13183, slightly modifying the
Task Force’s membership and changing the reporting requirement from at least annually to at
least once every two years. President Bush continued the Task Force’s sole focus on the issue
of political status. When President Barack Obama took office in 2009, he signed Executive
Order 13517 to renew the Task Force to address the issue of Puerto Rico’s status and the
process by which that issue should be resolved. The Executive Order also expanded the
responsibility of the Task Force to help improve the treatment of Puerto Rico in federal
programs and to provide recommendations on policies that promote job creation, education,
health care, clean energy, and economic development in the Commonwealth. The Task Force
included representatives from every Cabinet agency and the White House.
Altogether, the President’s Task Force on Puerto Rico’s Status has issued a total of
three reports (one under President Clinton in 2005; a second one under President G.W. Bush
in 2007; and a third under President Obama in 2011). All are attached as exhibits to this brief,
for the Commission may find them of interest.205 President Donald Trump has yet to
reactivate the Task Force.
P. Public Law 113-76
As part of the Congressionally approved Consolidated Appropriations Act of 2014, the
United States Congress assigned Puerto Rico, for the first time, $2,500,000 for “objective,
204
“Task Force.”
205
See Exhibits 13, 14, and 15.
65
nonpartisan voter education about, and a plebiscite on, options that would resolve Puerto
Rico’s future political status, which shall be provided to the State Elections Commission of
Puerto Rico.”206 Despite the present Puerto Rico Administration’s best efforts to get the
approval of the U.S. Department of Justice to turn the 2017 plebiscite in Puerto Rico into that
Congressionally approved process, and to actually receive those funds, the Trump
Administration ignored the requests.
Q. Continuing Lack of Sovereignty: The Two Most Recent U.S. Supreme Court
Decisions on Puerto Rico.
The United States Supreme Court decided two very significant cases in 2016 that touch
on the lack of sovereignty of Puerto Rico and its continuing status as a territory fully subject
to the plenary authority of Congress under the Territorial Clause of the Constitution: (1)
Commonwealth of Puerto Rico v. Sanchez Valle;207 and (2) Commonwealth of Puerto Rico v.
Franklin California Tax-Free Trust.208 For the Commission’s benefit, the cases are attached
as exhibits to this brief209 and briefly discussed below.
1. Commonwealth of Puerto Rico v. Sanchez Valle
In Sanchez Valle, the Supreme Court was presented with the question whether Puerto
Rico is a separate sovereign from the United States for purposes of double jeopardy. Double
jeopardy, of course, refers to the legal doctrine that a person may not be “prosecuted or
sentenced twice for substantially the same offense.”210 It is prohibited by the U.S.
Constitution.211
206
Pub L. 113-76 (see Exhibit 16).
207
579 U.S. __; 136 S. Ct. 1863; 195 L. Ed. 2d 179 (2016) (“Sanchez Valle”).
208
579 U.S. __; 136 S. Ct. 1938; 195 L. Ed. 2d 298 (2016) (“Franklin California Tax-Free Trust”).
209
See Exhibits 17 and 18.
210
Black’s Law Dictionary, p. 598 (West Publishing Co., 10th Ed., Garner, Bryan A., Editor in Chief
2014).
211
See U.S. Const., Amendment V (“nor shall any person be subject for the same offence to be twice put
in jeopardy of life or limb”).
66
The case was brought by two men initially charged by the Commonwealth with selling
firearms without permits. While those charges were pending, a federal grand jury in Puerto
Rico likewise indicted them of analogous federal-law violations. Apparently to avoid the
significantly higher sentences that they risked at the Commonwealth level, the defendants
pled guilty before the U.S. District Court for the District of Puerto Rico (as we have
previously discussed, Puerto Rico’s federal court). They then moved to dismiss the
Commonwealth’s charges, arguing that successive prosecutions “on like charges for the same
conduct”212 by both the government of the Commonwealth and the federal government were
unconstitutional. The men’s respective trial courts accepted their argument, but the Court of
Appeals of Puerto Rico reversed the decisions. Weighing in, the Supreme Court of Puerto
Rico reversed the Court of Appeals, holding that “because Puerto Rico is not a federal state, a
person who has been acquitted, convicted or prosecuted in federal court cannot be prosecuted
for the same offense”213 by Puerto Rico. The government of Puerto Rico then sought and was
granted review by the U.S. Supreme Court.
The U.S. Supreme Court agreed with the P.R. Supreme Court and affirmed, answering
the question in the negative: Puerto Rico is not a separate sovereign from the United States
because its authority, unlike that of any of the 50 States, derives from Congress. Were Puerto
Rico any State of the Union, it could exercise that independent authority to bring analogous
local criminal charges despite separate federal prosecutions and such charges would not
violate the Double Jeopardy Clause of the U.S. Constitution214 because they would be
considered to have been brought by two separate sovereigns. But because Puerto Rico is not a
separate sovereign, but instead is under and subject to the authority of Congress, and whatever
authority the Commonwealth of Puerto Rico exercises it does so only by delegated authority
212
Sanchez Valle, 136 S. Ct. at 1870 and 1869-70.
213
Id. at 1869-70.
67
from that Congress, the local authorities there could not prosecute these defendants without
violating their federal constitutional rights.
The U.S. Supreme Court traces some of the history of Puerto Rico that petitioners have
previously covered in these Observations on the merits,215 and recalls some of the cases it had
ruled on at the start of the 20th century that dealt with the newly acquired overseas
territories.216 The Court also recognized the “distinctive, indeed exceptional, status [of Puerto
Rico] as a self-governing Commonwealth.”217 Nevertheless, the Court still found that the
“ultimate source” of Puerto Rico’s power is Congress and that, accordingly, the
Commonwealth has no authority to independently prosecute defendants already convicted in
federal court: “Put 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—as it is for the Federal
Government’s.”218 While, as acknowledged by the U.S. Supreme Court, “Puerto Rico today
can avail itself of a wide variety of futures . . . for purposes of the Double Jeopardy Clause[]
the future is not what matters—and there is no getting away from the past.”219 In conclusion,
“[b]ecause the ultimate source of Puerto Rico’s prosecutorial power is the Federal
Government—because when we trace that authority all the way back, we arrive at the
doorstep of the U.S. Capitol—the Commonwealth and the United States are not separate
sovereigns.”220
214
U.S. Const. Amen. V.
215
See Sanchez Valle, 136 S. Ct. at 1876-1877.
216
See id. at 1866 where the Court discusses, among other cases, Grafton v. United States, a case where
it had held that the Philippine Islands (then still a U.S. territory, as previously mentioned also acquired in the
Spanish-American War) could not prosecute a defendant for murder after a federal tribunal had acquitted him of
the same crime. See Grafton v. United States, 206 U.S. 333, 355 (1907).
217
Sanchez Valle, 136 S. Ct. at 1874.
218
Id. at 1875-1876.
219
Id. at 1876.
220
Id. at 1877.
68
And in that, the politest way possible, the Court again acknowledged that—despite what
some in Puerto Rico still then believed, but now must recognize, woefully erroneously—
Puerto Rico is not sovereign in any way, shape, or form and the sovereign power over Puerto
Rico has been held by and remains instead with the United States Congress. In other words,
nothing has changed since the Treaty of Paris of 1898.
2. Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust
During the same term, the U.S. Supreme Court dealt with another case involving Puerto
Rico: Franklin California Tax-Free Trust. In that case, the Supreme Court had to decide
whether a law passed by the Commonwealth in 2014 in response to the ongoing fiscal crisis
and that mirrored the Federal Bankruptcy Code, was federally preempted. The Federal
Bankruptcy Code explicitly includes Puerto Rico within the definition of “State,” but
excludes Puerto Rico from the definition of “debtor,” and thereby effectively prevents its
public corporations and municipalities, unlike those from any of the 50 States, from seeking
and availing themselves of the bankruptcy-restructuring protections otherwise available under
federal law.
The Court held that Puerto Rico was indeed preempted from legislating in this space:
Puerto Rico, as a territory, and like every other State, is subject to federal preemption and the
U.S. Supreme Court cannot “‘rewrite the statute that Congress has enacted.’”221 “That
statute,” in this case, “precludes Puerto Rico from authorizing its municipalities to seek relief.
. . . But it does not remove Puerto Rico from the scope of . . . [the law’s] preemption
provision. Federal law, therefore, pre-empts the [Puerto Rico] Recovery Act.”222
To be clear—and this the dissent by U.S. Supreme Court Justice Sonia Sotomayor, born
in the Bronx, New York, to Puerto Rican parents, made clear—, this situation where Congress
221
Franklin California Tax-Free Trust, 579 U.S. at __; 136 S. Ct. 1938; 195 L. Ed. 2d 298 at 1949.
(quoting Dodd v. United States, 345 U.S. 353, 359 (2005)).
222
Id. at 1948.
69
excluded the instrumentalities and municipalities of the Commonwealth of Puerto Rico,
unlike those of the 50 States, from invoking when necessary bankruptcy protection, and the
Court’s majority decision finding that Puerto Rican’s themselves cannot fill that void with
their own local legislation pending Congressional action, “means that a government [i.e., the
government of Puerto Rico] is left powerless and with no legal process to help its three-and-a-
half million citizens.”223 She added:
Congress could step in to resolve Puerto Rico’s crisis. But, in the interim,
the government and people of Puerto Rico should not have to wait for
possible congressional action to avert the consequences of unreliable
electricity, transportation, and safe water—consequences that members of
the Executive and Legislature have described as a looming “humanitarian
crisis.” . . . . Statutes should not easily be read as removing the power of a
government to protect its citizens.224
That, however, is the cruel truth of Puerto Rico’s current colonial status: there is just so
much Puerto Ricans can do; the people of Puerto Rico do not ultimately control their own
destiny; Congress does. And yet, the U.S. citizens of Puerto Rico—after 119 years as a U.S.
territory and now over 100 years of U.S. citizenship—still have no right to vote for any
Representatives and Senators to that Congress, which passes the laws, nor for the President
who signs and executes them.
R. A “Tennessee Plan”
In anticipation of a statehood victory in this year’s plebiscite, the legislature of Puerto
Rico enacted, and the P.R. Governor signed, legislation to pursue a “Tennessee Plan”225 path
223
Id. at 1954.
224
Id. (authority omitted).
225
The “Tennessee Plan” refers to the strategy the state of Tennessee used in 1795 to gain membership
into the Union. The territory of Tennessee, then known as the Southwest Territory, was under the jurisdiction of
North Carolina from 1777-1788. In 1789, North Carolina ratified the United States Constitution and ceded its
Tennessee territory to the federal government. The territory was governed under the Northwest Ordinance,
which provided a method for admitting new states to the Union from the territory. After a territorial census
revealed that the Southwest Territory had a sufficient population for statehood, the territory held a referendum
that revealed a three-to-one majority in favor of joining the Union. Unwilling to wait for the Union to initiate the
statehood process, Governor William Blount called for a constitutional convention where delegates from all
counties in the territory drafted a state constitution and a democratic bill of rights. The territory then formed its
own legislature electing John Sevier as Governor, Blount and William Cocke as Senators, and Andrew Jackson
70
to statehood, including appointing a delegation of two shadow Senators and five shadow
Representatives to advocate for statehood before the U.S. Senate and the U.S. House of
Representatives in Washington, D.C. As previously mentioned,226 the delegation is presided
as President by petitioner in this case, former Governor Pedro Rosselló, who is now one of the
five confirmed shadow Representatives.227
Meanwhile, the day after assuming office, on January 4, 2017, Puerto Rico’s newly
elected Resident Commissioner, Jennifer González Colón, introduced legislation to admit
Puerto Rico as a state. H.R. 260228 proposes that if voters choose statehood in a
Congressionally approved referendum, as provided for in Public Law 113-76, then: (1)
federal laws that do not apply to Puerto Rico or that apply differently to the territory than to
the several States would be amended or repealed to phase in the equal treatment of Puerto
Rico with the several States by January 3, 2025; (2) the President’s Task Force on Puerto
Rico’s Status would submit a plan providing for such equal treatment to Congress and the
President by 270 days after the enactment of the bill; (3) Puerto Rico would then be
considered a State for purposes of federal elections in November 2024; and (4) Puerto Rico
would become a State and would be admitted to the Union on equal footing with the other
States on January 3, 2025.229
(later U.S. President) as Representative. Tennessee, having converted the territory into a new state, with an
organized government and constitution, presented itself for admission to the Union. After much delay, Congress
approved statehood in 1796, making Tennessee the 16th state of the United States.
226
See, supra, p. 5.
227
Former Governors Luis Fortuño (Republican) and Carlos Romero Barceló (Democrat) will serve as
Puerto Rico’s Senators. The remaining members, who are serving as Representatives, in addition to petitioner
and former Governor Pedro Rosselló (Democrat), are former Puerto Rico Senate President Charles Rodríguez
(Democrat), National Committeewoman Zoraida Fonalledas (Republican), two-star General Félix Santoni
(Republican), and MBL Hall of Famer Iván “Pudge” Rodríguez (Independent).
228
H.R.260-Puerto Rico Admission Act (January 4, 2017), see Exhibit 19.
229
Another bill, introduced by Representative Luis Gutiérrez, Congressman for Illinois’s 4th
Congressional District and long-time supporter of Puerto Rican independence, would require the Puerto Rico
legislature to “provide for a referendum” between the two overwhelmingly least favored status options:
independence and free association. See H.R.900-To Recognize Puerto Rico’s Sovereign Nationhood Under
71
S. Today: Puerto Rico Under PROMESA
If, in practice (although, as seen, not in theory), the U.S. citizens of Puerto Rico had
some level of control over their internal and purely domestic (as opposed to national, i.e.,
federal) affairs—limited, as always, by the ultimate authority that has at all times rested in and
remains with Congress—that also dramatically changed on June 30, 2016. That day,
President Barack Obama signed into law the “Puerto Rico Oversight, Management, and
Economic Stability Act,” now most commonly known as “PROMESA”.230 The law, in its §
101, explicitly identifies the source of Congress’s authority to pass such a statute: “The
Congress enacts this Act pursuant to article IV, section 3 of the Constitution of the United
States, which provides Congress the power to dispose of and make all needful rules and
regulations for territories.” 231 The Act also has a section entitled “Supremacy” that provides
that: “[t]he provisions of this Act shall prevail over any general or specific provisions of
territory law, State law, or regulation that is inconsistent with this Act.”232
Responding to the urgent fiscal and economic crisis in Puerto Rico, with debts
exceeding $70 billion, and specifically in reaction to the announcement in 2015 by its then
Governor, Alejandro García Padilla, that Puerto Rico was unable to pay its debts, PROMESA
established a federal oversight board, formally known as the “Financial Oversight and
Management Board for Puerto Rico,” or now more commonly known as the “Fiscal Control
Board” or, in Spanish, as the “Junta de Control Fiscal” or just simply the “Junta.”233
Either Independence or Free Association and to Provide for a Transition Process, and for Other Purposes
(February 7, 2017).
230
130 Stat. 549; 48 U.S.C. §§ 2101, et seq. (June 30, 2016), see Exhibit 20.
231
Id. at § 2121.
232
Id. at § 2103.
233
Except for the military connotations, not an entirely inappropriate term in this context.
72
The Fiscal Control Board is made up of seven voting members along with the Puerto
Rico Governor (or his designee) who serves only as an ex officio non-voting member.234
Under PROMESA, the President of the United States appoints one of the voting members at
his sole discretion. The other six voting members are selected also by the President but from
a list of preapproved and recommended candidates submitted by the leadership of the U.S.
House of Representatives and the U.S. Senate. Board members can serve concurrent three-
year terms. The President can also select Board members not included in the preapproved
U.S. House and U.S. Senate lists, but only upon later Senate confirmation.235
Again, as mentioned, the Governor of Puerto Rico can serve as the eighth Board
member, by participating in the Board’s deliberations, but cannot vote on any decisions of the
Board. The Board even has the authority to conduct its business in executive session,
effectively barring the public and the Governor from participating in such sessions.236
Congress granted the Board the “broad[est] powers of budgetary and financial control
over”237 Puerto Rico. Under the law, the Board has the rights, among others, to hold hearings
and seek testimony; to obtain information, including from the government of Puerto Rico; to
issue subpoenas; to enter into contracts; to enforce laws of Puerto Rico prohibiting public
sector employees from participating in labor strikes or lockouts; to initiate civil actions; and to
conduct investigations.238
The law prohibits the Governor and the legislature of Puerto Rico not only from
enacting any laws or taking any actions that would interfere with or attempt to nullify the
actions or activities of the Board, but that would even attempt to supervise or provide
234
48 U.S.C. § 2121.
235
Id.
236
Id.
237
D. Andrew Austin, The Puerto Rico Oversight, Management, and Economic Stability Act
(PROMESA; H.R. 5278, S. 2328), Congressional Research Service, CRS Report No. R44532, p.3, July 1, 2016.
238
48 U.S.C. at § 2124.
73
oversight or review of any Board activities.239 The law further makes it a criminal offense, by
fine and imprisonment, to provide false or misleading information to the Board, and provides
for administrative discipline, including by suspension and removal, of any government
official who violates any Board order.240
The law spells out the Board’s broad powers and authority. The Board’s main powers
and authority are the right to approve or disapprove, for the government of Puerto Rico as a
whole as well as for any and all of its instrumentalities (such as public corporations and
municipal governments), all fiscal plans;241 all budgets;242 all voluntary agreements with
bondholders;243 all debt restructuring plans;244 and all critical infrastructure projects.245 No
fiscal plans, no budgets, no settlements with bondholders, no debt restructuring plans, and no
critical infrastructure projects may occur without prior Board approval. The law also bars the
government of Puerto Rico from issuing or guaranteeing any debt, or taking other actions to
restructure debts, without the Board’s prior approval.246
If the government of Puerto Rico fails to meet any Board-approved budget, the Board
has the right (in fact, the federal legal obligation) to order it to take remedial action, absent
which the Board itself is authorized to take that remedial action including, but not limited to,
reducing future expenditures, ordering hiring freezes, and prohibiting the government of
Puerto Rico from entering into any contract or financial transaction not previously approved
by the Board.247
239
Id. at § 2128.
240
Id. at § 2124.
241
Id. at § 2141.
242
Id. at § 2142.
243
Id. at Title VI.
244
Id. at § 2146.
245
See id. at Title V.
246
Id. at § 2147.
247
Id. at § 2143.
74
PROMESA grants the Board expansive and, perhaps, unprecedented248 powers to
review any proposed local legislation and all enacted laws passed by the government of
Puerto Rico for consistency with Board-approved budgets and fiscal plans.249 If the Board
finds any enacted law that is inconsistent or interferes with the enactment of any fiscal plan or
budget then the Board may take action to prevent its enforcement or application.250 Actually,
the law is quite draconian in this respect:
If the territorial government fails to comply with a direction given by the

Oversight Board . . . the Oversight Board may take such actions as it
considers necessary, consistent with this Act, to ensure that the enactment or
enforcement of the [Puerto Rico] law will not adversely affect the territorial
government’s compliance with the Fiscal Plan, including preventing the
enforcement or application of . . . [such] law.251
The authority of the Board even predates the passage of any new laws in Puerto Rico because
PROMESA gives the Board the authority to review proposed legislation pending before the
Puerto Rico legislature to determine whether that proposed legislation would be acceptable to
the Board’s members.252
The law also requires the Board to maintain a registry of all contracts that the
government of Puerto Rico enters into, and grants the Board the power to review those
contracts for compliance with the approved fiscal plans.253 Furthermore, the law allows the
Board to take any action necessary to ensure that any contract, rule, executive order, or
regulation does not adversely affect compliance with Board-approved fiscal plans. The law
even gives the Board the right to reverse any action taken by the Governor or the legislature
prior to the Board’s appointment if the Board finds that the government had authorized
248
The closest powers may have been those exercised by the United States during its military occupation
of the island between 1898 and 1900.
249
48 U.S.C. at § 2144.
250
Id.
251
Id. at § 2144 (a)(5).
252
Id. at § 2144 (a)(6).
75
movement of assets that the Board concludes after its members are appointment should not
have occurred.254
The Board also has the authority to recommend to the Governor and to the legislature
whatever measures it deems in its discretion would improve the delivery of services, would
ensure compliance with the Board-approved fiscal plans, and would promote financial
stability and economic growth. The law then requires the Governor and the legislature to
consider those recommendations and, if they reject them, to submit a statement to the U.S.
President and the U.S. Congress explaining why they rejected them.255
PROMESA also creates a procedure similar to Chapters 9 and 11 of the U.S.
Bankruptcy Code,256 but instead of permitting the government of Puerto Rico or any of its
instrumentalities to invoke, initiate, and pursue those processes, only the Board can,257 and
only the Board can represent the government or instrumentality as debtor.258
Finally, the law contains several miscellaneous provisions, the three most significant of
which are, for present purposes: (1) a provision that nothing in the law can “be interpreted to
restrict Puerto Rico’s right to determine its future political status;”259 (2) a provision that
authorizes the Governor, “subject to the approval of the Financial Oversight and Management
Board,”260 to pay employees a wage below the federally authorized minimum wage; and (3) a
provision that establishes—within the U.S. Congress that no U.S. citizen of Puerto Rico can
vote for—a Task Force on Economic Growth in Puerto Rico.261
253
Id.
254
Id. at § 2144 (c)(3).
255
Id. at § 2145.
256
11 U.S.C. at §§ 101, et seq.
257
48 U.S.C. at § 2164.
258
Id. at § 2175.
259
Id. at § 2192.
260
Id.
261
Id. at § 2196.
76
Perhaps adding insult to injury, PROMESA mandates that the Puerto Rico government
designate a dedicated funding source for the Board,262 which operating expenses the
Congressional Budget Office has estimated in the hundreds of millions of dollars,263 meaning
that the U.S. citizens of Puerto Rico (not the federal government) are footing the entire costs
of the bill and of their own supervision.
It cannot be denied, however necessary it may or may not have been to have passed
PROMESA, that the powers granted to the Board are clearly undemocratic in the extreme.
None of the U.S. citizens of Puerto Rico had the right to vote for the Representatives and
Senators who passed the Act, nor for the President who signed it, nor to appoint any of its
seven voting members. None of the U.S. citizens of Puerto Rico have any effective right to
review or approve any action of the Board. None of the U.S. citizens of Puerto Rico have any
right to dismiss or replace any of the Board’s members. The very Governor and legislature
these U.S. citizens of Puerto Rico did elect are entirely under the supervision and authority of
the unelected federal Board. For all practical intents and purposes, nothing of any
significance they may accomplish can occur without the approval of this Junta. Any and
everything the Board does immensely affects the lives of every U.S. citizen of Puerto Rico.
The Board is now vigorously engaged in the full and active management and oversight
of Puerto Rico. Many are the examples we could give of its day-to-day activities and the
significant impact that they are having on each and every Puerto Rican. The Board’s own
website lists some of those activities.264 We will only mention one here. Seeking savings at
any cost, the Board recently ordered the Governor of Puerto Rico to implement a furlough
262
Id. at § 2127.
263
D. Andrew Austin, The Puerto Rico Oversight, Management, and Economic Stability Act
(PROMESA; H.R. 5278, S. 2328), Congressional Research Service, CRS Report No. R44532, p. 3, July 1, 2016.
264
See https://juntasupervision.pr.gov/index.php/en/home/.
77
program across all executive branch employees and to reduce public pensions by 10%,265 a
program that would affect negatively more than 100,000 public sector employees in Puerto
Rico. When the Governor refused (for he believes, as the democratically elected head of the
government in Puerto Rico, that those measures are not only unnecessary but
counterproductive), to compel him to comply with its order the Board has filed a federal civil
lawsuit against him seeking declaratory and injunctive relief that is now pending in the U.S.
District Court for the District of Puerto Rico.266
The PROMESA Board will act indefinitely and will terminate only when it certifies that
the government of Puerto Rico has achieved access to short-term and long-term credit markets
at reasonable rates of interest and that the government has balanced budgets for four
consecutive years.267 At present, it is anyone’s guess how long that will take. In the
meantime, the U.S. citizens of Puerto Rico will continue to be under its management and
supervision, without having had any right whatsoever to participate democratically in the
process that first established it and named its members, nor having any right to vote for the
members of Congress who were responsible for establishing it and are now responsible for
supervising it.
VI. RELEVANT U.S. LEGAL FRAMEWORK

For the Commission’s benefit, we explore in this section the domestic legal framework
that permits within the United States the exercise of the right to vote at the federal level but
that also regrettably frustrates the same right for the U.S. citizens of Puerto Rico.
265
See https://juntasupervision.pr.gov/wp-content/uploads/wpfd/50/59848ba151075.pdf (order to
implement furlough program).
266
See https://juntasupervision.pr.gov/wp-content/uploads/wpfd/49/59a4532f4cf64.pdf (general release
regarding filing of adversary complaint for declaratory and injunctive relief).
267
48 U.S.C. at § 2149.
78
A. The Right to Vote in the 50 States
Petitioners have no doubt that the Commission, having worked on cases such as
Statehood Solidarity Committee v. United States,268 and considering that the Commission’s
headquarters are located in Washington D.C., will be very familiar with the details regarding
the history and inner workings of the U.S. voting system. However, given its central
importance to the case at hand, petitioners take this opportunity to set out a brief history of
how the right to vote has evolved in the U.S. since its inception in the 18th century, along with
a summary of the voting mechanics behind both Presidential and Congressional elections.
1. The Right to Vote Under U.S. Law
The right to vote is an essential tenant of U.S. democracy. Indeed, as highlighted by
Justice Ruth Bader Ginsburg’s dissenting judgment in Shelby County v. Holder,269 a case
where Shelby County, Alabama sought a declaratory judgment that some sections of the
Voting Rights Act of 1956 were unconstitutional, it is the “most fundamental right in our
democratic system.”270 Since voting rights were first codified at a federal level in the U.S.
Constitution, who has the right to vote has been a contentious and constantly evolving
concept, ultimately trending towards eliminating arbitrary discrimination and promoting
inclusive democracy. As also noted in Justice Bader Ginsburg’s dissenting opinion, this is
reflected in the fact that the U.S. Constitution contains the phrase “right to vote” no less than
five times.271
Prior to American independence in 1776, voting rights were decided by individual
colonies and were, on the whole, only afforded to white, protestant men who owned property
and were over a certain age. A similar state of affairs continued upon the signing of the U.S.
268
Statehood Solidarity Committee v. United States, Case 11.204, Report No. 98/03 (December 29,
2003).
269
Shelby County v. Holder, 570 U.S. 2 (2013).
270
Id. at 8 (Justice Ruth Bader Ginsburg’s dissenting opinion).
79
Constitution in 1787, in that the U.S. Constitution allowed each state to make its own laws
defining voter eligibility. Since that time, while such eligibility laws are still determined at a
state level, various protections have been enshrined at both a constitutional and federal level
to prevent states from discriminating directly or indirectly against particular population
demographics. Most prominent among such protections are the following constitutional
Amendments:
(a) The 15th Amendment (1870) — “The right of citizens of

the United States to vote shall not be denied or abridged
by the United States or by any State on account of race,
color, or previous condition of servitude.”
(b) The 19th Amendment (1920) — “The right of citizens of

the United States to vote shall not be denied or abridged
by the United States or by any State on account of sex.”
(c) The 24th Amendment (1964) — “The right of citizens of

the United States to vote in any primary or other election
for President or Vice President, for electors for President
or Vice President, or for Senator or Representative in
Congress, shall not be denied or abridged by the United
States or any State by reason of failure to pay any poll tax
or other tax.”
(d) The 26th Amendment (1971)—“The right of citizens of

the United States, who are eighteen years of age or older,
to vote shall not be denied or abridged by the United
States or by any State on account of age.”
The U.S. Constitution, therefore, prevents U.S. citizens from being denied the vote on
the basis of their race, color, sex, age, or ability to pay. The Amendments protect U.S.
citizens against disenfranchisement at both the federal and state level, and demonstrate
recognition of the need to protect voting rights against arbitrary discrimination.
It should be noted at this point that neither the U.S. Constitution, nor any other U.S.
legislation, affords unqualified voting rights to all U.S. citizens. Some states, for example,
require their citizens to register to vote a certain number of days before an election. The
271
Id. at 9.
80
focus, therefore, has been on protecting these qualified voting rights from subjective
prejudices, and ensuring that discrimination does not occur on the basis of factors an
individual cannot change. Such a mentality can be seen reflected in multiple landmark U.S.
Supreme Court decisions. For example, in Reynolds v. Sims,272 the landmark case in which
the Court adopted the principle of “one person, one vote,” Mr. Chief Justice Earl Warren
declared that:
Undoubtedly, the right of suffrage is a fundamental matter in a free

and democratic society. Especially since the right to exercise the
franchise in a free and unimpaired manner is preservative of other
basic civil and political rights, any alleged infringement of the right of
citizens to vote must be carefully and meticulously scrutinized.273
In a similar vein, in Yick Wo v. Hopkins,274 the first case where the United States
Supreme Court ruled that a law that is race-neutral on its face, but is administered in a
prejudicial manner, is an infringement of the Equal Protection Clause in the Fourteenth
Amendment to the U.S. Constitution, the Court referred to voting as a “fundamental political
right, because preservative of all rights.”275 More recently, in the dissenting judgment of
Justice Bader Ginsburg in the case of Shelby County v. Holder,276 she emphasized the
importance of “making the right to vote equally real for all U.S. citizens.”277
2. The Electoral College
The United States elects its President by way of an Electoral College voting system.
Established by the U.S. Constitution, the Electoral College is a process whereby eligible
citizens vote for Electors. This occurs indirectly, in that voters elect Electors by expressing a
preference for a specific presidential candidate. These Electors then cast ballots for the
272
Reynolds v. Sims, 377 U.S. 533 (1964).
273
Id. at 561-562.
274
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
275
Id. at 370.
276
81
President, and how the Electors vote depends on individual State law. Most States have a
winner-take-all system in which all Electors allocated to a particular State must cast their
ballots for the presidential candidate who gets the majority of the popular vote in that State,
while others have a more proportionally representative system. There are a total of 538
Electors, with each State having a number of Electors equal to the number of Representatives
and Senators that State has in Congress (with the exception of the District of Columbia, as
explained below278).
The constitutional provision regarding the presidential elections reads as follows:
Each State shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors, equal to the whole Number of
Senators and Representatives to which the State may be entitled in the
Congress: but no Senator or Representative, or Person holding an
Office of Trust or Profit under the United States, shall be appointed an
Elector.279
As can be seen, the right to vote for Electors is afforded specifically to States, meaning
that citizens residing in any U.S. territories are not eligible to vote.
3. Congressional Voting Rights
The legislative branch of the U.S. government is housed in Congress. As specified in
the U.S. Constitution,280 Congress is bi-cameral in nature, with the Senate as the upper
chamber and the House of Representatives as the lower chamber. There are 100 Senators and
435 Representatives in Congress, equaling 535 congressional representatives in total. Two
Senators from each state are elected for a staggered six-year term, and the 435
Representatives are elected for a two-year term and represent 435 congressional districts
allocated by State population. As previously discussed,281 Congress has wide-ranging powers
277
Id. at 9, n. 2.
278
279
See U.S. Const. Art. II § 1.
280
Id. at Art. I, §§ 1–3.
281
See, supra, p. 38.
82
afforded to it by the U.S. Constitution, and include borrowing money on the credit of the U.S.,
declaring war against other nations, and making all laws necessary to execute Congress’s
powers as contained in the U.S. Constitution.282 The primacy of Congress with respect to the
right to vote at a constitutional level can be seen in Justice Bader Ginsburg’s dissenting
opinion in Shelby County v. Holder,283 where she states that Congress “holds the lead rein in
making the right to vote equally real for all U.S. citizens.”284
In relation to representation in the House of Representatives, Section 2 of Article 1 of
the U.S. Constitution states that “the House of Representatives shall be composed of
Members chosen every second Year by the People of the several States.”285
Similarly, in the context of the Senate, Section 3 of Article 1 of the U.S. Constitution
provides that “the Senate of the United States shall be composed of two Senators from each
State.”286 This was then amended by the Seventeenth Amendment (ratified in 1913), which
established that Senators are also to be elected by popular vote.
As with the Electoral College, the right to vote for Senators and Representatives is
specifically afforded to U.S. citizens residing in states, meaning that those residing in the
District of Columbia or U.S. territories are unable to vote for or send Senators or
Representatives to Congress.
B. The Lack of a Right to Vote at the National Level in Territories
Accordingly, due to Puerto Rico’s territorial status, this means that the three-and-a-half
million U.S. citizens residing in Puerto Rico are denied a vote in who will become their next
President, and further, have no right to send Senators or Representatives to Congress. In lieu
282
See U.S. Const. Article I, § 8.
283
284
Id. at 9, n. 2.
285
See U.S. Const., Article I, § 2.
286
Id.
83
of proper representation in Congress, residents of Puerto Rico are permitted non-voting
representation in the House of Representatives in the form of a “Resident Commissioner.” As
discussed below,287 however, the Resident Commissioner, however worthy, hard-working,
and well-intentioned he or she is, is no more than a token delegate with no real influence and
extremely limited parliamentary rights.
This lack of voting rights is despite being allowed to fully participate during the U.S.
Presidential primaries, in which residents vote for party delegates, who then go on to vote for
the Presidential and Vice Presidential candidates. This is because the U.S. primaries are an
entirely non-governmental process governed by the charters of the individual political parties,
and not the U.S. Constitution. The Democratic Party’s Charter, for example, states that “for
the purposes of the [C]harter, Puerto Rico shall be treated as a state containing the appropriate
number of Congressional Districts.”288 Similarly the Republican Party’s Rules state that “for
the purposes of this rule and all other rules ‘state’ or ‘states’ shall be taken to include
American Samoa, the District of Columbia, Guam, [the] Northern Mariana Islands, Puerto
Rico, and the Virgin Islands . . . unless the context in which the word ‘state’ or ‘states’ is used
clearly makes such inclusion inappropriate.”289
This creates the current illogical state of affairs whereby both major U.S. political
parties welcome the participation of Puerto Rico’s residents in choosing the candidates for the
U.S. presidential election, but then the U.S. government goes on to deny those same citizens a
vote in the actual election itself.
The above applies to all U.S. territories in addition to Puerto Rico. The only exception
to this, as the Commission is well aware, having already dealt with the issue in Statehood
Solidarity Committee v. United States, is the District of Columbia, where residents have the
287
288
See Democratic Party’s Charter, Article 9, § 4.
84
right to elect Electors to the Electoral College by virtue of the 23rd Amendment, which was
passed in 1961. This Amendment allows the residents of the District of Columbia to elect “a
number of electors of President and Vice President equal to the whole number of Senators and
Representatives in Congress to which the District would be entitled if it were a State, but in
no event more than the least populous State.”290
Prior to this Amendment, the residents of the District of Columbia had the same lack of
voting rights as the citizens of Puerto Rico in relation to the Electoral College. The decision
was then made to amend the U.S. Constitution to afford the District of Columbia’s residents
such rights, after the recognition that:
the District of Columbia, with [then] more than 800,000 people, has a
greater number of persons than the population of each of 13 of our
States. District citizens have all the obligations of citizenship,
including the payment of Federal taxes, of local taxes, and service in
our Armed Forces. They have fought and died in every U.S. war since
the District was founded. Yet, they cannot now vote in national
elections because the Constitution has restricted that privilege to
citizens who reside in States. The resultant constitutional anomaly of
imposing all the obligations of citizenship without the most
fundamental of its privileges will be removed by the proposed
constitutional amendment.291
The above quote could be referring to the current situation of Puerto Rico. The three-
and-a-half million U.S. citizens of Puerto Rico are subject to the same federal law and fight in
the same wars as their mainland counterparts, yet the U.S. government persists in denying
them a vote in the U.S. presidential elections.
The residents of the District of Columbia still do not, however, have the right to elect
Representatives or Senators. This was successfully challenged in the case of Statehood
Solidarity Committee v. United States, which (as discussed below292) was decided by this
289
See Rule 1(b) of the Republican National Committee’s Rules.
290
U.S. Const., Article XXIII.
291
H.R. Rep. No. 1698, 86th Cong., 2d Sess. 1, 2 (1960).
292
85
Commission on December 29, 2003. There, as seen, the Commission held that by denying
the residents of the District of Columbia full representation in the Senate and the House of
Representatives, the U.S. is violating both Article II (equality before the law) and Article XX
(right to vote and to participate in government) of the American Declaration. In its judgment,
the Commission commented that “the provisions of the system’s human rights instruments
that guarantee political rights, including Article XX of the American Declaration, must be
interpreted and applied so as to give meaningful effect to [the] exercise of representative
democracy in this Hemisphere,”293 and further referred to the current system of the District of
Columbia sending a non-voting delegate to the House of Representatives (an arrangement
identical to that afforded to Puerto Rico) as “meaningless,”294 and as depriving those residents
of “effective participation in their legislature.”295 Despite the Commission’s ruling, and as the
Commission is also sadly aware, the U.S. has yet to pass the necessary measures rectifying
these human-rights violations.
Petitioners would like to draw the Commission’s attention to another illogical state of
affairs, which is found under the Uninformed and Overseas Absentee Voting Act of 1986.296
Under UOCAVA, a U.S. citizen that is a former resident of a State and who resides outside
the U.S. can vote in federal elections held in the citizen’s previous State of residence. This
right does not, however, apply to a U.S. citizen that moves to a U.S. territory, as UOCAVA
defines “state” as “a State of the United States, the District of Columbia, the Commonwealth
of Puerto Rico, Guam, the Virgin Islands, and American Samoa”297 and “‘United States’
293
Statehood Solidarity Committee at ¶ 87.
294
Id. at ¶ 97.
295
Id.
296
“UOCAVA,” 52 U.S.C. §§ 20301-20311. As amended by the Military and Overseas Voter
Empowerment Act of 2009, Pub. L. No.111-84 (October 28, 2009), Subtitle H, §§ 575-589, 123 Stat. 2190,
2318-35.
297
42 U.S.C. §1973ff-6(6).
86
where used in the territorial sense” as “the several States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa.”298 This
creates a senseless situation where a U.S. citizen who previously voted in New York and
moves to the United Kingdom can vote in the federal elections whereas a U.S. citizen who
previously voted in New York and moves to Puerto Rico cannot vote because Puerto Rico is
not considered under UOCAVA to be “outside the U.S.”
The absurdity of this situation was highlighted in the case of Romeu v. Cohen299 where a
U.S. citizen, formerly a New York resident, residing in Puerto Rico, could no longer vote in
the U.S. presidential elections following his move to Puerto Rico. Although the Court did not
ultimately hold that his inability to vote was unconstitutional, Chief Judge John M. Walker of
the U.S. Court of Appeals, Second Circuit, stated that “the U.S. citizens residing in the
territories are not being afforded a meaningful voice in national governance.”300 This
reiterated the views expressed by the District Court in its statement that “there is little doubt
that all American citizens living in Puerto Rico are suffering a grave injustice. As American
citizens, they should be allowed to vote for their national leader.”301
C. The Limited Parliamentary Rights of the Resident Commissioner
As previously discussed,302 the residents of Puerto Rico are constitutionally unable to
have Members in the House of Representatives by virtue of Puerto Rico’s territorial status.
The U.S. government has allowed, however, Puerto Rican residents to send a non-voting
delegate (the “Resident Commissioner”) to the House of Representatives. This is a right
created by 48 U.S.C. § 891, which states:
298
Id.
299
265 F.3d 118 (2nd Cir. 2001).
300
Id. at ¶ 136.
301
121 F. Supp. 2d 264, 285 (S.D.N.Y. 2000).
302
See, supra, pp. 83-87.
87
The qualified electors of Puerto Rico shall choose a Resident
Commissioner to the United States at each general election, whose
term of office shall be four years from the 3rd of January following
such general election, and who shall be entitled to receive official
recognition as such commissioner by all of the departments of the
Government of the United States, upon presentation, through the
Department of State, of a certificate of election of the Governor of
Puerto Rico.
In comparison to a Representative, the Resident Commissioner has extremely limited
rights in Congress. According to a report by the Congressional Research Service on the
parliamentary rights of territory Delegates and the Resident Commissioner,303 the Resident
Commissioner can be elected to serve on standing committees, and is entitled to all of the
same privileges as the Representatives on those committees. Such privileges include “the
right to question witnesses, debate, offer amendments, vote, offer motions, raise points of
order, include additional views in committee reports, accrue seniority, and chair committees
and subcommittees.”304 The Resident Commissioner can also be appointed to conference
committees, joint and select committees, and preside over the Committee of the Whole House
on the State of the Union.305
In relation to the House itself, the Resident Commissioner has the right to sponsor and
co-sponsor legislation, participate in debates and offer motions, except the motion to
reconsider. He or she can also “raise points of order and questions of personal privilege, call
a Representative to order, appeal rulings of the chair, file reports for committees, object to the
consideration of a bill, and move impeachment proceedings.”306
303
Christopher M. Davis, Parliamentary Rights of the Delegates and the Resident Commissioner from
Puerto Rico, Congressional Research Service (January 5, 2017), see Exhibit 21.
304
Id. at 1.
305
In the United States House of Representatives, the Committee of Whole House on the State of the
Union, which is the full name for what is more commonly known as the “Committee of the Whole,” is a
parliamentary device in which the House of Representatives is considered one large congressional committee.
See, e.g., Davies, Christopher M., The Legislative Process on the House Floor: An Introduction, Congressional
Research Service, Report No. 95-563 (December 1, 2016).
306
Id.
88
However, the Resident Commissioner cannot vote in or preside over the House. He or
she cannot vote for the Speaker of the House, vote in the Committee of the Whole (under the
recent rules of the 115th Congress (2017-2018)), and may not file or discharge petitions. In
essence, this means that the role of the Resident Commissioner is largely limited to
sponsoring legislation, participating in debates, and serving in standing committees.
Further, the rights of the Resident Commissioner have actually been reduced over the
last decade. This is because, under Rules III and XVIII as adopted in the 110th and 111th
Congresses (2007-2010), the Resident Commissioner had the ability to vote in the Committee
of the Whole. This right to vote in the Committee of the Whole was, admittedly, fairly
limited as this was subject to the vote being automatically reconsidered if any of the Resident
Commissioner’s or other territory Delegates’ votes proved decisive. This limited right was
then removed from the House Rules at the start of the 112th Congress (2011-12), leaving the
Resident Commissioner with no voting rights whatsoever in the House of Representatives.
There is no way around it: the position is, to quote the Commission once again,
effectively “meaningless.” The ability to vote forms the heart of a Representative’s purpose
in the House, as it is through this function that the popularly elected Representative conveys
the views of his or her electorate. Without voting rights, the position of the Resident
Commissioner is but a mere gesture attempting to give the appearance of democracy, while in
reality serving to obscure the fact that three-and-a-half million U.S. citizens remain without
effective representation in both chambers of the United States Congress.
VII. HUMAN-RIGHTS STANDARDS
In this section we explore the applicable human-rights standards in this case.
A. General International Standards
The rights to vote, to political participation, to democracy, and the right to enjoy these
civil liberties as equals with one another in one’s own country are regionally and
89
internationally recognized and protected fundamental human rights. Broadly speaking, the
right to vote forms the cornerstone of any equitable society and is arguably the most important
element of a functioning democracy. It bestows ordinary citizens with the power to exercise
an element of control and have input in their and their nation’s future. There are numerous
international standards and policies that entrench the right to vote and the right to exercise
one’s political freedoms. These standards and policies form the foundation of a hemispheric
consensus of the notion of the right to democracy. The petitioners set out some of these
international legal standards below.
1. The Universal Declaration of Human Rights
Although not directly administered by the Commission, the Universal Declaration of
Human Rights,307 which followed the American Declaration, is looked upon by the
Commission as an additional source of international standards.308 The Universal Declaration
was adopted and proclaimed by United Nations General Assembly Resolution309 and
recognizes that: “All human beings are born free and equal in dignity and rights.”310 The
Universal Declaration also states that: “Everyone is entitled to the rights and freedoms set
forth, without distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.”311 Of particular
relevance to the U.S. citizens residing in Puerto Rico is the provision in the Universal
Declaration that states: “No distinction shall be made on the basis of the political,
jurisdictional or international status of the territory to which a person belongs, whether it is
307
“Universal Declaration.”
308
See Charter of the OAS, Chapter XIX, Art. 131.
309
See General Assembly Resolution 217 A (III), (December 10, 1948).
310
Universal Declaration, Art 1.
311
Id. at Art 2 (emphasis added).
90
independent, trust, non-self-governing or under any other limitation of sovereignty.”312
Specifically, the Universal Declaration recognizes that: “[t]he will of the people [is] the basis
of the authority of government.”313 The Universal Declaration proclaims that: “Everyone has
the right to take part in the government of his country, directly or through freely chosen
representatives.”314
The Universal Declaration requires that the will of the people “be expressed in periodic
and genuine elections which shall be by universal and equal suffrage and shall be held by
secret vote or by equivalent free voting procedures.”315 The Universal Declaration recognizes
the fundamental nature of these rights and the importance of their protection by the rule of
law. In doing so, the Universal Declaration provides that: “All are equal before the law and
are entitled without any discrimination to the equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this Declaration.”316
2. The International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights,317 which just as with the
Universal Declaration is not directly administered by the Commission but serves as an
additional source of international standards, was adopted by United Nations General
Assembly Resolution on December 16, 1966, and entered into force on March 23, 1976. The
nations party to the treaty, including the United States, which ratified the International
Covenant in 1992, stated that their “recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of freedom, justice
312
Id.
313
Id. at Art. 21(3).
314
Id. at Art. 21(1).
315
Id. at Art. 21(3).
316
Id. at Art. 7.
317
“International Covenant.”
91
and peace in the world.”318 The signatories also made explicit in the document their own
recognition that the rights therein “derive from the inherent dignity of the human person.”319
Under the International Covenant, the signatories acknowledged their “obligation to promote
universal respect for, and observance of, human rights and freedoms.”320 The signatories
stated their belief that “the individual, having duties to other individuals and to the community
to which he belongs, is under a responsibility to strive for the promotion and observance of
the rights recognized in the present Covenant.”321
Each nation party, including the United States, agreed to “undertake to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights recognized
in the present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.”322
Each nation further agreed to undertake, “[w]here not already provided for by existing
legislative or other measures, the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt such legislative or other
measures as may be necessary to give effect to the rights recognized in the present
Covenant.”323
Among those rights recognized in the International Covenant are those described in its
Articles 25 and 26. Article 25 provides:
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in Article 2 and without unreasonable restrictions:
(1) To take part in the conduct of public affairs, directly or

through freely chosen representatives;
318
International Covenant, Preamble.
319
Id.
320
Id.
321
Id.
322
Id. at Art 2(1) (emphasis added).
323
Id. at Art. 2(2).
92
(2) To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of
the will of the electors; [and]
(3) To have access, on general terms of equality, to public

service in his/her country.324
Article 26 of the International Covenant provides, in relevant part: “All persons are
equal before the law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground.”325
3. The Charter of the OAS
The Charter of the OAS,326 though containing only a few such references, also includes
provisions specifically devoted to representative democracy, human rights, and equality. For
example, in adopting the OAS Charter, the Member States of the OAS explicitly affirmed
their conviction that “representative democracy is an indispensable condition for the stability,
peace and development of the region.”327 Furthermore, one of the essential purposes for the
establishment of the OAS itself, as identified in the OAS Charter, was and remains: “[t]o
promote and consolidate representative democracy.”328
In the OAS Charter, the Member States also reaffirmed the principle that: “The
solidarity of the American States and the high aims which are sought through it require the
political organization of those States on the basis of the effective exercise of representative
democracy.”329 Finally, for the purposes of understanding the legal standards at play in these
324
Id. at Art. 25.
325
Id. at Art. 26.
326
“OAS Charter.”
327
OAS Charter, Preamble.
328
Id. at Art 2(b).
329
Id. at Art. 3(d).
93
present circumstances, OAS Member States agreed in the Charter that “the full participation
of their peoples in decisions relating to their own development are, among others, basic
objectives of integral development.”330
4. The American Convention on Human Rights
The Commission, as previously mentioned, also looks to the American Convention on
Human Rights to determine the scope of the rights at issue. The American Convention makes
explicit the hemispheric interest, “within the framework of democratic institutions,”331 in
consolidating “a system of personal liberty and social justice based on respect for the essential
rights of man.”332 According to the American Convention, these essential rights “are not
derived from one’s being a national of a certain state, but are based upon attributes of the
human personality, and that they therefore justify international protection.”333
The American Convention requires, similar to the International Covenant, that the
rights and freedoms recognized therein be ensured to all persons subject to the States parties’
jurisdiction “without any discrimination for reasons of race, colour, sex, language, religion,
political or other opinion, national or social origin, economic status, birth, or any other social
condition.”334 Similar to the International Covenant, the American Convention also requires
that: “[w]here the exercise of any rights or freedoms [recognized therein] is not already
ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance
with their constitutional processes and the provisions of this Convention, such legislative or
other measures as may be necessary to give effect to those rights or freedoms.”335
330
Id. at Art. 34.
331
American Convention, Preamble.
332
Id.
333
Id.
334
Id. at Art. 1(1).
335
Id. at Art. 2.
94
Article 23(1) of the American Convention provides that every citizen shall enjoy the
following rights and opportunities:
(1) to take part in the conduct of public affairs, directly or through freely
chosen representatives;
(2) to vote and to be elected in genuine periodic elections, which shall be

by universal and equal suffrage and by secret ballot that guarantees
the free expression of the will of the voters; and
(3) to have access, under general conditions of equality, to the public

service of his country.336
Further, the law may only regulate the exercise of the rights and opportunities to vote
and to participate in government referred to above only in very limited circumstances, namely
“on the basis of age, nationality, residence, language, education, civil and mental capacity, or
sentencing by a competent court in criminal proceedings.”337
Article 24 of the American Convention provides that: “All persons are equal before the
law. Consequently, they are entitled, without discrimination, to equal protection of the
law.”338 Of particular relevance to the United States, which is constituted as a federal state,
the American Convention provides that: “the national government of such State Party shall
implement all the provisions of the Convention over whose subject matter it exercises
legislative and judicial jurisdiction. . . .”339 Furthermore, Article 24 provides: “With respect
to the provision over whose subject matter the constituent units of the federal state have
jurisdiction, the national government shall immediately take suitable measures, in accordance
with its constitution and its laws, to the end that the competent authorities of the constituent
units may adopt appropriate provisions for the fulfilment of this Convention.”340
336
Id. at Art. 23(1).
337
Id. at Art. 23(2).
338
Id. at Art. 24.
339
Id. at Art. 28(1).
340
Id. at Art. 28(2).
95
5. The Inter-American Democratic Charter
In the Inter-American Democratic Charter,341 adopted by the OAS General Assembly in
2001, the OAS General Assembly “recognize[d] that representative democracy is
indispensable for the stability, peace, and development of the region, and that one of the
purposes of the OAS is to promote and consolidate representative democracy.”342 The OAS
General Assembly also “recognize[ed] that all the rights and obligations of member states
under the OAS Charter represent the foundation on which democratic principles in the
Hemisphere are built.”343
The OAS General Assembly recognized that: “solidarity among and cooperation
between American states require the political organization of those states based on the
effective exercise of representative democracy, and that economic growth and social
development based on justice and equity, and democracy are interdependent and mutually
reinforcing.”344 It was also acknowledged that: “the American Declaration on the Rights and
Duties of Man and the American Convention on Human Rights contain values and principles
of liberty, equality, and social justice that are intrinsic to democracy.”345 As such, one of the
purposes of the Democratic Charter is simply to aid in the “progressive development of
international law and clarify the provisions set forth in the OAS Charter and related basic
instruments in the preservation and defence of democratic institutions, according to
established practice.”346 Moreover, the OAS General Assembly reaffirmed “that the
promotion and protection of human rights is a basic prerequisite for the existence of a
democratic society, and recogni[zed] the importance of the continuous development and
341
“Democratic Charter.”
342
Democratic Charter, Preamble. See also Democratic Charter, Art. 1 and Art. 11.
343
Democratic Charter, Preamble.
344
Id. Preamble.
345
Id.
96
strengthening of the inter-American human rights system for the consolidation of
democracy.”347 In that vein, the Democratic Charter expressed the conviction of the OAS
General Assembly that the organization’s mission is not limited to the defense of democracy
wherever its fundamental values and principles have collapsed, but also calls for ongoing and
creative work to consolidate democracy as well as a continuing effort to prevent and
anticipate the very causes of the problems that affect the democratic system of government.
In fact, Article 1 of the Democratic Charter declared that: “The peoples of the Americas have
a right to democracy and their governments have an obligation to promote and defend it.”348
In Article 2, the Democratic Charter provides that: “The effective exercise of
representative democracy is the basis for the rule of law and of the constitutional regimes of
the [M]ember [S]tates of the Organization of American States. Representative democracy is
strengthened and deepened by permanent, ethical, and responsible participation of the
citizenry within a legal framework conforming to the respective constitutional order.”349
In Article 3, the Democratic Charter states: “Essential elements of representative
democracy include, inter alia, respect for human rights and fundamental freedoms, access to
and the exercise of power in accordance with the rule of law, the holding of periodic, free, and
fair elections based on secret balloting and universal suffrage.” As an expression of the
sovereignty of the people and of significance to petitioners here, the Democratic Charter
recognizes in its Article 6 that: “It is the right and responsibility of all citizens to participate
in decisions relating to their own development. This is also a necessary condition for the full
and effective exercise of democracy. . . .”350
346
Id.
347
Id.
348
Id. at Art. 1.
349
Id. at Art. 2.
350
Id. at Art. 6.
97
In its Article 7, the Democratic Charter states: “Democracy is indispensable for the
effective exercise of fundamental freedoms and human rights in their universality,
indivisibility and interdependence, embodied in the respective constitutions of states and in
inter-American and international human rights instruments.”
In its Report on Admissibility,351 the Commission helpfully acknowledged that the
Democratic Charter “provides an important statement of principles and standards concerning
the relationship between democracy and human rights,”352 which are often referred to by the
Commission in interpreting and applying related articles of the American Convention and the
American Declaration. As such, the Commission “will take the terms of the Democratic
Charter into account in applying the American Declaration, in relation to the OAS Charter and
its Statute and Rules of Procedure.”353 The Commission also noted that “[t]he Democratic
Charter does not refer to the individual petition system as a direct mechanism of
implementation; rather it has served to inform the interpretation of certain rights protected
under the American Declaration and Convention.”354 Petitioners respectfully disagree. In
what appears to be an open invitation to potential petitioners in this hemisphere to bring
appropriate claims under the Democratic Charter, Article 8 provides: “Any person or group
of persons who consider that their human rights have been violated may present claims or
petitions to the inter-American system for the promotion and protection of human rights in
accordance with its established procedures. Member [S]tates reaffirm their intention to
strengthen the inter-American system for the protection of human rights for the consolidation
of democracy in the Hemisphere.”355 Certainly here, consistent with the terms of Article 8 of
351
Petition P-1105-06, Report No. 17/17 (January 27, 2017).
352
Id. at ¶ 12.
353
Id.
354
Id.
355
Id. at Art. 8.
98
the Democratic Charter and “the principles and standards concerning the relationship between
democracy and human rights”356 of the Democratic Charter that the Commission takes into
account when interpreting the American Declaration, petitioners offer their petition, alleging
violations of their rights to participate in democratic government, in accordance with all
established procedures of this Commission.
Furthermore, Article 9 of the Democratic Charter provides, in relevant part: “The
elimination of all forms of discrimination, especially ethnic and race discrimination, as well as
diverse forms of intolerance and respect for ethnic, cultural and religious diversity in the
Americas contribute to strengthening democracy and citizen participation.”357
Finally, under Article 23 of the Democratic Charter, the OAS General Assembly
imposed on Member States: “[the] responsib[ility] for organizing, conducting, and ensuring
free and fair electoral processes.”358
B. The American Declaration of the Rights and Duties of Man
The inter-American system for the protection of human rights emerged with the
adoption of the American Declaration in April 1948. The American Declaration, also known
as the Bogotá Declaration, is the first international human-rights instrument of a general
nature, predating even the Universal Declaration. The American Declaration asserts that its
human rights’ provisions are not dependent on nationality, but are those universally
guaranteed to everyone by virtue of being human. While this instrument is a declaration, it
has provided the normative framework for basic human rights and fundamental freedoms in
the OAS. It has also been accepted as a legally binding agreement by the Inter-American
Court of Human Rights and the Commission. In particular, it has been used as an authority
356
Report on Admissibility at ¶ 12.
357
Democratic Charter, Art. 9.
358
Id. at Art. 23.
99
for Member States that have not ratified the American Convention—such as the United States
and Canada.
The American Declaration proclaims the will of the American States to protect and
promote the essential rights of the individual. Among those essential rights are the rights to
equality under the law, to juridical personality and the enjoyment of basic civil rights, and to
vote and to participate in one’s own government:
1. Article II—Right to Equality Before Law
Specifically, the American Declaration provides, in its Article II,

that: “All persons are equal before the law and have the rights
and duties established in this Declaration, without distinction as
to race, sex, language, creed or any other factor.”359 This Article
confers the notion of equality before the law and that no person
may be unfairly discriminated against based on any ground
identified in Article II, or any other factor for that matter.
2. Article XVII—Right to Personal Recognition and to Basic Civil Rights
Article XVII of the American Declaration states that: “Every

person has the right to be recognized everywhere as a person
having rights and obligations, and to enjoy the basic civil
rights.”360 What this effectively means is that every person is
recognized as a holder of rights and that there can be no
unreasonable distinctions in the application of those rights.
3. Article XX—Right to Vote and to Participate in Government
The American Declaration also provides in its Article XX that:

“Every person having legal capacity is entitled to participate in
the government of his country, directly or through his
representatives, and to take part in popular elections, which shall
be by secret ballot, and shall be honest, periodic and free.”361
359
American Declaration, Art. II.
360
Id. at Art. XVII.
361
Id. at Art. XX.
100
C. Precedent
The petitioners rely on, although not by any means exclusively, the case of Statehood
Solidarity Committee362 decided by the Commission on December 29, 2003. In that case, the
Commission held that denying the citizens of the District of Columbia the right to voting
representation in their national legislature violated both Article II and Article XX of the
American Declaration.363 In support of its holding that the actions of the United States
violated the rights of the residents of the District of Columbia, the Commission referred to the
“long recognized significance of representative democracy and associated political rights to
the effective realization and protection of human rights more broadly in the hemisphere.”364
According to the Commission: “[t]he participation of citizens in government, which is
protected by Article XX of the Declaration, forms the basis and support of democracy, which
cannot exist without it; for title to government rests with the people, the only body
empowered to decide its own immediate and future destiny and to designate its legitimate
representatives.”365
Neither form of political life, institutional change, development planning, nor the
control of those who exercise public power can be made without representative government.
The right to political participation leaves room for a wide variety of forms of government.
There are many constitutional alternatives in relation to the degree of centralization of the
powers of the state or the election and attributes of the organs responsible for the exercise of
those powers. However, a democratic framework is an essential element for the establishment
of a political society where human values can be fully realized.
362
363
Under the American Declaration, voting is not only a right but also a duty. This is specifically
recognized by Article XXXII of the American Declaration, which provides: “It is the duty of every person to
vote in the popular elections of the country of which he is a national, when he is legally capable of doing so.”
364
365
Id.
101
In Statehood Solidarity Committee,366 the Commission expressed its view that “those
provisions of the system’s human rights instruments that guarantee political rights, including
Article XX of the American Declaration, must be interpreted and applied so as to give
meaningful effect to [the] exercise of representative democracy in this Hemisphere.”367 In
interpreting the scope of the rights at stake, the Commission recognized that: “a degree of
autonomy must be afforded to states in organizing their political institutions so as to give
effect to these rights, as the right to political participation leaves room for a wide variety of
forms of government.”368 As the Commission has appreciated, “its role or objective is not to
create a uniform model of representative democracy for all states, but rather is to determine
whether a state’s laws infringe fundamental human rights.”369 While making it clear that “not
all differences in treatment are prohibited under international human rights law, and [that] this
applies equally to the right to participate in government,”370 the Commission also made clear
that: “[t]his does not mean that the conduct of states in giving effect to the right to
representative government is immune from review by the Commission.”371 Rather, the
Commission held, “certain minimum standards or conditions exist respecting the manner in
which this right is given effect which must be shown to have been satisfied.”372 The
Commission stated that: “[t]hese standards or conditions relate primarily to the nature of
permissible limitations that may be imposed on the exercise of such rights.”373 In this regard,
the Commission stated that the limitations are provided in the exhaustive list included in
366
See, supra, p. 86
367
Id. at ¶ 87.
368
Id. at ¶ 88.
369
Id.
370
Id.
371
Id. at ¶ 89.
372
Id.
373
Id.
102
Article 23(2) of the American Convention, that is, “namely age, nationality, residence,
language, education, civil and mental capacity, or sentencing by a competent court in criminal
proceedings.”374
More generally, the Commission held in Statehood Solidarity Committee that “its role in
evaluating the right to participate in government is to ensure that any differential treatment in
providing for this right lacks any objective and reasonable justification.”375 In the
Commission’s own words:
in securing the equal protection of human rights, [S]tates may draw

distinctions among different situations and establish categories for
certain groups of individuals, so long as it [SIC] pursues [SIC] a
legitimate end, and so long as the classification is reasonably and
fairly related to the end pursued by the legal order. And as with other
fundamental rights, restrictions or limitations upon the right to
participate in government must be justified by the need of them in the
framework of a democratic society, as demarcated by the means, their
motives, reasonability and proportionality. At the same time, in
making these determinations, the Commission must take due account
of the State’s degree of autonomy in organizing its political
institutions and should only interfere where the State has curtailed the
very essence and effectiveness of a petitioner’s right to participate in
his or her government.376
After taking account of all of these concerns, the Commission found in Statehood
Solidarity Committee that the representation afforded to the residents of the District of
Columbia in Congress—where, and just like U.S. citizens in Puerto Rico, residents may send
only a non-voting delegate to the U.S. House of Representatives and no Senators to the U.S.
Senate—is “meaningless.”377 Accordingly, the Commission held that, because the
“arrangement” under which the residents of the District of Columbia attempt to exercise any
374
Id. See, supra, pp. 95-96
375
Id. at ¶ 90.
376
Id.
377
Id. at ¶ 97.
103
political power deprives them of “effective participation in their legislature,”378 “the
Commission cannot accept”379 it:
Despite the existence of this significant and direct legislative authority

that Congress exercises over the Petitioners and other residents of the
District of Columbia, however, the Petitioners have no effective right
to vote upon those legislative measures, directly or through freely
chosen representatives, and it is not apparent from the record that
Congress is responsible to the Petitioners for those measures by some
other means. In this manner, Congress exercises expansive authority
over the Petitioners, and yet it is in no way effectively accountable to
the Petitioners, or other citizens residing in the District of Columbia.
This, in the Commission’s view, has deprived the Petitioners of the
very essence of representative government, namely that title to
government rests with the people governed.380
The U.S. government’s violations in Statehood Solidarity Committee pale in
comparison to the violations of the rights of petitioners hereto and of the three-and-a-half
million other U.S. citizens residing in Puerto Rico. The U.S. citizens resident in the District
of Columbia, which the U.S. Census Bureau currently estimates at approximately 681,190381
had (and have) the right to participate in Presidential/Vice Presidential elections. In contrast,
the three-and-a-half million U.S. citizens residing in Puerto Rico are not only denied voting
representation in Congress, but also cannot vote for President and Vice President. If the
Commission found that the residents of the District of Columbia were (and are) being denied
“the very essence of representative government,”382 the situation of the U.S. citizens of Puerto
Rico is markedly worse. Certainly, the U.S. citizens of Puerto Rico are no less citizens of the
United States than the U.S. citizens living in the District of Columbia or, for that matter, the
U.S. citizens living anywhere in the United States. As such, the U.S. citizens living in Puerto
378
Id.
379
Id.
380
Id. at ¶ 80.
381
See https://www.census.gov/quickfacts/DC.
382
104
Rico do not deserve any less protection from the Commission than those petitioners in
Statehood Solidarity Committee.
In addition to Statehood Solidarity Committee, there are other precedents in which the
Commission has recognized that violations of the right to participate in representative
government contravene hemispheric human-rights law. Worth mentioning now are the cases
of Andra Aylwin Azocar v. Chile383 and Susana Higuchi Miyagawa v. Peru.384 In Aylwin, the
Commission considered whether a Chilean constitutional provision that allowed a life term
for designated senators violated citizens’ rights to political participation and to equal
protection as guaranteed by Articles 23 and 24 of the American Convention. As part of its
evaluation of the claims made in the case, the Commission declared in Aylwin that “only
through the effective exercise of representative democracy can human rights be fully
guaranteed.”385 The Commission also stated that: “there is a conception in the inter-
American system of the fundamental importance of representative democracy as a legitimate
mechanism for achieving the realization of and respect for human rights; and as a human right
itself, whose observance and defence was entrusted to the Commission.”386 As seen in
Statehood Solidarity Committee, the Commission held that in order to determine that a
violation of the right to participate in representative government has occurred, the
Commission’s role is to ensure that any differential treatment in providing for this right lacks
any objective and reasonable justification.387 The Commission shifted “the burden of proving
the legitimate aim” to the defendant state.388 Thus, petitioners herein maintain that it is the
United States, and not them, that bears the burden of proving that the deprivation of
383
Case 11,863, Report No. 137/99 (December 27, 1999).
384
Case 11.428, Report No. 119/99 (October 6, 1999).
385
Aylwin at ¶ 39.
386
Id. at ¶ 46.
387
Id. at ¶ 99.
105
fundamental political rights at the national level of the U.S. citizens residing in Puerto Rico
serves any legitimate aim.
Petitioners plead that the Commission find that there is no objective or reasonable
justification for depriving them of their right to vote and to participate in representative
government. In finding that Chile did violate Articles 23 and 24 of the American Convention,
the Commission reasoned in Aylwin that: “Representative democracy—one of whose key
elements is the popular election of those who hold political power—is the form of
organization of the state explicitly adopted by the member states of the Organization of
American States. In contrast to the United Nations, the inter-American system has
incorporated an express provision in its Charter, Article 3(d), according to which the
solidarity of the American states and the high aims of the Charter require a form of political
organization based on the effective exercise of representative democracy.”389
In Aylwin, the Commission found violations when citizens were prevented from electing
a handful of seats in their national legislature. In Puerto Rico, not one of the three-and-a-half
million U.S. citizens residing therein has the right to elect the President or Vice President or
voting Representatives or Senators to the United States Congress. Indeed, the situation in
Puerto Rico deprives petitioners of their right to vote and to political participation in an
extremely more severe manner than that in Aylwin.
Similarly in Higuchi, the Commission was presented with allegations that the state, in
that case Peru, was violating several provisions of the American Convention. Specifically,
the allegations concerned the Peruvian National Elections Board’s denial of the petitioner’s
standing as a political candidate. In response, the Commission held that Peru violated the
petitioner’s right to political participation as guaranteed in Article 23 of the American
388
Id. at ¶ 105.
389
Id. at ¶ 31.
106
Convention. The Commission also found that Peru deprived the petitioner of her right to
equal protection under Article 24 of the American Convention when she was denied standing
as a political candidate.
In Higuchi, a single political candidate was denied the right of political participation
and related right to equal protection. In Puerto Rico, by comparison, and unlike the U.S.
citizens living in the 50 States, three-and-a-half million U.S. citizens have absolutely no right
to vote and to political participation at the national level.
Other precedents support petitioners’ case. In relation to Article XVII of the American
Declaration, it is a principle of international human-rights law that basic human rights cannot
be extinguished by unlawful and arbitrary blocking of their realization. In The Haitian Center
for Human Rights v. United States,390 entry of undocumented migrants to the United States
from the high seas was suspended. As a result, undocumented migrants were interdicted at
sea and returned to their country of origin or departure. The repatriated Haitians almost
always faced an even greater threat following their forcible return to the military authorities in
Haiti. The petitioners in that case submitted that:
The USG391 has failed to recognize that laws even apply to Haitians
fleeing persecution. The USG has denied that Haitians even qualify
for internationally recognized rights and that they wish to exercise
their right to life. These refugees also want to exercise their right to
petition for and receive asylum, their right to non-refoulement,392 their
right to equality before the law, and their right to a fair trial. The USG
denies the juridical personality of Haitian refugees by denying a
meaningful opportunity to exercise these rights.393
The United States argued that “Article XVII does not mean that all states are obliged to
accord the same measure of civil rights to all individuals wherever they may be located as
390
Case 10.675, Report No. 51/96 (March 13, 1997).
391
“United States Government.”
392
Non-refoulement is the practice of not forcing refugees or asylum seekers to return to a country in
which they are liable to be subject to persecution.
393
Id. at ¶ 128.
107
they provide to their own citizens.”394 The Commission found that the United States had not
breached Article XVII of the American Declaration. Of interest here is the argument put
forward by the United States. The United States maintained that:
Nonetheless, the United States recognizes and fully complies as a

general proposition with the principle articulated in Article XVII. All
people possess a natural right to exercise those civil rights inherent in
the human condition. . . . While it is incontrovertible that all people
maintain basic civil rights, Article XVII does not mean that all states
are obliged to accord the same measure of civil rights to all
individuals wherever they may be located as they provide to their own
citizens. The United States has protected and continues to protect in
our national courts the basic civil rights of all United States nationals
and all people located “within the jurisdiction” of our national
boundaries.395
Petitioners remind the Commission that despite Puerto Ricans having been U.S. citizens
for over 100 years, the United States has not accorded them with the same measure of civil
rights as their fellow countrymen, i.e., the citizens of the 50 States who enjoy voting
representation in Congress, and the right to vote for President and Vice President. Although
the United States has declared that “[t]he United States has protected and continues to protect
in our national courts the basic civil rights of all United States nationals,” the United States
has failed to recognize the juridical personality of the U.S. citizens residing in Puerto Rico in
their pleas to exercise their civil right to vote and to participate in their own federal elections.
In the case of La Cantuta v. Peru,396 the Inter-American Court of Human Rights
reasserted the meaning of juridical personality:
the Inter-American Court has defined it as the right of every person to

be recognized everywhere as a person having rights and obligations,
and to enjoy the basic civil rights. The right to the recognition of
juridical personality implies the capacity to be the holder of rights
(capacity of exercise) and obligations; the violation of this recognition
394
Id. at ¶ 108.
395
Id. at ¶ 107.
396
IACHR Series C No. 162, IHRL 3047 (November 29, 2006).
108
presumes an absolute disavowal of the possibility of being a holder of
such rights and obligations.397
In view of the Court’s guidance in La Cantuta, the application of Article XVII of the
American Declaration requires the complete rejection of the possibility of Puerto Ricans in
Puerto Rico enjoying the right to vote for President and Vice President, and enjoying voting
representation in Congress. This disavowment of the rights of the U.S citizens residing in
Puerto Rico is incontrovertible.
In Undocumented Workers v. United States of America,398 the Commission found that
the United States had violated Article XVII of the American Declaration by excluding two
undocumented employees from the employment rights and remedies available to their
documented counterparts. These rights included access to compensation for workplace
injuries, freedom from workplace discrimination, and entitlement to hold an employer
responsible for a workplace injury. Within these contexts, the petitioners in that case claimed
that they were denied full protection for their labor rights.
In its response, the United States denied that the undocumented employees were entitled
to any such rights due to their undocumented status:
The State submits that it has a sovereign right to deny permission to

work to those illegally present in the country or to those who have not
obtained authorization to work. Thus, the State submits that,
consistent with this principle, federal and state laws recognize the
difficulty in providing backpay for work that was not done when it
could not lawfully have been done.399
The Commission highlighted that Article XVII of the American Declaration “implies
the recognition of every person as entitled to rights and obligations based on the sole
condition of being human. As such, this right is an essential requirement or condition for the
397
Id. at ¶ 107.
398
Case 12.834, Report No. 50/16 (November 30, 2016).
399
Id. at ¶ 36.
109
enjoyment of all rights, and it likewise imposes important limits to State action.”400 The
Commission accordingly observed that “the failure to recognize juridical personality harms
human dignity because it renders a person vulnerable to non-observance of his or her rights by
the State or other individuals.”401 The Commission had no difficulty in finding that the right
to work is a basic civil right and must be observed under “proper conditions,”402 which were
defined as those that “ensure life, health and a decent standard of living for the worker and his
family, both during his working years and in his old age, or when any circumstance deprives
him of the possibility of working.”403 The Commission found that workers’ compensation
programs and the benefits provided through them fell squarely within the concept of “proper
conditions,” especially in circumstances where an accident deprives a worker of the
possibility of working (as was the case for the petitioner there). The Commission further
stated that:
In addition, the failure to remedy the wrong with the correct or

proportionate redress in the situation of these undocumented workers
constitutes an impermissible failure to recognize their juridical
personality. In effect, this failure creates a legal limbo in which the
violations committed against them are not recognized under the law.
Based on a review of this Commission’s decisions and principles of
international law, the IACHR considers that undocumented workers
should not be denied protection of their human rights by the State on
the basis of infractions of immigration regulations. In other words, it
does not follow that an infraction of (civil) domestic legislation in one
area should be used to deprive that person of the protection of his or
her rights in another. The IACHR emphasizes that an infraction of a
State’s immigration laws does not exempt the State from complying
with its obligations imposed by both domestic and international law to
remedy the violation of labor rights.404
400
Id. at ¶ 94
401
Id.
402
Id. at ¶ 95.
403
Id.
404
Id. at ¶ 97 (emphasis added).
110
Likewise, petitioners maintain that the simple fact that Puerto Rico is classified as a
“territory” rather than a “State” in domestic legislation should not deprive the approximately
three-and-a-half million U.S. citizens residing in Puerto Rico of their basic civil right to vote
for their federal government. As the Commission put it, “to find otherwise would be to
provide for an indirect, yet highly effective, way of discriminating against”405 the U.S.
citizens of Puerto Rico “by denying them juridical personality and creating legal inequality
between persons.”406 This Commission should not permit three-and-a-half-million people to
remain—to borrow the Commission’s own words—in this “legal limbo.”
Statehood Solidarity Committee, Aylwin, Higuchi, The Haitian Center for Human
Rights, La Cantuta, and Undocumented Workers are but a few cases that provide support for
petitioners’ claims. These and other cases, as well as the hemispheric and international laws
and standards previously discussed, provide the basis for the claims to the specific human-
rights violations with which petitioners herein charge the United States.
D. Articulation of Applicable Legal Tests
Considering the applicable laws and precedent, and particularly the standards that
throughout the years the Commission has articulated, we submit that the Commission applies
the following tests to the violations petitioners have asserted in this case:
1. With respect to the right to vote and to participate in government,

the Commission applies the following three-part test:
(a) As the first step, the Commission requires any petitioners

asserting this violation to establish that their right to vote
and to participate in their government has, “on the
evidence, been limited or restricted by the state”407 beyond
the “exhaustive list of grounds upon which states may
properly base limitations of the exercise of the rights and
opportunities referred to in Article 23(1) of the American
Convention, namely on the basis of age, nationality,
405
Id.
406
Id.
407
111
residence, language, education, civil and mental capacity,
or sentencing by a competent court in criminal
proceedings;”408
(b) The second step requires the Commission to consider

whether the imposed limitations or restrictions “curtail the
very essence and effectiveness” of the petitioners’ right to
vote and to participate in their government; and
(c) The third and final step requires the shifting of the burden
to the State to establish that, given the substantial degree
of autonomy to which it is otherwise entitled to organize
its political institutions as it best deems fit and proper, the
State’s restrictions on petitioners’ right to participate in
their government are “reasonable, objective and
proportionate.”409 The State prevails if it is able to meet
that burden. If it is not, petitioners prevail.
2. With respect to the right to equal treatment under the law, this
Commission applies the following two-part test:
(a) The Commission first considers whether any differential

treatment to which the alleged victims of the violations are
subjected is based on any legitimate factual differences
between the two groups of citizens at issue; and
(b) Assuming there are such legitimate factual differences, the

Commission would then evaluate whether there is a
reasonable relationship of proportionality that justifies the
differential treatment in light of any legitimate State aim,
giving due deference to the State’s prerogative to choose
its own political institutions. The State prevails if it can
establish that “reasonable relationship of proportionality.”
If there are no legitimate factual differences between the
two groups of citizens at issue or the State cannot establish
such “reasonable relationship of proportionality,”
petitioners prevail.
3. And with respect to the right to juridical personality and to have

one’s civil rights respected, this Commission applies the following
three-part test:
(a) As the first step, the Commission considers whether the

alleged victims asserting the violation are capable of
having juridical personality, i.e., the victims are persons
capable of having rights and capable of enjoying those
rights;
408
Id. at ¶ 87.
409
Id. at ¶ 99.
112
(b) Assuming the alleged victims of the violation are capable
of having rights, the Commission would then consider
whether the State has failed to recognize the juridical
personality of the alleged victims. The violation of this
recognition requires an absolute disavowal of the
possibility of the alleged victims being holders of such
rights; and
(c) As the final step in the context of this case, the

Commission needs to consider whether the right to vote
and to participate in government and the right to equal
treatment under the law are basic civil rights. The State
prevails if the alleged victims are not capable of having
juridical personality; if the State has not completely
disavowed those alleged victims’ juridical personalities
and their enjoyment of such rights; or if the rights to vote
and to participate in government and to equal treatment
under the law are not classified as basic civil rights.
Petitioners apply these tests in § VIII below and urge the Commission to find that they
have fully met each and every element to more than justify a finding by the Commission that
the United States is violating the corresponding Articles of the American Declaration.
VIII. ARGUMENT
Based on the foregoing, this Commission should not have any difficulty in finding that
the United States is violating petitioners’ rights under the American Declaration. We address
below why that is the case with respect, first, to the right to vote and to participate in
government, followed by the rights to equal treatment under the law and to juridical
personality and basic civil rights. We then conclude this section with a brief discussion as to
why the human rights of the U.S. citizens of Puerto Rico do not (and should not be
understood or made to) depend on the territorial status of the Commonwealth nor on the few
still on the island, every year fewer and fewer, who if not necessarily any longer content with
the colonial nature of the U.S.-P.R. relationship still support and are actively complicit in
these violations.
113
A. The United States Is Violating the Human Right of Its Citizens in Puerto
Rico to Vote and to Participate in Government.
That the United States is violating the human right of the U.S. citizens of Puerto Rico to
vote and to participate in their national (i.e., federal) elections is plain to see. As previously
discussed, the Commission applies a three-part test; we take each part of that test in turn
below.
1. The United States Has Limited or Restricted the Right of Its Citizens in
Puerto Rico to Vote and to Participate in Their National Government.
When evaluating a claim to the violation of the right to vote and to participate in
government under the American Declaration, the Commission first considers, as seen,410
whether the State in question has limited or restricted that right beyond the exhaustive list of
legally permissible grounds included in Article 23(2) of the American Convention, namely on
the basis of age, nationality, residence, language, education, civil and mental capacity, or
sentencing by a competent court in criminal proceedings.411 This is undeniable in the case of
Puerto Rico and need not hold up the Commission very much: because, as previously
discussed, the highest domestic law in the United States (i.e., the U.S. Constitution) only
grants to States and, by amendment, to the District of Columbia, the right to send electors to
the Electoral College, which in turn elects the President and the Vice President; because under
the same highest law only the people who reside in States can send from those States
Representatives to the House and Senators to the Senate; and because the U.S. citizens of
Puerto Rico do not live in a State but rather in a U.S. territory, they have no domestic legal
right to vote for President, Vice President, Representatives, or Senators, and may only elect a
delegate, called the “Resident Commissioner,” to the House who, as discussed, has no voting
rights in that chamber.
410
411
American Convention, Art 23(2).
114
The United States has not argued at any point thus far in this case— and petitioners do
not anticipate that it will on the merits either—that the restrictions it imposes on its citizens in
Puerto Rico to vote are based on these citizens’ ages, nationalities, languages, educational
levels, mental capacities, or previous convictions. It has only argued that these citizens’ right
to vote is restricted based on the fact that they live in a territory as opposed to a State.412 To
the extent that the United States’ argument amounts to one based on petitioners’ residence, the
Commission should reject it.
In this case, this Commission should understand and interpret the term “residence” for
the purpose of Article 23(2) of the American Convention to mean “residence in the territory
of the State.” Before extending the franchise to any individual, the State may legitimately
require, within otherwise the bounds of reason, that that individual (in the United States,
always a citizen) reside where he or she wishes to exercise the right to vote.413 But what a
State ought not to be able to do, which is what the United States is regrettably doing here, is
to limit or to restrict the right to vote by excluding a discrete geographic portion within its
own territory and a discrete section of its own population from enjoying and exercising that
right. Human rights do not allow it.
Moreover, U.S. domestic law, in the form of the Immigration and Nationality Act,414
defines the term “residence” to mean the “place of general abode,” and in turn the “place of
general abode of a person means his principal, actual dwelling place in fact, without regard to
412
See Case No. P-776-06: Igartúa v. United States of America, Case No. P-1104-06: Rosselló v. United
States of America before the Inter-American Commission on Human Rights, Response of the United States of
America (June 28, 2010) at 3.
413
But see, e.g., Grace, Jeremy, External and Absentee Voting, chapter published in Challenging the
Norms and Standards of Election Administration, pp. 35-58 (IFES, 2007), at http://petition.khmeroversea.info/
wp-content/uploads/2014/03/challenging_election_norms_and_standards.pdf (arguing that evolving human-
rights norms should recognize extension of franchise to estimated 175 to 250 million persons currently residing
outside of their home communities or countries of citizenship).
414
The Immigration and Nationality Act of 1965, 79 Stat. 911, 8 U.S.C. §§ 1101-1537 (June 30, 1968).
115
intent.”415 The same domestic law defines the “United States” to mean “the continental
United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States,
and the Commonwealth of the Northern Mariana Islands.”416
The U.S. citizens of Puerto Rico reside in Puerto Rico, which belongs to and is part of
the United States. Because Puerto Rico is not a foreign country, residency in Puerto Rico
cannot be considered in any way, shape, or form to be residency abroad. In Statehood
Solidarity Committee, the Commission did not feel constrained to consider that the residency
of the citizens of the District of Columbia (obviously in the District of Columbia, which—
again obviously—is in the United States) somehow permitted the United States to lawfully
restrict these citizen’s human right to vote and to participate in their own government.
Similarly, it should not find so here. Plain and simple: residency in Puerto Rico is residency
in the United States.
In this context, the decision of the European Court of Human Rights in Assanidze v.
Georgia, is instructive. There, the Court held that: “The general duties imposed on the State
by Article 1 of the Convention entails and requires the implementation of a national system
capable of securing compliance with the Convention throughout the territory of the State for
everyone.”417 The Court also stated that:
Even though it is not inconceivable that States will encounter difficulties in

securing compliance with the rights guaranteed by the Convention in all
parts of their territory, each State Party to the Convention nonetheless
remains responsible for events occurring anywhere within its national
territory.
Further, the Convention does not merely oblige the higher authorities of the
Contracting States to respect for their own part the rights and freedoms it
embodies; it also has the consequence that, in order to secure the enjoyment
415
8 U.S.C. § 1101(a)(33).
416
Id. § 1101(a)(38) (emphasis added).
417
Assanidze v. Georgia, European Court of Human Rights (Application 71503/01), Grand Chamber
Judgement of 8 April 2004, 34, ¶ 14.
116
of those rights and freedoms, those authorities must prevent or remedy any
breach at subordinate levels.418
And most importantly for our purposes, the European Court of Human Rights stated: “In
addition to the State territory proper, territorial jurisdiction extends to any area which at the
time of the alleged violation, is under the “overall control” of the State, . . . notably occupied
territories. . . .”419
Because the U.S. citizens of Puerto Rico reside in the United States, the United States
cannot legitimately claim that the limits or restrictions it imposes on their right to vote and to
participate in their government at the federal level are based on these citizens’ residence.
Accordingly, this Commission should find that the United States has limited or restricted the
right of its citizens in Puerto Rico to vote and to participate in their government beyond what
could otherwise be legally permissible under Article 23(2) of the American Convention and,
thus, that petitioners have met the first part of the Commission’s right-to-vote test.
2. The Limitations or Restrictions Imposed by the United States “Curtail

the Very Essence and Effectiveness” of the U.S. Citizens of Puerto
Rico’s Right to Vote and to Participate in Their Government.
Having established that petitioners’ right to vote and to participate in their government
at the federal level in the United States has been impermissibly limited or restricted, the
Commission then needs to consider the extent of those limitations or restrictions. If the
limitations or restrictions fall short of total disenfranchisement, they may—perhaps—pass
muster, particularly in light of the deference the Commission “afford[s] to states in organizing
their political institutions.”420 It is a different matter altogether, however, if those limitations
or restrictions “curtail the very essence and effectiveness”421 of the right to vote and to
418
Id. at ¶ 146.
419
Id. at ¶ 138.
420
Statehood Solidarity Committee v. United States at ¶ 101.
421
Id. at ¶ 99.
117
participate in one’s government. If that is the case, the Commission is then required to
continue its consideration of the matter by taking up the third and last element of its right-to-
vote analysis (discussed in the next subsection below). Here, again, and now with respect to
the second element in the analysis, the Commission need not be detained much: the
limitations or restrictions on the U.S. citizens of Puerto Rico do indeed “curtail the very
essence and effectiveness” of their right to vote for and to participate in their own national
government.
The U.S. citizens of Puerto Rico cannot vote for President and Vice President. Period;
full stop. While, as previously discussed,422 those who belong to one of the two major
national parties (i.e., the Democratic Party and the Republican Party) may participate in the
internal party processes through which delegates are chosen to the respective national
quadrennial conventions and, as part of the Puerto Rico delegation to those conventions,
choose among and vote for the Presidential and Vice Presidential national party candidates,
when it comes time to the actual election—always held the Tuesday following the first
Monday in November every four years, the last one occurring on November 8, 2016 and the
next one taking place on November 3, 2020—the U.S. citizens of Puerto Rico have no right
whatsoever to vote. One cannot “curtail the very essence and effectiveness” of their right to
vote for and to participate in their government any further than by completely barring these
citizens from exercising that right to begin with. The disenfranchisement of Puerto Ricans in
Puerto Rico at the national level is total, complete, and absolute.
Moreover, the U.S. citizens of Puerto Rico have only the right to elect to Congress a
non-voting Resident Commissioner. And here precedent is decisive. The Commission
already held in Statehood Solidarity Committee that a non-voting member of Congress—in
422
See, supra, p. 63.
118
the case of the District of Columbia, called “Delegate”—is, effectively, “meaningless.”423 “In
a democratic system, the right to vote is genuine and effective only when, under the governing
rules, there is a chance, large or small, that, sooner or later, the vote will affect the ultimate
result.”424 Similarly, and unfortunately, the U.S. citizens of Puerto Rico’s right to vote for a
Resident Commissioner (who has no voting rights in Congress either) is effectively
meaningless.
In denying them the Presidential (and Vice Presidential) vote and the right to voting
Representatives and to any Senators in Congress the United States is indeed “curtail[ing] the
very essence and effectiveness” of the right of its citizens in Puerto Rico to vote for and to
participate in their national government. Petitioners thus also meet the second part of the
Commission’s right-to-vote test.
3. The United States Cannot Meet Its Burden to Show that the Voting
Limitations or Restrictions It Imposes on Its Citizens in Puerto Rico
Are Otherwise Reasonable, Objective, and Proportionate.
Having met both the first and second prongs of the Commission’s right-to-vote test,
under the Commission’s precedent the burden then shifts to the United States to show that the
voting limitations or restrictions to which the U.S. citizens of Puerto Rico are subject are
otherwise reasonable, objective, and proportional. The United States will not be able to meet
this burden.
It is very difficult for petitioners to conceive what reason or reasons the United States
could muster that would cause this Commission to excuse the limitations or restrictions the
U.S. imposes on the right of petitioners and of the other three-and-a-half million similarly
situated to vote and to participate in government, and to be clear there are no such valid
reasons. In the admissibility phase of this case, the United States seems to have hinted at two
423
Statehood Solidarity Committee v. United States at ¶ 97.
424
Michel v. Anderson 817 F. Supp. 126, 147-48 (D.D.C. 1993), aff’d 14 F. 3d 623 (D.C. Cir. 1994)
(case cited approvingly by the Commission in Statehood Solidarity Committee v. United States at ¶ 97, n. 99).
119
excuses: (1) that the lack of federal voting rights for the U.S. citizens of Puerto Rico is due to
the constitutional framework created by the Founders, where only state, as opposed to
territorial, residents have such rights; and (2) if Puerto Rico wants to change this it can vote
for statehood. Those excuses, however, fall far short of what this Commission requires.
To argue that the lack of federal voting rights in Puerto Rico should be excused because
it is due to the U.S. Constitution is essentially tantamount to saying that human-rights
violations should be excused as long as the U.S. Constitution permits them. But that would
be incorrect. However venerable the document is, even the U.S. Constitution is not exempt
from the requirements of human rights nor this Commission’s review. This Commission has
made that clear: “The American Declaration . . . establishes standards that apply to all
legislative or other enactment[s] by a state, including its constitutional provisions.”425 As the
Commission has explained: “It is well-established that all obligations imposed on a State by
international law must be fulfilled in good faith and that domestic law may not be invoked to
justify nonfulfillment, even in cases involving constitutional provisions.”426 The Constitution
is not a get-out-of-jail-free card, and it does not otherwise “immun[ize]” the United States
“from review by th[is] Commission.”427
Similarly, human rights should not be made to depend on the ballot box. Human rights
should not depend on the whim of a majority. Individual rights should not be subject to a
public vote. A majority should not have the right to vote away the rights of a minority. The
political function of rights is precisely to protect minorities from oppression by majorities.
And it is often the case that that majority needs to be restrained from trampling on
fundamental rights.
425
Statehood Solidarity Committee v. United States at ¶ 106 (emphasis added).
426
Id. at ¶ 89, n. 83 (emphasis added); see also I/A/ Court H/R., Advisory Opinion OC-14/94 of
December 9, 1944, Ser. A. Nº 14 (1994), ¶ 35.
427
120
Thus, the argument hinted at by the United States in the admissibility phase of this case
that petitioners fail to make out their human-rights’ claims because those claims should
instead be subject to a popular vote for statehood in Puerto Rico is irrelevant. Puerto Ricans
ought to enjoy their fundamental human rights, as citizens of the United States and human
beings entitled to the same dignity and protection afforded to them by all applicable human
rights laws, treaties, and conventions and very specifically here by the American Declaration,
whether all three-and-a-half million unanimously say so or whether just one says so—indeed,
even if no one says so. In any event, if the United States’ argument was ever a valid excuse—
which petitioners maintain is not—that has changed since 1998 as the majority of the people
of Puerto Rico have chosen statehood as the only viable option in the past three referendums
or plebiscites, including, as previously discussed,428 in the most recent one earlier this year
(2017) in which 97.2% of them voted for it.
Petitioners (and this Commission) will have to wait and see what other arguments, if
any, the United States offers to attempt to justify depriving its citizens in Puerto Rico of their
right to vote and to participate in government. None will meet the required standard that the
justifications be reasonable, objective, and proportional. Quite the opposite: depriving the
U.S. citizens of Puerto Rico of the right to vote and to participate in government is wholly
unreasonable, discriminatory in the extreme, and overwhelmingly disproportionate to
whatever otherwise legitimate purpose(s)—none of which comes to petitioners’ minds—that
the government could possibly wish to advance by excluding these citizens from the right to
vote and to participate in their own national government.
Excluding three-and-a-half million citizens from the right to vote and to participate in
government is, on its face, unreasonable. This is particularly so when, as previously
428
121
discussed in these submissions,429 most if not all federal laws apply to these citizens who,
because they have no right to vote, otherwise have no real ability, power, or authority to
influence any of them. These citizens’ lives, their childrens’ lives, and their childrens’
childrens’ lives (and, unless and until changed, in perpetuity, with 119 years having already
passed), their present circumstances and their futures, their labors and their capital (both
physical and intellectual), their hopes, dreams, and sacrifices, their entire self-realization as
human beings430—and these things just to name a few—all ultimately depend in a very real
sense not on their will or the will of representatives freely chosen by them, but on a Congress
and a President that they do not have any domestic legally recognized right to elect. That is
not only unreasonable; it is undemocratic. It is outrageous. And human-rights law makes it
unlawful.
Excluding three-and-a-half million citizens from the right to vote and to participate in
government is also discriminatory in the extreme. The historical record makes clear that the
original motivation for excluding Puerto Ricans, at least “for a time,”431 from the “blessings
of a free government under the Constitution”432—as happened under the Insular Cases, which
429
430
See Wiessner, Siegfried, Founding Myths, International Law, and Voting Rights in the District of
Columbia, at International Law and Voting Rights, p. 197, Making Transnational Law Work in the Global
Economy, Essays in honor of Detlev Vagts (Eds. P. H.F. Bekker, R. Dolzer, and M. Waibel), Cambridge
University Press, 2010:
The denial of the right to vote, with no rational justification remaining, is, in effect, a denial
of an individual’s right to self-realization. The addressees of the law should also be its
ultimate creators. In the crucible between positive law on one side and international law on
the other, we could do worse than follow the guiding light of a world public order of human
dignity. As law anywhere should serve human beings, it should be constructed and
construed in a way to allow individuals ever-increasing, ideally maximum, access to all
things they desire of life including, as citizens of a community, power over their own
destiny. As soon as such participation in the political processes affecting them is ensured,
for all presently unreasonably excluded, the founding myth of the American Republic will
be reconciled with its reality.
431
432
Id.
122
petitioners discussed in an earlier portion of these Observations433—was undeniably
motivated by racial and xenophobic animus (recall how the U.S. Supreme Court was
concerned Puerto Rico was “inhabited by alien races, differing from us”434). And while that
may no longer be the case, no one can reasonably deny that excluding these people now, the
vast majority of whom are a minority of Hispanic and native Spanish speakers within the
larger United States, relegates these people to a permanent status of second-class citizenship
and, accordingly, has a hugely de facto discriminatory impact on them.
Finally, what legitimate government interest can possibly be served by excluding the
U.S. citizens of Puerto Rico from the federal franchise is beyond petitioners’ present ability to
articulate. And even if such a legitimate government interest could be identified, petitioners
highly doubt that the exclusion of the U.S. citizens from the federal franchise would
proportionally serve that interest.
In sum, petitioners are confident that the Commission will easily find that the United
States has not discharged its burden to show that the voting limitations or restrictions to which
it subjects its citizens in Puerto Rico are otherwise reasonable, objective, and proportional.
Petitioners thus meet the third and final part of the Commission’s right-to-vote test and, in
meeting it, have fully made out a valid claim to a violation of their rights under Article XX of
the American Declaration.
B. The United States Is Unlawfully Discriminating Against Its Citizens in Puerto

Rico in Violation of Their Human Right to Equal Treatment Under the Law.
The United States is also violating the human right of the U.S. citizens of Puerto Rico to
equal treatment under Article II of the American Declaration. As previously discussed, when
reviewing claims to violations of Article II the Commission applies a two-part test; we take
each part of the test in turn below.
433
123
1. The Differential Treatment to which the United States Subjects Its
Citizens in Puerto Rico Is Not Based Upon Any Legitimate Factual
Differences Between Its Citizens on the Island and Those on the
Mainland.
The first part of the test that the Commission applies when reviewing claims to
violations of the right to equal treatment under the law is to consider whether there are any
legitimate factual differences between the separate categories of citizens set up by the State.
Here, obviously, the categories are between those citizens who live in one of the 50 States,
which we can call for these purposes “mainlanders,” and those who live in Puerto Rico (or,
more broadly, any U.S. territory), which we can call here “islanders.”435 There are no
legitimate factual differences between these two categories of citizens.
As of 2013, an estimated 5.1 million Puerto Ricans resided in the 50 States and the
District of Columbia.436 (That number can be expected to be higher today.) That is almost
two million more Puerto Ricans in the mainland than on the island, more than one-third of
which has been estimated to have been born in Puerto Rico.437 By the mere fact that they
reside in the mainland these citizens have the full rights to vote for President, Vice President,
Representatives, and Senators.438 No one can reasonably claim that there are any legitimate
factual differences between Puerto Rican “mainlanders” and Puerto Rican “islanders.”
434
435
Obviously, people in Hawaii are also islanders but, fortunately for them, they enjoy the full benefits of
U.S. citizenship as Hawaii is a State.
436
See Mark Hugo Lopez and Molly Rohal, Hispanics of Puerto Rican Origin in the United Stated,
2013: Statistical Profile, Pew Research Center (2015), available at http://www.pewhispanic.org/
2015/09/15/hispanics-of-puerto-rican-origin-in-the-united-states-2013/.
437
See Marcos Arnaud, Hiram, Are the Courts Dividing Puerto Ricans: How the Lack of Voting Rights
and Judicial Interpretation of the Constitution Distorts Puerto Rican Identity and Creates Two Classes of Puerto
Rican American Citizens, Cornell Journal of Law and Public Policy: Vol. 22: Iss. 3, Article 7 (2013), citing to
Kevin R. Johnson, Puerto Rico, Puerto Ricans, and Latcrit Theory: Commonalities and Differences Between
Latina/o Experiences, 6 MICH. J. RACE & L. 107, 120 (2000).
438
This is, of course, only technically correct if they reside in any one of the 50 States. If any former
islander resides in the District of Columbia, he or she only has the right to vote for President and Vice President
and, just like in Puerto Rico, a non-voting Delegate to Congress.
124
But there are no legitimate differences either between mainlanders—Puerto Rican or
not—and islanders. They are both U.S. citizens and, as such, entitled to equal treatment. If
anyone believes that the difference lies in the fact that islanders do not have to pay federal
personal income taxes while mainlanders do, the argument is unpersuasive.
The Twenty-Fourth Amendment to the U.S. Constitution prohibits Congress and the
States from conditioning the right to vote in federal elections on the payment of a poll tax or
other types of tax.439 The House Committee on the Judiciary, reporting on the proposed
amendment, made clear that its purpose was to prevent the United States from denying the
right to vote because of a failure to pay “any poll tax or other tax.”440 The members further
noted that taxes are a “meaningless requirement, having no reasonable relationship to the
rights and privileges of citizenship.”441
The U.S. Supreme Court subsequently extended this principle to state and local
elections. In Harper v. Virginia Board of Elections,442 the Court invalidated a Virginia poll
tax that conditioned the right to vote on the payment of a $1.50 fee. The Court emphasized
that it made no difference that the voter at issue could afford to pay the tax.443 The fact that
the voter had the money was irrelevant because “[v]oter qualifications have no relation to . . .
444
paying this or any other tax.” Since that decision, the Supreme Court has consistently
struck down State and local legislation conditioning voting rights on various types of tax
payments.445
439
See U.S. Const., Amend. XXIV.
440
100 H.R. Rep No 87-1821 at 2 (emphasis added).
441
Id. at 4.
442
383 U.S. 663 (1966).
443
Id. at 668.
444
Id. at 666 (emphasis added).
445
See Kramer v Union Free School Dist., 395 U.S. 621 (1969) (invalidating state law that restricted vote
in school districts to owners and lessees of taxable real property); City of Phoenix v. Kolodziejski, 399 U.S. 204
(1970) (rejected arguments that property tax owners had special interest in outcome of elections not shared by
citizens who did not own property).
125
Commentators have also considered the issue and have rejected the argument that
territorial citizens should not be extended the right to vote because of their present inability to
pay federal income taxes. For example, a commentator from the University of Chicago has
stated that:
Although one could argue that a poll tax is qualitatively different from an
income tax, Congress’s and the Court’s language suggest that they are
analogous. Congress clearly stated that the Federal Government cannot
condition voting rights on the payment of a poll tax or any other tax. In
addition, the Harper Court held that it makes no difference that the voter in
fact can afford to pay the tax because voting qualifications have no relation
to any tax. These statements suggest that the government may not condition
voting rights on payments of any type of tax, including the income tax.
They further suggest that it is irrelevant that some territorial residents indeed
may be able to pay the tax. The nonpayment of taxes is simply irrelevant to
voting rights.446
Moreover, the payment of federal income taxes is, in fact, not a prerequisite for the right
to vote in the United States. If it were, 44% of mainland Americans in 2016 would not have
been entitled to vote either, as that is the percentage of Americans who do not pay any
individual federal income taxes.447
There are no legitimate factual differences between Puerto Rico’s U.S. citizens and U.S.
citizens in the 50 States and the District of Columbia. Long gone are (or should be) the
concerns—never legitimate to begin with—that Puerto Rico was “inhabited by alien races,
differing from us in religion, customs, laws, methods of taxation, and modes of thought.”448
Though, of course, there were some cultural differences, the differences were never to the
extent feared, and even if there had been, those “alien races” now make up a large and
increasing portion of the United States’ population. Indeed, the Pew Research Center projects
446
Cottle, Amber L., Silent Citizens: United States Territorial Residents and the Right to Vote in
Presidential Elections, University of Chicago Legal Forum: Vol. 1995: Iss. 1, Article 11, at 328.
447
See http://www.taxpolicycenter.org/taxvox/closer-look-those-who-pay-no-income-or-payroll-taxes.
448
126
that the Hispanic population will continue to grow rapidly, such that by 2050 Hispanics will
represent nearly 30% of the total population of the United States.449
This Commission should find that the differential treatment to which the United States
subjects its citizens in Puerto Rico is not based upon any legitimate factual differences
between its citizens on the island and those on the mainland, and thereby petitioners have met
the first part of the test that the Commission applies when reviewing claims to violations of
the right to equal treatment under the law.
This should, in fact, be the end of the Commission’s analysis. Because there are no
legitimate differences between the two sets of citizens, there is no need for this Commission
to go any further. Specifically, there is no need for this Commission to take on the second
part of its analysis, which would have required the Commission to consider whether there is a
reasonable relationship of proportionality between those differences and any legitimate
government aims. Accordingly, in demonstrating that there are no such differences between
mainlanders and islanders, petitioners have fully met their burden and established that the
United States is violating their right to equal treatment under Article II of the American
Declaration.
2. Despite the United States’ Acknowledged Prerogative to Choose Its

Own Political Institutions, There Is No Reasonable Relationship of
Proportionality Between Any Differences, Which in Any Event Do Not
Exist, Between the U.S. Citizens of Puerto Rico and Those on the
Mainland and Whatever Aims the United States Could Possibly
Articulate to Otherwise Legitimately Justify Depriving Its Citizens in
Puerto Rico of the Right to Vote for and to Participate in Their
Government.
If the Commission were to find that there are some differences between the U.S. citizens
of Puerto Rico, on the one hand, and the U.S. citizens in the 50 States and the District of
Columbia, on the other—something that petitioners respectfully urge the Commission not to
449
See http://www.pewhispanic.org/2008/02/11/us-population-projections-2005-2050/.
127
find as it would be a grave mistake—then the Commission would be required, first, to
acknowledge and give due deference to the United States’ prerogative to set up its own
governmental structure as it best deems fit and proper, and then second, to inquire whether
there is a reasonable relationship of proportionality between those differences and any
legitimate government aims.
First, that the United States is entitled, like every other nation in the world, to set up its
governmental structure as it best deems fit and proper, petitioners do not deny. That structure,
though obviously not perfect, has served the American people well. In fact, it is one of if not
the main reason petitioners and presumably the 97.2% who voted for statehood in the last
plebiscite would like to see Puerto Rico become the 51st State of the Union. But even the best
of political structures and institutions should be open to improvement. Improvement in the
form of an incremental inclusion of previously marginalized groups into the national political
process has been part-and-parcel of the history of the United States. And when that structure,
otherwise unimpeachable as an abstract matter, does not in practice meet the basic
requirements of human rights, as is the case here with respect to the U.S. citizens of Puerto
Rico, it is the Commission’s responsibility to say so and to hold the State to account.
Second, as was the case with respect to the reasoning behind the restriction to the right
to vote and to participate in government, petitioners cannot begin to speculate what possible
aims the United States is attempting to accomplish by excluding its citizens in Puerto Rico
from having any federal voting rights. Petitioners (and this Commission) will, again, have to
await the United States’ submission on the merits to see what, if anything, the United States
will come up with to attempt to justify the deprivation of rights to which it subjects petitioners
and three-and-a-half-million other U.S. citizens. Suffice it here to say that petitioners are
confident that whatever “reasons” the United States could possibly offer, none will be
legitimate and none should satisfy this Commission.
128
Accordingly, even if the Commission were to find legitimate differences between the
U.S. citizens of Puerto Rico and the U.S. citizens of the 50 States and the District of
Columbia—again, petitioners strongly maintain there are none—and, therefore, would
proceed to the next step in its analysis and consider the relationship of proportionality
between those differences and the United States’ aim in depriving its citizens in Puerto Rico
of the right to vote and to participate in government, the United States would fail to establish
such relationship of proportionality. If and when it does, petitioners submit this Commission
should still find that they have fully met their burden and established that the United States is
violating their right to equal treatment under the law, which is prohibited by Article II of the
American Declaration.
C. The United States Is Failing to Recognize Petitioners and Three-And-a-Half

Million Other Citizens as “Person[s] Having Rights,” and Is Violating Their
Basic Civil Rights.
Having already established that the United States is violating petitioners’ rights and the
rights of the three-and-a-half-million U.S. citizens in Puerto Rico to vote and to participate in
government and to equal treatment under American Declaration Articles XX and II,
respectively, petitioners now turn to their claim that the United States is also failing to
recognize them and those other millions similarly situated as “person[s] having rights”450 and
is violating their basic civil rights. Petitioners have adopted this additional claim as a result of
the Commission’s decision in its Report on Admissibility that it “will also consider at the
merits stage whether the situation presented could constitute a violation of Article XVII (right
to recognition of juridical personality and civil rights) of the American Declaration.”451 To
make out such a claim, as previously discussed, petitioners need to establish that they are
450
American Declaration, Art. XVII.
451
Petition P-1105-06, Report No. 17/17 (January 27, 2017), ¶ 10.
129
“person[s] having rights,” that the United States is failing to recognize them as such, and that
it is violating their basic civil rights. Petitioners turn to that now.
1. The U.S. Citizens of Puerto Rico Are “Person[s] Having Rights.”
It hardly needs saying that the U.S. citizens of Puerto Rico are “person[s] having
rights,” as that concept is used not only under the American Declaration but under every other
charter, treaty, and convention that recognizes human rights worldwide. As persons, Puerto
Ricans are “born free and equal in dignity and in rights”452 to all other human beings. They
are entitled to their rights “without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.”453
And they are entitled to their rights regardless “of the political, jurisdictional or international
status of the . . . territory to which [they] . . . belong[], whether it be independent, trust, non-
self-governing or under any other limitation of sovereignty.”454
The primary qualification under Article XVII of the American Declaration is
personhood. The U.S. citizens of Puerto Rico are obviously not juridical entities, over which
the question whether they have or not human rights is otherwise quite fact-specific.455 Rather,
they are flesh-and-blood human beings.
As the U.S. citizens of Puerto Rico are human beings, the United States, like every other
State in the American hemisphere, is required to recognize their rights, even if they were not
452
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., pt. 1, at 71,
U.N. Doc. A/810 (1948); see also American Declaration, Preamble.
453
Universal Declaration at Art. 2(1).
454
Id. at Art. 2(2).
455
See Inter-American Court of Human Rights, Advisory Opinion OC-22/16, ¶¶ 62 and 67-70, 82-84,
97-105, 119-120 (February 26, 2016) at http://www.corteidh.or.cr/docs/opiniones/seriea_22_esp.pdf (Court
found that while legal entities do not hold the same rights as natural persons under the American Convention,
certain entities–specifically, trade unions, tribal and indigenous organizations, and individuals connected to legal
entities–do have rights under the Convention and may petition the Inter-American System when those rights are
allegedly violated. The Court’s opinion is in keeping with international human-rights standards that legal
entities are not considered “persons” with rights and direct access to individual complaint systems.); see also
International Justice Resource Center, Inter-American Court Advisory Opinion Analyses Rights of Legal Entities,
at http://www.ijrcenter.org/2016/10/26/inter-american-court-advisory-opinion-analyzes-rights-of-legal-entities/.
130
in a U.S. territory—as they obviously are—independently of geographic location: “The
American States have on repeated occasions recognized that the essential rights of man are
not derived from the fact that he is a national of a certain state, but are based upon attributes
of his human personality.”456 What is true of the United States’ duty to recognize those rights
for all human beings, as an abstract matter, is even truer, as a legal matter under international
human-rights law, for its own citizens. The combination of personhood plus citizenship
grants Puerto Ricans these rights under human-rights law and the U.S. is required, as
discussed next, to recognize and respect them.
2. The United States Is Failing to Recognize Its Citizens in Puerto Rico as

Deserving of Such Rights.
Despite the fact that they are “person[s] having rights,” the United States does not
recognize that these persons, who are United States citizens, have the right to vote in their
own national elections and thereby participate in their own national government nor does the
United States recognize these persons’ right to equal treatment under the law. Case after case
that Puerto Ricans have filed in the courts has failed.457 After 119 years, Congress has never
provided for a federally sponsored referendum or plebiscite that would finally settle the status
issue. Even now, despite a plebiscite this year (2017) in which, as previously mentioned,458
97.2% of voters chose statehood, the bill to admit Puerto Rico as a state that is presently
pending in the U.S. House of Representatives has garnered only two sponsors (the Resident
Commissioner and Representative Darren M. Soto, a Democrat of Puerto Rican descent who
represents Florida’s 9th Congressional District).
456
American Declaration, Preamble.
457
See, e.g., Igartua De La Rosa v. United States, 32 F.3d 8 (1st Cir. 1994); Igartua De La Rosa v. United
States, 229 F.3d 80 (1st Cir. 2000); Igartúa–De La Rosa v. United States, 386 F.3d 313 (1st Cir. 2004); Igartua
De La Rosa v. United States, 404 F.3d 1 (1st Cir. 2005); Igartúa v. United States, 407 F.3d 30 (1st Cir. 2005);
Igartua De La Rosa v. United States, 407 F.3d 30 (1st Cir. 2005); Igartúa De La Rosa v. United States, 417 F.3d
145 (1st Cir. 2005); Igartúa v. United States, 626 F.3d 592 (1st Cir. 2010); Igartúa v. United States, 636 F.3d 18
(1st Cir. 2011); and Igartúa v. United States, 654 F.3d 99 (1st Cir. 2011).
458
See, supra, p. 64.
131
A strong argument could even be made that the United States is in breach of the original
obligation it assumed in the Treaty of Paris of 1898 to determine “[t]he civil and political
status of the native inhabitants of the territories [t]hereby ceded to the United States,”459 After
119 years Congress has had plenty of time to finally settle the question. Unfortunately, it has
not.
Congress is the only authority able to remedy the present situation of total
disenfranchisement of the U.S. citizens of Puerto Rico at the federal level, but none of those
U.S. citizens of Puerto Rico has the right to vote for any Representatives or Senators to that
Congress. The U.S. citizens of Puerto Rico cannot tug at those pulleys and leavers of power
otherwise available to others in the States in the legitimate exercise of their political rights
within American democracy. And because Congress is the only one that can act, but precisely
because no U.S. citizens of Puerto Rico has the vote in that Congress, Congress does not act.
This is the perennial chicken-or-the-egg problem—the unending vicious circle in which the
U.S. citizens of Puerto Rico are caught.
3. The Rights to Vote and to Participate in Government, and to Equal

Treatment Under the Law, Are Basic Civil Rights.
Finally, Article XVII of the American Declaration also recognizes the right of every
person to the enjoyment of “basic civil rights.” The rights to vote and to participate in one’s
national government and to do so on an equal basis as all other citizens do are—as we have
seen—basic civil rights.
Civil rights are the basic legal rights a person must possess in order to achieve the status
of equal citizenship in a liberal democratic state. There are no more basic legal rights than the
right to vote and to participate in government and the right to equal treatment under the law.
What truly is citizenship without them?
459
Treaty of Paris, Art. IX.
132
A useful overview of civil rights is found in the highly reputable The Stanford
Encyclopedia of Philosophy, which is worth quoting at some length here:
Until the middle of the 20th century, civil rights were usually distinguished
from “political rights.” The former included the rights to own property,
make and enforce contracts, receive due process of law, and worship one’s
religion. Civil rights also covered freedom of speech and the press. But
they did not include the right to vote or to hold public office. The latter
were political rights, reserved to adult males. Accordingly, the woman’s
emancipation movement of the 19th century, which aimed at full sex
equality under the law, pressed for equal “civil and political equality.”
The civil-political distinction was conceptually and morally unstable insofar

as it was used to sort citizens into different categories. It was part of an
ideology that classified women as citizens entitled to certain rights but not
to the full panoply to which men were entitled. As that ideology broke
down, the civil-political distinction began to unravel. The idea that a certain
segment of the adult citizenry could legitimately possess one bundle of
rights, while another segment would have to make do with an inferior
bundle, became increasingly implausible. In the end, the civil-political
distinction could not survive the cogency of the principle that all citizens of
a liberal democracy were entitled, in [the American political philosopher
John] Rawls’s words, to “a fully adequate scheme of equal basic liberties.”
It may be possible to retain the distinction strictly as one for sorting rights,
rather than sorting citizens. But it is difficult to give a convincing account
of the principles by which this sorting is done. It seems neater and cleaner
simply to think of civil rights as the general category of basic rights needed
for free and equal citizenship. Yet, it remains a matter of contention which
claims are properly conceived as belonging to the category of civil rights.
Analysts have distinguished among “three generations” of civil rights claims
and have argued over which claims ought to be treated as true matters of
civil rights.
....
[T]he first generation of civil rights . . . covered political rights. . . .
Th[e] second generation [covered] . . . economic “welfare rights”. . . .
A third generation of claims has received considerable attention in recent

years, what may be broadly termed “rights of cultural membership.460
460
Altman, Andrew, “Civil Rights,” The Stanford Encyclopedia of Philosophy (Summer 2017 Edition),
Edward N. Zalta (ed.), available at https://plato.stanford.edu/archives/sum2017/entries/civil-rights/ (citations
omitted); see also International Human Rights Law: A Short History, U.N. Chronicle, Vol. XLVI, No. 1 & 2
(January 2009) found at https://unchronicle.un.org/article/international-human-rights-law-short-history.
133
The rights to vote and to participate in one’s own national government, and to do so on
an equal basis as all other citizens, are first-generation civil rights, rights that the United
States does not recognize for its citizens in Puerto Rico. Because Puerto Ricans are persons;
because they have rights; because the United States is failing to recognize them as deserving
of these rights; and because these rights include the basic civil rights to vote and to participate
in government and to equal treatment under the law, petitioners have also proven their case
under Article XVII of the American Declaration.
D. The Human Rights of the U.S. Citizens of Puerto Rico Do Not Depend on the
Territorial Status of the Commonwealth nor on the Consent of a Few to
Their Deprivation.
Petitioners have already fully discussed in these submissions and in prior ones during
the admissibility phase of their case461 why the rights they seek to have respected and
enforced do not depend, from the point of view of international human-rights law, on the fact
that Puerto Rico is a U.S. territory as opposed to a state. That they are human beings and U.S.
citizens is enough to require the United States to protect their right to vote and to participate
in government, their right to equal treatment under the law, and their right to be recognized as
persons deserving of these civil rights.
Petitioners have also in their Petition462 and in prior submissions463 argued that their
rights do not depend on the fact that still some in the island support the violation of these
rights—again demonstrating the wisdom of the drafters of the American Declaration of
Independence who pointed out in that document how “all Experience hath shewn, that
Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by
461
See Petitioners’ Observations to the United States Response to the Petition (August 16, 2010) at pp.
8-18; Petitioners’ Reply to United States’ Observations on the Petition (June 1, 2011) at pp. 8-11.
462
See Petition at 47, n. 167.
463
See Petitioners’ Observations to the United States Response to the Petition (August 16, 2010) at 19;
Petitioners’ Reply to United States’ Observations on the Petition (June 1, 2011) at pp. 12-14.
134
abolishing the Forms to which they are accustomed.”464 As the Commission has recognized
in other cases: “in virtue of the public order of human rights, even the . . . consent of a victim
to a violation does not validate the violative act of a State, nor does it affect the competence of
the international organ to whom the States have entrusted their protection.”465
Petitioners make these points again in this last subsection of their argument to
emphasize them and thereby hopefully prevail upon the Commission not to allow itself to be
led down the wrong path by what petitioners expect will be the main argument of the United
States in opposition to petitioners’ case on the merits, i.e., that the situation of the U.S.
citizens of Puerto Rico can be fixed by them if they only voted for statehood and that what
they are seeking from this Commission is a declaration of statehood.
As seen,466 the U.S. citizens of Puerto Rico have already voted for statehood, as the only
available option, in the last three referendums or plebiscites. And to be clear, petitioners are
not seeking a declaration of statehood from this Commission. In any event, this Commission
could not grant them that remedy. Only the United States Congress can. Admittedly too, the
United States could afford petitioners other remedies, such as, for example, a constitutional
amendment extending to them the right to vote in federal elections.
Petitioners have no doubt that, one day, the political status of Puerto Rico will finally be
resolved. But that is for another day. What is for today and before this Commission is
whether the current situation in which three-and-a-half million U.S. citizens have no right to
vote at the federal level is consistent with the international and hemispheric requirements of
human rights. It is clearly not. And it is about time that the Commission say so loudly and
clearly.
464
U.S. Declaration of Independence (1776).
465
Morales de Sierra, Report Nº 28/98, Case 11.625, ¶ 33 (March 6, 1998); see also Disabled Peoples’
International v. United States, Inter-Am. C.H.R., Application Nº 9213, Decision on Admissibility, ¶ 3 (1987)
(“the Commission does not require the consent of the victim in order to admit the petition”).
135
IX. NEXT STEPS
The following is a brief discussion of what petitioners believe should be the next steps
this Commission should take now and up to and including the eventual successful conclusion
of their case and a brief exhortation to the Commission on timing.
Transmission and Briefing
Obviously, the very next step should be for this Commission to transmit as soon as
possible petitioners’ Observations on the merits to the United States and to ask the United
States to provide a timely response, which the Commission’s Rules of Procedure define as
within four months of receipt by the State of these Observations.467 Petitioners will thereafter
most likely also reply to any submission in opposition filed by the United States.
Friendly Settlement Procedures
Meanwhile, at the Commission’s invitation, petitioners invoked on May 30, 2017, the
friendly settlement procedures available under Rule 40 of the Commission’s Rules of
Procedure. As the Commission knows, the Commission then wrote to the United States on
July 6, 2017, inviting the United States to similarly invoke these friendly settlement
procedures. As of the filing of these Observations on the merits, and as far as petitioners are
aware, the United States has not responded to the Commission’s invitation. Accordingly, the
Commission should clarify now whether it will renew its invitation to the United States to
invoke the available friendly settlement procedures or whether, instead, the Commission will
deem that the United States has rejected them.
On-Site Investigation
Furthermore, as the Commission is aware, on September 7, 2017, petitioners requested
a meeting with the Commission President, all other available Commissioners, and the
466
136
Commission’s Executive Secretary and Assistant Executive Secretary at the Commission’s
headquarters in Washington, D.C.. The Commission has kindly granted that meeting for
October 9, 2017.
The meeting on October 9, 2017 will be attended by petitioners and, depending on the
ongoing hurricane-recovery efforts, by representatives of the government of Puerto Rico. On
behalf of the government of Puerto Rico, petitioners and these representatives will be
presenting this Commission with a formal invitation to invoke Article 39 of the Commission’s
Rules of Procedure and to carry out, at the Commission’s earliest available opportunity, an
on-site investigation in Puerto Rico into the matters raised in petitioners’ case.
Petitioners hope that the Commission will be in a position to accept the government’s
invitation and indeed carry out such an on-site investigation as soon as possible.
Hearing
Whether the Commission conducts an on-site investigation or not, it would also be
appropriate for the Commission to grant petitioners a hearing under Articles 61-70 of its
Rules of Procedure. Such a hearing could take place in Puerto Rico, if the Commission
agrees to carry out an on-site investigation there, or at the Commission’s headquarters in
Washington, D.C., or—of course—elsewhere. Petitioners believe that the Commission would
benefit in its consideration of the issues raised in petitioners’ case from hearing directly from
them and other witnesses and deponents.
Decision on the Merits
After completion of all briefings, an on-site investigation, and a hearing, and assuming
that the parties have not otherwise reached a friendly settlement, the Commission should
467
Commission’s Rules of Procedure, Art. 37.1. As the Commission knows, this period may be
extended for a maximum of six months. See Commission’s Rules of Procedure, Art. 37.2.
137
deliberate on the merits of petitioners’ case, as envisioned in Article 43 of the Commission’s
Rules of Procedure.
On conclusion of those deliberations (which, as discussed below, petitioners urge the
Commission should be sooner rather than later), the Commission should find for petitioners
by issuing a preliminary report in due course, with the Commission’s proposals and
recommendations, including setting a deadline by which the United States must report on the
measures adopted to comply with the Commission’s recommendations, as envisioned in
Article 44.2 of the Commission’s Rules of Procedure.
If the matter has not been resolved within three months from the transmission of the
Commission’s preliminary report to the United States, the Commission should then issue its
final report containing its opinion and final conclusions and recommendations, in accordance
with Article 47.1 of the Commission’s Rules of Procedure.
And thereafter, the Commission should certify its report and continue to follow-up on
the matter, as necessary, in accordance with Articles 48 and 49 of the Commission’s Rules of
Procedure.
Timing
As previously discussed, more than 100 years have now gone by since Puerto Ricans
were granted U.S. citizenship. Petitioners’ case has already been pending before this
Commission for 11 years. The next Presidential elections in the United States will occur on
November 3, 2020, 37 months from the filing of this petitioners’ Observations on the merits.
And the next Congressional elections will occur on November 6, 2018, a little over 13 months
from today. Every day the President and the Congress, and now the Congressionally imposed
Fiscal Control Board, rule over the U.S. citizens of Puerto Rico, without any of these citizens
having any right whatsoever to vote for any of these individuals who are charged with matters
138
directly and deeply affecting these citizens’ present and future lives, is a day their human
rights are being violated.
With the Commission’s commitment, and with due care and consideration, the
necessary briefing, the on-site investigation, and the hearing could all be completed during the
course of 2018, such that a decision from the Commission in 2019 would not be out of the
realm of the possible. While too late for the 2018 Congressional elections, such a decision in
2019 would still come before the next Presidential election in 2020, and would afford the
United States another opportunity to remedy this unlawful state of affairs by instituting the
necessary remedial measures that would permit the U.S. citizens of Puerto Rico to vote then
and thereafter in their national elections. In short, the sooner the Commission acts the better.
X. CONCLUSION
At the start of these Observations, petitioners stated that the straightforward and
important question that this Commission is being presented in this case is whether the United
States is violating the protections of the American Declaration by denying its citizens in
Puerto Rico the right to vote at the federal level. There is no other answer that this
Commission can or should give to that question than: yes, the United States is violating the
American Declaration by denying the right to vote at the federal level to petitioner Rosselló,
to the members of petitioner the Unfinished Business of American Democracy Committee,
and to the other approximately three-and-a-half million U.S. citizens residing in Puerto Rico.
Knowing that they are in this case fully supported by the facts and the law, this should
not be a very difficult answer to give for the Commission and its members, though petitioners
recognize that the implications of such an answer would be very significant. What such an
answer would mean is that the three-and-a-half million U.S. citizens who reside today in
Puerto Rico live in a condition (not to use the more politically charged words of “state” or
“status,” which would nevertheless also be appropriate here) that violates international
139

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BEFORE THE INTER-AMERICAN

COMMISSION ON HUMAN RIGHTS

UNITED STATES OF AMERICA

Case No. 13.326

I. OPENING STATEMENT ............................................................................................. 1

II. INTRODUCTION .......................................................................................................... 4

III. PRELIMINARY MATTERS ........................................................................................ 7

IV. PROCEDURAL BACKGROUND.............................................................................. 11

V. HISTORICAL BACKGROUND ................................................................................ 19

B. The Treaty of Paris .............................................................................................. 22

C. The Territorial Clause ......................................................................................... 22

D. The Foraker Act................................................................................................... 24

E. “The Insular Cases” ........................................................................................... 25

F. Gonzales v. Williams ........................................................................................... 31

G. Citizenship: The Jones Act................................................................................. 32

H. 1947: The Right to Elect the Governor .............................................................. 33

I. The Commonwealth ............................................................................................ 35

J. From 1952 to 2016 .............................................................................................. 41

1. Congress Extends Most Federal Laws to Puerto Rico............................... 42

2. Congress Discriminates Against Its Citizens in Puerto Rico..................... 46

(b) No Supplemental Security Income................................................... 48

(c) Less Medicare................................................................................... 51

(d) Less Medicaid................................................................................... 51

(e) Less Health-Insurance Subsidies...................................................... 52

(f) Less Aid to Families with Dependent Children ............................... 53

(g) Fewer Food Stamps .......................................................................... 55

(i) Billions Less ..................................................................................... 58

K. The Legal Status of Puerto Rico.......................................................................... 58

L. Not Only in Peace but Also in War..................................................................... 59

M. Puerto Rico’s Political Parties............................................................................. 62

N. Referendums and Plebiscites............................................................................... 63

O. The President’s Task Force on Puerto Rico’s Status .......................................... 65

P. Public Law 113-76 .............................................................................................. 65

Q. Continuing Lack of Sovereignty: The Two Most Recent U.S. Supreme

1. Commonwealth of Puerto Rico v. Sanchez Valle....................................... 66

2. Commonwealth of Puerto Rico v. Franklin California Tax-

S. Today: Puerto Rico Under PROMESA.............................................................. 72

VI. RELEVANT U.S. LEGAL FRAMEWORK.............................................................. 78

1. The Right to Vote Under U.S. Law ........................................................... 79

2. The Electoral College ................................................................................ 81

3. Congressional Voting Rights ..................................................................... 82

B. The Lack of a Right to Vote at the National Level in Territories ....................... 83

C. The Limited Parliamentary Rights of the Resident Commissioner..................... 87

VII. HUMAN-RIGHTS STANDARDS ............................................................................. 89

A. General International Standards .......................................................................... 89

1. The Universal Declaration of Human Rights............................................. 90

2. The International Covenant on Civil and Political Rights ......................... 91

3. The Charter of the OAS ............................................................................. 93

5. The Inter-American Democratic Charter ................................................... 96

B. The American Declaration of the Rights and Duties of Man.............................. 99

1. Article II—Right to Equality Before Law ............................................... 100

2. Article XVII—Right to Personal Recognition and to Basic

3. Article XX—Right to Vote and to Participate in Government................ 100

C. Precedent ........................................................................................................... 101

D. Articulation of Applicable Legal Tests ............................................................. 111

VIII. ARGUMENT ............................................................................................................. 113

1. The United States Has Limited or Restricted the Right of Its

2. The Limitations or Restrictions Imposed by the United States

B. The United States Is Unlawfully Discriminating Against Its Citizens in

1. The Differential Treatment to which the United States

2. Despite the United States’ Acknowledged Prerogative to

C. The United States Is Failing to Recognize Petitioners and Three-And-a-

1. The U.S. Citizens of Puerto Rico Are “Person[s] Having