by RICHARD E. BERG-ANDERSSON
"The Green Papers" Staff

An interesting wrinkle has emerged in the Presidential Election of 2000: that of the island Commonwealth of Puerto Rico holding a bona fide presidential election, complete with electors and electoral votes, this Fall. This is something that could all end in a whimper with a higher Federal court overturning a lower court decision of dubious constitutionality OR it could turn into a nightmare for the Electoral College procedure which is usually merely a perfunctory follow-up to the "big show"- the Presidential Election itself come the first Tuesday after the first Monday in November... we'll just have to wait and see!

This whole mess actually began with the U.S. Navy's use of a small island- Isla de Vieques- off the eastern coast of the island Commonwealth for target practice; this was most recently- and most vehemently- protested by a number of Puerto Ricans, most notably the small minority in favor of outright independence from the United States. Yet the "battle of Vieques" galvanized the entire island and finally pushed the pro-Statehood partisans (ironically, those most opposed to full independence: the present so-called "Commonwealth" status [the official name of the island in Spanish translates as "Associated State", a term which much better describes its relationship to the USofA: "Associated State" was actually a term of art used by the British to describe their own Caribbean colonies before they became independent in the 1970's and 1980's], which has consistently pulled a plurality in plebiscite after plebiscite on the issue of status, is somewhere in between the two extremes of independent Nationhood and 51st Statehood) to take action on an issue which has been pressed less than vehemently for the last four decades: that of whether the island's residents- all, by a law passed by Congress in 1917, fully Citizens of the United States- should be allowed to join their fellow citizens of the USofA in helping to choose the next Chief Executive of the country.

Last April, an attorney named Gregorio Igartua de la Rosa- on behalf of residents of the city of Aguadilla along the northwestern coast of the island (and thus farthest removed from the scene of the "battle of Vieques")- brought suit in the U.S. District Court for the District of Puerto Rico (like the several States of the Union, Puerto Rico is at least one Federal Court District, yet another benefit of U.S. Citizenship for the Commonwealth) on grounds that- as U.S. citizens- they were being denied their rights as U.S. Citizens to vote for President and Vice President of the United States. On 19 July, Jaime Pieras, Jr.- Senior District Judge- denied a U.S. Justice Department motion to quash the lawsuit on grounds that the plaintiffs had no standing to bring the suit, thus- in the name of the District Court- accepting jurisdiction over the case. On 29 August, the Judge further rejected the U.S. Justice Department's argument that the case involved what is known as a "political question" to which the courts are not cognizant to give an answer and issued a judgment- based on a string of cases involving the establishment of equal rights for U.S. Citizens, regardless of whether or not they are citizens of the several States as well- ordering the government of Puerto Rico to begin implementing a system by which Puerto Rico would "appoint" (to use the language of the U.S. Constitution itself) the 8 electors to which Puerto Rico would be entitled to were it a constituent State of the Union. The case was then appealed by the Justice Department to the Court of Appeals for the 1st Circuit, which meets in Boston and which is widely expected to overturn the District Court ruling.

In the meantime, the government of the island Commonwealth fulfilled its duty to comply with the court order pending the outcome of the appeal (a "presidential vote bill" was actually working its way through the Commonwealth legislature even before the decision was handed down: committee hearings were held in the week leading up to Judge Pieras' decision) by its Senate passing the bill on 31 August- just two days after the court order was issued, the House of Representatives passing the bill on 6 September and Governor Pedro Rosello signing it into law just this past Monday, 11 September (hence this Commentary). The now-Presidential Voting Act of Puerto Rico mandates that Puerto Rico hold an election for President and Vice-President of the United States this 7 November and, through this process, choose 8 presidential electors (if it were a State, the island would have- based on its 1990 population- 2 U.S. Senators and 6 Congressmen): the Act provides an intriguing method for allocating the electors, one long eluding the 50 States and the District of Columbia (except for Maine since 1972 and Nebraska since 1996)- with a twist: that of allocating electors by whichever presidential/vice-presidential candidate wins each of the Commonwealth's 8 senatorial districts- one elector per district (so that- unlike in both Maine and Nebraska- there are no at-large electors to go along with those from districts).

Should the 1st Circuit Court of Appeals now reverse Judge Pieras, therefore, it is unclear how this could outright stop an electoral procedure already approved by the legislature and executive of the Commonwealth, even if it would definitely have no legal effect (perhaps the stuff of a future Commentary of mine?)

Of course, all this flies flat out right into the face of the Constitution of the United States (I am reminded- at times like these- of a line from an episode of the TV drama Law & Order- when assistant D.A. Jack McCoy [played by Sam Watterston] is reminded by his then-assistant Claire Kincaid [played by the sorely missed- by me, at least- Jill Hennessey] that some action he is about to take is quite likely unconstitutional and D.A. Adam Schiff [played by Steven Hill], listening in, sardonically intones, "Oh, yeah- the Constitution: THAT pesky thing"), which mandates- in Article II, section 1, clause 2: "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"; the only exception to this is given in the 23rd Amendment, adopted in 1961, which allows "the District constituting the seat of Government of the United States" (meaning, of course, Washington, D.C.) to appoint "a number of electors... equal to the whole number... to which the District would be entitled if it were a State, but in no event more than the least populous State". Puerto Rico is not a State: ergo, it has no Senators and Representatives which can be totaled to produce "a Number of Electors" per Article II; however, more importantly, even if we concede the right of U.S. Citizens of what is- despite its so-called "Commonwealth" status- nothing more than a Territory (as, say, Dakota was back in the 1860's) to vote in the Presidential Election, surely they cannot be allowed to have more than the District of Columbia's 3... can they?

As one can readily see, this whole issue is fraught with constitutional minefields- and why? Because a renegade District Court Judge walked away from the whole concept of judicial avoidance of so-called "political questions" in the first place! The concept of "political questions" was most forcefully enunciated in the Supreme Court's decision- written by Chief Justice Roger B. Taney- in the case of Luther v. Borden [48 U.S. 1] back in 1849. This case was a "leftover" from the incident in the history of the tiny- but hardy- State of Rhode Island (and Providence Plantations, to give its full legal name) known as "Dorr's Rebellion":

Into the 1840's, Rhode Island was still operating its state government under the colonial charter which had been given it by King Charles II of England back in 1663. When the United States of America finally declared its independence in 1776, all but 2 of the rebelling 13 colonies were either Royal Provinces with a Crown-appointed executive or Proprietary Colonies operating at the sufferance of the Crown: the Declaration of Independence= no more Crown, hence no more executive- and so 11 new States were required to hastily draft new State Constitutions to cover this contingency. Not so Connecticut and Rhode Island, however- for their colonial charters provided for a popularly elected executive to go with the legislature chosen by the people of the colony and these two states happily went on living with the form of government created by the court of a long-departed King. In 1818, Connecticut finally adopted a State Constitution like those of its sister States and only Rhode Island was left to be governed under its aging fundamental law.

By 1841, its age was beginning to show: the waves of "Jacksonian Democracy", witnessed first-hand by Alexis de Tocqueville and recounted in his seminal two-volume work Democracy in America and containing a concept called "Universal Manhood Suffrage" in which every man would be entitled to vote even if "Everyman" didn't own a lick of property- real or personal, had been sweeping the land and now was finally breaking upon the shores of Narragansett Bay. This concept flew right into the face of the ancient and honorable charter in use in this venerable corner and vestige of "Olde New England", a document which required being a freeholder in land in order to vote and hold public office. Petitions for reform by those who were not freeholders were ignored by the legislature of "Little Rhody": after all, the petitioners couldn't vote!

Frustration soon set in and, in 1841, mass meetings (what we today would call "caucuses") were held and delegates elected thereat to a Constitutional Convention which drafted a new State Constitution based on the principles of Jacksonian Democracy. The Constitution was then submitted to the voters of the state (which, of course, included non-freeholders) and ratified by majority vote: an election the result of which was, predictably, ignored by the charter-based incumbent government. Accordingly, a rival state government- based on Universal Manhood Suffrage- was elected, with one Thomas Dorr as its "Governor" and immediately informed the charter legislature that it was now the legal government of the state; shortly thereafter, in May 1842, its officers assembled at the state capital of Providence and attempted to actually become THE state government. The charter-based government responded by declaring martial law (itself an act of dubious constitutionality, as dubious as the actions of Dorr and his followers); Dorr and his followers then attempted to take over the state arsenal and were defeated by the state militia, still loyal to the old forms. The pro-Dorr faction was dispersed but the charter-based government, determined to quell the popular support for the new forms (in effect, overreaching in the same way the British Empire itself had in response to the Boston Tea Party in 1773), began rounding up the insurgents for potential trial on charges of treason.

One Borden, a militia officer, was dispatched by the charter-based government to take into custody one Luther- a Dorr supporter; in the course of the "arrest", damage was done to Luther's home. Ironically, the charter-based government (unlike the British of seven decades earlier) realized they had overreached and earnestly began to work on a new State Constitution later that year which, once approved by the majority of voters (now, interestingly, based on Universal Manhood Suffrage), became the new fundamental law of Rhode Island in 1843. But Luther was a die-hard pro-Dorrite and he moved to Massachusetts to establish the "diversity of citizenship" required by Article III, section 2, clause 1 in order to bring a case "between Citizens of different States" in a Federal court and sued Borden for Trespass, asking for damages on grounds that- since the charter-based government was not the lawful state government of Rhode Island at the time (Luther's contention, of course, being that the Dorr government was, largely based on the requirement in Article IV, section 4, clause 1 that the federal government "guarantee to every State in this Union a republican form of government")- Borden could, therefore, not defend his Trespass onto Luther's property as an officer of the state. Borden, of course, defended himself on the grounds that he was just such an officer and that his search of Luther's home was, thus, not unreasonable- especially in light of the fact that he was acting under cover of martial law. The issue- and, with it, the decision on the case- hinged on the Supreme Court (ultimately, as the case was appealed from a decision against Luther in a lower court) declaring just which state government of Rhode Island was the legal one at the time.

The Court, however, chose to neatly sidestep the issue, refusing to say just which incarnation of Rhode Island state sovereignty in 1842 best reflected "a republican form of government". Chief Justice Taney wrote that "the Constitution of the United States as far as it has... authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department", further noting that "when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of [the short-lived Dorr government], Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts."

So, the Court would not decide the issue (which meant that- even though the Court had not taken sides- Luther had lost his lawsuit for Trespass). But the major contribution of Taney's opinion in Luther v. Borden was his clear statement of just what a "political question" is; he wrote that "much of the argument on the part of the plaintiffs turned upon political rights and political questions upon which the court has been urged to express an opinion. We decline doing so. The high power has been conferred upon this court of passing judgment upon the acts of the state sovereignties, and of the legislature and executive branches of
the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. This tribunal, therefore, should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question conferred to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions properly belonging to other forums."

It is easy to see how the case of de la Rosa v. U.S. might well fit into this definition of just such a "political question". Judge Pieras, of course, COULD have decided to "decline doing so" on the basis of this case merely involving "political rights" just as the Supreme Court more than 150 years ago had done... however, he didn't... but he SHOULD have!