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Jul) 29. 2020

Ihe I lonorable Juan I mcsto Da' ila Ri' era

Cha1nnan
Puerto Rico State l lections Commission
Post OOicc (~O\ 195552
an Juan. Puerto l~ico 00919-5552

Re: Request oj Fetlera/ Funcls for Puerto Rico Plebiscite

Dear Chainnan Rivera:

rhanh. you for your June 3. 2020 submission of materials related to the plebiscite
scheduled for o"ember 3. 2020. \vhich ,,;11 ask , ·oters ''hether Puerto Rico "should be admitted
immediately into the Union as a tale... You ha' e requested disbursement of funding under the
Consolidated Appropriations Act of2014. Pub. L. o. 113-76. 128 tat. 5. 61 (2014)
("Appropriations Act''). \\hich appropriated S2.5 million for "objecti\e. nonpartisan \Oler
education about. and a plebiscite on. options that ''ould resol\'e Puerto Rico's future political
status... Consistent 'vi th the I louse Report that accompanied the Appropriations Act. and as it
did "'ith the Go' emment of Puerto Rico· s submission related 10 the 20 17 plebiscite. the
Department has re\ ie,,ed the plebiscite materials to determine ''hether it ma} notif} Congress
that "the \'Oler education materials. plebiscite ballot. and related materials are not incompatible
'' ith the Constitution and la\\S and policies of the United tates... 11.R. Rep. \/o. 113-171. at 53
(2014 ). L nfortunatcl}. the Department has determined that it is unable to not if) Congress that it
appro' cs of the plebiscite ballot and related materials. and the refore it ''ill not obligate the funds.

Our first concern is that. in light of the deadline in Puerto Rico la''· the submission did
not provide sunicient time to complete the multi-layered process the Department must follov•
before releasing grant funding. The statute authoriLing the plebiscite. Puerto Rico Act No. 51 of
May 16, 2020 ("Act o. 51-2020·· or ··the Act''). establishes June 30. 2020. as "the deadline for
completing an) transaction. certification. and disbursement related to the holding or this
plebiscite." Id § 3.1. And as you noted in your submission letter. the Act further contemplates
that the Depart1nent 'vould complete any ··process. certification and disbursement" of funding
under the Appropriations Act b} the June 30 deadline. Id § 3.3. The Act charactcriLes June 30
as a "deadline ... to ser\e as a guide for the U.. Attome} General" that is ncccssar) "so as to
not ad\'ersely afTect (plebiscite] processes or the rights of the \Oters:· Id ... tatement of
Moti\'es:· at 15. The Department is mindful of the importance of expeditious re\ ie'' . But given
the steps in,·ol,·ed in re\ ie'' ing. certifying. and disbursing appropriated funds. the Department
\Vas unable to meet the June 30 deadline no matter ho'' quickl) it acted.
 The I lonorable Juan Ernesto Da,ila Rivera
Page2

As Department officials ha\ e pre,·iousl) outlined. both in communications '' ith your
office about this plebiscite and \\ith Puerto Rico officials follO\\ ing the 2017 submission. the
process of disbursing grant funding includes a number of steps. The Department· s substanti,·e
re' ie..v of the plebiscite materials is the first step. and it requires time to coordinate among
Department components and to request any additional information from the Go.. ernment of
Puerto Rico. I lere. for instance. if your deadline and the other considerations discus cd belo''
did not preclude us from proceeding. ''e \\Ould ha\ e needed additional information about \Oter-
education materials. The materials you submitted include a three-page outline of the planned
.. on-Partisan Education Campaign:· '' hich states at a high le\ el of generality that the campaign
will educate voters on .. (t]he importance and relevance of the 2020 Plebiscite vote.. and the
"Votcr·s registration process:· including the availabilit} of altemati\ e 'oting mechanisms. and
then .. motivate people to go out and vote:· But neither the outline nor any other materials
provide further detail about the contents of the voter-education materials. \Vhich \VOuld have
made it difficult for the Department to determine \Vhether the actual materials ,,;11 be consistent
\.vi th the Constitution. la,vs. and policies of the United States. This stands in contrast to the 2017
submission.
. which included specific examples of the planned contents for the voter-education
campaign.

If. follo,ving our substantive revie\\'. the Department \Vere to decide to release the funds.
additional steps in the funding process \vould folJo,,·. The Department \vould seek concurrence
from the White I louse Office of Management and Budget (..OMB ..): \vould notify congressional
committees: \vould issue a grant solicitation to the Government of Puerto Rico: \Vould revie\v the
grant application submitted in response to the solicitation: and. assuming everything \Vas suitable
and there \\ere no objections from OMB or congressional committees. Department leadership
,,ouJd authorize the obligation of the funds. The Department received your submission on June
3. 2020. less than four \Veeks before the June 30 deadline. The entire funding revie\\ and
grant-making process could take several ,,·eeks. And. in any e\ent. the House Report specifies
that .. funds provided for the plebiscite shall not be obligated until 45 days after the Department
notifies the Comminees on Appropriations... H.R. Rep. No. 113-171. at 53. The completion of
any one of these steps by June 30 ,,·ould have been difficult: concluding all of them ,,.as simply
infeasible. since the \\ailing period associated \\ith congressional notification. taken alone. \Vas
45 da)S.

Apart from that timing issue. ho,ve,·er. the Department has also identified substantive
concerns with the plebiscite materials that make them incompatible \Vi th the policies of the
United States. First. the United States has consistently remained neutral about the legally
permissible status options for the Common..vealth of Puerto Rico-- tatehood. continued
territorial status. and independence (including free association)-maintaining that the people of
Puerto Rico. not the federal government. should ..determine their preference among options for
the islands· future status that are not incompatible ,,;th the Constitution and basic la\\'S and
policies of the United tates... Exec. Order 13183 of Dec. 23. 2000 (Establishment of the
President's Task Force on Puerto Rico·s Status): see also. e.g.. Report by the President's Task
Force on Puerto Rico. s Status. at 23 (Mar. 2011) c··1t has long been the policy of the Federal
executive branch that Puerto Ricans should determine for themsel,es the future status of the
 l 'hc I lonorablc Juan Ernesto Da' ila Ri' era
Page 3

Island."). Yct 1nultiplc aspects of Act 51-2020 make clear that it approaches the question of
Puerto Rico's future status from a decided I) pro- tatchood. and anti-territorial. point of' ie'' .
•'>ee Act o. 51-2020 ... tatement of Moti\ es:· at 2. 14 (stating that ··Under the U. . nag and
cit11enship. ... achie' ing a positi\e transformation \\Ould onl) be possible upon the recognition
of equal rights and obligations for the U.. citi7ens of Puerto Rico" through tatehood: that
"Puerto Rico continues in this 'icious territorial cycle··: and that the party fa\'oring the current
'"unsustainab[le j" status '"employs an) mechanism. except the \Ole. so as to maintain the status
quo to the detriment of \Oters··). In that context. the Dcpanment's appro\'al and funding of the
plebiscite ma) be seen as an endorsement of these \ie-.,s and a rejection of the other available
status options. And such a perception seems particular!} like!) because Article 4.4(b) of Act No.
51-2020 pro\ ides that the ballot -.vould include language stating that the plebiscite is ··promoted
and supported by the Government of the United tat es of America "' ith the funds appropriated
under Public La-.v 113-76 of2014." While the Department \VOuld not object. in appropriate
circumstances, to a similar statement endorsing an objecti ve. non-partisan plebiscite process. it
must do so here. \vhen such a statement v:ould imply that the United tates has departed from its
policy of neutrality to endorse a pro-Statehood initiative.

econd, the plebiscite appears to be based in part on a determination b) the Legislature of

Puerto Rico \Vi th '' hich the Depanment disagrees- namely. that the 2012 and 2017 plebiscites
"constitute a direct rejection of the current territory status and .... options \\hi ch entailed
separate SO\'ereignties." Id § I .3(c): see also id. § l.3(f) (stating that voters made an "electoral
demand[] for equal it) through statehood" in 2012 and 20 17). § I .3(h) (describing the results of
the 2012 and 2017 plebiscites as "conclusi,·e"). The Department notes. as it did in 2017. that
"the validity of the 2012 plebiscite· s results ·ha\'e been the subject of contrO\ crs) · and debate...
and that "it is uncertain" ''hether the 2012 results renect the "present "'ill of the people:·• \Vith
respect to the 2017 plebiscite. the Department's rejection of the initial ballot as incompatible
with the la,, s and policies of the United States. coupled \\ith IO\\ \Oler turnout that ,,.as likely
related to boycotts b) political parties and other groups. pre\'ents us from seeing the results of the
2017 plebiscite as a decisi\'e vote for Statehood. 2 According!). the vie,,s on the prior plebiscites
renected in the Act. \\hich provide the basis for the ballot's yes-or-no \Ole on tatehood. contlict
\vi th the policy judgment of the United States that the people of Puerto Rico have not yet

1
Letter from Dana J. Boc111e. Acting Deputy Attorney General, to Governor Ricardo A. Rossello Nevares. Re·
United States Depart111e11t ofJustice rel'ieu• ofplebiscite ballot. \'Ofer ed11ct1f/011111arer1uls. t1nd expenditure plan, a1 2
(Apr. 13, 2017).
2
rhc Dcpartn1cnt recognitcs that the "Statehood" option on the 2017 plebiscite received 97° o of the votes cast but
notes that both the Popular Dernocratic Part) and the Independence P3.11) announced bo)COllS of the plebiscite based
on the ballot language as amended. Congressional Research Sci'\ ice. Polu1cal Status of Puerto Ru:o: Brief
Background and Rec·e11t Dl!\·elopn1ents for Congress. at I. 13 (Jun. 12. 2017). The Depanment further notes that the
23°0 turnout contrasts significant!} ''ith a voter·panicipation rate that "often ho\.ers around 80 percent." See
Frances Robles, 11°,. of Puerto Ricans l'ote 111 Referendum, 9-"'· ofnien1 for Statehood. Y Tt\tl s (June 11.
2017). available at hups 11'\t 11 m f/mff cor11 101- 06 11 us puerto-ricanf-1·ote-on-ll1r-gursflo11-o[;
statehood l11r11{" r O; see also. e.g. Puerto Rico State Elections Commission. General £ lecu o1is 1012 and
Pleb1scue 0 11 Puerto Rico Polu1cal Status. 31''3ilable at
'111p. 1~~1166 1-9 t·g~Ol2 RE>DI £scro11n101ndexh1r11l·..ts de(a11l1 CO.\ D/l'IQ.\ POLITIC4 TERRITORIAL
A(~TUdl_ISLA :cr11I (noting that the 2012 plebiscite had a 78.199 • panicrpation rate)
 ·1he I lonorable Juan Ernesto Da' ila Ri,·era
Page 4

deliniti,cly rejected the Common,,ealth·s current status. 11le Depan1nent cannot suppon a
plebiscite in tension '' ith that polic} judgment. as it ''ould funher suggest that the United tales
is no longer neutral about the options for Pue no Rico· s futurc ta tu .

I· inall>. the Department is concerned that statements in the plebi cite materials ma} cause
'oters to misperceive the elTect of a majorit} \Ole in fa,or of tatehood. I he United talcs
rc1nains committed to allo,,ing the people of Pueno Rico 10 detennine the Common,,ealth·s
future political status. but the Department must emphasize that a majorit} ..yes .. ' ote in this
plebiscite "'ould not lead automaticall} or immediatel) 10 admission. Yet the Proclamation of
the State Flcctions Commission. 'vhich \\.C understand has been made 3\.ailablc to the public.
states that ..[s]hould the Statehood ·yes· option be fa,orcd b} a majorit} vote. a transition
process shall begin fonh'' ith to admit Pueno Rico into the Union. as described in the Ac1.··
Pueno Rico tale Elections Commission. Proclamation of May 19. 2020. Plebiscite to Define
Puerto Rico 's Ulti111ate Political Status (the .. Proclamation''): see also Act 51-2020. § 2.2 (same.
directing inclusion of that language in the Proclamation). Although Act 51-2020 seems to
acknowledge elsewhere that adn1ission as a State \VOuld require the enactn1ent or federal
legislation establishing the tenns of admission, \'Oters may reasonably interpret the
Proclamation's statement to mean that a majority ·)es.. vote ''ill necessarily result in automatic
or im1nediate tatehood. \vhich is incorrect.

lnis fear of voter confusion is compounded by statements in both Act 51-2020 and the
Proclan1ation that compare this plebiscite to those held in Alaska and I la,,aii immediately before
their admission to the Union. See Act 5 I-2020. § I.3(g) (assening that Pueno Rico has
··completed the phase of asking , ·oters about all the possible political status options.. and that this
plebiscite'' ill ..make the final demand to Congress.. using ..the same final ,·oting mechanism
employed b> some fonner territories that became states of the Union ''hich includes 1\laska and
1la\\aii.. ): see c1l.\ o Proclamation (noting that... [j]ust as the plebiscites held in Alaska and Ha,,aii
... in this Puerto Rico plebiscite. there shall be a single ballot ''ith the options Statehood: Yes or
o..): Act 51-2020. § 2.2 (same. directing inclusion of that language in the Proclamation). These
references to the Alaska and Ha,,·aii plebiscites. ho,,ever. omit an imponant distinction bet\,een
those votes and this plebiscite. For both Alaska and 1-la,,aii. the final, yes-or-no tatehood votes
came at the end of the process of admitting them to the Union and ''ere specifically directed by
Congress in their adn1ission acts. Act of July 7. 1958. Pub. L. o. 85-508. § 8(b). 72 tat. 339.
343-44 (Alaska): Act of Mar. 18, 1959, Pub. L. No. 86-3. § 7(b). 73 tat. 4. 7 (I lav..aii). In other
words, federal legislation had already established all the tenns of their potential admission and
conditioned such admission on an affinnative vote from the territories· voters. That is not the
posture here. Folio'' ing the model used for Alaska and I la\vaii \\Ou Id require that the question
of Statehood again be presented to the people of Pueno Rico once there is cenainty as to all the
conditions of admission. To the extent that the plebiscite materials· statements about finality and
their references to Alaska and I la,,aii imply that this plebiscite is the last time that Pueno Rico
\VOuld concei\'ably 'ote on tatehood. they do not provide an accurate depiction of hO\\ the
tatehood process \\'Ould be likely to unfold and are therefore likely to result in , ·oter confusion.
The I lonorable Juan Ernesto Davila Ri\era
Page 5

For the reasons stated abo\e. the Depanment is unable to notif) Congre s that it appro,·es
of the materials for the O\ember 3 plebiscite and is unable to obligate the appropriated funds.

incerel).

Je e) A. Rosen
Deputy Auome) General