Wither Puerto Rico, D.C., And The U.S. Territories?

Puerto Rico

Puerto Rico's 3.4 million residents are U.S. citizens who have no voting members of the U.S. House of Representatives, no representation in the U.S. Senate, and no Presidential electors.

Under Puerto Rico's Commonwealth status, it is self-governing to a somewhat greater degree than a U.S. state, but are still subject to the laws of the federal government that they have no say upon.

Puerto Rico has opted for Commonwealth status repeatedly in three way referenda with independence, the Commonwealth status quo, or statehood on the ballot held in 1967, 1993 and 1998 (1967 - 39.0%; 1993 - 46.6%; 1998 - 46.6%) with a tiny percentage favoring independence and Commonwealth status edging out statehood prior to 2012. Commonwealth status was previously popular mostly because domestic non-federal employee income in Puerto Rico is not subject to U.S. income taxes, although Puerto Rico is also not eligible for some federal welfare benefits either.

But a "2012 referendum showed a majority (54% of the voters) in favor of a change in status, with full statehood the preferred option of those who wanted a change. Because there were almost 500,000 blank ballots in the 2012 referendum, creating confusion as to the voters' true desire, Congress decided to ignore the vote." In 2017, a referendum showed 97% of voters favored statehood, although turnout was low. 

But the status quo is really unconscionable democratically for a jurisdiction with 3.4 million people to have no say in the federal government that it is subject to, and if forced to choose between independence and statehood, Puerto Rico would almost surely choose statehood.

Granting Puerto Rico statehood would, like D..C. statehood, require only a federal statute, not a constitutional amendment, would not require approval from any U.S. state, and would not legally require approval in a referendum from the Puerto Rican people. Given the fact that Puerto Rico already voted for statehood in 2012 and 2017, it would not be illegitimate or undemocratic to honor those referenda in 2021.

The District of Columbia

This is also true in the District of Columbia, except that it has 3 electoral votes in Presidential elections, and multiple easy solutions. The most obvious solution for the District of Columbia (which could be done by a single federal statute without approval from any U.S. states) would be to make it a U.S. state (with the possible exception of a small federal district encompassing the main government offices, White House, Supreme Court and Capitol which would retain the residual 3 electoral votes that D.C. is granted under the U.S. Constitution), something most residents of the District of Columbia would support, although a referendum from D.C. residents is not legally required to do so. Alternately, the portions of D.C. annexed from Maryland could be returned to it (as the portions of D.C. annexed from Virginia pretty much already have been), in lieu of creating a new state. Or, the U.S. could adopt a constitutional amendment giving it the federal representation of a U.S. state without actually making it a state. 

Realistically, if this was done, there would be wide support for repealing the 23rd Amendment to the U.S. Constitution (proposed in 1960 and adopted in 1961), that currently gives D.C. three electoral votes, but no representation in the U.S. House or U.S. Senate, which states:

SECTION 1 The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

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; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. 

SECTION 2 The Congress shall have power to enforce this article by appropriate legislation.

On August 22, 1978, Congress submitted the District of Columbia Voting Rights Amendment to the states for ratification. This sweeping proposal would have granted the District of Columbia full representation in the United States Congress as if it were a state, repealed the Twenty-third Amendment and granted the district full representation in the Electoral College plus participation in the process by which the Constitution is amended as if it were a state.  

The amendment failed to become part of the Constitution, however, as it was not ratified by the required number of states (38) prior to its August 22, 1985 ratification deadline. The campaign for the proposed amendment ran into much fiercer conservative opposition due to the open and obvious fact that by 1978 the proposed amendment would have practically guaranteed two Democratic senators for some time; the amendment was criticized on various other grounds as well, and was not ratified even by several more "liberal" states.

(Source for image and material quoted above.) 

Other Territories

The argument against granting statehood to the other U.S. territories has been their low population. 

The self-governing territory of the U.S. Virgin Islands (which is more or less adjacent to Puerto Rico in the Caribbean sea) has about 102,000 people, who again, have the rights of U.S. citizens but no say in the federal government to which they are subject. Puerto Rico and the U.S. Virgin Islands combined have about 3.5 million people.

There are three self-governing U.S. territories in the Pacific Ocean. American Samoa has about 54,000 people. Guam has about 163,000 people. The Commonwealth of the Northern Mariana Islands have 53,000 people. Combined, there are about 270,000 people in these three self-governing U.S. territories (about half the population of Wyoming).

One simple solution would be to grant statehood to the U.S. Virgin Islands, to American Samoa, to Guam, and to the Commonwealth of the Northern Mariana Islands. 

If Puerto Rico and D.C. were also made U.S. states this would increase the number of U.S. states from 50 to 56. Five of the new U.S. states would have two U.S. Senators and one member of the U.S. House, and three electoral votes each. Puerto Rico would have two U.S. Senators, and roughly the same number of members of the U.S. House and electoral votes as the State of Connecticut, which currently has 5 seats in the House, 2 in the Senate and 7 electoral votes. If the size of the U.S. House were increased so that the population per U.S. House seat was kept roughly the same, the six newly admitted states would collectively have 12 seats in the U.S. Senate, 10 seats in the U.S. House of Representatives, and 22 electoral votes.

One could image, instead, a compromise plan that would not involve a constitutional amendment for Puerto Rico and the U.S. territories.

In this plan, there would be three new states: D.C. (population approximately 680,000), the State of Puerto Rico and the Virgin Islands (population ca. 3,500,000) with two highly autonomous local government subdivisions, and the State of American Polynesia (population ca. 270,000) with three highly autonomous local government subdivisions.

In this scenario, D.C. would have two Senators, one member of the U.S. House of Representatives and 3 electoral votes in addition to the three electoral votes remaining for the residual capitol territory. The State of Puerto Rico and the Virgin Islands would have two Senators, five members of the U.S. house of Representatives and seven electoral votes. And, the State of American Polynesia would have two Senators, one member of the U.S. House of Representatives, and three electoral votes. If the size of the U.S. House were increased so that the population per U.S. House seat was kept roughly the same, the three newly admitted states would collectively have 6 seats in the U.S. Senate, 7 seats in the U.S. House of Representatives, and 13 electoral votes.

A Constitutional Amendment?

Another plausible compromise would be to use the threat of one of the scenarios granting these jurisdictions statehood as leverage to secure a constitutional amendment. (Giving all four small territories statehood status might also motivate conservative small states to join a unanimous movement support reform of the U.S. Senate.)

One of the better possible versions of this amendment would:

(1) repeal the 23rd Amendment. 

(2) give the D.C. and each U.S. Commonwealth and territory outside a U.S. state the number of U.S. House seats it would have if it was a U.S. state (and at least one seat), 

(3) provides that eligibility to vote shall be decided in accordance with federal law, subject to existing constitutional limitations, and either

(4A) repeals the electoral college and instead provide that a President and Vice President be elected as a ticket by direct popular vote in which residents of the District of Columbia, U.S. Commonwealths, and U.S. territories are entitled to vote conducted in a manner provided by law (which I do not believe would violate Article V of the U.S. Constitution discussed below); or

(4B) allocate to each state, District, Commonwealth and territory, a number of electoral college delegates equal to its number of U.S. House seats without regard to the number of its U.S. Senate seats (which I do not believe would violate Article V of the U.S. Constitution discussed below), and provide that electoral college delegates be allocated among candidates within each state, District, Commonwealth or territory as closely as possible without creating fractional delegates, in proportion to the share of the popular vote in that jurisdiction for each ticket of candidates.

Section 4B is approximately equivalent to Section 4A in terms of outcomes, except for rounding errors and turnout differences from state to state. It is possible for someone to win the electoral vote while losing the popular vote in the section 4B version, but it is much less likely, and when it happens, the discrepancy between the popular vote and the electoral vote would also be much smaller than the roughly three percentage point of popular vote bias against Democrats that exists in the status quo.

Section 4B eliminates an incentive to increase turnout relative to other states (since the state's total share of electoral votes is always the same) unlike Section 4A, continues to have federal elections administered by the states rather than by the federal government, and eliminates the possibility of a national recount of the vote. But it eliminates the ability of states to influence the outcome in a partisan manner by adjusting who is eligible to vote in the election.

In both versions, however, voters in safe states with more than one House district would make a difference that they do not now, small states would not have a gross advantage in electoral votes relative to large states, and candidates would have an incentive to campaign nationally rather than targeting their campaigns on a handful of swing states.

In both versions, Congress could authorize by law (and perhaps even require) that U.S. House seats in states with more than one U.S. House seat be elected at large on a proportional representation basis, rather than in single member districts.

Alternately, a U.S. Constitutional Amendment might come in many other permutations:

* It could, repeal the 23rd Amendment, give every territory outside a U.S. State at least one seat in the U.S. House with representation proportional to its population as if it were a U.S. state,  and give each of these jurisdictions some electoral votes. The number of electoral votes could be: (1) equal to the number of seats that it would have in the U.S. House (i.e. 1 each, except for Puerto Rico which would have about 5); (2) equal to the number of electoral votes that it would have if it was a U.S. State (i.e. 3 each, except for Puerto Rico which would have about 7); or (3) equal to the number of seats that it has in the U.S. House if its population in the last census was less than the smallest U.S. state (i.e. 1 each for the U.S. Virgin Islands, American Samoa, Guam and the Northern Mariana Islands) and equal to the number of seats that they would have in if its population in the last census was equal to or more than the smallest U.S. state (i.e. 3 for D.C. and about 7 for Puerto Rico).

* repeal the 23rd Amendment; allocate electoral votes on the basis of U.S. House seats without regard to U.S. Senate seats (which I do not believe would violate Article V of the U.S. Constitution discussed below), and give the D.C. and each U.S. territory and commonwealth outside a U.S. state the number of U.S. House seats it would have if it was a U.S. state. Thus, the 435 U.S. House seats would be allocated among 56 jurisdictions instead of 51. This would also greatly reduce the likelihood of a tie in the electoral college in the usual case where there are only two candidates who receive electoral votes, by making the total number of electoral votes an odd number, without eliminating the benefit of the number of seats in the U.S. House being an odd number (also reducing the likelihood of a tie there).

* repeal the 23rd Amendment and give the people outside any U.S. state in D.C., and any U.S. territory or Commonwealth, collectively, U.S. House seats equal to what they would have if they were a single U.S. state - partitioned according to U.S. law (probably one for D.C., four or five for Puerto Rico and U.S. Virgin Islands collectively, and one for the U.S. territories in the Pacific collectively, or one for D.C., four or five for Puerto Rico, and one for all other U.S. territories collectively), allocate one electoral vote per Congressional District (like Maine and Nebraska do), and possibly allocate two electoral votes in addition to these jurisdictions collectively (like Maine and Nebraska do).

* keep the 23rd Amendment, give D.C. a seat in the U.S. House, give Puerto Rico the seats in the U.S. House and electoral votes on the same basis as it would have if it were a U.S. state, give the U.S. Virgin Islands one seat in the U.S. House and one electoral vote, and give the three U.S. territories in the Pacific, collectively, one seat in the U.S. House and one electoral votes.

* keep the 23rd Amendment, give D.C. a seat in the U.S. House, give Puerto Rico and the U.S. Virgin Islands, collectively, seats in the U.S. House and electoral votes on the same basis as it would have if it were a U.S. state, and give the three U.S. territories in the Pacific, collectively, one seat in the U.S. House and either one or three electoral votes.

* keep the 23rd Amendment, give D.C., Puerto Rico, and each U.S. territory one seat in the U.S. House (the number of non-voting delegates that each of them currently have), and give Puerto Rico three electoral votes (the same number it would get it the 23rd Amendment were applied to it rather than to D.C. since the 23rd Amendment caps the number of electoral votes given to D.C. at the smallest number allowed for each state).

An amendment to the U.S. Constitution giving Puerto Rico or the District of Columbia, or any other jurisdiction outside a U.S. state, seats in the U.S. Senate, without granting those jurisdictions statehood, would have to be ratified by all fifty U.S. states because Article V of the U.S. Constitution states (with spent language shown struck out; emphasis added to pertinent language) that:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

It seems unlikely that all fifty states would ratify such a change in the currently political circumstances of the United States.

I do not believe that this language bars amendments to the electoral college, as illustrated by the precedent of the 23rd Amendment.

Other Ideas For Constitutional Amendments

Some other ideas for constitutional amendments that aren't strictly on topic but go, in part, to U.S. Senate power that isn't unrelated to the discussion above. 

Changing The Balance Of Power Between the President, U.S. House and U.S. Senate

Weaken the U.S. Senate

Allow the U.S. House by a two-thirds majority, to enact legislation which is not approved by the U.S. Senate within some set period of time (perhaps six months) with a Presidential signature. The U.S. House would not be able to override a vetoed bill it approved in this manner without U.S. Senate support.

Thus, the two majoritarian branches, the President and U.S. House, could override the U.S. Senate with bipartisan support.

Weaken the President's Veto Power

Reduce the threshold for overriding a Presidential veto, to either (1) majorities in both houses (making the Presidential veto a way to delay a law's enactment because he or she notice a problem with it, rather than actually reallocating power), or (2) a majority of the U.S. Senate and two-thirds of the U.S. House (preventing the unequal level of U.S. Senate representation to be leveraged excessively to prevent a veto override by states representing only a very small percentage of the U.S. population).

Change The Treaty Approval Requirement

Replace the two-thirds approval required for treaties by the U.S. Senate alone with (1) a requirement that treaties be ratified by law, or (2) require majority approval by the U.S. Senate (preventing the unequal level of U.S. Senate representation to be leveraged excessively to prevent a veto override by states representing only a very small percentage of the U.S. population) and two-thirds approval in the U.S. House, for treaties, and provide that treaties override statutes unlike existing U.S. law where a domestic statute can override a treaty.

Approving Nominations

Require judicial and non-judicial Presidential nominations to be approved by both houses of Congress rather than just the U.S. Senate, provided however, that two-thirds majorities of each house of Congress (rather that the status quo than a majority approval of the U.S. Senate) is required to appoint a U.S. Supreme Court justice (the only lifetime appointees whose decisions can't be overridden by someone else). This would effectively require the President to secure bipartisan approval for nominations when the control of the House and Senate are split, and in all cases for U.S. Supreme Court justices.

End the authority of the President to make recess appointments.

Broaden impeachment eligibility

Allow a President to be impeached for failing to faithfully execute the laws, violating the constitution, or for ceasing to be competent, rather than merely for "high crimes and misdemeanors"

Require a majority vote, rather than a two-thirds majority vote, to convict the President following a vote to impeach in the U.S. House. This would effectively make the President subordinate to the legislature.

Require Bipartisan Support For Actions By Lame Ducks

Require two-thirds majorities to approve any action that could otherwise be approved by majority vote in ether house of Congress, between a Presidential election day and a Presidential inauguration.

This could take effect starting with the first President elected after the amendment is ratified to make it not about current partisan battles.

Lame ducks should be able to act only with bipartisan support.