Brooklyn Law Review


The United States has continued to hold Puerto Rico as a colony, much like the British empire did the US colonies, and has given it no clear path to incorporation, statehood, or independent sovereignty. It has also denied its citizens the right to vote for their president and have voting representation in Congress. Current case law regarding Puerto Rican presidential voting rights and voting representation in Congress rests on precedent that dates almost as far back as its acquisition—the infamous Insular Cases. This case law is inconsistent with prior precedent, constitutional principles, and does not account for Puerto Rico’s contributions and deep entanglement with the United States. Neither does it account for the modern-day relationship between the United States and Puerto Rico. Moreover, the United States’s continued denial of full voting rights and representation to Puerto Rico and its residents is wholly inconsistent to the principles of its founding. Many articles and scholars have evaluated the arbitrary standards set out in the Insular Cases as they apply to Puerto Rican citizens and their right, or lack thereof, to a presidential vote and a voting member of Congress. It has been proven time and time again that the factors present at the time of their decision are no longer in place today. Although there is much advocacy to overturn the Insular Cases, not much has been proposed by way of which specific issues to overturn within the cases, nor other viable options for suffrage presented and evaluated altogether in one article. This article does just that—it proposes that the precedent set forth in 1901, and regrettably affirmed in 2022, regarding the incorporated or unincorporated status of territories and subsequent legal ramifications, be abandoned and overturned. This article also proposes three other solutions in granting Puerto Rican residents the right to cast presidential votes and have voting representation in Congress. Since the devastation that the Puerto Rican people have faced in the last decade of natural disaster after natural disaster, a discussion on these topics is more critical now than ever. A resolution in the law is needed to account for a just and fully representative system for all our citizens.