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Many Puerto Ricans are outraged about how its resigning governor installed his successor. Here’s why.

The backroom maneuver might not be constitutional — or democratic.

Puerto Rico’s governor Ricardo Rosselló resigned in August 2019, after two weeks of massive demonstrations calling for his departure. And yet, because of the way Rosselló’s picked his successor and long-standing grievances that haven’t been addressed, expect protests to continue.

Here’s the troubling way Rosselló installed his successor

Just two days before resigning, Rosselló handpicked longtime New Progressive Party leader Pedro Pierluisi as his successor. Rosselló had to nominate Pierluisi to be secretary of state to fill the vacancy left by Ricardo Rivera Marín, who resigned as a result of his involvement in the chat that led to Rosselló’s downfall.

Pierluisi is a polarizing figure in Puerto Rico because of his lobbying practices and his record as an advocate of the federal PROMESA bill, a U.S. law that passed with bipartisan support to give PR access to debt restructuring. PROMESA creates a fiscal control board that represents PR in debt restructuring cases and has the power to approve all fiscal policies — and has used this power to mandate drastic cuts in social spending. Until last week, Pierluisi worked at a law firm that represents the widely disliked fiscal oversight board. Pierluisi also draws opposition from environmentalists because of his ties to corporations, such as AES, with environmentally hazardous practices.

After a rushed hearing during a special House session held on the day of Rosselló’s resignation, the Puerto Rico House of Representatives confirmed Pierluisi as secretary of state, but the Senate would not be in session until the next week. With only the House confirmation, Pierluisi met privately with an appellate court judge and was sworn in as secretary of state right as Rosselló’s resignation became effective.

That process is being attacked as legally questionable

Since the Senate never confirmed Pierluisi’s appointment, many Puerto Ricans dispute the legality of the succession. Some observers argue that this move was flatly illegitimate. Others argue that it was legally done, but is still wrong. Various groups are challenging Pierluisi in court, including San Juan Mayor Carmen Yulín Cruz and the Puerto Rico Bar Association. On Sunday night, the Senate filed its own lawsuit.

Pierluisi admitted that his ascent to the office of the governor was questionable and argued that the Senate could avoid a legal dispute and ratify his incumbency as governor by confirming him as secretary of state after he had already assumed the governorship.

What does the Puerto Rico constitution say?

The constitution requires that a secretary of state be confirmed by both chambers of the Legislative Assembly. It stipulates that if the governorship were to become vacant because of “death, resignation, removal,” the secretary of state shall hold it until a new governor has been elected. If no one occupies either the governorship or the secretary of state’s office, the constitution says that the legislature should approve legislation to determine the order of succession.

Of course, the constitution says nothing about the specific scenario facing Puerto Rico. While there are many opinions on the most appropriate way to interpret it, pundits tend to espouse one of two main theories.

Observers have two main interpretations of the constitution

One camp argues that, to become governor, the secretary of state must be confirmed by both chambers. The Senate’s lawsuit makes this argument. Those in this camp believe bicameral confirmation safeguards democracy, arguing that given Pierluisi’s lack of Senate approval, the attorney general Wanda Vázquez was in line to take over as governor.

The other camp argues that legislative confirmation was unnecessary. They say that Pierluisi was appointed during a legislative recess. Therefore, his position as acting secretary of state needed no confirmation — and yet has all the rights and responsibilities of the office, including stepping in as governor. This point of view seems to have prevailed — but a court battle is coming.

Pierluisi relied on this second theory and the law of succession of 1952, amended in 2005, which exempted the secretary of state from legislative confirmation. Many legal experts consider the amended law of succession to be unconstitutional, citing the legislative history and Constitutional Convention debates. But their strongest argument seems to be rooted in democratic logic: Without the requirement of bicameral confirmation, the governor’s office will be held by an official who came to power without either the people’s vote or confirmation by those elected as the people’s representatives.

Because the law of succession has never been challenged, it must be presumed valid until a court rules otherwise. The Puerto Rican Supreme Court will thus have the final say.

Protests are expected to continue

Many protesters consider the Pierluisi administration to be illegitimate. They already perceived Rosselló’s ruling New Progressive Party as corrupt. The grievances that led the island to erupt into protest, which one of us wrote about for TMC last month, still haven’t been addressed. And so we should expect the protests to continue.

But these protests face new challenges. Protesters must now develop a political agenda beyond ousting Rosselló. To come up with such an agenda, community organizers and ordinary Puerto Ricans have begun to call community assemblies in various regions. The assembly in the municipality of Caguas, for instance, called for new elections. Various progressive groups have begun to call for specific reforms that range from modest to ambitious.

The more ambitious proposals include new elections, a new constitution and beginning a process of decolonization. This would entail curtailing the power of financial capital over Puerto Rico and either becoming a state or a sovereign country.

But all this will be difficult. Many more parts of society wanted Rosselló’s resignation than want broader political reforms. Business groups, professional associations and many voters who first backed Rosselló but eventually turned against him are still aligned with the interests that he represented and that Pierluisi says he will protect.

Protesters may not be able to bring those groups along in calling for broader change. But they may be able to alter the public perception that a Pierluisi administration will deliver a significantly better government performance than that of his predecessor. If the protesters can make that case, they may gain support for what looks like a long fight to change Puerto Rico.

Fernando Tormos-Aponte (@fernandotormos) is a postdoctoral research associate at the University of Maryland Baltimore County and a visiting scholar at Johns Hopkins University.

Glenda Labadie-Jackson is a professor at the University of Puerto Rico School of Law.