Challenge to Guam’s race-based plebiscite will go forward

by Joshua Thompson, Pacific Legal Foundation, May 8, 2015

The Guam legislature passed a law that allowed only “native inhabitants of Guam” to vote in an upcoming plebiscite concerning Guam’s political relationship with the United States. The plebiscite would ask native inhabitants to vote on whether Guam should seek statehood, independence, or a continued “association” with the United States.  Arnold Davis is a resident of Guam, but was unable to register for the plebiscite because he was not a native inhabitant. Davis challenged the law as unconstitutional under the Fifth, Fourteenth, and Fifteenth Amendments to the Constitution.

The catch with this case was that the plebiscite would only occur once 70% of eligible native inhabitants registered to vote in it, and, in all likelihood, this 70% figure would never be reached. Thus, Guam argued that the case was not ripe and that Davis did not have standing to challenge the law because he could not show how he was being injured. The Guam district court dismissed Davis’s claim, and Davis appealed to the Ninth Circuit. PLF filed this brief in support of Davis, and the court held a very memorable oral argument last year. Today, in a 2-1 opinion, the Ninth Circuit held that Davis’s case is ripe and he has standing to challenge the race-based registration process.

The Ninth Circuit held that “unequal treatment is an injury even if curing the inequality has no tangible consequences.”  The court reasoned that this is like the injury that occurs when a prosecutor strikes jurors on the basis of race. The defendant (or excluded juror) is not required to show that the result would have been different. It is an injury solely because the state denied equal treatment. Similarly, Davis should not be required to show that the plebiscite will occur, or that his registration will have some discernible impact. He is injured because the territory has decided to take action that prevents him from acting solely by virtue of his ancestry. This is precisely what PLF argued in its amicus brief to the court. As we wrote, “A person denied equal treatment on the basis of race has suffered an injury-in-fact, sufficient for Article III standing.”

The Court also held that the case is ripe.  Davis is challenging his current inability to register. The action Guam is taking is denying his ability to register now. “By being excluded from the registration process, … he is unlawfully denied a right currently enjoyed by others: to help determine whether a plebiscite will be held.”

The Court declined to reach the merits of Davis’s claim, remanding it back to the district court to determine if the registration process does, in fact, deny Mr. Davis’s constitutional rights. That determination should be quick. As Chief Judge Kozinski asked during oral argument, “If Mississippi did this, wouldn’t it be laughed out of court?” Surely it would be, and PLF fully expects the district court to quickly strike this law as unconstitutional.

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