NINTH CIRCUIT HEARS ARGUMENT IN CIR’S CHALLENGE TO GUAM VOTING LAW

News Release from Center for Individual Rights, October 11, 2018

On October 10, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral argument in Davis v. Guam, a case challenging a race-exclusive plebiscite planned by the Government of Guam.  Guam resident Arnold (Dave) Davis was turned away from registering to vote because he is not descended from a native Chamorro. The race-based restriction was struck down by the US District Court for the District of Guam in March, 2017 on the grounds that it unconstitutionally limits the right to vote on the basis of race.  The Government of Guam appealed that decision to the Ninth Circuit.

CIR challenges Guam plebiscite

Plaintiff Arnold “Dave” Davis

CIR is representing Guam resident Arnold Davis in a class action lawsuit challenging a race-exclusive plebiscite on the question of whether Guam should seek independence from the United States, statehood, or some other relationship.

Although a territory of the United States and subject to the Constitution’s guarantees of non-discrimination, Guam law permits only those who meet the definition of “Native Inhabitants of Guam” to vote in the plebiscite.  CIR’s complaint alleges that the definition of this term was designed to limit the vote to “Chamorros,” a racial designation referring to the original inhabitants of Guam and their descendants.  This group comprises about thirty-six percent of the population of Guam.  The law pointedly excludes most Caucasian, black, Korean, Chinese, and Filipino citizens of the United States living on Guam and otherwise registered to vote in Guam elections.

Having been a territory of the United States since 1898, Guam apparently has decided to hold a referendum on its future relation with the United States without allowing nearly two-thirds of its lawfully registered voters to vote — all of them citizens of the United States.

DOJ refuses to act

As troubling as this overtly discriminatory law is, even more difficult to comprehend is the Justice Department’s failure to take action against it.  Despite its clear authority to enforce federal laws prohibiting race discrimination in voting, the Justice Department declined to intervene when presented with a complaint by Guam resident Arnold Davis, the plaintiff in CIR’s suit. Davis, a retired officer in the U.S. Air Force, was told he couldn’t register because he was not descended from a native inhabitant; Davis communicated all this to Department officials, but the Department declined to pursue the matter.  According to sources, this decision came from political appointees in the Civil Rights Division.

The Guam plebiscite bears a strong similarity to Hawaiian laws that formerly limited certain elections to Native Hawaiians.  The Supreme Court declared such laws unconstitutional in Rice v. Cayetano in 2000.  Presumably to get around this problem, Guam claims its plebiscite is not limited by race, but only to native “inhabitants.”  But this turns out to be a pretext — the law defining “native inhabitant” excludes virtually everyone but “Chamorros.”  And even if “native inhabitant” didn’t exclude other racial groups, it would still violate the Constitution.  Voting cannot be conditioned on the accident of one’s descent.  It must be available to all residents on the same terms.

Racial politics

Guam’s status as a U.S. territory has enabled the island to attract individuals from many other countries, notably Korea and the Philippines, who now call Guam their home.  In addition, U.S. citizens, including retired members of the U.S. military, have become permanent residents of the island.  Yet now, almost two-thirds of the island’s residents face disenfranchisement at the hands of the controlling racial group.

The plebiscite is part of a political campaign being waged by a group of Chamorros intent on preserving their power over island affairs.  Their tactic is the odious one of building a racial identity for a favored “native” race in opposition to “other” races.  Understanding the irrationality of this kind of racial politics, the Constitution does not permit legal classifications built on race.

Though it would be theoretically possible for Guam to secede from the United States in order to pursue its campaign of racial identity, it is not acceptable for it to claim the authority and protection of the United States Constitution and its laws all the while flouting their fundamental principles.  And no principle is more fundamental to American democracy than the idea that all citizens have the right to vote regardless of race.

Case Status: Pending

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Guam Argues for Native Voting Law Before 9th Circuit

by Amanda Pampuro, Court House News, October 11, 2018

(CN) – The government of Guam argued Wednesday before a Ninth Circuit panel at the University of Hawaii that it is not unlawful to limit non-native residents from voting on the territory’s future political ties with the United States.

The Guam Legislature created the Political Status Plebiscite as a mechanism for returning to the native inhabitants the ability to determine the future political status of the unincorporated U.S. territory located in the Mariana Islands.

Once 70 percent of native inhabitants signed onto the registry, a plebiscite political status election would be held to decide whether Guam should become a free association of the U.S., a state, or an independent nation.

While the indigenous people of Guam are known as Chamorro, Guam law defined the eligible plebiscite electorate as “native inhabitants” who were made U.S. citizens by the 1950 Organic Act and their descendants.

In November 2011, Arnold Davis filed a law suit against Guam’s government, arguing that the plebiscite election discriminated against him and other non-native inhabitants residing on the island who were ineligible to participate. After he retired from the Air Force, Davis moved to the tropical Pacific island in 1977. While he has a second home in Tucson, Arizona, Davis maintains his residency in Guam.

Guam District Judge Frances Tydingco-Gatewood ruled in favor of Davis in March 2017, writing in her 26-page opinion, “the court recognizes the long history of colonization of this island and its people, and the desire of those colonized to have their right to self-determination. However, the court must also recognize the right of others who have made Guam their home.”

Guam Special Assistant Attorney General Julian Aguon countered Wednesday, “it would be impossible for a colonized people under U.S. rule to exercise any measure of self-determination because the mere act of designating them, designating who constitutes as a colonized class would collapse automatically into a racial categorization.”

“The purpose of the law is to identify the group entitled to decolonization rights,” Aguon implored in a speech so impassioned it drew commentary from the panel.

“You’re doing a very good job, it’s therefore hard to get a word in edgewise,” said Circuit Judge Kim McLane Wardlaw. “This is a state sponsored opinion poll, why don’t you just conduct a poll and everybody that was a descendant could just check off that?”

Aguon said the district court’s 14th Amendment ruling currently prohibited such an option.

For many, the district’s decision is reminiscent of the 2000 lawsuit Rice v. Cayetano in which a white rancher successfully sued over a law limiting the board of trustees for the Office of Hawaiian Affairs to native Hawaiians.

Davis’ attorney Lucas Townsend embraced this parallel until Circuit Judge Marsha S. Berzon observed, “it is different in many respects.”

Townsend described the plebiscite as “a matter of tremendous importance to the inhabitants of Guam but limits the electorate to the Chamorros, a racially defined group.”

“It doesn’t say that exactly,” Berzon challenged. “It’s an interesting question actually. Suppose the rule was everybody who lived in Massachusetts in 1916 and their descendants could vote, but let’s assume you had a racially diverse group. Anytime you use ‘descendant’ that’s a racial group?”

Lucas replied, “It’s inherently suspect.”

“Maybe it should be inherently suspect, it’s an interesting question but it would have to be a new analysis of a new suspect class,” Berzon pressed. “If this referendum is going to be communicated as the views of the people in it and nobody else, what is everybody else’s interest in it?”

“It’s a law that is of public interest to everyone,” Townsend said. “The results of the plebiscite will be communicated to the president, Congress, and the secretary general of the United Nations and Guam will thereby be taking a position,” Townsend said.

According to the World Factbook Guam’s population of 167,000 people includes 37 percent native Chamorro, but a growing number of outsiders have settled there, diversifying the population with 26 percent Filipinos, 7 percent white and 7 percent Chuukese. In 1950, the island’s population was predominantly Chamorro.

“Do you think I filed it for me? Because I was that concerned about my specific vote? Just my vote? I was looking at 50,000 Filipinos who can’t vote, who have helped build that island and who are nevertheless prevented from voicing their opinions about what the political status should be,” said Davis via telephone from Tucson.

For many Chamorro, however, opening up the question of political status defeats its very intent.

“(The U.S.) continues to colonize people very far away and deny them the ability to truly decide for themselves what future they want and what relationship they would want—if any—with the United States,” said Victoria Leon Guerrero, a Chamorro activist and member of advocacy group Independent Guahan. “If you deny this to the people that were colonized and open it up to everybody, then it’s not a genuine act of decolonization.”

In denying Guam’s attempt to decolonize its population, Aguon told the panel, “is a morally-repugnant thing, self determination actually belongs to an exalted class of international norms. You know what else is in that class? The prohibition against genocides, slavery, piracy, war crimes and crimes against humanity.”

The circuit judges did not announce when they will reach a decision, but Leon Guerrero said their work for self-determination will not be deterred.

Davis is also represented by the Election Law Center and the Center for Individual Rights.

Circuit Judge Johnnie Rawlinson also sat on the panel.

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GP: GovGuam hopes for favorable decision on plebiscite