If there's one thing Guam as a community might want to reflect on from the 9th U.S. Circuit Court of Appeals ruling on July 29 about Guam's plebiscite law, it's this: inclusiveness.
The 9th Circuit ruling struck down Guam's plebiscite law, which would limit voting to "native inhabitants of Guam." The local restriction is for a plebiscite that asks voters whether they choose independence from the United States, statehood, or free association – which is what some of our neighbors, such as the Federated States of Micronesia, have chosen.
GovGuam had argued that “native inhabitants of Guam” is not a racial category but a political one – referring to “a colonized people with a unique political relationship to the United States because their U.S. citizenship was granted by the Guam Organic Act.”
However, the 9th Circuit ruled that restricting the plebiscite to “native inhabitants of Guam” violates the U.S. Constitution's 15th Amendment that guarantees every American his or her right to vote.
The 9th Circuit upheld District Court Judge Frances Tydingco-Gatewood's decision rejecting the law as race-based.
Attorney Julian Aguon, who represented GovGuam at the appeal hearing in Honolulu last year, argued, in part that “the District Court relied too heavily on the connection between the contested law, and the previous law it believed was racially motivated because it contained the word 'Chamorro.'”
“Such evidence cannot establish discriminatory intent,” Aguon has argued in court papers. “To prevail on a 15th Amendment’s claim, a plaintiff must prove that the Legislature acted with racially discriminatory intent.”
The 9th Circuit rejected that argument, saying that history and context confirmed that restricting voter eligibility to “native inhabitants of Guam so closely paralleled a racial classification as to be a proxy for race."
Guam's 1997 Plebiscite Law stated the plebiscite was to be limited to “Chamorro People.” A few years later, after the U.S. Supreme Court struck down Hawaii's race-based voting law, the government of Guam revised the plebiscite law to replace all references to “Chamorro” with “native inhabitants of Guam.”
The 9th Circuit dismissed the language change as cosmetic and that the revision in Guam law did not resolve the underlying constitutional violation of discriminating against voters essentially based on race.
"The 15th Amendment’s prohibition on race-based voting restrictions is both fundamental and absolute," the decision states.
And instead of holding a plebiscite that excludes others who have the right to vote, maybe it's time for GovGuam to cut its mounting legal bills, which could cost it more than $1 million, and follow the Constitution.
The 9th Circuit gave a language cue that GovGuam's officials would find tough to ignore.
When in doubt over the 15th Amendment’s boundaries, the 9th Circuit stated, "we err on the side of inclusiveness."
Let the vote be inclusive. It's one person, one vote – native or not.