On Sept. 1 at the federal courthouse, Dave Davis will argue that the much-discussed status plebiscite should at last be put out of its misery.

It is commonly understood everywhere else that, under the United States Constitution, the right to vote is violated when you parcel out voting rights based on your ethnic group.

But in Guam, it will take judges to enforce the law. The same thing happened, by the way, in Hawaii, and the Supreme Court ruled in Rice v. Cayetano that the state government there could not limit the right to vote to “Native Hawaiians.”

History repeating itself

A long time ago in the American South, states cooked up all sorts of ways to deny the right to vote to black Americans – poll taxes, grandfather clauses and even a pop quiz or two. Courageous white federal judges in the Deep South refused to play the same games. They saw through the ruse and struck down the laws as unconstitutional.

In Guam, who your parents or grandparents are determines if you have a voice in the status plebiscite. Mr. Davis, despite serving his country in the Air Force, didn’t have the right bloodlines to vote in the election regarding Guam’s relationship with the United States. He isn’t among the chosen.

Guam has advanced arguments that would be laughed out of any other American courtroom – that the plebiscite isn’t discriminatory, or it’s OK to give a chosen people a political voice. Already, the U.S. Court of Appeals for the Ninth Circuit Court has rejected the lion’s share of Guam’s argument, finding that Mr. Davis suffered an injury because he wasn’t treated equally and that the plebiscite is an official election affecting government policy.

As Mr. Davis has put it in his argument to the court: “Classifying citizens into different groups with different political rights and permitting only one of those groups to register for and participate in a government-run election denies the disfavored groups their fundamental right to vote. It is, indeed, the antithesis of the principles that the (U.S. Constitution) adopts as a bedrock constitutional guarantee.”

Well said.

People in positions of power in Guam should take notice. It might help to be taken seriously by the United States if you play by the rules everyone in the United States follows.

Blocking access to the ballot because you don’t have the right blood is right out of the Jim Crow South or apartheid South Africa. It has no place where the American flag flies and the Constitution of the United States applies.

Missing in action in the case, by the way, is the Obama administration’s Department of Justice. Alas, the administration has consistently sacrificed its obligation to enforce the laws equally for all Americans on the altar of political correctness. This case is no exception.

Fortunately, the Center for Individual Rights and former DOJ attorney Christian Adams are representing Mr. Davis in his lawsuit to compel Guam to comply with federal law. In a better world, Mr. Davis would have the federal government on his side, too.

This case has dragged on too long and one hopes that the federal court will do what needs to be done and strike down the plebiscite law. Everyone deserves a voice on Guam’s future, not just those who have the chosen parents or grandparents.

Be careful what you wish for

And advocates of discrimination should be wary of what they ask for. The Chamorro population in Guam is now a distinct minority. Dave Davis’ interpretation of the law will prevent future majorities in Guam from enacting creative barriers to the ballot against Chamorros, like the plebiscite does to Mr. Davis.

So those who want to prohibit Mr. Davis from voting in the plebiscite should be careful what they wish for, because the next favored “ancestral” class might not be linked to Chamorro history, but some other group.


Roger Clegg, of Falls Church, Virginia, is president and general counsel of the Center for Equal Opportunity, which joined an amicus brief in Rice v. Cayetano.

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