Arguing it's not about race, GovGuam takes plebiscite vote issue to Supreme Court

PLAINTIFF: Air Force veteran Arnold "Dave" Davis, left, the plaintiff in the voting discrimination lawsuit, is pictured in the District Court of Guam in Hagåtña on Aug. 27, 2014. Media pool file photo

A lawsuit filed by Arnold "Dave" Davis relative to the political status plebiscite regarding Guam’s quest for self-determination is scheduled to begin today at 9 a.m. The hearing will be the first instance in which both sides will argue the merits of their case.

Chief Judge Frances Tydingco-Gatewood issued an order yesterday directing that the parties in the case come prepared with their arguments. Her order comes after a delay of several years due to an appeal of an initial dismissal in which she ruled that the case was not ripe for judicial review. The Ninth Circuit Court of Appeals reversed Tydingco-Gatewood's ruling.

The Davis case begins today. In yesterday’s order, Tydingco-Gatewood listed five points she wanted addressed in her courtroom today.

The judge directed attorneys in the case to argue the Equal Protection Clause of the 14th Amendment and whether the statute in question is facially neutral; and if so, whether discriminatory impact and discriminatory purpose exist. She also wanted the legal teams to argue whether the classification is narrowly tailored to further compelling governmental interest, and which judicial review applies - rational basis or strict scrutiny.

The judge also said she wants lawyers to answer a question on the 15th Amendment, which prohibits discrimination based on race or color with regard to voting by U.S. citizens. Tydingco-Gatewood wanted arguments to focus on the applicability of the judgment in the case Rice v. Cayetano, a case in Hawaii over the restriction of persons of Native Hawaiian descent with regard to voting for persons on a board that oversaw benefits for the class of citizens.

The judge asked the question on the Voting Rights Act and directed lawyers to argue about how the Voting Rights Act applies to Guam and, if so, whether there was intentional discrimination or discriminatory results or effects.

For the fourth and fifth questions, Tydingco-Gatewood wanted to know if the plebiscite definition violated provisions in the Organic Act of Guam, and whether the classification of “Native Inhabitants of Guam” is authorized by Congress.

'Discrimination in voting'

For at least one lawyer on the Davis team, the issue was answered years ago. J. Christian Adams with the mainland based Election Law Center told the Post that the law is clear in voting rights issues.

“The law protects everyone from discrimination in voting. Today it might protect Mr. Davis from discrimination, tomorrow it might protect a Chamorro minority – as long as everyone respects the law,” Adams said. “Voting rights cannot be tied to who your grandfather was under the 15th Amendment to the Constitution, a provision that fully applies in Guam. The Supreme Court said the way to move forward is for everyone to have a say.”

He added, “I am confident the ban on voting rights based on your parents and grandparents was settled over a century ago.”

As part of his filings, Davis’ team earlier this year queried the attorney general’s office on what local officials identified as “native inhabitant” and to describe who is eligible to register to vote in the plebiscite, but is not able to register on the Chamorro Registry. They also asked in briefs that officials identify each Chamorro who is not eligible to register in the plebiscite vote as well as identify any international obligations of the United States relevant to Guam’s compliance with the 14th and 15th Amendments of the United States Constitution, the Organic Act of Guam or the Voting Rights Act.

2015 response

In November 2015, Davis filed a response to the attorney general’s initial motion for summary judgment in his lawsuit claiming the right to vote in a Guam plebiscite.

Davis responded that Guam’s summary judgment motion should be denied because the 15th Amendment and the Organic Act prohibit all voting qualifications based on ancestry or race. The prohibition applies because even if the definition of “native inhabitants of Guam” were not race-based, it is – by its plain terms – ancestry-based, Davis claims.

Moreover, Davis contends that the racial origins of the phrase are so obvious, and the effort of the Guam Legislature to circumvent the Organic Act so transparent, that summary judgment should be denied to Guam, and granted to Davis, according to the response.

'Cannot change this basic fact'

The response stated that 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 other groups the right to vote.

“The Guam Legislature perhaps might have thought that Congress wanted it to vest one race an ancestral group with special political powers not enjoyed by others citizens, but no such congressional action occurred,” Davis’ attorneys wrote. “When Congress did speak, it squarely prohibited the classifications contained in the plebiscite. Guam cannot change this basic fact by invoking opaque and fanciful notions of what Congress might instead have done.”

The attorney general also sought summary judgment on the grounds that the plebiscite does not violate Davis’ constitutional rights, even though it limits the ability to register and vote to “native inhabitants of Guam,” according to the response filed by Davis.

His attorneys also claim the government’s motion does not address all of Davis’ claims, including a claim that the plebiscite’s restrictions on voting violate the Organic Act regardless of whether or not the restrictions are characterized as “racial.” Davis said in his motion that the court should grant summary judgment invalidating the plebiscite.

“While Guam asserts that Congress has authorized the plebiscite, it has, in fact, unambiguously prohibited it. Guam’s remaining arguments fail because the Ninth Circuit has rejected its argument that the plebiscite has inadequate import because it is supposedly nonbinding, and its discussion of Section 2 of the Voting Rights Act simply misunderstands Davis’ claim under that provision,” the attorneys wrote in the response.

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