9th Circuit: Natives-only vote violates Constitution

PROTEST: Ned Pablo and Jayton Okada wave a Guam flag outside the District Court of Guam in March 2017 to protest a decision declaring Guam's political status plebiscite unconstitutional. Post file photo

The 9th U.S. Circuit Court of Appeals has ruled for the second time against a Guam law that limits voting on the island's political status to "native inhabitants of Guam."

Restricting the plebiscite to “native inhabitants of Guam” violates the U.S. Constitution's 15th Amendment that guarantees Americans the right to vote, states the ruling, filed July 29.

The ruling affirmed District Court of Guam Chief Judge Frances Tydingco-Gatewood’s injunction against the political status plebiscite because the voter registry is race-based.

The 9th Circuit's latest decision applied the Rice v. Cayetano case, which was decided in the U.S. Supreme Court in 2000, and a case against the Commonwealth of the Northern Mariana Islands Election Commission, which was decided by the 9th Circuit in 2016. The rulings invalidated laws in Hawaii and the Northern Marianas that limited voting in certain elections to descendants of particular indigenous groups because those provisions employed ancestry as a proxy for race – in violation of the 15th Amendment, the 9th Circuit states.

The 9th Circuit ruled that "Guam’s 2000 Plebiscite Law suffered from the same constitutional flaw."

The panel determined that history and context confirmed that the “native inhabitants of Guam” voter eligibility restriction "so closely paralleled a racial classification as to be a proxy for race."

"We hold that Guam’s limitation on the right to vote in its political status plebiscite to “native inhabitants of Guam” violates the 15th Amendment and so affirm the District Court’s summary judgment order," the 9th Circuit states.

The case stems from the Guam Election Commission's rejection of Dave Davis, a retired member of the Air Force, who applied to register to vote in the political status plebiscite. The plebiscite would ask voters if they prefer independence, statehood or free association with the United States.

Guam's 1997 Plebiscite Law stated the plebiscite was to be limited to “Chamorro People.”

After Hawaii's race-based voting law was struck down, the government of Guam revised the plebiscite law in 2000 to replace all references to “Chamorro” with “native inhabitants of Guam.” 

The 9th Circuit stated, "Guam’s swift reenactment of essentially the same election law – albeit with a change in terms – indicates that the Guam Legislature’s intent was to apply cosmetic changes rather than substantively to alter the voting restrictions for the plebiscite."

The timing of Guam's 2000 Plebiscite Law’s enactment "all indicate that the law rests on a disguised but evident racial classification," the 9th Circuit ruling stated.

"The 15th Amendment’s prohibition on race-based voting restrictions is both fundamental and absolute."

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.”

“The 9th Circuit has again ruled against Guam and this time squarely rejected the arguments that had kept this issue alive for decades,” said J. Christian Adams, who argued with a team against Guam's plebiscite voting restriction. “Guam cannot conduct the plebiscite, period, and it’s time to resolve these issues with broad consensus that respects the 15th Amendment instead.”

GovGuam's case was argued by Julian Aguon, a special assistant attorney general, who was not immediately available for comment.