Fight Over Guam Vote Headed Back to Court

     (CN) – The unequal treatment claim of a non-native registered voter in Guam who was denied participation in an advisory election belongs in Federal Court, the 9th Circuit ruled on Friday.
     The ruling stems from a November 2011 suit by Guam resident Arnold Davis against the territory the Guam Election Commission, after officials denied his request to register for a plebiscite on the territory’s future with the United States because he is not a native inhabitant of Guam.
     In the plebiscite, eligible native inhabitants will decide Guam’s future from three options: independence, free association and statehood.
     To participate, qualified native inhabitants must register with the Guam Decolonization Registry – with perjury charges for anyone who registers knowing they are a non-native.
     Under the same law, U.S. citizens who were living in the territory on Aug. 1, 1950, cannot be considered native inhabitants. The same policy applies to those who immigrated to Guam before and after that date and who became United States citizens other than through the Organic Act.
     Those born in Guam after June 27, 1952, unless of Chamorro – or indigenous to the Marianas – descent are also excluded. Filipinos and Caucasians make up the two other major ethnic groups in the territory.
     Davis argued that Guam’s current definition of native inhabitants excludes most non-Chamorros, and that the territory and its agencies are therefore engaging in racial discrimination.
     He asked the U.S. District Court in Guam to stop the election commission’s allegedly discriminatory practice and to strike the provision that makes it a crime for a non-native to register for the plebiscite.
     In January 2013, U.S. District Judge Frances Tydingco-Gatewood dismissed Davis’ case, finding that he lacked standing and failed to show any injury because “there was no discernable future election in sight.”
     Guam’s plebiscite has yet to materialize despite being approved in 1996, since the required 70 percent of eligible native inhabitants have not yet registered.
     On appeal, a 3-judge panel of the 9th Circuit reversed the lower court’s finding that Davis had not been injured by being barred from the plebiscite registry – and rejecting Guam’s argument that a future vote wouldn’t affect Davis or change his status in the territory.
     “Unequal treatment is an injury even if curing the inequality has no tangible consequences,” Circuit Judge Alex Kozinski wrote for the panel, citing 1984’s Heckler v. Matthews.
     “Moreover, Guam understates the effect of any plebiscite that would be held if the registration threshold were triggered,” Kozinski continued. “After the plebiscite, the Commission on Decolonization would be required to transmit the results to the President, Congress and the United Nations, thereby taking a public stance in favor of whatever outcome is favored by those voting in the plebiscite. This change will affect Davis, who doubtless has views as to whether a change is appropriate and, if so, what that change should be.”
     Guamanian law gives Chamorros the right to decide whether the plebiscite is held – something that the territory denies Davis. Whether the different treatment rises to the level of unconstitutionally unequal treatment is a matter for the lower court, according to the 11-page ruling.
     Circuit Judge Mary Schroeder joined in Kozinski’s opinion. But in a dissent, Judge N. Randy Smith said the lower court got it right by finding Davis had no case without an advisory election imminent.
     “The plebiscite is not currently scheduled and as the district court found, it is not likely to
     ever occur!” Smith wrote. “The condition precedent to even scheduling the opinion poll is obtaining the registration of 70 percent of the eligible voters. Failing to satisfy this requirement (an event that even Davis describes as a ‘mirage’), the poll will not take place. Yet, amazingly, the majority finds these circumstances present a case ripe for resolution.” [Parentheses in dissent.]