Ninth Circuit Finds Guam Bid for Native-Only Election Racially Biased

A replica of canons used by the Spanish from the Spanish occupation on Guam in the 19th century is seen outside of government offices in Hagatna, Guam. (AP Photo/Tassanee Vejpongsa)

(CN) – The Ninth Circuit on Monday upheld a lower court’s finding of race-based discrimination in Guam’s plebiscite election law, which had aimed to poll native inhabitants on the island’s political status with the United States.

The law required Guam to convey the results of the election to Congress, the president and the United Nations.

“Despite its limited immediate impact, the results of the planned plebiscite commit the Guam government to take specified actions and thereby constitute a decision on a public issue for 15th Amendment purposes,” U.S. Circuit Judge Marsha S. Berzon wrote today for a three-person panel.

In 1591, Magellan declared the Pacific Mariana Islands the property of Spain, which the U.S. took as a spoil of war in 1898. Japan considered Guam part of the Land of the Rising Sun during World War II, until the U.S. regained control in 1944.

In 2000, the Guam Legislature created the Political Status Plebiscite as a mechanism for returning to the native inhabitants the ability to determine the future political status of the unincorporated U.S. territory located in the Mariana Islands.

Once 70% of native inhabitants signed onto the registry, a plebiscite political status election would be held to decide whether Guam should become a free association of the U.S., a state, or an independent nation.

While the indigenous people of Guam are known as Chamorro, Guam law defined the eligible plebiscite electorate as “native inhabitants” who were made U.S. citizens by the 1950 Organic Act as well as their descendants.

In November 2011, Arnold Davis sued Guam’s government, arguing the plebiscite election discriminated against him and other nonnative inhabitants residing on the island who were ineligible to participate.

According to the World Factbook, Guam’s population of 167,000 people includes 37% native Chamorro, but a growing number of outsiders have settled there, diversifying the population with 26% Filipinos, 7% white and 7% Chuukese.

Davis moved to the tropical Pacific island in 1977 and retired from the Air Force five years later. While he has a second home in Tucson, Arizona, Davis maintains his residency in Guam.

The 15th Amendment protects all U.S. citizens from being denied the ability to vote based on “race, color, or previous condition of servitude.”

Berzon noted American Indian tribal status is both a political and ancestral, but not a racial classification. Guam attempted to argue its use of “native inhabitants” likewise referred 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 panel, however, held that “native inhabitant” was instead “tethered to prior, race-based legislative enactment,” which referred to the Chamorro people, a racial category.

In his testimony this past October, Guam Special Assistant Attorney General Julian Aguon passionately urged the panel to look beyond the 2000 Supreme Court case Rice v. Cayetano which overturned Hawaiian laws aiming to limit certain elections to natives. The panel was not persuaded.

Nevertheless, Berzon clarified the court’s decision should not reflect on the Chamorro’s pursuit of decolonization.

“Concluding that the 2000 plebiscite law employs a proxy for race is not to equate Guam’s stated purpose of ‘providing dignity in … allowing a starting point for a process of self-determination’ to its native inhabitants with the racial animus motivating other laws that run afoul of the 15th Amendment,” Berzon, a Bill Clinton appointee, wrote.

U.S. Circuit Judges Johnnie Rawlinson and Kim McLane Wardlaw, also Clinton appointees, concurred.

Davis is represented by the Election Law Center and the Center for Individual Rights. The District Court of Guam awarded him attorney fees in April, slapping the government of Guam with a $947,717 bill.

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