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Davis v. Guam

United States Court of Appeals, Ninth Circuit

July 29, 2019

Arnold Davis, on behalf of himself and all others similarly situated, Plaintiff-Appellee,
v.
Guam; Guam Election Commission; Alice M. Taijeron; Martha C. Ruth; Joseph F. Mesa; Johnny P. Taitano; Joshua F. Renorio; Donald I. Weakley; Leonardo M. Rapadas, Defendants-Appellants.

          Argued and Submitted October 10, 2018 University of Hawaii Manoa.

          Appeal from the United States District Court for the District of Guam D.C. No. 1:11-cv-00035 Frances Tydingco-Gatewood, Chief District Judge, Presiding.

          Julian Aguon (argued), Special Assistant Attorney General; Kenneth Orcutt, Deputy Attorney General; Office of the Attorney General, Tamuning, Guam; for Defendants-Appellants.

          Lucas C. Townsend (argued); Douglas R. Cox, Gibson Dunn & Crutcher LLP, Washington, D.C.; J. Christian Adams, Election Law Center PLLC, Alexandria, Virginia; Michael E. Rosman, Center for Individual Rights, Washington, D.C.; Mun Su Park, Law Offices of Park & Associates, Tamuning, Guam; for Plaintiff-Appellee.

          Dayna J. Zolle, Attorney; Civil Rights Division, United States Department of Justice, Washington, D.C.; for Amicus Curiae United States.

          Before: Kim McLane Wardlaw, Marsha S. Berzon, and Johnnie B. Rawlinson, Circuit Judges.

         SUMMARY[*]

         Civil Rights / Fifteenth Amendment

         The panel affirmed the district court's summary judgment in favor of plaintiff, a Guam resident, who challenged a provision of Guam's 2000 Plebiscite Law that restricted voting to "Native Inhabitants of Guam."

         Guam's 2000 Plebiscite Law provided for a "political status plebiscite" to determine the official preference of the "Native Inhabitants of Guam" regarding Guam's political relationship with the United States. Plaintiff alleged, among other things, that the provision of that law restricting voting to "Native Inhabitants of Guam" constituted an impermissible racial classification in violation of the Fifteenth Amendment, which provides that the right of a United States citizen to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.

         The panel first rejected Guam's contention that the Fifteenth Amendment was inapplicable to the plebiscite because that vote will not decide a public issue but rather requires Guam to transmit the results of the plebiscite to Congress, the President and the United Nations. The panel held that 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 Fifteenth Amendment purposes.

         The panel applied Rice v. Cayetano, 528 U.S. 495 (2000), and Davis v. Commonwealth Election Comm'n, 844 F.3d 1087 (9th Cir. 2016), which respectively invalidated laws in Hawaii and the Commonwealth of the Northern Mariana Islands limiting voting in certain elections to descendants of particular indigenous groups because those provisions employed ancestry as a proxy for race in violation of the Fifteenth Amendment. The panel held 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. The panel therefore concluded that its use as a voting qualification violated the Fifteenth Amendment as extended by Congress to Guam.

          OPINION

          BERZON, CIRCUIT JUDGE.

         Guam's 2000 Plebiscite Law provides for a "political status plebiscite" to determine the official preference of the "Native Inhabitants of Guam" regarding Guam's political relationship with the United States. Guam Pub. L. No. 25-106 (2000). Our question is whether the provisions of that law restricting voting to "Native Inhabitants of Guam" constitutes an impermissible racial classification in violation of the Fifteenth Amendment.[1]

         Rice v. Cayetano, 528 U.S. 495 (2000), and Davis v. Commonwealth Election Comm'n, 844 F.3d 1087 (9th Cir. 2016), respectively invalidated laws in Hawaii and the Commonwealth of the Northern Mariana Islands limiting voting in certain elections to descendants of particular indigenous groups because those provisions employed "[a]ncestry [as] a proxy for race" in violation of the Fifteenth Amendment. Rice, 528 U.S. at 514. Guam's 2000 Plebiscite Law suffers from the same constitutional flaw. History and context confirm that the "Native Inhabitants of Guam" voter eligibility restriction so closely parallels a racial classification as to be a proxy for race. Its use as a voting qualification therefore violates the Fifteenth Amendment as extended by Congress to Guam.

         I

         The factual background of this case is intertwined with the history of Guam (the "Territory"), of its indigenous people, and of its colonization. We recognize that this history, like history in general, is subject to contestation both as to exactly what happened in the past and as to the interpretation of even well-established facts. We do not attempt to settle those debates. "Our more limited role, in the posture of this particular case, is to recount events as understood by the lawmakers, thus ensuring that we accord proper appreciation to their purposes in adopting the policies and laws at issue." Rice, 528 U.S. at 500.

         Guam has long been inhabited by an indigenous people, commonly referred to as Chamorro. See William L. Wuerch & Dirk Anthony Ballendorf, Historical Dictionary of Guam and Micronesia 40-44 (The Scarecrow Press, Inc. 1994); Developments in the Law, Chapter Four: Guam and the Case for Federal Deference, 130 Harv. L. Rev. 1704, 1722 (2017). Beginning in the sixteenth century, Spain colonized Guam. Then, in 1899, after the Spanish-American war, Spain ceded Guam to the United States through Article II of the 1898 Treaty of Paris. Until 1950, Guam remained under the control of the U.S. Navy, except for a Japanese occupation from 1941 through 1944. See Guam v. Guerrero, 290 F.3d 1210, 1214 (9th Cir. 2002). In 1950, responding to petitions from Guam's inhabitants, Congress passed the Organic Act of Guam. Pub. L. No. 81-630, 64 Stat. 384 (1950) (codified at 48 U.S.C. §§ 1421-24) ("Organic Act").

         The Organic Act (1) designated Guam as an unincorporated territory of the United States subject to Congress's plenary power, 48 U.S.C. § 1421a; (2) established executive, legislative, and judicial branches of government for the Territory, id. §§ 1422-24, as well as a limited Bill of Rights modeled after portions of the Bill of Rights in the Federal Constitution, id. § 1421b;[2] and (3) extended U.S. citizenship to three categories of people:

(a)(1): All inhabitants of the island of Guam on April 11, 1899, including those temporarily absent from the island on that date, who were Spanish subjects, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality[, and their children.]
(a)(2): All persons born in the island of Guam who resided in Guam on April 11, 1899, including those temporarily absent from the island on that date, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality[, and their children.]
(b): All persons born in the island of Guam on or after April 11, 1899 . . . Provided, That in the case of any person born before the date of enactment of [the Organic Act], he has taken no affirmative steps to preserve or acquire foreign nationality.

8 U.S.C. § 1407 (1952), repealed by Pub. L. No. 82-414, §§ 101(a)(38), 301(a)(1) 66 Stat. 163, 171, 235 (1952) (codified at 8 U.S.C. §§ 1101(a)(38), 1401(a)).

         According to the 1950 Census-which derived its racial categories from "that which is commonly accepted by the general public"-the Chamorro population comprised the single largest racial group in Guam at the time (45.6%). See U.S. Bureau of the Census, Census of Population: 1950, Vol. II at 54-46 tbl. 36 (1953) ("1950 Census"). The second largest racial group was White (38.5%), and the rest of the population was Filipino, Chinese, or other races. Virtually all non-Chamorro people residing in the Territory were either already U.S. citizens (99.4% of all Whites were U.S. citizens) or were born outside the jurisdiction of the United States and therefore likely not citizens by authority of the Organic Act (e.g., 94.4% of Filipinos were non-citizens). As of 1950, 98.6% of all non-citizens in Guam were Chamorro. Id. at 54-49 tbl. 38.

         The citizenship provisions of the Organic Act were in force for less than two years. In 1952, Congress enacted the Immigration and Nationality Act of 1952 ("INA"), which, among other things, repealed the citizenship provisions of the Organic Act, see Pub. L. No. 82-414, § 403(a)(42), 66 Stat. 163, 280, and conferred U.S. citizenship on all persons born in Guam after passage of the new INA. See id. §§ 101(a)(38), 301(a)(1), 66 Stat. 163, 171, 235 (codified at 8 U.S.C. §§ 1101(a)(38), 1401(a)).

         In the decades following passage of the Organic Act, some of Guam's inhabitants continued to advocate for more political autonomy. Those efforts eventually resulted in, among other things, "An Act to Establish the Chamorro Registry," enacted by the Guam legislature in 1996. Guam Pub. L. No. 23-130, § 1 (codified as amended at 3 Guam Code Ann. §§ 18001-31) ("Registry Act"), repealed in part by Guam Pub. L. No. 25-106 (2000). The Registry Act created a registry of "Chamorro individuals, families, and their descendants." Id. § 1. It referred to the "Chamorro" as the "indigenous people of Guam" who possess "a distinct language and culture." Id.[3] The Act's stated purpose was for the registry to "assist in the process of heightening local awareness among the people of Guam of the current struggle for Commonwealth, of the identity of the indigenous Chamorro people of Guam, and of the role that Chamorros and succeeding generations play in the island's cultural survival and in Guam's political evolution towards self-government." Id.

         One year later, the Guam legislature established the "Commission on Decolonization for the Implementation and Exercise of Chamorro Self-Determination," Guam Pub. L. No. 23-147 (1997) (codified at 1 Guam Code Ann. §§ 2101- 15) ("1997 Plebiscite Law"), repealed in part by Guam Pub. L. No. 25-106 (2000). The Legislature established the Commission on Decolonization "in the interest of the will of the people of Guam, desirous to end colonial discrimination and address long-standing injustice of [the Chamorro] people." Id. § 1. The purpose of the Commission on Decolonization was to "ascertain the desire of the Chamorro people of Guam as to their future political relationship with the United States." Id. § 5. It was charged with writing position papers on the political status options for Guam and with conducting a public information campaign based on those papers. Id. §§ 6-9. The 1997 Plebiscite Law also called for a "political status plebiscite" during the next primary election, in which voters would be asked:

In recognition of your right to self-determination, which of the following political status options do you favor?
1. Independence
2. Free Association
3. Statehood

Id. § 10. Voting in the plebiscite was to be limited to "Chamorro People," defined as "[a]ll inhabitants of Guam in 1898 and their descendants who have taken no affirmative steps to preserve or acquire foreign nationality." Id. §§ 2(b), 10. The Commission on Decolonization was then directed to "transmit [the results of the plebiscite] to the President and Congress of the United States and the Secretary General of the United Nations." Id. § 5.

         Before the planned date of the self-determination plebiscite, the Supreme Court in Rice v. Cayetano invalidated a Hawaii law restricting the right to vote in certain elections to "Hawaiians," defined as the descendants of people inhabiting the Hawaiian Islands in 1778. 528 U.S. at 499. A month after Rice was decided, the Guam legislature enacted the law at issue in this case. Guam Pub. L. No. 25-106 (2000) (codified at 3 Guam Code Ann. §§ 21000-31, 1 Guam Code Ann. §§ 2101-15) ("2000 Plebiscite Law").

         The 2000 Plebiscite Law contains several interrelated provisions: First, it leaves the Registry Act intact and creates a separate "Guam Decolonization Registry" in which those voters qualified for the new political status plebiscite would be listed.[4] 3 Guam Code Ann. §§ 21000, 21026. Those qualified to register, and therefore to vote, in the plebiscite must be "Native Inhabitants of Guam," defined as "those persons who became U.S. Citizens by virtue of the authority and enactment of the 1950 Organic Act of Guam and descendants of those persons." Id. § 21001(e).

         Second, the 2000 Plebiscite Law retains the Commission on Decolonization but amends portions of the 1997 Plebiscite Law to replace all references to "Chamorro" with "Native Inhabitants of Guam." 1 Guam Code Ann. §§ 2101- 02, 2104-05, 2110. As revised, the law establishing a new plebiscite provides:

The general purpose of the Commission on Decolonization shall be to ascertain the intent of the Native Inhabitants of Guam as to their future political relationship with the United States of America. Once the intent of the Native Inhabitants of Guam is ascertained, the Commission shall promptly transmit that desire to the President and the Congress of the United States of America, and to the Secretary General of the United Nations.

Id. § 2105.

         Finally, the 2000 Plebiscite Law states that "[t]he intent of [the law] shall not be construed nor implemented by the government officials effectuating its provisions to be race based, but founded upon the classifications of persons as defined by the U.S. Congress in the 1950 Organic Act of Guam." 3 Guam Code Ann. § 21000. Rather, the intent of the law is "to permit the native inhabitants of Guam, as defined by the U.S. Congress' 1950 Organic Act of Guam to exercise the inalienable right to self-determination of their political relationship with the United States of America," as that "right has never been afforded." Id.

         One subsequent amendment to the plebiscite relevant to this case followed. In 2010, the Guam legislature passed a law providing that individuals who received or had been preapproved for a Chamorro Land Trust Commission ("CLTC") property lease would be automatically registered in the Guam Decolonization Registry. Guam Pub. L. No. 30-102, § 21002.1 (codified at 3 Guam Code Ann. § 21002.1). The CLTC was created in 1975 to administer leases for lands that the United States had seized from Guam inhabitants during and after World War II and had later returned to the Guam government. See Guam Pub. L. 12-226 (codified as amended at 21 Guam Code Ann. §§ 75101-75125). Persons eligible to receive CLTC leases must be "Native Chamorros," defined as "any person who became a U.S. citizen by virtue of the authority and enactment of the Organic Act of Guam or descendants of such person." 21 Guam Code Ann. §§ 75101(d), 75107(a).

         Arnold Davis, a non-Chamorro resident of Guam, sought to register for the Guam Decolonization Registry and thereby to qualify as a voter in the plebiscite. He was denied registration because he did not meet the definition of "Native Inhabitant of Guam." Davis filed suit in 2011, challenging the 2000 Plebiscite Law on grounds that it violated the Fourteenth and Fifteenth Amendments of the Constitution, the Voting Rights Act of 1965, and the Organic Act.

         At the time the suit was filed, the plebiscite had not yet occurred, and no date was set for it to take place. Davis v. Guam, Civil Case No. 11-00035, 2013 WL 204697, *2-3 (D. Guam 2013) ("Davis I"). Relying on the uncertain timing of the plebiscite, the district court initially dismissed the case for lack of standing and ripeness. Id. at *9. We reversed that dismissal on appeal, holding that Davis's alleged unequal treatment was a sufficient injury to establish standing and that his claim was ripe because he adequately alleged that he was "currently being denied equal treatment under Guam law." Davis v. Guam, 785 F.3d 1311, 1315-16 (9th Cir. 2015) ("Davis II").

         After remand to the district court the parties filed cross-motions for summary judgment. The district court granted Davis's motion for summary judgment and permanently enjoined Guam from conducting a plebiscite restricting voters to Native Inhabitants of Guam. Davis v. Guam, ...


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