Marianas Variety

Last updateTue, 10 Dec 2019 12am







    Monday, December 9, 2019-12:50:39P.M.






Font Size


Ninth Circuit says race-based Guam law unconstitutional

HAGÅTÑA — Limiting the political status vote to “native inhabitants of Guam” is a violation of the Fifteenth Amendment, the U.S. Court of Appeals for the Ninth Circuit said in a ruling that expands voting eligibility and dismantles the biggest obstacle to the island’s self-determination process.

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. The Guam Daily Post photo

“Our decision makes no judgment about whether Guam’s targeted interest in the self-determination of its indigenous people is genuine or compelling,” the Ninth Circuit said in a decision released Monday.

“Rather, our obligation is to apply established Fifteenth Amendment principles, which single out voting restrictions based on race as impermissible whatever their justification.”

The ruling stemmed from a lawsuit filed in November 2011 by Air Force veteran Arnold Davis, who was denied a chance to register for the yet-to-be-scheduled self-determination plebiscite.

The Ninth Circuit affirmed District Court of Guam Chief Judge Frances Tydingco-Gatewood’s 2017 ruling which held that the plebiscite statute “impermissibly imposes race-based restrictions on the voting rights of non-native inhabitants in violation of the 15th Amendment.”

Judge Tydingco-Gatewood held that the plebiscite statute “impermissibly imposes race-based restrictions on the voting rights of non-native inhabitants in violation of the 15th Amendment.”

The government of Guam spent nearly a million dollars in legal fees to challenge the district court’s decision.

The Ninth Circuit ruled that, “Just as a law excluding the native inhabitants of Guam from a plebiscite on the future of the territory could not pass constitutional muster, so the 2000 plebiscite law fails for the same reason.”

The administration, expressing disappointment in the Ninth Circuit’s ruling, said it will confer with the attorney general and the Guam Legislature to discuss Guam’s options moving forward.

“We want to thank the legal team who represented Guam for their tireless work on behalf of the island’s native inhabitants and their right to determine Guam’s political future,” acting Gov. Joshua Tenorio said in a statement.

“As we strive to resolve the political status of our island through decolonization, our goal will always be for our people to be treated fairly so that together, we will have a stronger voice and representation in the United States and the world.”

The appellate court applied the rulings in Rice v. Cayetano and Davis v. Commonwealth Election Commission, 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.

Considered by the United Nations as one of the world’s 17 remaining “colonies,” Guam attempts to build its own political identity beyond what it is known to the rest of the world: a U.S. military post and North Korea’s hostage if not a nickname for China’s ballistic missile. Dubbed “the tip of U.S. military spear,” the unincorporated territory continues to fulfill its geopolitical role in national defense, while its indigenous people’s quest to regain control of their own future is beginning to look like a pipe dream.

Guam held a self-determination plebiscite in 1982 with the option of becoming a U.S. commonwealth receiving the most votes.

Subsequent attempts to conduct a CHamoru-self determination vote had repeatedly fell through. Between 2002 and 2010, then-Gov. Felix P. Camacho showed no interest in revisiting the issue, leaving the Commission on Decolonization dormant for eight years.

Between 2000 and 2004, three attempts stumbled because of the Guam Election Commission’s inability to meet the 70-percent voter registration quota. Problem is, no one has brought clarity to the “70-percent” conundrum. Seventy percent of what? It is a puzzle even to the legal sector. Without an estimate on the number of “native inhabitants” on Guam, the 70-percent requirement is an open-ended quota.