Davis v. Commonwealth Election Comm'n
| Decision Date | 20 May 2014 |
| Docket Number | Case No.: 1-14-CV-00002 |
| Parties | JOHN H. DAVIS, JR., Plaintiff, v. COMMONWEALTH ELECTION COMMISSION; FRANCES M. SABLAN, Chairperson of Commonwealth Election Commission; ROBERT A. GUERRERO, Executive Director of Commonwealth Election Commission; ELOY INOS, Governor of the Commonwealth of the Northern Mariana Islands, Defendants. |
| Court | U.S. District Court — Northern Mariana Islands |
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION AND DEFENDANT'S CROSS
Plaintiff John H. Davis, Jr., is a registered voter in the Commonwealth of the Northern Mariana Islands ("CNMI" or "Commonwealth") who wishes to vote on any initiative to amend Article XII of the Commonwealth Constitution. Article XII restricts the acquisition of permanent and long-term interests in real property to persons of Northern Marianas descent ("NMDs"). A separate provision of the Commonwealth Constitution, Article XVIII, § 5(c), prohibits otherwise qualified voters who are not of Northern Marianas descent ("non-NMDs") from voting on Article XII initiatives.1
Two years ago, Plaintiff, who is not of Northern Marianas descent, asked this Court to declare that Article XVIII, § 5(c) and its enabling laws deprive him of his right to vote as guaranteed by the Fourteenth and Fifteenth Amendments of the United States Constitution. The Court dismissed that action because it was not ripe - no Article XII initiative had qualified for the ballot yet. See Memorandum Decision and Order ( ), Davis v. Commw. Election Comm'n (Davis I), Case No. 1:12-CV-01, 2012 WL 10133314, 2012 U.S. Dist. LEXIS 89323 (D. N. Mar. I. June 26, 2012). One such initiative has now cleared the Commonwealth legislature and will be put before the voters no later than the general election in November 2014. After careful consideration of arguments of counsel and the evidentiary record, the Court has determined that Plaintiff and other qualified voters who are not NMDs must have the opportunity to vote on this and any other initiative to amend Article XII.
The legal issues in this case can be fully appreciated only against a background of the history of the Northern Mariana Islands and the political relationship between the United States and the Commonwealth.2
In 1947, the United States entered into an agreement ("Trusteeship Agreement") with the United Nations to administer in trust the Northern Marianas and certain other Pacific island groups formerly mandated to Japan. The Trust Territory of the Pacific Islands ("Trust Territory")comprised the islands that later formed the Commonwealth, the republics of Palau and the Marshall Islands, and the Federated States of Micronesia. One of the purposes of the trusteeship was for the United States to promote independence and self-government among the peoples of those islands.
In the Saipan District, which included all the Northern Mariana Islands, the primary ethnic groups were Chamorros and Carolinians. Chamorros were the native people when Spain took control of the islands in the seventeenth century. By 1720, the Spanish had depopulated the Northern Marianas by removing the Chamorros to Guam. Chamorros began to return to Saipan in numbers only in the late nineteenth century. Although by that time they had adopted Christianity and intermixed to some degree with Spaniards and Filipinos, they had retained their distinctive Chamorro language and culture. Carolinians first migrated to Saipan in 1815 after a typhoon devastated their homes in the Caroline Islands. They brought with them to Saipan their own unique language and way of life. In the nearly fifty years between the Spanish-American War and the end of World War II, control of the Northern Marianas passed from Spain to Germany, then Japan, and then the United States. At the time the Trust Territory was established, the ratio of Chamorros to Carolinians was about four to one.
In 1972, the United States entered into formal talks with representatives of the people of the Northern Marianas to determine the islands' future political status. On February 15, 1975, the President's Personal Representative and the Marianas Political Status Commission signed the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America ("Covenant"). Proclamation No. 4534, 42 Fed. Reg. 56,593 (Oct. 24, 1977). The Covenant was approved by the Mariana Islands District Legislature and in a plebiscite of Northern Marianas voters. On March 24, 1976, it was ratified by the United StatesCongress. Public Law 94-241; 90 Stat. 263, codified at 48 U.S.C. § 1801 note.
Section 805 of the Covenant "provides that, notwithstanding federal law, the Commonwealth government shall regulate the alienation of local land to restrict the acquisition of long-term interests to persons of Northern Mariana Islands descent." Wabol v. Villacrusis, 958 F.2d 1450, 1452 (9th Cir. 1990). The text of Section 805 reads, in pertinent part:
. . . notwithstanding the other provisions of this Covenant, or those provisions of the Constitution, treaties or laws of the United States applicable to the Northern Mariana Islands, the Government of the Northern Mariana Islands, in view of the importance of the ownership of land for the culture and traditions of the people of the Northern Mariana Islands, and in order to protect them against exploitation and to promote their economic advancement and self-sufficiency . . . will until twenty-five years after the termination of the Trusteeship Agreement, and may thereafter, regulate the alienation of permanent and long-term interests in real property so as to restrict the acquisition of such interests to persons of Northern Mariana Islands descent[.]
The framers of the Covenant understood that the land-alienation restrictions of Section 805 might conflict with federally guaranteed rights. The Fourteenth Amendment declares that it is unlawful for any state to "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Fifteenth Amendment specifically protects the right to vote: "The right of citizens of the United States 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." These amendments are made applicable in the CNMI by Covenant § 501(a). The framers wished "to make clear that under no circumstances can anything in Section 501 or, for that matter, any provision in the Covenant, have the effect of prohibiting the local government from imposing land alienation restrictions under Section 805[.]" Marianas Political Status Commission, Section by Section Analysis of the Covenant to Establish a Commonwealth of the Northern Mariana Islands("Analysis of the Covenant") 47 (1975).3 They therefore expressly stated in the Covenant that the applicability of federal laws is "without prejudice to the validity of and the power of the Congress of the United States to consent to . . . Section 805 . . ." Covenant § 501(b).
Non-NMDs cannot own land in fee simple; the most they can acquire is a 55-year leasehold interest. See N. Mar. I. Const. art. XII, § 3. The same restriction applies to non-NMD corporations - corporations that are incorporated and have their principal place of business in the Commonwealth, but of which at least one director is non-NMD or one voting share is owned by a non-NMD. See N. Mar. I. Const. art. XII, § 5.
About 25 years ago, in Wabol v. Villacrusis, the Ninth Circuit was called upon to determine "whether the constitutional guarantee of equal protection of the laws limits the ability of the United States and the Commonwealth to impose race-based restrictions on the acquisition of permanent and long-term interests in Commonwealth land." 958 F.2d at 1451. The court heldthat under the Territories Clause (U.S. Const. art. IV, § 3), Congress had the power to exclude Covenant § 805 from the reach of the Fourteenth Amendment's Equal Protection Clause. Id. at 1462. The court observed that only fundamental constitutional rights necessarily apply in the territories. Id. at 1459. It found that "the asserted constitutional guarantee against discrimination in the acquisition of long-term interests in land" was not "fundamental in the international sense" and therefore could be excluded from operation in the CNMI. Id. at 1460, 1462.4
Covenant § 805 requires the Commonwealth government to restrict the alienation of permanent and long-term interests in land until at least 25 years after the termination of the Trusteeship Agreement. On November 3, 1986, the Trusteeship Agreement was terminated by...
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