Davis v. Commonwealth Election Comm'n

• Decision Date: 27 December 2016
• Docket Number: No. 14-16090,14-16090
• Citation: 844 F.3d 1087
• Parties: John H. Davis, Jr., Plaintiff–Appellee, v. Commonwealth Election Commission; Frances M. Sablan, Chairperson of Commonwealth Election Commission; Robert A. Guerrero, Executive Director of Commonwealth Election Commission; Eloy S. Inos, Governor of the Commonwealth of the Northern Mariana Islands, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

844 F.3d 1087

John H. Davis, Jr., Plaintiff–Appellee,

v.Commonwealth Election Commission; Frances M. Sablan, Chairperson of Commonwealth Election Commission; Robert A. Guerrero, Executive Director of Commonwealth Election Commission; Eloy S. Inos, Governor of the Commonwealth of the Northern Mariana Islands, Defendants–Appellants.

No. 14-16090

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 21, 2016 San Francisco, California

Filed December 27, 2016

Charles Edmond Brasington (argued), Assistant Attorney General, Office of the Attorney General, Saipan, Commonwealth of the Northern Mariana Islands, for Defendants–Appellants.

Jeanne H. Rayphand (argued), Saipan, Commonwealth of the Northern Mariana Islands, for Plaintiff–Appellee.

Joseph Horey (argued), O'Connor Berman Dotts & Banes, Saipan, Commonwealth of the Northern Mariana Islands, for Amicus Curiae Northern Marianas Descent Corporation.

Before: Sidney R. Thomas, Chief Judge, and Consuelo M. Callahan and Mary H. Murguia, Circuit Judges.

OPINION

THOMAS, Chief Circuit Judge:

The Commonwealth of the Northern Mariana Islands restricts voting in certain elections to individuals of "Northern Marianas descent." This appeal presents the question of whether this restriction is race-based and violates the Fifteenth Amendment of the Constitution of the United States. We conclude that it does, and we affirm the judgment of the district court.

I

Under the terms of a Covenant agreement entered in 1975, the Northern Mariana Islands ("CNMI" or "Commonwealth") was established as a "self-governing commonwealth ... in political union with and under the sovereignty of the United States of America." Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States ("Covenant") § 101.¹ In ten articles, the Covenant "detail[s] the political relationship between the United States and the CNMI." N. Mariana Islands v. United States , 399 F.3d 1057, 1059 (9th Cir. 2005). Article I provides that the "Covenant ... together with those provisions of the Constitution, treaties and laws of the United States applicable to the Northern Mariana Islands, will be the supreme law of the Northern Mariana Islands." Covenant § 102. The Fifteenth Amendment to the Constitution of the United States, which prohibits race-based voting deprivations, is one of those provisions "applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several states." Covenant § 501(a) (listing the Fifteenth Amendment).

The CNMI Constitution establishes eligibility qualifications for voting in the Commonwealth, a right which includes the ability to participate in ratifying proposed constitutional amendments. See Covenant § 201 ("The people of the Northern Mariana Islands will formulate and approve a Constitution and may amend their Constitution pursuant to the procedures provided therein."); CNMI Const. art. VII, § 1, art. XVIII, § 5. Article VII defines the term voters and Article XVIII governs the amendment process. In general, proposed amendments must be submitted to voters,² "for ratification at the next regular general election or at a special election established by law." CNMI Const. art. XVIII, § 5(a). In 1999, however, an amendment to Article XVIII, section 5 specifically redefined the term "voters" when the proposed amendment intends to alter Article XII, which governs restrictions on the alienation of land in the Commonwealth. CNMI Const. art. XVIII, § 5(c); see Pub. L. No. 17–40, § 1.

This new text—codified as Article XVIII, section 5(c)—provided:

In the case of a proposed amendment to Article XII of this Constitution, the word "voters" as used in subsection 5(a) above shall be limited to eligible voters under Article VII who are also persons of Northern Marianas descent as described in Article XII, Section 4, and the term "votes cast" as used in subsection 5(b) shall mean the votes cast by such voters.

Article XII restricts the "acquisition of permanent and long-term interests in real property within the Commonwealth ... to persons of Northern Marianas descent."³ As defined in Article XII, section 4, a "person of Northern Marianas descent" ("NMD") is

a person who is a citizen or national of the United States and who is of at least one-quarter Northern Marianas Chamorro or Northern Marianas Carolinian blood or a combination thereof or an adopted child of a person of Northern Marianas descent if adopted while under the age of eighteen years. For purposes of determining Northern Marianas descent, a person shall be considered to be a full-blooded Northern Marianas Chamorro or Northern Marianas Carolinian if that person was born or domiciled in the Northern Mariana Islands by 1950 and was a citizen of the Trust Territory of the Pacific Islands before the termination of the Trusteeship with respect to the Commonwealth.

There is no dispute that Article XVIII, section 5(c) denies otherwise eligible non-NMD voters the right to vote on any constitutional amendment affecting Article XII land alienation restrictions.

To enforce section 5(c), the Commonwealth legislature passed House Bill 17–57, which was signed into law on April 21, 2011. The new Public Law No. 17–40 established a Northern Marianas Descent Registry ("NMDR") within the Commonwealth Election Commission ("Commission") and mandated the production of an Official Northern Marianas Descent Identification Card to "be issued only to persons who are qualified pursuant to Article XII, § 4 of the Northern Mariana Islands Constitution." Pub. L. No. 17–40 § 2. No one could vote in an Article XII election without this identification card. Id. § 2(c)(4).

Plaintiff John Davis is a qualified voter in the Commonwealth under Article VII, section 1, but he does not meet the definition of NMD in Article XII, section 4. Davis brought suit against the Commission, its chairperson and executive director, and the Governor of the Commonwealth seeking declaratory and injunctive relief under the Fourteenth and Fifteenth Amendments.⁴ He alleges that Article XVIII, section 5(c) and Public Law 17–40 unconstitutionally limit voting on the basis of race. He brought four additional claims: (1) a claim under § 1(a) of the Voting Rights Act, 52 U.S.C. § 10101 et seq., (2) a claim under § 1(a)(2) of the Voting Rights Act, (3) a taxpayer action under the Commonwealth Constitution, and (4) a claim under 42 U.S.C. § 1983 against the senior officers of the Commission.

Davis asked the court to enjoin enforcement of Article XVIII, section 5(c) and its implementing statute so that he could participate in a November 2014 special election to consider a proposed change to the definition of NMD in Article XII. On cross motions for summary judgment, the district court granted Davis declaratory and injunctive relief and required that non-NMDs be permitted to vote in the November 2014 special election. The district court also dismissed the Governor as a party and dismissed Davis's Voting Rights Act § 1(a)(2) and taxpayer claims.

This timely appeal followed. During its pendency, the Commonwealth sought to enjoin counting the ballots cast in the November 2014 special election. We denied the request pending presentation of the motion to the district court. The district court did not grant the injunction.

The election was held on November 4, 2014. With both NMDs and non-NMDs eligible to vote, a majority of Commonwealth voters ratified Legislative Initiative 18-1. Legislative Initiative 18-1 amended the definition of NMD in Article XII, section 4 by altering the required amount of "Northern Marianas Chamorro or Northern Marianas Carolinian blood" to qualify as an NMD from "one quarter" to "some." It also removed NMD status from adopted children who would not otherwise qualify as NMDs, and it established a court procedure for people with less than "one quarter Northern Marianas Chamorro or Northern Marianas Carolinian blood" to attain legal NMD status.

We review a district court's decision on cross motions for summary judgment de novo . Guatay Christian Fellowship v. Cty. of San Diego , 670 F.3d 957, 970 (9th Cir. 2011).

II

Article XVIII, section 5(c) relies on ancestral distinctions to limit voting in a territory-wide election in the Commonwealth. It therefore violates the Fifteenth Amendment of the Constitution of the United States. The restriction is invalid and may not be enforced. Our analysis is controlled by the Supreme Court's decision in Rice v. Cayetano , 528 U.S. 495, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000).

A

The Fifteenth Amendment establishes that "[t]he 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." As noted, there is no doubt that the Fifteenth Amendment applies in the Commonwealth. Covenant § 501(a) (enumerating the Fifteenth Amendment among the Constitutional provisions "applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several states."); see id. at § 102 ("[T]he Constitution, treaties and laws of the United States applicable to the Northern Mariana Islands, will be the supreme law of the Northern Mariana Islands").

Under the Fifteenth Amendment, "[a]ncestry can be a proxy for race." Rice , 528 U.S. at 514, 120 S.Ct. 1044. This is because "[a]ncestral tracing ... achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name." Id. at 517, 120 S.Ct. 1044. Thus, an ancestry-based "electoral restriction [may] enact[ ] a race-based voting qualification" and contravene the Fifteenth Amendment. Id.

Article XVIII, section 5(c) of the CNMI Constitution restricts who is eligible to vote on amendments to the Commonwealth's land ownership restriction to "persons of Northern Marianas descent as described in Article XII, Section 4." There is no...