Davis v. Guam

• Citation: 932 F.3d 822
• Decision Date: 29 July 2019
• Docket Number: No. 17-15719,17-15719
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

932 F.3d 822

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.

No. 17-15719

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2018 University of Hawaii Manoa

Filed July 29, 2019

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.

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, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (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, 120 S.Ct. 1044. 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, 120 S.Ct. 1044.

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, 120 S.Ct. 1044. A month after Rice was decided, the Guam legislature enacted the law at issue in this case....