Tales of Decolonization #13: In the Shadow of Davis

I wrote yesterday about the case Tuaua v. the United States, which deals with the issue of birthright citizenship, American Samoans and whether the US Constitution automatically follows wherever the American flag is flown. This case, which was recently declined by the US Supreme Court and won't be heard this year, has been casting an anxious shadow over Guam, as it could have serious ramifications for how the Government of Guam decides to forge ahead with its plans for decolonization.

I mentioned briefly another case that has cast an even larger shadow over the decolonization movement in Guam for the past few years and that is Davis v. The Government of Guam, which was filed by Dave Davis, who argues that the planned decolonization plebiscite and the Chamorro registry that will determine who can vote in it, violates his constitutional rights as a US citizen. The case has been going around in circles and so many have come to believe it is already over. It was initially dismissed in the local district court for not being ripe, but after appealing to the 9th Circuit Court it was reinstated and scheduled to resume sometime next month.

The case has had a paralyzing effect on the local decolonization movement, which due to lack of interest and support from political leaders, was already moving quite slowly. But political leaders have been even more unwilling to take seriously this issue, knowing that the possibility of a decision of "unconstitutionality" could be handed down soon.

Last year, while attending the UN Committee of 24 Regional Seminar in Nicaragua, I spoke about this problem:
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In 2011, an ethnically white long-time resident of Guam, Arnold “Dave” Davis, filed a lawsuit claiming that the proposed decolonization plebiscite would violate his U.S. constitutional rights as he is not allowed to register for it. His lawsuit was dismissed in the courts of Guam on the basis that it was not “ripe,” as no plebiscite has been scheduled, although a Decolonization Commission is in place and is tasked with educating the island community and helping guide the plebiscite process. He appealed the decision in the Ninth Circuit District Court, a higher U.S. federal court.

Just last week, the Ninth Circuit Court announced their ruling that Davis’ case was indeed ripe and could be heard. The case so far has been, in my eyes, a twisted deformation of the arc of justice. In order to make his argument, Davis’ attorneys used the history of segregation and discrimination in the United States against the rights of the Chamorro people. They argued that Chamorros, in seeking to protect their right to self-determination, were akin to hate groups such as the Ku Klux Klan, which had historically denied certain groups the right to vote through legal or illegal means. This case has become another means of hiding the contemporary realities of U.S. colonization.

The position of Davis is something that has also been mirrored by U.S. representatives, who have also argued that a self-determination vote must follow U.S. rules. This insistence is not genuine, however. Regardless of how the decolonization vote is set, the Administering Power has long refused to recognize that this vote is binding or that the U.S. has any obligation based upon its outcome. The sympathetic ruling of the Ninth Circuit Court shows a continued commitment on behalf of the Administering Power to ignore international conventions and force this process to conform to the comforts of the colonizer’s legal mazes and fictions.

Davis will most likely resume his challenge against the self-determination plebiscite. His case continues to chill discussion, in anticipation of the time when the merits of his argument will be heard in court. In truth, the merits of Davis’ case shouldn’t matter whatsoever. A decolonization process bound to the rules of the colonizer is anathema to the hope of justice and restitution that decolonization is meant to represent. Self-determination is meant to be a sacred right that all peoples possess. Here, we see a dangerous path ahead, where it appears the U.S. is insisting that it be allowed to determine how a colonized people decolonize.

For those of you who need a refresher in terms of the basics of the case, here are some articles to jog your memory:

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Davis case continues, Paeste case may influence judgement
by Robert Tupaz
The Guam Daily Post
4/18/16

As the government prepares its response in the Arnold "Dave" Davis lawsuit relative to the political status plebiscite, it is again requesting a summary judgment for dismissal from the U.S. District Court.

In its filing, the Office of the Attorney General of Guam noted the tax case of Paeste v. Government of Guam which may be reviewed by the U.S. Supreme Court.

“The U.S. Supreme Court has not yet decided whether to grant the petition. However, the issue raised in the petition is applicable to the case at bar where Mr. Davis has sued Guam officials for injunctive and declaratory relief. ... The issue raised in the petition is a substantial issue which I believe should be considered in this plebiscite litigation. Regardless of whether the U.S. Supreme Court grants certiorari, I want to preserve this issue in the case at bar for possible review by the U.S. Supreme Court,” wrote Kenneth Orcutt for the Guam attorney general.

The amended language includes an argument that Davis’ claims should be barred as precedent in a 1990 case, Ngiraingas v. Sanchez, which resulted in an order that neither territories or officials of United States territories are persons.

Meanwhile, the attorney general asked the speaker of the Guam Legislature to provide responses to discovery requests by the Davis team as the case was directed to be heard by the Ninth Circuit Court of Appeals last June.

The bench trial is scheduled for July 25.

Questions posed by the Davis team, which since he filed on his own behalf, have earned the pro-bono attention of the Election Law Center and Center for Individual Rights include distinguishing and identifying individuals who by definition may vote.

Native inhabitant

Such instances include the local officials being asked to identify each “native inhabitant” who is eligible to register to vote in the plebiscite, but is not able to register on the Chamorro Registry or identify each Chamorro who is not eligible to register in the plebiscite vote as well as identify any international obligations of the United States relevant to Guam’s compliance with the Fourteenth and Fifteenth Amendments of the United States Constitution, the Organic Act of Guam or the Voting Rights Act. Other such questions were listed to be answered to the best of the speaker’s ability for discovery.

Last November, Davis filed a response to the attorney general’s initial motion for summary judgment in his lawsuit claiming the right to vote in a Guam plebiscite.

Davis responded that Guam’s summary judgment motion should be denied because the Fifteenth Amendment and the Organic Act prohibit all voting qualifications based on ancestry or race. The prohibition applies because even if the definition of “native inhabitants of Guam” were not race-based, it is – by its plain terms – ancestry-based, Davis claims. Moreover, the racial origins of the phrase are so obvious, and the effort of the Guam Legislature to circumvent the Organic Act so transparent, that summary judgment should be denied to Guam, and granted to Davis, according to the response.

Denies

The response stated that classifying citizens into different groups with different political rights and permitting only one of those groups to register for and participate in a government-run election denies other groups the right to vote.

“The Guam Legislature perhaps might have thought that Congress wanted it to vest one race an ancestral group with special political powers not enjoyed by others citizens, but no such congressional action occurred,” Davis’s attorneys wrote. “When Congress did speak, it squarely prohibited the classifications contained in the plebiscite. Guam cannot change this basic fact by invoking opaque and fanciful notions of what Congress might instead have done.”

The attorney general also sought summary judgment on the grounds that the plebiscite does not violate Davis’s constitutional rights, even though it limits the ability to register and vote to “native inhabitants of Guam,” according to the response filed by Davis.

His attorneys also claimed the government’s motion does not address all of Davis’s claims, including a claim that the plebiscite’s restrictions on voting violate the Organic Act regardless of whether or not the restrictions are characterized as “racial.” Davis said in his motion that the court should grant summary judgment invalidating the plebiscite.

“While Guam asserts that Congress has authorized the plebiscite, it has, in fact, unambiguously prohibited it. Guam’s remaining arguments fail because the Ninth Circuit has rejected its argument that the plebiscite has inadequate import because it is supposedly nonbinding, and its discussion of Section 2 of the Voting Rights Act simply misunderstands Davis’s claim under that provision,” the attorneys wrote in the response.

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AG waiting on district court before making plebiscite opinion
by Ken Quintanilla
KUAM News

May 28, 2016

Governor Eddie Calvo last week wrote to the Attorney General of Guam, asking for her legal interpretation of what the 70% threshold means for the plebiscite. AG Elizabeth Barrett Anderson said, "What I'm concerned about, although I think it's a very good question and the question that's been on everyone's mind 'What is 70%?'. We are currently waiting on a hearing date from the District Court for our motion for summary judgment in the Davis case.

"So I'm not going to make any comment to the news media about responding to the governor's request. I haven't met with the governor, but my prime concern is that we have a very important motion to be argued in front of the District Court of Guam. We're hoping to have that argument sometime in early or mid-summer - that might be my question."

Several years ago Arnold "Dave" Davis filed a lawsuit after he was prohibited from registering to vote on Guam's political status. The trial is set for this summer.

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Appellate court issues opinion on plebiscite
by Ken Quintanilla
KUAM News
May 11, 2015
http://www.kuam.com/story/29027583/2015/05/11/appellate-court-issues-opinion-on-plebiscite

While the District Court of Guam dismissed the case over two years ago, the 9th Circuit Court of Appeals has issued an opinion reinstating a lawsuit challenging the voting restrictions for Guam's plebiscite on political status. Nearly five years ago, the Guam Election Commission had less than 1,000 people on the Guam Decolonization Registry. And according to executive director Maria Pangelinan, that number has increased dramatically.

"At this time, we are reporting there are 8,136 native inhabitants registered," she explained. The Decolonization Registry is needed in order to move forward with Guam's plebiscite election. "For this one, it would be the exercise of the native inhabitants of the people of the land on self-determination, what type of government they would wants," Pangelinan said.

One person not on that registry is Guam resident Arnold "Dave" Davis, who recently saw his lawsuit sent back to the District Court of Guam. "It was several years ago when Dave Davis filed a lawsuit after he was prohibited from registering to vote on Guam's political status. As it stands, Guam law only allows descendants of native inhabitants of the territory dating back to 1950 to participate in the plebiscite," she said.

Davis however argues that the constitution, the Organic Act, and the Voting Rights Act all provide that every citizen be treated equally and have the same political voice. It was back in early 2013 when District Court of Guam Chief Judge Frances Tydingco-Gatewood dismissed his case after agreeing with the government that no date had been set for the political status vote and therefore Davis had suffered no injury and that the case was not ripe for review.

In response, Davis filed an appeal. Davis is represented by Washington-based public interest law firm, the Center for Individual Rights, who announced the 9th Circuit had reversed Tydingco-Gatewood's decision. A 9th Circuit judge wrote that Davis not only had standing but that the "alleged denial of equal treatment to Davis is....a judicially cognizable injury." As for the latest development in the case, Pangelinan could not comment on the matter.

"We've become aware of it and we will work with legal counsel to see what are the next steps are for the Guam Election Commission," she said.

Meanwhile, Commission on Decolonization executive director Ed Alvarez tells KUAM the 9th Circuit's decision does not affect the commission's work as their mission will be to continue to educate the public. He does however say the process of moving forward the plebiscite should be "free-flowing without the coercion or influence of any party or entity. Personally, when you take it court, you isolate the process of self-determination." As for the threshold of the plebiscite, the law requires 70% of eligible voters - a mandate Alvarez says is "ambiguous" and needs to be clarified before any date is set.

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FOR IMMEDIATE RELEASE

AG Files Motion in Plebiscite Case

October 30, 2015,

TAMUNING, GUAM

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Today, the Office of the Attorney General filed a motion for summary judgment in Davis v. Guam, requesting that the plebiscite lawsuit filed by Plaintiff Arnold "Dave" Davis in 2011 be dismissed on the grounds that Defendants Government of Guam, Guam Election Commission, and its members, are entitled to judgment.

"Plaintiff cannot make a case of discrimination under either the U.S. Constitution or the statutes of the United States," according to Attorney General Elizabeth Barrett-Anderson, and Special Assistant Attorney General Julian Aguon. The challenged Guam Decolonization Registry Law is facially neutral and does not discriminate against anyone on the basis of race. The vote turns only on whether a person

gained his or her U.S. citizenship through the operation of the 1950 Organic Act of Guam.

Guam statutory definition of "native inhabitants of Guam” reflects Congress’ use if the term pursuant to the exercise of its plenary power in the unincorporated territories. The challenge to the plebiscite based on racial discrimination is unfounded. The plebiscite seeks only to allow "those persons whose citizenship was effectuated by the enactment of Guam's Organic Act" to express their desires regarding future political relationship with the United States. Neither the Fifteenth Amendment nor the Voting Rights Act was designed to prohibit this kind of political expression.

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Contact:

Carlina Charfauros

475-3324 ext 5020

cchaarfauros@guamag.org

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Guam and Rice v. Cayetano

Letter to the Editor

The Marianas Variety

November 28, 2011

THERE has been much ado about Mr. Arnold “Dave” Davis’ misguided lawsuit against the Guam Election Commission on his denial to vote in the upcoming plebiscite, restricted to native inhabitants of Guam. Some have congratulated him for challenging the vote with this lawsuit.

Others have chastised him for wasting time and money with the complaint.

The U.S. Department of Justice refused to pursue it when he urged them to back in 2009. He has now gotten a non-profit organization, the so-called Center for Individual Rights, to back him in a lawsuit. The CIR is really just an anti-Obama conservative organization.

Mr. Davis and I disagree but we do so respectfully. He contends that this is a racially exclusive vote and it violates the 15th Amendment.

Mr. Davis and his “Big Guns” from Washington, D.C. are pretty confident about this lawsuit because of the Rice vs. Cayetano case from 2000. The Rice case involved a statewide election for trustees of a state agency. What they fail to recognize is that Rice vs. Cayetano had patently different facts from the Guam plebiscite. Oh wait, my mistake, Rice vs. Cayetano did have very similar facts to the Guam plebiscite, but it was another Rice vs. Cayetano case in 1996. That 1996 Rice case involved, guess what, a native Hawaiian plebiscite. It didn’t make it past the Federal District Court of Hawaii. The court analyzed the Native Hawaiian plebiscite under the 14th and 15th Amendments and found that due to special circumstances and the special nature of the vote, and relying on Supreme Court precedents, it did not offend the U.S. Constitution or the Voting Rights Act.

Of course Guam has its own unique circumstances and the 1996 Rice case only went to the Federal District Court. I have also stated based on the nature of this vote and Guam’s unincorporated territory status the federal judiciary does not have jurisdiction. I guess we’ll just have to wait and see.

PETER J. SANTOS
Ghazni, Afghanistan

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Davis v. Guam
The Center for Individual Rights
November 2, 2015

CIR plaintiff Arnold Davis is back in the U.S. District Court for the District of Guam to continue his challenge to Guam’s race-exclusive plebiscite. In 2013, this same District Court dismissed Davis’ lawsuit by saying he had no standing to sue the government of Guam. However, with CIR’s help, Davis appealed his case to the Ninth Circuit Court of Appeals. The Ninth Circuit reinstated Davis’ case and instructed the District Court that Davis does in fact have standing to have his case considered.

Now Davis is back in the District Court and CIR has renewed the proceedings on his behalf. This week, CIR filed a motion for summary judgment that argues the Constitution unequivocally prohibits Guam from denying Davis – or anyone – the right to vote because of their race.

The Attorney General of Guam filed a motion for summary judgment as well, denying that the race-exclusive provision in this law is unconstitutional. In fact, the Attorney General’s brief goes so far as to argue that the Constitution does not control the actions of Guam’s government.
Here are some of the core arguments about voting rights from our motion:

1. The Fifteenth Amendment to the Constitution is absolute when it says “The right of citizens of the United States to vote shall not be denied or abridged… on account of race.” As the Supreme Court has explained, “race cannot qualify some and disqualify others from full participation in our democracy.”
2. Racial voting restrictions violate the Fourteenth Amendment’s equal protection clause. The Constitution’s promise that all citizens will be treated equally under the law has led the Supreme Court to say that “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”

Read the full motion here.

CIR challenges Guam plebiscite

CIR is representing Guam resident Arnold Davis in a class action lawsuit challenging a race-exclusive plebiscite on the question of whether Guam should seek independence from the United States, statehood, or some other relationship.

Although a territory of the United States and subject to the Constitution’s guarantees of non-discrimination, Guam law permits only those who meet the definition of “Native Inhabitants of Guam” to vote in the plebiscite.  CIR’s complaint alleges that the definition of this term was designed to limit the vote to “Chamorros,” a racial designation referring to the original inhabitants of Guam and their descendants.  This group comprises about thirty-six percent of the population of Guam.  The law pointedly excludes most Caucasian, black, Korean, Chinese, and Filipino citizens of the United States living on Guam and otherwise registered to vote in Guam elections.

Having been a territory of the United States since 1898, Guam apparently has decided to hold a referendum on its future relation with the United States without allowing nearly two-thirds of its lawfully registered voters to vote — all of them citizens of the United States.

DOJ refuses to act

As troubling as this overtly discriminatory law is, even more difficult to comprehend is the Justice Department’s failure to take action against it.  Despite its clear authority to enforce federal laws prohibiting race discrimination in voting, the Justice Department declined to intervene when presented with a complaint by Guam resident Arnold Davis, the plaintiff in CIR’s suit. Davis, a retired officer in the U.S. Air Force, was told he couldn’t register because he was not descended from a native inhabitant; Davis communicated all this to Department officials, but the Department declined to pursue the matter.  According to sources, this decision came from political appointees in the Civil Rights Division.

The Guam plebiscite bears a strong similarity to Hawaiian laws that formerly limited certain elections to Native Hawaiians.  The Supreme Court declared such laws unconstitutional in Rice v. Cayetano in 2000.  Presumably to get around this problem, Guam claims its plebiscite is not limited by race, but only to native “inhabitants.”  But this turns out to be a pretext — the law defining “native inhabitant” excludes virtually everyone but “Chamorros.”  And even if “native inhabitant” didn’t exclude other racial groups, it would still violate the Constitution.  Voting cannot be conditioned on the accident of one’s descent.  It must be available to all residents on the same terms.

Racial politics

Guam’s status as a U.S. territory has enabled the island to attract individuals from many other countries, notably Korea and the Philippines, who now call Guam their home.  In addition, U.S. citizens, including retired members of the U.S. military, have become permanent residents of the island.  Yet now, almost two-thirds of the island’s residents face disenfranchisement at the hands of the controlling racial group.

The plebiscite is part of a political campaign being waged by a group of Chamorros intent on preserving their power over island affairs.  Their tactic is the odious one of building a racial identity for a favored “native” race in opposition to “other” races.  Understanding the irrationality of this kind of racial politics, the Constitution does not permit legal classifications built on race.

Though it would be theoretically possible for Guam to secede from the United States in order to pursue its campaign of racial identity, it is not acceptable for it to claim the authority and protection of the United States Constitution and its laws all the while flouting their fundamental principles.  And no principle is more fundamental to American democracy than the idea that all citizens have the right to vote regardless of race.

Case Status: Pending