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12 23Sun11292015


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9th Circuit asked to strike down plebiscite law

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RACIAL exclusions under Guam’s self-rule plebiscite are constitutional violations, according to an attorney who is asking the Ninth Circuit Court to strike down the challenged provision.

“Guam has never explained why no race-neutral alternative to the plebiscite could achieve its goal,” attorney Douglas R. Cox wrote in a brief filed with the appellate court on behalf of local resident Dave Davis.

Davis is appealing the District Court of Guam’s Jan. 9 dismissal of his lawsuit, challenging the Guam Election Commission’s refusal to allow him to register for the yet-to-be scheduled plebiscite on Guam’s political status.

“This court should reverse the district court’s decision dismissing the case and hold that Mr. Davis has standing to pursue his claims, which are ripe now,” Cox wrote, arguing that the plebiscite law’s voting qualification violates the Fifteenth and Fourteenth Amendments, as well as Guam’s Organic Act.

Davis took the first step toward appealing Chief Federal Judge Frances Tydingco-Gatewood’s ruling by filing a notice of appeal on Feb. 2. Cox, former deputy assistant attorney general under the Bush administration who leads Davis’ legal team, filed the arguments on Tuesday on behalf of Davis “individually and on behalf of all others similarly situated.”

“This court can and should address the merits of Mr. Davis’ claims without the need for a remand,” Cox said, citing the Rice v. Cayetano ruling, in which the U.S. Supreme Court struck down Hawaii’s law restricting eligibility to vote in elections for the Board of Trustees of the Office of Hawaiian Affairs to persons of Native Hawaiian descent.

Under Guam’s plebiscite law, the self-determination exercise is restricted to “native inhabitants,” defined as “those who became U.S. citizens by virtue of the 1950 Organic Act and their blood descendants.”


In dismissing Davis’ lawsuit, Tydingco-Gatewood ruled that the case was not ripe and that the plaintiff had no claim because “there is no discernible future election in sight.”

“The district court erred in dismissing Mr. Davis’ claims on standing and ripeness grounds,” Cox argued. “It is undisputed that Mr. Davis attempted to register to vote in the plebiscite and was denied that right solely based on his racial ancestry.”

Cox said the district court ignored the injuries Davis suffered for being discriminated racially “when it determined that no injury could occur until the plebiscite had been scheduled.”

Cox said an exclusionary voting requirement is an obvious violation of rights protected by the Fifteenth Amendment.

“The race-based exclusion cannot survive under the Fourteenth Amendment either, as Guam cannot articulate a compelling government interest in limiting participation in the plebiscite to Native Inhabitants,” Cox said.

He also argued that the racial classification is irreconcilable with the anti-discrimination provisions on the Guam Organic Act. “One such provision states that '[n]o discrimination shall be made in Guam against any person on account of race, language, or religion, nor shall the equal protection of the laws be denied.' Another provision requires that '[n]o qualification with respect to property, income, political opinion, or any other matter apart from citizenship, civil capacity, and residence shall be imposed upon any voter,'” Cox wrote.

In asking the appellate court to render an instant ruling, Cox said, “All of Guam’s residents have an interest in and are affected by the results of the plebiscite.”

“Guam’s contrary position would require this court to hold that a longtime Guamanian resident who nonetheless is not a ‘native inhabitant’ is somehow ‘substantially less interested [in] or affected [by]’ the possibility of Guamanian statehood or independence than a native inhabitant who has rarely set foot on Guam, but whose grandfather received U.S. citizenship through the Organic Act,” the legal brief said.

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