Guam Court Awards Davis Attorney’s Fees

Judge Frances Tydingco-Gatewood of the District Court of Guam has awarded $947,717 to Dave Davis for the costs incurred by Gibson Dunn, CIR and the Election Law Center in his lawsuit against Guam’s unconstitutional race-based plebiscite. Despite objections from Guam’s Attorney General, who argued that Davis should not be reimbursed the cost of attorneys from Washington, D.C., the judges noted that Davis had few other options. Davis initially tried to file a complaint with the Department of Justice, but the Obama administration refused to help. Judge Tydingco-Gatewood’s opinion points out that “had DOJ taken on this ‘substantial responsibility’ in 2009, when plaintiff first filed a complaint with DOJ, the attorneys’ fees and costs in the instance cost would likely not have been incurred.”

The Judge also noted Davis’s inability to find local counsel due to the extremely political nature of the case. The record showed that Davis contacted 37 local attorneys,  “all of whom declined representation for various reasons – some defended the plebiscite; others feared for their safety and property if they took on the case; and many were afraid that public officials and judges would view them less favorably if they were associated in preventing the plebiscite.”

Guam’s appeal in the case is pending before the US Court of Appeals for the Ninth Circuit, which held oral argument in November, 2018.  


CIR challenges Guam plebiscite

Plaintiffs
Plaintiff Arnold “Dave” Davis
C

IR 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.

Plaintiffs
Co-counsel J. Christian Adams

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

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