Ninth Circuit Revives Guam Voting Rights Case

The Ninth Circuit today issued an opinion reinstating a lawsuit challenging the voting restrictions for Guam’s plebiscite on political status.  Today’s decision reversed District Judge Tydingco-Gatewood’s decision in early 2013 dismissing the lawsuit on standing and ripeness grounds, and sent the case, brought by plaintiff Arnold Davis, who was represented by a Washington-based public interest law firm, the Center for Individual Rights, back to her for further proceedings.

Today’s 2-1 majority decision was by Ninth Circuit Judge, and former Chief Judge, Alex Kozinski.  Kozinski wrote that Davis had standing because he alleged that the law governing registration and voting in the plebiscite “provides a benefit to a class of persons that it denies him.”  The laws governing the plebiscite only permit those who meet the definition of “Native Inhabitants of Guam” to register and vote in the political status plebiscite, and Davis had alleged in his complaint that the definition of that term racially discriminated because it was designed to advantage a racial group, Chamorros.  The Ninth Circuit held that that “alleged denial of equal treatment to Davis is . . . a judicially cognizable injury.”

The appeals court also rejected Guam’s argument that the plebiscite would be non-binding and that Davis accordingly lacked standing.  It noted that Guam’s Commission on Decolonization was required to transmit the results to the President, Congress, and the United Nations, “thereby taking a public stance in favor of whatever outcome is favored by those voting in the plebiscite.”

Judge Kozinski’s opinion went on to hold that the lawsuit was ripe because Davis alleged that “he is unlawfully denied a right currently enjoyed by others: to help determine whether a plebiscite will be held.”  Whether registration is “a right, a privilege, or a duty,” the Court held, “Guam must hew to federal constitutional criteria when determining who is eligible to register.”

Davis was represented by CIR, election law expert and former Justice Department official Christian Adams, and the law firm of Gibson, Dunn & Crutcher LLP.  Scott Martin, a partner at Gibson Dunn who argued the case for Davis, said: “We are pleased with the Ninth Circuit’s decision.  The Court correctly recognized that Guam’s racially discriminatory plebiscite treats Mr. Davis as an unequal citizen, and therefore that he has standing to challenge the plebiscite’s constitutionality.”  Michael Rosman, CIR’s General Counsel, said that Davis was looking forward to returning to the district court to prove that Guam’s restrictions were racial and invalid, and to vindicate the rights of Guam voters.  “Guam law uses the same definition for Native Inhabitants of Guam and Native Chamorros.  The registry in question was called the Chamorro Registry for years.  I don’t think we’ll have much difficulty proving that there was a racial motivation to the restrictions on voting.”

Oral argument on the case was held at a special session of the Ninth Circuit in Hagatna on August 27, 2014, and, in a departure from normal procedure,  the Court permitted video and audio recording of the argument.