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  • By Mar-Vic Cagurangan

Appeals court strikes down Guam's race-based plebiscite law

Limiting the political status vote to “native inhabitants of Guam” is a violation of the Fifteenth Amendment, the Ninth Circuit Court of Appeals said in a ruling that expands the voting eligibility and dismantles the biggest obstacle to the island’s self-determination process.

“Our decision makes no judgment about whether Guam’s targeted interest in the self- determination of its indigenous people is genuine or compelling,” the Ninth Circuit court said in a decision released Monday.

“Rather, our obligation is to apply established Fifteenth Amendment principles, which single out voting restrictions based on race as impermissible whatever their justification.”

The ruling stemmed from a lawsuit filed in November 2011 by Air Force veteran Arnold Davis, who was denied a chance to register for the yet-to-be-scheduled self-determination plebiscite.

The Ninth Circuit affirmed Federal Judge Frances Tydingco-Gatewood’s 2018 ruling which held that the plebiscite statute “impermissibly imposes race-based restrictions on the voting rights of non-native inhabitants in violation of the 15th Amendment.”

The government of Guam spent nearly a million dollars in legal fees to challenge the district court’s decision.

The Ninth Circuit ruled that, “Just as a law excluding the native inhabitants of Guam from a plebiscite on the future of the territory could not pass constitutional muster, so the 2000 plebiscite law fails for the same reason.”

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.

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The administration, expressing disappointment in the Ninth Circuit’s ruling, said it will confer with the Attorney General and the Guam Legislature to discuss Guam’s options moving forward.

“We want to thank the legal team who represented Guam for their tireless work on behalf of the island’s native inhabitants and their right to determine Guam’s political future,” acting Gov. Joshua Tenorio said in a statement.

“As we strive to resolve the political status of our island through decolonization, our goal will always be for our people to be treated fairly so that together, we will have a stronger voice and representation in the United States and the world.”

The appellate court applied Rice v. Cayetano and Davis v. Commonwealth Election Commission, which 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 ancestry as a proxy for race in violation of the Fifteenth Amendment.

One of the world’s last 17 colonies in the 21st century, Guam attempts to build its own political identity beyond what it is known to the rest of the world: a U.S. military post and North Korea’s hostage if not a nickname for China’s ballistic missile. Dubbed as “the tip of U.S. military spear,” the unincorporated territory continues to fulfill its geopolitical role in national defense, while its quest to regain control of its own future is beginning to look like a pipe dream.

Guam’s political status plebiscite was originally scheduled for Sept. 12, 1981; it was later moved to Jan. 30, 1982. Subsequent attempts to conduct the vote had repeatedly fell through. In the following decades, the movement’s fervor became somewhat erratic. Between 2002 and 2010, then Gov. Felix P. Camacho showed no interest in revisiting Guam’s quest for decolonization, leaving the Commission on Decolonization dormant for eight years.

Between 2000 and 2004, three attempts had stumbled because of the Guam Election Commission’s inability to meet the 70-percent voter registration quota. Problem is, no one has brought clarity to the “70-percent” conundrum. It is a puzzle even to the legal sector. Without an estimate on the number of “native inhabitants” on Guam, the 70-percent requirement is an open-ended quota.


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