Ninth Circuit considers Guam’s racially discriminatory plebiscite registraton law

The United States Court of Appeals for the Ninth Circuit heard oral argument yesterday in the case of Davis v. Guam. The hearing occurred in Guam, the first time the Ninth Circuit has sat there since 2002.

Mr. Davis, a resident of Guam, attempted to register to vote in a plebiscite on Guam’s relationship to the United States. He was denied permission to register because he could not trace his ancestry to a native inhabitant of Guam. Guam law allows only those with correct ancestry to vote in the future status plebiscite.

According to a report by Davis’ expert, nearly every ancestor who could “confer” on a modern descendant the right to register to vote was a member of the Chamorro racial group. Thus, Guam has effectively conditioned the right to vote in its plebiscite on race.

Therefore, Davis claims that this racial prerequisite for registering to vote violates the Fifteenth and Fourteenth Amendments of the United States Constitution, the Voting Rights Act, and other federal civil rights statutes. However, a district court ruled against him on the theory that he suffered no injury from the statute that excludes him, on racial grounds, from registering to vote because the election has not been scheduled and may not occur,

Try to imagine the reaction to this argument if it were applied to defeat the claim of a black prohibited by law from registering to vote in a prospective election due to his race.

Mr. Davis is represented by, among others, Christian Adams of the Election Law Center, Terry Pell of the Center for Individual Rights, and Doug Cox of Gibson, Dunn & Crutcher. All three, I’m proud to say, are friends of Power Line.

The panel that heard the case yesterday consisted of Alex Kozinski, Randy Smith, and Mary Schroder. The first two were appointed by a Republican president, Reagan and George W. Bush, respectively. Judge Schroder was appointed by President Clinton.

Guam tried to defend its race-based voting requirement on the theory that Guam represents a special case because its native population was never polled as to whether it wanted to become part of the United States. Chief Judge Kozinski countered that “native inhabitants” have never been polled when the United States claimed their land as American territory. In general, he seemed unconvinced by Guam’s arguments.

You can read accounts of the oral argument here and here. You can listen to it by going here.

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