Arnold Davis v. Guam , 932 F.3d 822 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARNOLD DAVIS, on behalf of himself No. 17-15719
and all others similarly situated,
Plaintiff-Appellee, D.C. No.
1:11-cv-00035
v.
GUAM; GUAM ELECTION OPINION
COMMISSION; ALICE M. TAIJERON;
MARTHA C. RUTH; JOSEPH F. MESA;
JOHNNY P. TAITANO; JOSHUA F.
RENORIO; DONALD I. WEAKLEY;
LEONARDO M. RAPADAS,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge,
Presiding
Argued and Submitted October 10, 2018
University of Hawaii Manoa
Filed July 29, 2019
Before: Kim McLane Wardlaw, Marsha S. Berzon,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Berzon
2 DAVIS V. GUAM
SUMMARY *
Civil Rights / Fifteenth Amendment
The panel affirmed the district court’s summary
judgment in favor of plaintiff, a Guam resident, who
challenged a provision of Guam’s 2000 Plebiscite Law that
restricted voting to “Native Inhabitants of Guam.”
Guam’s 2000 Plebiscite Law provided 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. Plaintiff alleged, among
other things, that the provision of that law restricting voting
to “Native Inhabitants of Guam” constituted an
impermissible racial classification in violation of the
Fifteenth Amendment, which provides that the right of a
United States citizen to vote shall not be denied or abridged
by the United States or by any State on account of race, color
or previous condition of servitude.
The panel first rejected Guam’s contention that the
Fifteenth Amendment was inapplicable to the plebiscite
because that vote will not decide a public issue but rather
requires Guam to transmit the results of the plebiscite to
Congress, the President and the United Nations. The panel
held that despite its limited immediate impact, the results of
the planned plebiscite commit the Guam government to take
specified actions and thereby constitute a decision on a
public issue for Fifteenth Amendment purposes.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DAVIS V. GUAM 3
The panel applied Rice v. Cayetano, 528 U.S. 495(2000), and Davis v. Commonwealth Election Comm’n, 844
F.3d 1087 (9th Cir. 2016), 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. The panel held that Guam’s
2000 Plebiscite Law suffered from the same constitutional
flaw. The panel determined that history and context
confirmed that the “Native Inhabitants of Guam” voter
eligibility restriction so closely paralleled a racial
classification as to be a proxy for race. The panel therefore
concluded that its use as a voting qualification violated the
Fifteenth Amendment as extended by Congress to Guam.
COUNSEL
Julian Aguon (argued), Special Assistant Attorney General;
Kenneth Orcutt, Deputy Attorney General; Office of the
Attorney General, Tamuning, Guam; for Defendants-
Appellants.
Lucas C. Townsend (argued); Douglas R. Cox, Gibson Dunn
& Crutcher LLP, Washington, D.C.; J. Christian Adams,
Election Law Center PLLC, Alexandria, Virginia; Michael
E. Rosman, Center for Individual Rights, Washington, D.C.;
Mun Su Park, Law Offices of Park & Associates, Tamuning,
Guam; for Plaintiff-Appellee.
Dayna J. Zolle, Attorney; Civil Rights Division, United
States Department of Justice, Washington, D.C.; for Amicus
Curiae United States.
4 DAVIS V. GUAM
OPINION
BERZON, Circuit Judge:
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. Guam Pub. L. No. 25-
106 (2000). Our question is whether the provisions of that
law restricting voting to “Native Inhabitants of Guam”
constitutes an impermissible racial classification in violation
of the Fifteenth Amendment. 1
Rice v. Cayetano, 528 U.S. 495 (2000), and Davis v.
Commonwealth Election Comm’n, 844 F.3d 1087 (9th Cir.
2016), 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
“[a]ncestry [as] a proxy for race” in violation of the Fifteenth
Amendment. Rice, 528 U.S. at 514. Guam’s 2000 Plebiscite
Law suffers from the same constitutional flaw. History and
context confirm that the “Native Inhabitants of Guam” voter
eligibility restriction so closely parallels a racial
classification as to be a proxy for race. Its use as a voting
qualification therefore violates the Fifteenth Amendment as
extended by Congress to Guam.
1
Because we affirm the district court on Fifteenth Amendment
grounds, we do not address Davis’s arguments that the 2000 Plebiscite
Law violates the Fourteenth Amendment, the Voting Rights Act, and the
Organic Act of Guam.
DAVIS V. GUAM 5
I
The factual background of this case is intertwined with
the history of Guam (the “Territory”), of its indigenous
people, and of its colonization. We recognize that this
history, like history in general, is subject to contestation both
as to exactly what happened in the past and as to the
interpretation of even well-established facts. We do not
attempt to settle those debates. “Our more limited role, in the
posture of this particular case, is to recount events as
understood by the lawmakers, thus ensuring that we accord
proper appreciation to their purposes in adopting the policies
and laws at issue.” Rice, 528 U.S. at 500.
Guam has long been inhabited by an indigenous people,
commonly referred to as Chamorro. See William L. Wuerch
& Dirk Anthony Ballendorf, Historical Dictionary of Guam
and Micronesia 40–44 (The Scarecrow Press, Inc. 1994);
Developments in the Law, Chapter Four: Guam and the
Case for Federal Deference, 130 Harv. L. Rev. 1704, 1722
(2017). Beginning in the sixteenth century, Spain colonized
Guam. Then, in 1899, after the Spanish-American war,
Spain ceded Guam to the United States through Article II of
the 1898 Treaty of Paris. Until 1950, Guam remained under
the control of the U.S. Navy, except for a Japanese
occupation from 1941 through 1944. See Guam v. Guerrero,
290 F.3d 1210, 1214 (9th Cir. 2002). In 1950, responding to
petitions from Guam’s inhabitants, Congress passed the
Organic Act of Guam. Pub. L. No. 81-630, 64 Stat. 384(1950) (codified at 48 U.S.C. §§ 1421–24) (“Organic Act”).
The Organic Act (1) designated Guam as an
unincorporated territory of the United States subject to
Congress’s plenary power, 48 U.S.C. § 1421a;
(2) established executive, legislative, and judicial branches
of government for the Territory, id. §§ 1422–24, as well as a
6 DAVIS V. GUAM
limited Bill of Rights modeled after portions of the Bill of
Rights in the Federal Constitution, id. § 1421b; 2 and
(3) extended U.S. citizenship to three categories of people:
(a)(1): All inhabitants of the island of Guam
on April 11, 1899, including those
temporarily absent from the island on that
date, who were Spanish subjects, who after
that date continued to reside in Guam or other
territory over which the United States
exercises sovereignty, and who have taken no
affirmative steps to preserve or acquire
foreign nationality[, and their children.]
(a)(2): All persons born in the island of Guam
who resided in Guam on April 11, 1899,
including those temporarily absent from the
island on that date, who after that date
continued to reside in Guam or other territory
over which the United States exercises
sovereignty, and who have taken no
affirmative steps to preserve or acquire
foreign nationality[, and their children.]
(b): All persons born in the island of Guam
on or after April 11, 1899 . . . Provided, That
in the case of any person born before the date
of enactment of [the Organic Act], he has
2
Absent an act of Congress, federal constitutional rights do not
automatically apply to unincorporated territories. Guerrero, 290 F.3d
at 1214. In 1968, Congress amended the Organic Act to extend certain
federal constitutional rights to Guam, including the Fifteenth
Amendment. See 48 U.S.C. § 1421b(u).
DAVIS V. GUAM 7
taken no affirmative steps to preserve or
acquire foreign nationality.
8 U.S.C. § 1407 (1952), repealed by Pub. L. No. 82-414,
§§ 101(a)(38), 301(a)(1) 66 Stat. 163, 171, 235 (1952)
(codified at 8 U.S.C. §§ 1101(a)(38), 1401(a)).
According to the 1950 Census—which derived its racial
categories from “that which is commonly accepted by the
general public”—the Chamorro population comprised the
single largest racial group in Guam at the time (45.6%). See
U.S. Bureau of the Census, Census of Population: 1950, Vol.
II at 54–46 tbl. 36 (1953) (“1950 Census”). The second
largest racial group was White (38.5%), and the rest of the
population was Filipino, Chinese, or other races. Virtually
all non-Chamorro people residing in the Territory were
either already U.S. citizens (99.4% of all Whites were U.S.
citizens) or were born outside the jurisdiction of the United
States and therefore likely not citizens by authority of the
Organic Act (e.g., 94.4% of Filipinos were non-citizens). As
of 1950, 98.6% of all non-citizens in Guam were Chamorro.
Id. at 54–49 tbl. 38.
The citizenship provisions of the Organic Act were in
force for less than two years. In 1952, Congress enacted the
Immigration and Nationality Act of 1952 (“INA”), which,
among other things, repealed the citizenship provisions of
the Organic Act, see Pub. L. No. 82-414, § 403(a)(42), 66
Stat. 163, 280, and conferred U.S. citizenship on all persons
born in Guam after passage of the new INA. See id.§§ 101(a)(38), 301(a)(1), 66 Stat. 163, 171, 235 (codified at
8 U.S.C. §§ 1101(a)(38), 1401(a)).
In the decades following passage of the Organic Act,
some of Guam’s inhabitants continued to advocate for more
political autonomy. Those efforts eventually resulted in,
8 DAVIS V. GUAM
among other things, “An Act to Establish the Chamorro
Registry,” enacted by the Guam legislature in 1996. Guam
Pub. L. No. 23-130, § 1 (codified as amended at 3 Guam
Code Ann. §§ 18001–31) (“Registry Act”), repealed in part
by Guam Pub. L. No. 25-106 (2000). The Registry Act
created a registry of “Chamorro individuals, families, and
their descendants.” Id. § 1. It referred to the “Chamorro” as
the “indigenous people of Guam” who possess “a distinct
language and culture.” Id. 3 The Act’s stated purpose was for
the registry to “assist in the process of heightening local
awareness among the people of Guam of the current struggle
3
Another section of the Registry Act defined “Chamorro”:
(a) Chamorro means those persons defined by
the U.S. Congress in Section IV of the Organic
Act of Guam . . . and their descendants:
(1) All inhabitants of the island of Guam on
April 11, 1899, including those temporarily
absent from the island on that date, who were
Spanish subjects, who after that date
continued to reside in Guam or other territory
over which the United States exercises
sovereignty, and have taken no affirmative
steps to preserve or acquire foreign
nationality; and
(2) All persons born in the island of Guam,
who resided in Guam on April 11, 1899,
including those temporarily absent from the
island on that date, who after that date
continued to reside in Guam or other territory
over which the United States exercises
sovereignty, and who have taken no
affirmative steps to preserve or acquire
foreign nationality.
Registry Act § 20001(a).
DAVIS V. GUAM 9
for Commonwealth, of the identity of the indigenous
Chamorro people of Guam, and of the role that Chamorros
and succeeding generations play in the island’s cultural
survival and in Guam’s political evolution towards self-
government.” Id.
One year later, the Guam legislature established the
“Commission on Decolonization for the Implementation and
Exercise of Chamorro Self-Determination,” Guam Pub. L.
No. 23-147 (1997) (codified at 1 Guam Code Ann. §§ 2101–
15) (“1997 Plebiscite Law”), repealed in part by Guam Pub.
L. No. 25-106 (2000). The Legislature established the
Commission on Decolonization “in the interest of the will of
the people of Guam, desirous to end colonial discrimination
and address long-standing injustice of [the Chamorro]
people.” Id. § 1. The purpose of the Commission on
Decolonization was to “ascertain the desire of the Chamorro
people of Guam as to their future political relationship with
the United States.” Id. § 5. It was charged with writing
position papers on the political status options for Guam and
with conducting a public information campaign based on
those papers. Id. §§ 6–9. The 1997 Plebiscite Law also called
for a “political status plebiscite” during the next primary
election, in which voters would be asked:
In recognition of your right to self-
determination, which of the following
political status options do you favor?
1. Independence
2. Free Association
3. Statehood
10 DAVIS V. GUAM
Id. § 10. Voting in the plebiscite was to be limited to
“Chamorro People,” defined as “[a]ll inhabitants of Guam in
1898 and their descendants who have taken no affirmative
steps to preserve or acquire foreign nationality.” Id. §§ 2(b),
10. The Commission on Decolonization was then directed to
“transmit [the results of the plebiscite] to the President and
Congress of the United States and the Secretary General of
the United Nations.” Id. § 5.
Before the planned date of the self-determination
plebiscite, the Supreme Court in Rice v. Cayetano
invalidated a Hawaii law restricting the right to vote in
certain elections to “Hawaiians,” defined as the descendants
of people inhabiting the Hawaiian Islands in 1778. 528 U.S.
at 499. A month after Rice was decided, the Guam legislature
enacted the law at issue in this case. Guam Pub. L. No. 25-
106 (2000) (codified at 3 Guam Code Ann. §§ 21000–31,
1 Guam Code Ann. §§ 2101–15) (“2000 Plebiscite Law”).
The 2000 Plebiscite Law contains several interrelated
provisions: First, it leaves the Registry Act intact and creates
a separate “Guam Decolonization Registry” in which those
voters qualified for the new political status plebiscite would
be listed. 4 3 Guam Code Ann. §§ 21000, 21026. Those
4
The 2000 Plebiscite Law modified the definition of “Chamorro” in
the Registry Act, to the following:
(a) ‘Chamorro’ shall mean:
(1) all inhabitants of the Island of Guam on April
11, 1899, including those temporarily absent from
the Island on that date and who were Spanish
subjects; and
DAVIS V. GUAM 11
qualified to register, and therefore to vote, in the plebiscite
must be “Native Inhabitants of Guam,” defined as “those
persons who became U.S. Citizens by virtue of the authority
and enactment of the 1950 Organic Act of Guam and
descendants of those persons.” Id. § 21001(e).
Second, the 2000 Plebiscite Law retains the Commission
on Decolonization but amends portions of the 1997
Plebiscite Law to replace all references to “Chamorro” with
“Native Inhabitants of Guam.” 1 Guam Code Ann. §§ 2101–
02, 2104–05, 2110. As revised, the law establishing a new
plebiscite provides:
The general purpose of the Commission on
Decolonization shall be to ascertain the intent
of the Native Inhabitants of Guam as to their
future political relationship with the United
States of America. Once the intent of the
Native Inhabitants of Guam is ascertained,
the Commission shall promptly transmit that
desire to the President and the Congress of
(2) all persons born on the Island of Guam prior
to 1800, and their descendants, who resided on
Guam on April 11, 1899, including those
temporarily absent from the Island on that date,
and their descendants;
(i) ‘descendant’ means a person who has
proceeded by birth, such as a child or
grandchild, to the remotest degree, from any
‘Chamorro’ as defined above, and who is
considered placed in a line of succession
from such ancestor where such succession is
by virtue of blood relations.
2000 Plebiscite Law § 12.
12 DAVIS V. GUAM
the United States of America, and to the
Secretary General of the United Nations.
Id. § 2105.
Finally, the 2000 Plebiscite Law states that “[t]he intent
of [the law] shall not be construed nor implemented by the
government officials effectuating its provisions to be race
based, but founded upon the classifications of persons as
defined by the U.S. Congress in the 1950 Organic Act of
Guam.” 3 Guam Code Ann. § 21000. Rather, the intent of
the law is “to permit the native inhabitants of Guam, as
defined by the U.S. Congress’ 1950 Organic Act of Guam to
exercise the inalienable right to self-determination of their
political relationship with the United States of America,” as
that “right has never been afforded.” Id.One subsequent amendment to the plebiscite relevant to
this case followed. In 2010, the Guam legislature passed a
law providing that individuals who received or had been
preapproved for a Chamorro Land Trust Commission
(“CLTC”) property lease would be automatically registered
in the Guam Decolonization Registry. Guam Pub. L. No. 30-
102, § 21002.1 (codified at 3 Guam Code Ann. § 21002.1).
The CLTC was created in 1975 to administer leases for lands
that the United States had seized from Guam inhabitants
during and after World War II and had later returned to the
Guam government. See Guam Pub. L. 12-226 (codified as
amended at 21 Guam Code Ann. §§ 75101–75125). Persons
eligible to receive CLTC leases must be “Native
Chamorros,” defined as “any person who became a U.S.
citizen by virtue of the authority and enactment of the
Organic Act of Guam or descendants of such person.”
21 Guam Code Ann. §§ 75101(d), 75107(a).
DAVIS V. GUAM 13
Arnold Davis, a non-Chamorro resident of Guam, sought
to register for the Guam Decolonization Registry and
thereby to qualify as a voter in the plebiscite. He was denied
registration because he did not meet the definition of “Native
Inhabitant of Guam.” Davis filed suit in 2011, challenging
the 2000 Plebiscite Law on grounds that it violated the
Fourteenth and Fifteenth Amendments of the Constitution,
the Voting Rights Act of 1965, and the Organic Act.
At the time the suit was filed, the plebiscite had not yet
occurred, and no date was set for it to take place. Davis v.
Guam, Civil Case No. 11-00035, 2013 WL 204697, *2–3
(D. Guam 2013) (“Davis I”). Relying on the uncertain
timing of the plebiscite, the district court initially dismissed
the case for lack of standing and ripeness. Id. at *9. We
reversed that dismissal on appeal, holding that Davis’s
alleged unequal treatment was a sufficient injury to establish
standing and that his claim was ripe because he adequately
alleged that he was “currently being denied equal treatment
under Guam law.” Davis v. Guam, 785 F.3d 1311, 1315–16
(9th Cir. 2015) (“Davis II”).
After remand to the district court the parties filed cross-
motions for summary judgment. The district court granted
Davis’s motion for summary judgment and permanently
enjoined Guam from conducting a plebiscite restricting
voters to Native Inhabitants of Guam. Davis v. Guam, No.
CV 11-00035, 2017 WL 930825, at *1 (D. Guam 2017)
(“Davis III”).
The district court concluded, first, that the plebiscite was
an election for Fifteenth Amendment purposes because the
result of the vote would decide a public issue. Id. at *11.
Next, the court determined that although “Native Inhabitants
of Guam” is not an explicit racial classification, the history
and structure of the 2000 Plebiscite Law reveal that “the very
14 DAVIS V. GUAM
object of the statutory definition in question here . . . is to
treat the Chamorro people as a ‘distinct people.’” Id. at *8
(quoting Rice, 528 U.S. at 515). The 2000 Plebiscite Law
therefore used “ancestry as a proxy for race,” the district
court held, in violation of the Fifteenth Amendment. Id.The court also decided that the 2000 Plebiscite Law
violated the Equal Protection Clause of the Fourteenth
Amendment. Applying strict scrutiny, the court held the law
was not narrowly tailored to a compelling state interest as all
inhabitants of Guam, not just its “Native Inhabitants,” have
an interest in the results of the plebiscite. Id. at *12–*14. The
district court concluded that less restrictive alternatives exist,
including “conducting a poll with the assistance of the
University of Guam.” Id. at *14.
This appeal followed. “We review a district court’s
decision on cross motions for summary judgment de novo.”
Commonwealth Election Comm’n, 844 F.3d at 1091.
II
Congress has provided that the Fifteenth Amendment
“shall have the same force and effect [in Guam] as in the
United States.” 48 U.S.C. § 1421b(u); accord Davis II,
785 F.3d at 1314 n.2. That Amendment provides: “The right
of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of
race, color, or previous condition of servitude.” U.S. Const.
amend. XV, § 1. The Fifteenth Amendment is
“comprehensive in reach,” and applies to “any election in
which public issues are decided or public officials selected.”
Rice, 528 U.S. at 512, 523 (quoting Terry v. Adams, 345 U.S.
461, 468 (1953)).
DAVIS V. GUAM 15
Guam argues that the Fifteenth Amendment is
inapplicable to the plebiscite because that vote will not
decide a public issue. It notes that the 2000 Plebiscite Law
requires Guam to transmit the results of the plebiscite to
Congress, the President, and the United Nations but will not,
itself, create any change in the political status of the
Territory. That is so. But, despite its limited immediate
impact, the results of the planned plebiscite commit the
Guam government to take specified actions and thereby
constitute a decision on a public issue for Fifteenth
Amendment purposes.
We begin by noting that any suggestion that the Fifteenth
Amendment be read restrictively should be viewed with
skepticism. The right to vote is foundational in our
democratic system. See Kramer v. Union Free Sch. Dist. No.
15, 395 U.S. 621, 626 (1969); Harper v. Va. State Bd. of
Elections, 383 U.S. 663, 667 (1966); Reynolds v. Sims,
377 U.S. 533, 555 (1964). Protecting the franchise is
“preservative of all rights,” because the opportunity to
participate in the formation of government policies defines
and enforces all other entitlements. Yick Wo v. Hopkins,
118 U.S. 356, 370 (1886). “Other rights, even the most basic,
are illusory if the right to vote is undermined.” Wesberry v.
Sanders, 376 U.S. 1, 17 (1964). For that reason, the Fifteenth
Amendment is “comprehensive in reach.” Rice, 528 U.S.
at 512. The text of the Fifteenth Amendment states broadly
that the right “to vote” shall not be denied. U.S. Const.
amend. XV, § 1. It does not qualify the meaning of “vote” in
any way. In light of the text and the unique importance of
the Fifteenth Amendment, where there is any doubt about
the Fifteenth Amendment’s boundaries we err on the side of
inclusiveness.
16 DAVIS V. GUAM
We have no need here to define the precise contours of
what it means to “decide” a “public issue” under the
Fifteenth Amendment. See Rice, 528 U.S. at 523. It is at least
clear that the Amendment includes any government-held
election in which the results commit a government to a
particular course of action. That requirement is met here.
First, the issue the 2000 Plebiscite Law would decide is
public in nature. A basic premise of our representative
democracy is “the critical postulate that sovereignty is vested
in the people.” U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779, 794 (1995). Because the government “derives all its
powers directly or indirectly from the great body of the
people,” The Federalist No. 39, at 241 (James Madison)
(Clinton Rossiter ed., 1961), the government necessarily
exercises authority on behalf of the public when it acts. In
that sense, its actions are of public concern.
The Supreme Court acknowledged this foundational
principle in Terry v. Adams, which addressed a related
question—whether an election held by a private organization
constituted state action for purposes of the Fifteenth
Amendment. Terry held that the Jaybird Democratic
Association’s primary elections, which functionally
determined the Democratic Party’s candidates for public
office in a Texas county, violated the Fifteenth Amendment
by excluding black voters. 345 U.S. at 470 (plurality
opinion). The Court concluded that although the Jaybird
primaries were private in the sense that they were conducted
by a private entity, they served a public function because
they chose candidates for public office. The Jaybird
primaries were therefore covered by the Fifteenth
Amendment. Id. at 469–70.
A plurality of the Court explained this conclusion as
follows: “Clearly the [Fifteenth] Amendment includes any
DAVIS V. GUAM 17
election in which public issues are decided or public officials
selected. Just as clearly the Amendment excludes social or
business clubs.” Id. at 468–69. Decades later, the Rice
majority adopted the formulation of the Terry plurality—that
the Fifteenth Amendment applies to “any election in which
public issues are decided or public officials selected.”
528 U.S. at 523 (quoting Terry, 345 U.S. at 468). This focus
is confirmed by another passage in the Terry plurality
opinion on which Rice relied. That passage specified that the
Fifteenth Amendment establishes a right “not to be
discriminated against as voters in elections to determine
public governmental policies or to select public officials,
national, state, or local.” Id. at 514 (emphasis added)
(quoting Terry, 528 U.S. at 467).
In this case, the 2000 Plebiscite Law prescribes that the
Commission on Decolonization—a governmental body—
will make an official transmission to Congress, the
President, and the United Nations, and the results of the
plebiscite will determine the content of the message
transmitted. See 1 Guam Code Ann. § 2105. What a
governmental body will communicate to other governmental
entities is assuredly a “public issue”—a matter of
“governmental polic[y].” Terry, 345 U.S. at 467–68.
Second, the election called for by the 2000 Plebiscite
Law commits Guam to a particular course of action: A
governmental commission with prescribed duties would be
bound to transmit the result of the plebiscite to the federal
government and to the United Nations. By requiring the
transmission of the plebiscite results, the 2000 Plebiscite
Law mandates that the Commission on Decolonization take
a public stance in support of the result. 3 Guam Ann. Code
§ 21000 (“It is the purpose of this legislation to seek the
desires to those peoples who were given citizenship in 1950
18 DAVIS V. GUAM
and to use this knowledge to further petition Congress and
other entities to achieve the stated goals.”). So, regardless of
whether the result of the plebiscite ultimately affects the
political status of Guam, the plebiscite will “decide” a public
issue—what position a governmental entity will advocate
before domestic and international bodies.
The plebiscite therefore will both concern a “public
issue”—Guam’s official communication with other
governmental bodies—and “decide” it, in that it will commit
a governmental body to communicate the position
determined by the plebiscite. Given these two features, the
election is, under Rice, subject to the Fifteenth Amendment’s
protection against racial restrictions on the right to vote.
Were this plebiscite not covered by the Fifteenth
Amendment, the scope of the Amendment’s prohibition on
race-based voting restrictions in elections would be
significantly narrowed. Elections regularly require a
governmental body to take a stance on issues even though
there may be no on-the-ground changes in policy. For
example, state initiatives sometimes authorize permission to
make a policy change, but the actual policy change is
contingent on future occurrences. See, e.g., Proposition 7,
Assemb. B. 807, 2017–2018 Leg., Reg. Sess. (Cal. 2018)
(allowing the state legislature to vote to change daylight
savings time, if the change is allowed by the federal
government). 5 Moreover, in presidential elections, political
5
State statutory and constitutional limits govern what propositions
can be the subject of state initiatives or referenda. See, e.g., Am. Fed’n
of Labor v. Eu, 36 Cal. 3d 687, 703 (1984) (holding that a state initiative
requiring the legislature to enact a resolution which did not itself change
California law exceeded scope of the initiative power under the
California Constitution); Harper v. Waltermire, 213 Mont. 425, 428
(1984) (same with respect to Montana initiative under the Montana
DAVIS V. GUAM 19
parties in several states employ nonbinding primaries, in
which primary voters may express their preference for a
candidate but the delegates to a party’s national convention
are not, technically, bound by that preference. See Nathaniel
Persily, Candidates v. Parties: The Constitutional
Constraints on Primary Ballot Access Laws, 89 Geo. L.J.
2181, 2219 n.127 (2001). 6 Concluding that the Fifteenth
Amendment only applies to elections triggering an
immediate substantive action would exempt a broad
category of elections from Fifteenth Amendment protection.
We hold that Guam’s 2000 Plebiscite Law is subject to
the requirements of the Fifteenth Amendment.
III
We turn to the core of the Fifteenth Amendment issue:
Does the 2000 Plebiscite Law deny citizens the right to vote
“on account of race?” U.S. Const. amend. XV, § 1. 7
Constitution). Those limits are distinct from the question of whether the
Fifteenth Amendment applies if an initiative or referendum is held.
6
We do not decide whether these elections are definitively subject
to the requirements of the Fifteenth Amendment. We note them only as
examples of the type of elections that might be affected if the Fifteenth
Amendment applied only to elections that triggered immediate
substantive outcomes.
7
We address only the constitutionality of the plebiscite under
Section 1 of the Fifteenth Amendment. Our opinion affects neither
Congress’s power under Section 2 to enact appropriate legislation
enforcing the Amendment nor the analysis of voting restrictions under
the Fourteenth Amendment, which may be subject to heightened scrutiny
rather than an absolute bar. See, e.g., Harper, 383 U.S. at 667 (holding
that poll taxes in elections must be “carefully and meticulously
scrutinized” under the Equal Protection Clause (citation omitted)).
20 DAVIS V. GUAM
The Fifteenth Amendment’s prohibition on race-based
voting restrictions is both fundamental and absolute. See
Shaw v. Reno, 509 U.S. 630, 639 (1993). As “[t]here is no
room under the Amendment for the concept that the right to
vote in a particular election can be allocated based on race,”
the levels of scrutiny applied to other constitutional
restrictions are not pertinent to a race-based franchise
limitation. Rice, 528 U.S. at 523 (emphasis added). This
clear-cut rule reflects the importance of the franchise as “the
essence of a democratic society” and recognizes that “any
restrictions on that right strike at the heart of representative
government.” Reynolds, 377 U.S. at 555.
Moreover, the Fifteenth Amendment applies with equal
force regardless of the particular racial group targeted by the
challenged law. Although originally enacted to guarantee
emancipated slaves the right to vote after the Civil War, the
generic language of the Fifteenth Amendment “transcend[s]
the particular controversy which was the immediate impetus
for its enactment.” Rice, 528 U.S. at 512. The Amendment’s
prohibition on racial discrimination “grants protection to all
persons, not just members of a particular race.” Id. Its
“mandate of neutrality” is thus straightforward and
universal: “If citizens of one race having certain
qualifications are permitted by law to vote, those of another
having the same qualifications must be” permitted to vote as
well. Id. (quoting United States v. Reese, 92 U.S. 214, 218
(1875)).
Determining whether a law discriminates “on account of
race” is not, however, always straightforward. Voting
qualifications that, by their very terms, draw distinctions
based on racial characteristics are of course prohibited. See
Nixon v. Herndon, 273 U.S. 536 (1927); South Carolina v.
Katzenbach, 383 U.S. 301, 325 (1966) (collecting cases).
DAVIS V. GUAM 21
But “[t]he (Fifteenth) Amendment nullifies sophisticated as
well as simple-minded modes of discrimination.” Gomillion
v. Lightfoot, 364 U.S. 339, 342 (1960) (quoting Lane v.
Wilson, 307 U.S. 268, 275 (1939)). So, in addition to facial
racial distinctions, classifications that are race neutral on
their face but racial by design or application violate the
Fifteenth Amendment.
The well-established hallmarks of such discrimination
for constitutional purposes are discriminatory intent, see
Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 481–82 (1997);
City of Mobile v. Bolden, 446 U.S. 55, 62–63 (1980)
(plurality opinion), and discriminatory implementation, see
Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45,
53 (1959) (“Of course a literacy test, fair on its face, may be
employed to perpetuate that discrimination which the
Fifteenth Amendment was designed to uproot.”).
One category of facially neutral restrictions that runs
afoul of the Fifteenth Amendment is a classification so
closely intertwined with race that it is a “proxy for race,” as
the Supreme Court found to be the case in Rice, 528 U.S. at
514. Rice addressed a voting qualification in statewide
elections for the trustees of the Office of Hawaiian Affairs,
a state agency that administers programs for the benefit of
descendants of Native Hawaiians. Id. at 498–99. The Hawaii
Constitution limited voting in those elections to
“Hawaiians,” defined by statute as “any descendant of the
aboriginal peoples inhabiting the Hawaiian Islands which
exercised sovereignty and subsisted in the Hawaiian Islands
in 1778, and which peoples thereafter have continued to
reside in Hawaii.” Id. at 509 (quoting Haw. Rev. Stat. § 10-
2). Rice held that the Hawaiian voting restriction was racial
“in purpose and operation.” Id. at 516. It reasoned as
follows:
22 DAVIS V. GUAM
Ancestry can be a proxy for race. It is that
proxy here. . . . For centuries Hawaii was
isolated from migration. The inhabitants
shared common physical characteristics, and
by 1778 they had a common culture. Indeed,
the drafters of the statutory definition in
question emphasized the “unique culture of
the ancient Hawaiians” in explaining their
work. The provisions before us reflect the
State’s effort to preserve that commonality of
people to the present day. In the
interpretation of the Reconstruction era civil
rights laws we have observed that “racial
discrimination” is that which singles out
“identifiable classes of persons . . . solely
because of their ancestry or ethnic
characteristics.” Saint Francis Coll. v. Al-
Khazraji, 481 U.S. 604, 613 (1987). The very
object of the statutory definition in question
and of its earlier congressional counterpart in
the Hawaiian Homes Commission Act is to
treat the early Hawaiians as a distinct people,
commanding their own recognition and
respect. The State, in enacting the legislation
before us, has used ancestry as a racial
definition and for a racial purpose.
Id. at 514–15 (second alteration in original) (citations
omitted).
To confirm its conclusion, Rice looked to the history of
the “Hawaiian” definition at issue and determined that
previously proposed versions of the qualification had
expressly referred to “Hawaiians” as a race. Id. at 515–516.
The Court concluded that removal of the “race” reference
DAVIS V. GUAM 23
did not change the classification of individuals allowed to
vote in the election. The voter qualification therefore
remained race-based although it no longer proclaimed as
such. Id. at 516. Rice provides key guidance for determining
whether the 2000 Plebiscite Law’s restriction of the vote to
“Native Inhabitants of Guam” is race-based.
A
Our first inquiry is whether, as Davis maintains, Rice
held all classifications based on ancestry to be impermissible
proxies for race. It did not.
The Supreme Court selected its words carefully when it
struck down the voting restrictions at issue in Rice. It stated
that “[a]ncestry can be a proxy for race” in the context of the
Fifteenth Amendment, not that it always is. Id. at 514
(emphasis added).
The Court’s determination that the challenged voting
qualification’s use of ancestry “is that proxy here,” id., rested
on the historical and legislative context of the particular
classification at issue, not on the categorical principle that all
ancestral classifications are racial classifications. The Court
focused specifically on the fact that in 1778, the individuals
inhabiting the Hawaiian Islands were a “distinct people”
with common physical characteristics and shared culture. Id.
at 515. Limiting the franchise to descendants of that distinct
people, the Court reasoned, singled out individuals for
special treatment based on their “ethnic characteristics and
cultural traditions.” Id. at 515, 517. Rice buttressed that
conclusion with evidence from the legislative history of the
challenged statute, which referred to “Hawaiians” as a
“race.” Id. at 516. In other words, the Court recognized that
ancestral tracing can be a characteristic of a racial
classification, but is not itself always sufficient to identify
24 DAVIS V. GUAM
such a classification. And it concluded that the ancestral
classification at issue was problematic because it operated as
a race-based voting restriction. If the Court had meant to
suggest that all classifications based on ancestry were
impermissible, it would have had no need to examine the
unique history of the descendants allowed to vote under the
challenged law.
Davis contends that one sentence in Rice indicates
otherwise—that all ancestry classifications are
impermissible racial classifications: “‘[R]acial
discrimination’ is that which singles out ‘identifiable classes
of persons . . . solely because of their ancestry or ethnic
characteristics.’” Id. at 515 (second alteration in original)
(quoting Saint Francis Coll., 481 U.S. at 613). But that
interpretation wrenches the sentence in Rice from its context.
Rice quoted Saint Francis Coll. to support its conclusion that
the specific classification at issue in Rice was a racial
classification. 8 After an exhaustive account of Hawaii’s
8
Saint Francis Coll. does not suggest that all ancestral
classifications are racial ones either. That case addressed whether
discrimination based specifically on “Arabian ancestry” constituted
racial discrimination for purposes of 42 U.S.C. § 1981. 481 U.S. at 607.
After recounting the legislative history of § 1981 and the understanding
of race at the time the statute was passed in 1870, the Court concluded
the following:
Based on the history of § 1981, we have little trouble
in concluding that Congress intended to protect from
discrimination identifiable classes of persons who are
subjected to intentional discrimination solely because
of their ancestry or ethnic characteristics. Such
discrimination is racial discrimination that Congress
intended § 1981 to forbid, whether or not it would be
classified as racial in terms of modern scientific
theory. [Section] 1981, at a minimum, reaches
DAVIS V. GUAM 25
history, the Court determined that the voter eligibility
classification singled out persons solely because of their
ancestral relationship to a culturally and ethnically distinct
population, and went on to conclude that “[a]ncestral tracing
of this sort achieves its purpose by creating a legal category
which employs the same mechanisms, and causes the same
injuries, as laws or statutes that use race by name.” Id. at 517
(emphasis added). Nowhere did the Court suggest that
classification by ancestry alone was sufficient to render the
challenged classification a racial one.
B
Rice did not go on to explain further the connection
between ancestry and race, or to explain what it meant by
“ethnic characteristics and cultural traditions.” Id. And
modern courts have generally resisted defining with
precision the legal concept of race and more specifically, the
relationship between ancestry and the legal concept of race.
Racial categories were once thought to be grounded in
biological fact, but shifting understandings of which groups
constitute distinct races throughout history reveal such
categories to be “social construct[s],” the boundaries of
which are subject to contestation and revision. Ho ex rel. Ho
v. S.F. Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998);
discrimination against an individual because he or she
is genetically part of an ethnically and
physiognomically distinctive sub-grouping of homo
sapiens. It is clear from our holding, however, that a
distinctive physiognomy is not essential to qualify for
§ 1981 protection.
Id. at 613 (footnotes and internal quotation marks omitted).
26 DAVIS V. GUAM
see also Saint Francis Coll., 481 U.S. at 610 n.4; United
States v. Nelson, 277 F.3d 164, 176 n.12 (2d Cir. 2002). 9
Still, as a legal concept, a racial category is generally
understood as a group, designated by itself or others, as
socially distinct based on perceived common physical,
ethnic, or cultural characteristics. So, for example, Abdullahi
v. Prada USA Corp. stated that “[a] racial group as the term
is generally used in the United States today is a group having
a common ancestry and distinct physical traits,” 520 F.3d
710, 712 (7th Cir. 2008), a definition also reflected in a
federal statute outlawing genocide. See 18 U.S.C. § 1093(6)
(“[T]he term ‘racial group’ means a set of individuals whose
identity as such is distinctive in terms of physical
characteristics or biological descent.”). Saint Francis Coll.
held that racial discrimination includes discrimination based
on “ethnic characteristics,” 481 U.S. at 612–613, and Rice
emphasized that the “unique culture of the ancient
Hawaiians,” combined with their common ancestry—that is,
biological descent—distinguished them as a race. 528 U.S.
9Examples of this contestation and revision have at times reached
our highest court. In the early twentieth century, the Supreme Court
decided a number of cases delineating who qualified as white and were
therefore afforded its privileges. In Ozawa v. United States, 260 U.S. 178(1922), the Court held that a man of the “Japanese race born in Japan”
was not a “white person” and therefore was not qualified to be
naturalized under the country’s then-racially restrictive naturalization
laws. It reasoned that the term “white person” was synonymous with the
“Caucasian race.” Id. at 189, 197–98. A year later, the Court, however,
held that a man of South Asian descent born in India did not qualify as a
“white person” despite acknowledging that many scientific authorities at
the time considered South Asians to be members of the Caucasian race.
United States v. Thind, 261 U.S. 204, 210–15 (1923); see also Gong Lum
v. Rice, 275 U.S. 78 (1927) (upholding a state court ruling requiring an
American citizen of Chinese descent to attend school for “colored”
children and not for white children).
DAVIS V. GUAM 27
at 514–15. 10 These various concepts remain somewhat
distinct, but all embrace the core concept of a group of
people distinguished based on certain identifiable traits.
Just as race is a difficult concept to define, so is
ancestry’s precise relationship to race. Ancestry identifies
individuals by biological descent. See Ancestry, Black’s Law
Dictionary (10th ed. 2014) (“A line of descent; collectively,
a person’s forebears; lineage.”); Ancestor, Oxford English
Dictionary (2d ed. 1989) (“One from whom a person is
descended, either by the father or mother; a progenitor, a
forefather.”). Racial categories often incorporate biological
descent, as the mechanism through which present day
individuals viewed as a distinct group are thought to be
connected to an earlier set of individuals with identifiable
physical, ethnic, or cultural characteristics. For example,
state laws mandating the enslavement and later segregation
and subjugation of African Americans identified them by the
percentage of blood they possessed from African American
ancestors. See, e.g., Loving v. Virginia, 388 U.S. 1, 5 n.4
(1967); Plessy v. Ferguson, 163 U.S. 537, 552 (1896); Neil
Gotanda, A Critique of “Our Constitution Is Color-Blind,”
10
See also Hernandez v. State of Tex., 347 U.S. 475, 478 (1954)
(“Throughout our history differences in race and color have defined
easily identifiable groups which have at times required the aid of the
courts in securing equal treatment under the laws. But community
prejudices are not static, and from time to time other differences from
the community norm may define other groups which need the same
protection. Whether such a group exists within a community is a question
of fact.”); D. Wendy Greene, Title VII: What’s Hair (and Other Race-
Based Characteristics) Got to Do With It?, 79 U. Colo. L. Rev. 1355,
1385 (2008) (“Race includes physical appearances and behaviors that
society, historically and presently, commonly associates with a particular
racial group, even when the physical appearances and behavior are not
‘uniquely’ or ‘exclusively’ ‘performed’ by, or attributed to a particular
racial group.”).
28 DAVIS V. GUAM
44 Stan. L. Rev. 1, 24 n.94 (1991). Until 1952, Congress
imposed racial restrictions on who could be naturalized as
citizens. See 8 U.S.C. § 703 (repealed 1952). Among those
eligible for naturalization were “white persons, persons of
African nativity or descent, and persons who are descendants
of races indigenous to the continents of North or South
America,” as well as those with a “preponderance of blood”
from those groups. Id. § 703(a)(1), (2). Race and ancestry
thus frequently overlap or are treated as equivalents by
courts. See, e.g., Hirabayashi v. United States, 320 U.S. 81,
100 (1943) (“Distinctions between citizens solely because of
their ancestry are by their very nature odious to a free people
whose institutions are founded upon the doctrine of equality.
For that reason, legislative classification or discrimination
based on race alone has often been held to be a denial of
equal protection.”).
But ancestry and race are not identical legal concepts.
State and federal laws are replete with provisions that target
individuals based on biological descent without reflecting
racial classifications. These include laws of intestate
succession, see, e.g., Ariz. Rev. Stat. § 14-2103 (requiring
passing of property based on lineage in the absence of a
surviving spouse); Cal. Prob. Code §§ 240, 6402 (same);
Unif. Prob. Code § 2-103 (Nat’l Conference of Comm’rs on
Unif. State Laws 2010) (same); see also Hodel v. Irving,
481 U.S. 704, 716 (1987) (“In one form or another, the right
to pass on property—to one’s family in particular—has been
part of the Anglo-American legal system since feudal
times.”); citizenship, see, e.g., 8 U.S.C. §§ 1431, 1433
(conferring citizenship on children born outside the United
States if at least one parent is a U.S. citizen); id. § 1153
(immigrant visa preferences for children of U.S. citizens and
lawful permanent residents); and child custody laws, see,
e.g., Haw. Rev. Stat. § 571-46(7) (providing visitation
DAVIS V. GUAM 29
privileges for “parents, grandparents, and siblings” of child).
As Justice Stevens observed in his dissent in Rice, “There
would be nothing demeaning in a law that established a trust
to manage Monticello and provided that the descendants of
Thomas Jefferson should elect the trustees.” 528 U.S. at 545
& n.16. 11
Moreover, the Supreme Court has squarely rejected any
categorical equivalence between ancestry and racial
categorization. Morton v. Mancari, 417 U.S. 535 (1974),
upheld a Bureau of Indian Affairs hiring preference for
“Indians,” defined as an individual possessing “one-fourth
or more degree Indian blood and be a member of a Federally-
recognized tribe.” 417 U.S. at 553 n.24. Although the hiring
preference classified individuals based on biological
ancestry, the Supreme Court concluded that the
classification was “political rather than racial in nature.” Id.Mancari determined that the hiring preference treated
“Indians not as a discrete racial group, but, rather, as
members of quasi-sovereign tribal entities,” stressing the
“unique legal status of Indian tribes under federal law and
. . . the plenary power of Congress, based on a history of
treaties and the assumption of a ‘guardian-ward’ status, to
legislate on behalf of federally recognized Indian tribes.” Id.
at 551, 554.
Since Mancari, the Supreme Court and our court have
reaffirmed ancestral classifications related to American
Indians without suggesting that they constitute racial
classifications. See Del. Tribal Bus. Comm. v. Weeks,
11
See also Sarah Krakoff, They Were Here First: American Indian
Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491, 496
n.21 (2017) (collecting “laws [that] recognize and honor ancestry”
outside the Indian law context).
30 DAVIS V. GUAM
430 U.S. 73, 79 n.13, 89 (1977); United States v. Zepeda,
792 F.3d 1103, 1110 (9th Cir. 2015) (en banc); see also Doe
v. Kamehameha Schs./Bernice Pauahi Bishop Estate,
470 F.3d 827, 851–52 (9th Cir. 2006) (en banc) (Fletcher, J.,
concurring) (listing federal laws concerning Indians that rely
on ancestry); Krakoff, supra, at 501 (explaining that
American Indian tribal status “assumes ancestral ties to
peoples who preceded European (and then American)
arrival”). This well-settled law regarding classifications of
American Indians confirms that not all ancestral
classifications are racial ones.
In sum, biological descent or ancestry is often a feature
of a race classification, but an ancestral classification is not
always a racial one.
C
That ancestry is not always a proxy for race does not
mean it never is.
We have previously outlined the contours of proxy
discrimination when addressing statutory discrimination
claims:
Proxy discrimination is a form of facial
discrimination. It arises when the defendant
enacts a law or policy that treats individuals
differently on the basis of seemingly neutral
criteria that are so closely associated with the
disfavored group that discrimination on the
basis of such criteria is, constructively, facial
discrimination against the disfavored group.
For example, discriminating against
individuals with gray hair is a proxy for age
discrimination because “the ‘fit’ between age
DAVIS V. GUAM 31
and gray hair is sufficiently close.” McWright
v. Alexander, 982 F.2d 222, 228 (7th Cir.
1992).
Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d
1142, 1160 n.23 (9th Cir. 2013). The Supreme Court has
recognized that “[a]ncestry can be a proxy for race” in the
Fifteenth Amendment context. Rice, 528 U.S. at 514; see
Commonwealth Election Comm’n, 844 F.3d at 1092. Guinn
v. United States, for example, held that although an
exemption to a voting literacy test did not expressly classify
by race, “the standard itself inherently brings that result into
existence.” 238 U.S. 347, 364–65 (1915). 12 Although proxy
discrimination does not involve express racial
classifications, the fit between the classification at issue and
the racial group it covers is so close that a classification on
the basis of race can be inferred without more. 13 For that
reason, proxy discrimination is “a form of facial
discrimination.” Pac. Shores Props., 730 F.3d at 1160 n.23.
Notably, proxy discrimination does not require an exact
match between the proxy category and the racial
classification for which it is a proxy. “Simply because a class
. . . does not include all members of the race does not suffice
to make the classification race neutral.” Rice, 528 U.S.
at 516–17. In Rice the classification at issue—though not
explicitly racial—was so closely intertwined with race,
given the characteristics of Hawaii’s population in 1778, that
12
See also Stephen M. Rich, Inferred Classifications, 99 Va. L. Rev.
1525, 1532 (2013) (discussing how the Supreme Court has inferred facial
racial classifications based on a “legislation’s form and practical effect”).
13
We do not address whether ancestry can be a proxy for race in
contexts beyond the scope of the Fifteenth Amendment.
32 DAVIS V. GUAM
the law was readily understood to be discriminatory in
“purpose and operation.” Id. at 516. At its core, Rice inferred
the racial purpose of the Hawaii law from the terms of the
classification combined with historical facts, concluding that
Hawaii’s racial voter qualification was “neither subtle nor
indirect.” Id. at 514.
Relying on Rice, we held in Davis v. Commonwealth
Election Comm’n that an ancestry-based voting restriction in
the Commonwealth of the Northern Mariana Islands
(“CNMI”) was a proxy for race discrimination in violation
of the Fifteenth Amendment. 844 F.3d at 1093.
Commonwealth Election Commission concerned a provision
of the CNMI Constitution limiting voting in certain CNMI
elections to U.S. citizens or nationals “who [are] of at least
one-quarter Northern Marianas Chamorro or Northern
Marianas Carolinian blood,” a classification defined as
someone who was “born or domiciled in the Northern
Mariana Islands by 1950 and . . . a citizen of the Trust
Territory of the Pacific Islands before the termination of the
Trusteeship with respect to the Commonwealth.” Id. at 1090
(quoting N. Mar. I. Const. art XII, § 4). We concluded that
“the stated intent of the provision [was] to make ethnic
distinctions,” even though the provision was technically
tethered to an ancestor’s residence in 1950, and even though
there was “historical evidence that some persons who were
not of Chamorro or Carolinian ancestry lived on the islands
in 1950.” Id. at 1093 (emphasis added). We reasoned that the
voter qualification at issue “tie[d] voter eligibility to descent
from an ethnic group;” the qualification “referenced blood
quantum to determine descent” much like the Hawaiian law
invalidated in Rice; and the statute implementing the
classification referenced race. Id. As in Rice, the CNMI law
left no reasonable explanation for the voting qualifications
except that voter eligibility was race-based.
DAVIS V. GUAM 33
D
Like the classifications invalidated in Rice and
Commonwealth Election Commission, the classification
“Native Inhabitants of Guam” in this case serves as a proxy
for race, in violation of the Fifteenth Amendment. The 2000
Plebiscite Law limits voting to “Native Inhabitants of
Guam,” which it defines as “those persons who became U.S.
Citizens by virtue of the authority and enactment of the 1950
Organic Act of Guam and descendants of those persons.”
3 Guam Code Ann. § 21001(e). The Organic Act granted
U.S. citizenship to three categories of people and their
descendants. In summary, those categories are:
(1) Individuals born before April 11, 1899, who
lived in Guam on that date as Spanish
subjects, and who continued to reside in some
part of the U.S. thereafter.
(2) Individuals born in Guam before April 11,
1899, who lived in Guam on that date, and
who continued to reside in some part of the
U.S. thereafter.
(3) Individuals born in Guam on or after
April 11, 1899.
8 U.S.C. § 1407 (1952). This definition is so closely
associated with the express racial classification “Chamorro”
used in previously enacted statutes that it can only be
34 DAVIS V. GUAM
sensibly understood as a proxy for that same racial
classification. 14
The 2000 Plebiscite Law’s immediate predecessors were
not shy about using an express racial classification. The
Registry Act established an official list of “Chamorro”
people, defined according to the Organic Act, as inhabitants
of Guam in 1899 who were Spanish subjects or were born in
Guam before 1899, and the descendants of those individuals.
Registry Act § 20001(a). In its legislative findings and
statement of intent, the Registry Act provided: “The Guam
Legislature recognizes that the indigenous people of Guam,
the Chamorros, have endured as a population with a distinct
language and culture despite suffering over three hundred
years of colonial occupation by Spain, the United States of
America, and Japan.” Id. § 1. It further stated: “The Guam
Legislature . . . endeavors to memorialize the indigenous
Chamorro people . . . who continue to develop as one
Chamorro people on their homeland, Guam.” Id. Finally, the
Registry Act recognized that “[t]he Legislature intends for
this registry to assist in the process of heightening local
awareness among the people of Guam of the current struggle
for Commonwealth, of the identity of the indigenous
Chamorro people of Guam, and of the role that Chamorros
and succeeding generations play in the island’s cultural
survival and in Guam’s political evolution towards self-
government.” Id. As part of those purposes, the law
recognized that the registry may be used “for the future
14
Guam acknowledged in the district court that the term
“Chamorro” refers to a distinct racial category and does not seriously
contest otherwise on appeal. We have similarly recognized “Chamorro”
as a racial classification for Fifteenth Amendment purposes. See
Commonwealth Election Comm’n, 844 F.3d at 1093 (treating “Northern
Marianas Chamorro” as a racial classification).
DAVIS V. GUAM 35
exercise of self-determination by the indigenous Chamorro
people of Guam.” Id.
The Registry Act formally tied the definition of
Chamorro to the race-neutral language of the Organic Act.
But the enactment as a whole rested on the concept that the
Chamorro were a “distinct people” with a “common
culture,” the very hallmarks of racial classification Rice
relied upon in concluding that “Hawaiian” defined a racial
group for Fifteenth Amendment purposes. See 528 U.S.
at 514–15.
The 1997 Plebiscite Law, which the 2000 Plebiscite Law
built directly upon, similarly employed express racial
classifications. The 1997 law called for a plebiscite limited
to the “Chamorro people of Guam,” defined as “[a]ll
inhabitants of Guam in 1898 and their descendants who have
taken no affirmative steps to preserve or acquire foreign
nationality.” 1997 Plebiscite Law § 2(b). Like the Registry
Act, the 1997 Plebiscite Law repeatedly employed the term
“Chamorro” to note a distinct group and described that group
as facing “colonial discrimination” and “long-standing
injustice.” Id. § 1.
Additionally, the Guam legislature has long defined the
term “Native Chamorro” for purposes of the Chamorro Land
Trust Commission to include “any person who became a
U.S. citizen by virtue of the authority and enactment of the
Organic Act of Guam or descendants of such person.” Guam
Pub. L. No. 15-118 (1980) (codified at 21 Guam Code Ann.
§ 75101(d)). The CLTC qualifies Native Chamorros to lease
land the United States previously seized from Guam’s
inhabitants during and after World War II and later returned
to the Guam government. After passage of the 2000
Plebiscite Law, the Guam legislature enacted a law
providing that individuals who receive a lease or were
36 DAVIS V. GUAM
preapproved for one through the CLTC are automatically
registered in the Guam Decolonization Registry, thereby
qualifying them to vote in the plebiscite. 3 Guam Code Ann.
§ 21002.1.
Several similarities between the 2000 Plebiscite Law and
its predecessors reveal that “Native Inhabitants of Guam” is
a proxy for “Chamorro,” and therefore for a racial
classification. First, the 2000 Plebiscite Law’s definition of
“Native Inhabitants of Guam” is nearly indistinguishable
from the definitions of “Chamorro” in the Registry Act, the
1997 Plebiscite Law, and the CLTC. “Native Inhabitants of
Guam” incorporates all the citizenship provisions of the
Organic Act, as does the definition of “Native Chamorro” in
the CLTC; the Registry Act and the 1997 Plebiscite Law
mirror the first two sections of those provisions. Compare
2000 Plebiscite Law § 21001(e); 21 Guam Code Ann.
§ 75101(d); Registry Act § 20001(a); 1997 Plebiscite Law
§ 2(b), with 8 U.S.C. § 1407 (1952). 15 That Guam applies
15
The Registry Act’s and the 1997 Plebiscite Law’s definition of
“Chamorro” do not incorporate the third citizenship provision of the
Organic Act, which grants citizenship to individuals born in Guam on or
after April 11, 1899. 8 U.S.C. § 1407(b) (1952). Because the INA
replaced the citizenship provisions of the Organic Act in 1952, see
Immigration and Nationality Act of 1952, Pub. L. No. 82-414,
§ 403(a)(42), 66 Stat. 163, 280, this third provision uniquely includes
only individuals who were born in Guam between 1899 and 1952 but
were not descendants of individuals residing in Guam before 1899. The
inclusion of this third provision into the definition of “Native Inhabitants
of Guam” does not meaningfully differentiate the term “Native
Inhabitants of Guam” from the term “Chamorro.” Even including the
third citizenship provision of the Organic Act, it appears that as of 1950
98.6% of people who were non-citizen nationals, and thereby likely
received citizenship pursuant to the Organic Act, were categorized as
“Chamorro.” See 1950 Census at 54-49 tbl. 38.
DAVIS V. GUAM 37
nearly identical definitions to the terms “Chamorro,” a racial
category, and “Native Inhabitants of Guam” indicates that
these terms are interchangeable. The closeness of the
association is sufficient to conclude that the term “Native
Inhabitants of Guam” is a proxy for the “Chamorro”
classification.
Second, the 2000 Plebiscite Law maintains nearly
identically the features of the facially race-based Registry
Act and the 1997 Plebiscite Law. This continuity confirms
the 2000 Plebiscite Law’s changes to the Chamorro
classification were semantic and cosmetic, not substantive. 16
The 2000 Plebiscite Law creates a “Guam
Decolonization Registry” that mirrors the earlier Registry
Act. The new registry is structured similarly to the earlier
one, including requiring an affidavit to register, compare
2000 Plebiscite Law § 21002, with Registry Act § 20002;
administering the registry through the Guam Election
Commission, compare 2000 Plebiscite Law § 21001(d), with
Registry Act § 20001(c); and criminalizing false
registration, compare 2000 Plebiscite Law § 21009, with
Registry Act § 20009.
The 2000 Plebiscite Law also amends the 1997 Plebiscite
Law to eliminate references to “Chamorro” people, but
otherwise retains the same features. See 2000 Plebiscite Law
§§ 7, 9–11. Both statutes establish non-binding elections on
16
The 2000 Plebiscite Law slightly changed the definition of
“Chamorro” in the Registry Act to include individuals born in Guam
prior to 1800 and their descendants. See 2000 Plebiscite Law § 12; supra,
n.4. However, this post-hoc revision does not change the near identical
resemblance between the definitions of “Native Inhabitants of Guam” in
the 2000 Plebiscite Law and the original definition of “Chamorro” in the
Registry Act.
38 DAVIS V. GUAM
Guam’s future political status relationship with the United
States, the results of which will be transmitted to the federal
government and to the United Nations. Compare 2000
Plebiscite Law §§ 10–11, with 1997 Plebiscite Law §§ 5, 10.
Given the similarity in the substantive provisions and in the
definitions of “Chamorro” and of “Native Inhabitants of
Guam,” the substitution of terms does not erase the 1997
Plebiscite Law’s premise for the voting restriction—to treat
the Chamorro as a “distinct people.” Rice, 528 U.S. at 515.
Finally, the timing of the 2000 Plebiscite Law’s
enactment confirms its racial basis. The 2000 Plebiscite Law
was enacted on March 24, 2000, just one month after Rice
was decided. In Rice, Hawaii had revised its definition of
“Hawaiian” from an earlier version, by replacing the word
“races” with “peoples.” Id. at 515–16. The Supreme Court
concluded based on the drafters’ own admission that “any
changes to the language were at most cosmetic.” Id. at 516.
Although we have no similar admission, the same is true
here. After Rice, Guam’s swift reenactment of essentially the
same election law—albeit with a change in terms—indicates
that the Guam legislature’s intent was to apply cosmetic
changes rather than substantively to alter the voting
restrictions for the plebiscite.
Guam’s primary argument to the contrary is that “Native
Inhabitants of Guam” is not a racial category but a political
one referring to “a colonized people with a unique political
relationship to the United States because their U.S.
citizenship was granted by the Guam Organic Act.” It
attempts to distinguish this case from Rice on the ground that
the voter qualification here is tethered not to presence in the
Territory at a particular date but to the passage of a specific
law—the Organic Act—which altered the legal status of the
group to which the ancestral inquiry is linked.
DAVIS V. GUAM 39
But indirect or tiered racial classifications, tethered to
prior, race-based legislative enactments, are subject to the
same Fifteenth Amendment proscription on race-based
voting restrictions as are explicitly racial classifications. In
Guinn, the Supreme Court invalidated an Oklahoma
constitutional amendment that established a literacy
requirement for voting eligibility but exempted the “lineal
descendant[s]” of persons who were “on January 1, 1866, or
at any time prior thereto, entitled to vote under any form of
government, or who at that time resided in some foreign
nation.” 238 U.S. at 356–7. That classification, like the one
at issue here, was facially tethered to specific laws—the
voter eligibility laws in existence in 1866 before the
Fifteenth Amendment was ratified. In that year, only eight
northern states permitted African Americans to vote. See
Benno C. Schmdit, Jr., Principle and Prejudice: The
Supreme Court and Race in the Progressive Era Part 3,
82 Colum. L. Rev. 835, 862 (1982). Guinn held the
challenged Oklahoma voting qualification incorporated—
without acknowledging their racial character—a set of
former race-based statutory restrictions. 238 U.S. at 364–65.
In essence, the Court recognized that Oklahoma was
reviving its earlier race-based voting restrictions, thereby
violating the Fifteenth Amendment.
Nor is Guam’s argument that the classification here is
political supported by the Supreme Court’s recognition that
classifications based on American Indian ancestry are
political in nature. Laws employing the American Indian
classification targeted individuals “not as a discrete racial
group, but, rather, as members of quasi-sovereign tribal
entities.” Mancari, 417 U.S. at 554; see also Rice, 528 U.S.
40 DAVIS V. GUAM
at 518–20; United States v. Antelope, 430 U.S. 641 (1977). 17
Both the Supreme Court and we have rejected the
application of Mancari for Fifteenth Amendment purposes
with respect to non-Indian indigenous groups, namely those
in Hawaii and the CNMI respectively. See Rice, 528 U.S. at518–20; Commonwealth Election Comm’n, 844 F.3d at
1094. 18 Nothing counsels a different result in this case.
Here, the parallels between the 2000 Plebiscite Law and
previously enacted statutes expressly employing racial
classifications are too glaring to brush aside. The near
identity of the definitions for “Native Inhabitants of Guam”
and “Chamorro,” the lack of other substantive changes, and
17
Although Mancari’s rationale was premised on the recognized
quasi-sovereign tribal status of Indians, “the Supreme Court has not
insisted on continuous tribal membership, or tribal membership at all, as
a justification for special treatment of Indians,” and neither has
Congress. Kamehameha Schs., 470 F.3d at 851 (Fletcher, J., concurring)
(collecting cases and statutes).
18
Because we affirm the district court on Fifteenth Amendment
grounds, we reserve judgment on whether the Mancari exception may
apply to the “Native Inhabitants of Guam” classification outside the
Fifteenth Amendment context. Rice, which rejected the application of
Mancari to Hawaiians for Fifteenth Amendment purposes, was careful
to confine its analysis to voting rights under that amendment. It stated
that “[t]he validity of the voting restriction is the only question before
us,” 528 U.S. at 521, and emphasized the unique character of voting
rights under the Fifteenth Amendment. Id. at 512, 523–24; cf.
Commonwealth Election Comm’n, 844 F.3d at 1095 (“[L]imits on who
may own land are quite different—conceptually, politically, and
legally—than limits on who may vote in elections to amend a
constitution.”); Kamehameha Schs., 470 F.3d at 853 (Fletcher, J.,
concurring) (arguing that Native Hawaiians are a political—and not
racial—classification for Fourteenth Amendment purposes because, in
part, “[u]nlike Rice, the case before us does not involve preferential
voting rights subject to challenge under the Fifteenth Amendment”).
DAVIS V. GUAM 41
the timing of the 2000 Plebiscite Law’s enactment all
indicate that the Law rests on a disguised but evident racial
classification.
****
Concluding that the 2000 Plebiscite Law employs a
proxy for race is not to equate Guam’s stated purpose of
“providing dignity in . . . allowing a starting point for a
process of self-determination” to its native inhabitants with
the racial animus motivating other laws that run afoul of the
Fifteenth Amendment, see, e.g., Gomillion, 364 U.S. at 347;
Guinn, 238 U.S. at 364–65. Our decision makes no judgment
about whether Guam’s targeted interest in the self-
determination of its indigenous people is genuine or
compelling. Rather, our obligation is to apply established
Fifteenth Amendment principles, which single out voting
restrictions based on race as impermissible whatever their
justification. 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.
IV
We hold that Guam’s limitation on the right to vote in its
political status plebiscite to “Native Inhabitants of Guam”
violates the Fifteenth Amendment and so AFFIRM the
district court’s summary judgement order.