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Policy: Law

Will the Ninth Circuit allow racial discrimination in voting in Guam?

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Beltway Confidential,Opinion,Michael Barone,Appeals Courts,Guam,Voter Registration,Law,Race and Diversity,Federal Courts

Should Guam residents who are not, like the majority of people there, of Chamorro descent be allowed to register to vote in a plebiscite on Guam’s relationship to the United States?

Most people’s first reaction would be yes. Guam is subject to the United States Constitution, and the 14th and 15th Amendments come down pretty hard against the idea of preventing some people to vote because of their race.

But apparently those in authority in Guam believe the right answer is no, since they prevented one Arnold Davis from registering to the vote in the plebiscite in the oddly named Guam Decolonization Registry. Drew sued, and the trial court judge ruled against him on the grounds that the referendum may never be held.

My friend Paul Mirengoff at Powerline reports that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard the appeal from that case Wednesday. He links to accounts in newspapers from Guam and the nearby Commonwealth of the Northern Marianas. This is apparently the first case the Ninth Circuit has heard in Guam since 2002; it also heard appeals in two other, more routine cases.

From these news accounts, it looks like the Ninth Circuit will reverse the trial court. The Supreme Court in Rice v. Cayetano (2000) ruled that the state of Hawaii could not restrict eligibility to vote in elections for the board of trustees of the Office of Hawaiian Affairs, a state agency, to those of Native Hawaiian descent. In that case, as in so many others in recent decades, the court reversed the Ninth Circuit by a solid 7-2 margin. Theodore Olson, later solicitor general in the George W. Bush administration, argued for the winning side; arguing for the losing side was one John G. Roberts Jr. and Clinton administration Solicitor General Seth Waxman. Hawaii claimed, as Guam does now, that descendants of the original inhabitants constituted a separate people with interests that could only be protected by barring others from voting. The Supreme Court made pretty short work of that.

By the way, Guam would apparently bar from voting for this office the island’s current representative in the House of Representatives, Madeleine Bordallo, who was born and raised in Minnesota — even though Guam’s voters have chosen her six times to represent them in Congress.

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