John Davis, Jr. v. Commonwealth Election Commissi, et al

Filing

FILED OPINION (SIDNEY R. THOMAS, CONSUELO M. CALLAHAN and MARY H. MURGUIA) AFFIRMED. Judge: SRT Authoring, FILED AND ENTERED JUDGMENT. [10246251]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN H. DAVIS, JR.,
Plaintiff-Appellee,
v.
COMMONWEALTH ELECTION
COMMISSION; FRANCES M. SABLAN,
Chairperson of Commonwealth
Election Commission; ROBERT A.
GUERRERO, Executive Director of
Commonwealth Election
Commission; ELOY S. INOS,
Governor of the Commonwealth of
the Northern Mariana Islands,
Defendants-Appellants.

No. 14-16090
D.C. No.
1:14-cv-00002

OPINION

Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief Judge, Presiding
Argued and Submitted June 21, 2016
San Francisco, California
Filed December 27, 2016
Before: Sidney R. Thomas, Chief Judge, and Consuelo M.
Callahan and Mary H. Murguia, Circuit Judges.
Opinion by Chief Judge Thomas

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DAVIS V. COMMONWEALTH ELECTION COMM’N
SUMMARY*

Civil Rights
The panel affirmed the district court’s order on summary
judgment granting declaratory and injunctive relief to
plaintiff, who alleged that Article XVIII, section 5(c) of the
Commonwealth of Northern Mariana Islands Constitution –
which restricts voting in certain elections to individuals of
Northern Mariana Islands descent – unconstitutionally limits
voting on the basis of race.
The panel noted that the voting restriction in Article
XVIII, section 5(c) would divide the citizenry of the
Commonwealth between Northern Mariana Descent and nonNorthern Mariana Descent when voting on amendments to a
property restriction that affects everyone. The panel
determined that the Fifteenth Amendment aims to prevent
precisely this sort of division in voting. The panel held that
the voter restriction in Article XVIII, section 5(c) is racebased and therefore violates the Fifteenth Amendment.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Charles Edmond Brasington (argued), Assistant Attorney
General, Office of the Attorney General, Saipan,
Commonwealth of the Northern Mariana Islands, for
Defendants-Appellants.
Jeanne H. Rayphand (argued), Saipan, Commonwealth of the
Northern Mariana Islands, for Plaintiff-Appellee.
Joseph Horey (argued), O’Connor Berman Dotts & Banes,
Saipan, Commonwealth of the Northern Mariana Islands, for
Amicus Curiae Northern Marianas Descent Corporation.

OPINION
THOMAS, Chief Circuit Judge:
The Commonwealth of the Northern Mariana Islands
restricts voting in certain elections to individuals of
“Northern Marianas descent.” This appeal presents the
question of whether this restriction is race-based and violates
the Fifteenth Amendment of the Constitution of the United
States. We conclude that it does, and we affirm the judgment
of the district court.
I
Under the terms of a Covenant agreement entered in
1975, the Northern Mariana Islands (“CNMI” or
“Commonwealth”) was established as a “self-governing
commonwealth . . . in political union with and under the
sovereignty of the United States of America.” Covenant to

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Establish a Commonwealth of the Northern Mariana Islands
in Political Union with the United States (“Covenant”)
§ 101.1 In ten articles, the Covenant “detail[s] the political
relationship between the United States and the CNMI.” N.
Mariana Islands v. United States, 399 F.3d 1057, 1059 (9th
Cir. 2005). Article I provides that the “Covenant . . . together
with those provisions of the Constitution, treaties and laws of
the United States applicable to the Northern Mariana Islands,
will be the supreme law of the Northern Mariana Islands.”
Covenant § 102. The Fifteenth Amendment to the
Constitution of the United States, which prohibits race-based
voting deprivations, is one of those provisions “applicable
within the Northern Mariana Islands as if the Northern
Mariana Islands were one of the several states.” Covenant
§ 501(a) (listing the Fifteenth Amendment).
The CNMI Constitution establishes eligibility
qualifications for voting in the Commonwealth, a right which
includes the ability to participate in ratifying proposed
constitutional amendments. See Covenant § 201 (“The
people of the Northern Mariana Islands will formulate and
approve a Constitution and may amend their Constitution
pursuant to the procedures provided therein.”); CNMI Const.
art. VII, § 1, art. XVIII, § 5. Article VII defines the term
voters and Article XVIII governs the amendment process. In

1
For additional background on the historical relationship between the
CNMI and the United States, see N. Mariana Islands v. United States,
399 F.3d 1057, 1059 (9th Cir. 2005); Magana v. Com. of the N. Mariana
Islands, 107 F.3d 1436, 1439 (9th Cir. 1997), as amended (May 1, 1997);
Wabol v. Villacrusis, 958 F.2d 1450, 1458 (9th Cir. 1990).

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general, proposed amendments must be submitted to voters,2
“for ratification at the next regular general election or at a
special election established by law.” CNMI Const. art.
XVIII, § 5(a). In 1999, however, an amendment to Article
XVIII, section 5 specifically redefined the term “voters”
when the proposed amendment intends to alter Article XII,
which governs restrictions on the alienation of land in the
Commonwealth. CNMI Const. art. XVIII, § 5(c); see Pub. L.
No. 17–40, § 1.
This new text—codified as Article XVIII, section 5(c)—
provided:
In the case of a proposed amendment to
Article XII of this Constitution, the word
“voters” as used in subsection 5(a) above shall
be limited to eligible voters under Article VII
who are also persons of Northern Marianas
descent as described in Article XII, Section 4,
and the term “votes cast” as used in
subsection 5(b) shall mean the votes cast by
such voters.

2

Generally, a qualified voter is one
who, on the date of the election, is eighteen years of age
or older, is domiciled in the Commonwealth, is a
resident of the Commonwealth and has resided in the
Commonwealth for a period of time provided by law,
is not serving a sentence for a felony, has not been
found by a court to be of unsound mind, and is either a
citizen or national of the United States.

CNMI Const. art. VII, § 1.

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Article XII restricts the “acquisition of permanent and longterm interests in real property within the Commonwealth . . .
to persons of Northern Marianas descent.”3 As defined in
Article XII, section 4, a “person of Northern Marianas
descent” (“NMD”) is
a person who is a citizen or national of the
United States and who is of at least onequarter Northern Marianas Chamorro or
Northern Marianas Carolinian blood or a
combination thereof or an adopted child of a
person of Northern Marianas descent if
adopted while under the age of eighteen years.
For purposes of determining Northern
Marianas descent, a person shall be
considered to be a full-blooded Northern
Marianas Chamorro or Northern Marianas
Carolinian if that person was born or
domiciled in the Northern Mariana Islands by
1950 and was a citizen of the Trust Territory
of the Pacific Islands before the termination of
the Trusteeship with respect to the
Commonwealth.
There is no dispute that Article XVIII, section 5(c) denies
otherwise eligible non-NMD voters the right to vote on any
constitutional amendment affecting Article XII land
alienation restrictions.

3

This language implements Covenant section 805, which permits the
Commonwealth to limit fee simple land ownership to “persons of
Northern Marianas descent.”

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To enforce section 5(c), the Commonwealth legislature
passed House Bill 17–57, which was signed into law on April
21, 2011. The new Public Law No. 17–40 established a
Northern Marianas Descent Registry (“NMDR”) within the
Commonwealth Election Commission (“Commission”) and
mandated the production of an Official Northern Marianas
Descent Identification Card to “be issued only to persons who
are qualified pursuant to Article XII, § 4 of the Northern
Mariana Islands Constitution.” Pub. L. No. 17–40 § 2. No
one could vote in an Article XII election without this
identification card. Id. § 2(c)(4).
Plaintiff John Davis is a qualified voter in the
Commonwealth under Article VII, section 1, but he does not
meet the definition of NMD in Article XII, section 4. Davis
brought suit against the Commission, its chairperson and
executive director, and the Governor of the Commonwealth
seeking declaratory and injunctive relief under the Fourteenth
and Fifteenth Amendments.4 He alleges that Article XVIII,

4

Davis was not required to use the “statutory vehicle” of 42 U.S.C.
§ 1983 to bring his Fifteenth Amendment claim seeking declaratory and
injunctive relief. Allen v. State Bd. of Elections, 393 U.S. 544, 556 n.21
(1969) (“Of course the private litigant could always bring suit under the
Fifteenth Amendment.”); Terry v. Adams, 345 U.S. 461, 490 (1953)
(noting that the Fifteenth Amendment is “self-executing”); see Armstrong
v. Exceptional Child Care Center, Inc., 135 S. Ct. 1378, 1384 (2015)
(“The ability to sue to enjoin unconstitutional actions by state and federal
officers is the creation of courts of equity, and reflects a long history of
judicial review of illegal executive action, tracing back to England.”). The
Commission was a proper party for Davis’s action because it does not
enjoy Eleventh Amendment immunity. See 13 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3524.2 (3d ed. 2008)
(noting that subject matter jurisdiction for an Ex Parte Young action
obtains when the entity does not enjoy Eleventh Amendment immunity).
Because Davis’s Fifteenth Amendment claim is dispositive in this case,

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DAVIS V. COMMONWEALTH ELECTION COMM’N

section 5(c) and Public Law 17–40 unconstitutionally limit
voting on the basis of race. He brought four additional
claims: (1) a claim under § 1(a) of the Voting Rights Act,
52 U.S.C. § 10101 et seq., (2) a claim under § 1(a)(2) of the
Voting Rights Act, (3) a taxpayer action under the
Commonwealth Constitution, and (4) a claim under 42 U.S.C.
§ 1983 against the senior officers of the Commission.
Davis asked the court to enjoin enforcement of Article
XVIII, section 5(c) and its implementing statute so that he
could participate in a November 2014 special election to
consider a proposed change to the definition of NMD in
Article XII. On cross motions for summary judgment, the
district court granted Davis declaratory and injunctive relief
and required that non-NMDs be permitted to vote in the
November 2014 special election. The district court also
dismissed the Governor as a party and dismissed Davis’s
Voting Rights Act § 1(a)(2) and taxpayer claims.
This timely appeal followed. During its pendency, the
Commonwealth sought to enjoin counting the ballots cast in
the November 2014 special election. We denied the request
pending presentation of the motion to the district court. The
district court did not grant the injunction.
The election was held on November 4, 2014. With both
NMDs and non-NMDs eligible to vote, a majority of
Commonwealth voters ratified Legislative Initiative 18-1.
Legislative Initiative 18-1 amended the definition of NMD in
Article XII, section 4 by altering the required amount of
“Northern Marianas Chamorro or Northern Marianas
we do not reach whether he was required to use 42 U.S.C. § 1983 to assert
his Fourteenth Amendment claims.

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Carolinian blood” to qualify as an NMD from “one quarter”
to “some.” It also removed NMD status from adopted
children who would not otherwise qualify as NMDs, and it
established a court procedure for people with less than “one
quarter Northern Marianas Chamorro or Northern Marianas
Carolinian blood” to attain legal NMD status.
We review a district court’s decision on cross motions for
summary judgment de novo. Guatay Christian Fellowship v.
Cty. of San Diego, 670 F.3d 957, 970 (9th Cir. 2011).
II
Article XVIII, section 5(c) relies on ancestral distinctions
to limit voting in a territory-wide election in the
Commonwealth.
It therefore violates the Fifteenth
Amendment of the Constitution of the United States. The
restriction is invalid and may not be enforced. Our analysis
is controlled by the Supreme Court’s decision in Rice v.
Cayetano, 528 U.S. 495 (2000).
A
The Fifteenth Amendment establishes that “[t]he 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.” As noted,
there is no doubt that the Fifteenth Amendment applies in the
Commonwealth. Covenant § 501(a) (enumerating the
Fifteenth Amendment among the Constitutional provisions
“applicable within the Northern Mariana Islands as if the
Northern Mariana Islands were one of the several states.”);
see id. at § 102 (“[T]he Constitution, treaties and laws of the

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United States applicable to the Northern Mariana Islands, will
be the supreme law of the Northern Mariana Islands”).
Under the Fifteenth Amendment, “[a]ncestry can be a
proxy for race.” Rice, 528 U.S. at 514. This is because
“[a]ncestral tracing . . . 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. Thus, an ancestry-based “electoral
restriction [may] enact[] a race-based voting qualification”
and contravene the Fifteenth Amendment. Id.
Article XVIII, section 5(c) of the CNMI Constitution
restricts who is eligible to vote on amendments to the
Commonwealth’s land ownership restriction to “persons of
Northern Marianas descent as described in Article XII,
Section 4.” There is no dispute that this definition of NMD
is primarily ancestral. This case requires us to decide
whether section 4’s ancestral distinction is a proxy for race.
We have answered this question previously, in the context
of upholding the constitutionality of section 805 of the
Covenant and its implementation in Article XII, section 4.
Wabol, 958 F.2d at 1451. There, we observed that the
definition of “NMD” in Article XII, section 4 is a “race-based
restriction[].” Id. The facts of this case do not persuade us to
abandon our previous view: Article XII, section 4 is a “racebased” definition.
In Rice, the Supreme Court addressed an ancestral voting
restriction in elections for the trustees of a state agency that
administered programs to benefit native Hawaiians. 528 U.S.
at 498–99. The Hawaii Constitution limited voting for the
trustees to “qualified voters who are Hawaiians, as provided

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by law.” Haw. Const. art. XII, § 5; accord Rice, 528 U.S. at
509. The statute at issue in Rice defined Hawaiian 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. The same statute
also defined “native Hawaiian” as follows:
‘Native Hawaiian’ means any descendant of
not less than one-half part of the races
inhabiting the Hawaiian Islands previous to
1778, as defined by the Hawaiian Homes
Commission Act, 1920, as amended; provided
that the term identically refers to the
descendants of such blood quantum of such
aboriginal peoples which exercised
sovereignty and subsisted in the Hawaiian
Islands in 1778 and which peoples thereafter
continued to reside in Hawaii.
Id. at 510.
Hawaii defended the statute against a Fifteenth
Amendment challenge on the ground that it was “ancestral,”
rather than racial. The Supreme Court rejected this
distinction, noting that “[t]he Fifteenth Amendment was quite
sufficient to invalidate a scheme which did not mention race
but instead used ancestry in an attempt to confine and restrict
the voting franchise.” Rice, 528 U.S. at 513 (citing Guinn v.
United States, 238 U.S. 347 (1915)). “Ancestry can be a
proxy for race,” the Court held. Rice, 528 U.S. at 514. “It is
that proxy here.” Id. The voting restriction was invalidated.

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Just as the definitions of Hawaiian and native Hawaiian
in the Rice statute referred to specific ethnic or aboriginal
groups, the definition of NMD in Article XII, section 4, ties
voter eligibility to descent from an ethnic group. Id. at
509–10; Davis v. Commonwealth Election Comm’n, No. 114-CV-00002, 2014 WL 2111065, at *15 (D. N. Mar. I. May
20, 2014) (“It was the drafters of the Commonwealth
Constitution who chose to tie NMD status to a blood
relationship to the two ethnicities.”). Similarly, the Hawaii
Constitution referenced blood quantum to determine descent,
while Article XII, section 4 of the CNMI Constitution refers
to “some degree of Northern Marianas Chamorro or Northern
Marianas Carolinian blood” to prove NMD status. The
Commonwealth’s definition of NMD does not use the word
race, but Public Law 17–40, the implementing statute, does.
P.L. 17–40 § 2(c)(5) (requiring public records identifying a
voter applicant’s “nationality and race” to determine NMD
status). Substituting “peoples” for “race” did not make the
ancestral voting restriction in Rice constitutional under the
Fifteenth Amendment. See 528 U.S. at 516. Neither can it
here. Article XII, section 4 of the Commonwealth
Constitution contains a race-based definition of NMD. By
restricting voting on the basis of this definition, Article
XVIII, section 5(c) enacts a race-based restriction on voting.
Article XVIII, section 5(c) thus violates the Fifteenth
Amendment. The district court was correct to enjoin its
enforcement.
B
Contrary to the assertions of the Commonwealth, this case
cannot be distinguished from Rice.

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First, the Commonwealth argues that the definition of a
person of Northern Marianas descent is not race-based
because it relies on “race-neutral criteria.” To qualify as a
“full blooded” NMD under Article XII, section 4, one must:
(1) have been “born or domiciled in the Northern Mariana
Islands by 1950”; and (2) have been “a citizen of the Trust
Territory of the Pacific Islands before the termination of the
Trusteeship with respect to the Commonwealth.” CNMI
Const. art. XII, § 4. While there is historical evidence that
some persons who were not of Chamorro or Carolinian
ancestry lived on the islands in 1950, Rice forecloses this
argument. The Fifteenth Amendment will not tolerate a voter
restriction “which singles out ‘identifiable classes of persons
. . . solely because of their ancestry or ethnic characteristics.’”
Rice, 528 U.S. at 515 (quoting St. Francis Coll. v. AlKhazraji, 481 U.S. 604, 613 (1987)). Tethering NMD status
to an ancestor’s residence in the islands in 1950 also does not
distinguish this case from Rice because the stated intent of the
provision is to make ethnic distinctions. Rice rejected the
argument that because classification was “based simply on
the date of an ancestor’s residence in Hawaii,” it did not
violate the Fifteenth Amendment. Id. at 516. The Court held
that this was “insufficient to prove the classification is
nonracial in purpose and operation.” Id. Here, as in Rice,
that “argument is undermined by [the restriction’s] express
racial purpose and by its actual effects.” Id. at 517.
References to the Chamorro and Carolinian peoples are
unambiguous and sit at the heart of the provision. Thus, the
date’s inclusion in the NMD definition does not lessen its
racial intent or effect or otherwise render it “race-neutral.”
Finally, the Commonwealth contends that section 4’s
adoption provision renders the definition race-neutral. That
adopted children might attain NMD status does not make the
core restriction any less about ancestry. An overtly race-

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based voting restriction would never survive Fifteenth
Amendment scrutiny simply by allowing adopted children of
eligible voters a means of becoming members of the votingeligible race. The nature of the restriction remains identical:
voters are made eligible by their race affiliation. What would
there persist as a racial restriction in this case persists as an
ancestral restriction. Thus, notwithstanding the adoption
provision, Article XII, section 4 is about ancestry.
Second, the Court in Rice rejected the claim that
“Hawaiian” and “native Hawaiian” are political
classifications, like membership in a federally recognized
American Indian Tribe. The Supreme Court has held that
membership in a federally recognized American Indian tribe
is a political—not racial—classification. Rice, 528 U.S. at
519–20 (describing the holding in Morton v. Mancari,
417 U.S. 535 (1974)). This is because recognized American
Indian tribes are “quasi-sovereign” entities with wide latitude
to organize their internal affairs. Id. at 520. The Rice Court
held that the people of Hawaiian and Native Hawaiian
descent were not a quasi-sovereign group distinct from the
whole citizenry of the state and could not restrict voter
eligibility in a statewide election only to themselves. Rice,
528 U.S. at 518. Unlike a tribal election affecting internal
affairs of a quasi-sovereign entity, the election in question
affected the affairs of the State of Hawaii. The same
principles apply with greater force in this case. Elections in
which only NMDs may vote affect the affairs of the entire
Commonwealth, “not of a separate quasi sovereign.” Id. at
522. The Commonwealth is subject to the sovereignty of the
United States. Covenant § 101; see also N. Mariana Islands,
399 F.3d at 1062. Given that persons of Northern Marianas
descent have not been recognized as having a political
identification that is “quasi-sovereign” or otherwise distinct

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from the Commonwealth citizenry as a whole, cases applying
to recognized American Indian tribes do not apply.
Third, Rice also bars the argument that constitutional
scrutiny does not obtain because NMDs have a greater or
more specialized interest in Article XII’s land alienation
restrictions. The Rice Court rejected Hawaii’s defense that
the voting restriction “does no more than ensure an alignment
of interests between the fiduciaries and beneficiaries of a
trust.” 528 U.S. at 523. That position, the Court held,
rests, in the end, on the demeaning premise
that citizens of a particular race are somehow
more qualified than others to vote on certain
matters. . . . Under the Fifteenth Amendment
voters are treated not as members of a distinct
race but as members of the whole citizenry.
Id. The voting restriction in Article XVIII, section 5(c)
would divide the citizenry of the Commonwealth between
NMDs and non-NMDs when voting on amendments to a
property restriction that affects everyone. The Fifteenth
Amendment aims to prevent precisely this sort of division in
voting.5

5
We do not reach the Commonwealth’s argument that a lack of
discriminatory intent should save the restriction.
We analyze
discriminatory intent when a restriction is race-neutral on its face; the
restriction here is not. See City of Mobile, Ala. v. Bolden, 446 U.S. 55, 62
(1980).

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C

We also reject the remaining arguments for the voter
restriction advanced by amici. First, the voter restriction at
issue here is not an implementation of section 805 of the
Covenant. We upheld the constitutionality of section 805’s
land ownership restriction in Wabol. 958 F.2d at 1459–60
(United States may limit the application of federal law to
Covenant section 805 and its implementing provision,
Commonwealth Constitution Article XII). Article XII
implements section 805, and thus it, too, was constitutional
under Wabol. But limits on who may own land are quite
different—conceptually, politically, and legally—than limits
on who may vote in elections to amend a constitution.
Second, the Insular Cases doctrine does not apply. The
Insular Cases held that United States Constitution applies in
full to “incorporated” territories, but that “[e]lsewhere, absent
congressional extension, only ‘fundamental’ constitutional
rights apply in the territory.” Wabol, 958 F.2d at 1459; see
generally Boumediene v. Bush, 553 U.S. 723, 756–57 (2008)
(discussing Insular Cases doctrine). But the Covenant makes
the Fifteenth Amendment fully applicable in the
Commonwealth. Covenant § 501. Thus, the application of
the Fifteenth Amendment is not selective or in any way
limited by the Commonwealth’s status as an unincorporated
territory.
Third, the Commonwealth cannot limit or modify the
United States Constitution by adopting inconsistent
provisions in its own constitution. Nor would such a
modification be consistent with the relationship between the
United States Constitution and the Commonwealth
Constitution as set forth in the Covenant.

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In sum, our observation in Wabol that Article XII, section
4 makes “race-based” distinctions remains true in the voting
context. Because this means that Article XVIII, section
5(c)’s voting restriction relies on race-based distinctions, it
violates the Fifteenth Amendment. The district court was
correct to grant declaratory and injunctive relief in Davis’s
favor.
III
The voter restriction in Article XVIII, section 5(c) is racebased. It therefore violates the Fifteenth Amendment.
Because the Fifteenth Amendment controls, we need
not—and do not—reach arguments raised by the parties
around the Fourteenth Amendment, the Voting Rights Act,
and claims brought under 42 U.S.C. § 1983. We affirm the
judgment of the district court.
AFFIRMED.