John Davis, Jr. v. Commonwealth Election Comm'n

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN H. DAVIS, JR., No. 14-16090

Plaintiff-Appellee,

D.C. No.

v. 1:14-cv-00002

COMMONWEALTH ELECTION

COMMISSION; FRANCES M. SABLAN, OPINION

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.

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

2 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 non-

Northern 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 race-

based 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.

DAVIS V. COMMONWEALTH ELECTION COMM’N 3

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

4 DAVIS V. COMMONWEALTH ELECTION COMM’N

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).

DAVIS V. COMMONWEALTH ELECTION COMM’N 5

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.

6 DAVIS V. COMMONWEALTH ELECTION COMM’N

Article XII restricts the “acquisition of permanent and long-

term 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 one-

quarter 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.”

DAVIS V. COMMONWEALTH ELECTION COMM’N 7

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,

8 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.

DAVIS V. COMMONWEALTH ELECTION COMM’N 9

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

10 DAVIS V. COMMONWEALTH ELECTION COMM’N

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 “race-

based” 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

DAVIS V. COMMONWEALTH ELECTION COMM’N 11

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.

12 DAVIS V. COMMONWEALTH ELECTION COMM’N

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. 1-

14-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.

DAVIS V. COMMONWEALTH ELECTION COMM’N 13

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. Al-

Khazraji, 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-

14 DAVIS V. COMMONWEALTH ELECTION COMM’N

based voting restriction would never survive Fifteenth

Amendment scrutiny simply by allowing adopted children of

eligible voters a means of becoming members of the voting-

eligible 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

DAVIS V. COMMONWEALTH ELECTION COMM’N 15

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).

16 DAVIS V. COMMONWEALTH ELECTION COMM’N

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.

DAVIS V. COMMONWEALTH ELECTION COMM’N 17

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 race-

based. 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.