Arnold Davis v. Guam

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.

9

Examples 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. at

518–20; 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.