John H. Davis, Jr., Plaintiff-Appellee,
Commonwealth Election Commission; Frances M. Sablan, Chairperson of Commonwealth Election Commission; Robert A. Guerrero, Executive Director of Commonwealth Election Commission; Eloy S. Inos, Governor of the Commonwealth of the Northern Mariana Islands, Defendants-Appellants.
and Submitted June 21, 2016 San Francisco, California
from the United States District Court for the District of the
Northern Mariana Islands, No. 1:14-cv-00002 Ramona V.
Manglona, Chief Judge, Presiding
Charles Edmond Brasington (argued), Assistant Attorney
General, Office of the Attorney General, Saipan, Commonwealth
of the Northern Mariana Islands, for Defendants-Appellants.
H. Rayphand (argued), Saipan, Commonwealth of the Northern
Mariana Islands, for Plaintiff-Appellee.
Horey (argued), O'Connor Berman Dotts & Banes,
Saipan, Commonwealth of the Northern Mariana Islands, for
Amicus Curiae Northern Marianas Descent Corporation.
Before: Sidney R. Thomas, Chief Judge, and Consuelo M.
Callahan and Mary H. Murguia, Circuit Judges.
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.
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.
THOMAS, Chief Circuit Judge:
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
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 Establish a Commonwealth of the
Northern Mariana Islands in Political Union with the United
States ("Covenant") § 101. 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
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 general, proposed amendments must be
submitted to voters, "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.
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.
XII restricts the "acquisition of permanent and
long-term interests in real property within the Commonwealth
. . . to persons of Northern Marianas
descent." As defined in Article XII, section 4, a
"person of Northern Marianas descent"
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