Davis v. Commonwealth Election Commission

          Argued and Submitted June 21, 2016 San Francisco, California

         Appeal 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.

          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.

          Before: Sidney R. Thomas, Chief Judge, and Consuelo M. Callahan and Mary H. Murguia, Circuit Judges.

         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.

          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 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 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.

         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 ...