The following is a guest post from Travis Crum:
Today, the Supreme Court denied cert in Guam v. Davis. The question presented was whether the Fifteenth Amendment permits Guam to limit the right to vote in a plebiscite to “native inhabitants of Guam.” The Ninth Circuit invalidated this suffrage restriction on Fifteenth Amendment grounds. Although Davis is a rare case raising a Fifteenth Amendment claim, the Court properly denied cert because the decision below was correctly decided and in accordance with Supreme Court precedent. In this post, I’ll unpack the Davis decision and explain its relevance to Fifteenth Amendment jurisprudence.
The Davis litigation arose out of Guam’s long-running attempt to hold a political-status plebiscite, which will ask voters to choose between independence, free association with the United States, and statehood. The plebiscite has not yet been scheduled, and its results are not binding. However, Guam’s Commission on Decolonization must transmit the result to the President, Congress, and the United Nations.
Most importantly for present purposes, Guam sought to limit the right to vote in the plebiscite to “native inhabitants of Guam.” Known as Chamorros, “native inhabitants of Guam” are statutorily defined as “all inhabitants of Guam in 1898 and their descendants who have taken no affirmative steps to preserve or acquire foreign nationality.” The 1898 date is critical because it coincides with the end of the Spanish-American War and Spain’s cession of Guam to the United States. According to the 2010 Census, Guam is racially and ethnically diverse: 37.3% of Guamanians are Chamorro, 26.3% are Filipino, 9.4% are mixed race, 7.1% are white, 7% are Chuukese, and the remaining 12.9% are non-Filipino Asian or Pacific Islander. Thus, a minority of Guamanians would be eligible to vote in the plebiscite.
Congress has extended the Fifteenth Amendment’s protections to Guam via statute, so there is no dispute about the Amendment’s applicability to the territory. Rather, the central questions in Davis concern whether the Fifteenth Amendment applies to a non-binding plebiscite and whether Guam’s limitation of the right to vote to “native inhabitants of Guam” is a racial classification.
In a unanimous opinion by Judge Marsha Berzon, the Ninth Circuit struck down the law on Fifteenth Amendment grounds. Here are three important take-aways from Davis.
First, the Fifteenth Amendment’s protection of the “right to vote” extends broadly to referenda, not just elections for political office. Relying on the White Primary cases, the Ninth Circuit held that the Fifteenth Amendment encompasses “any government-held election in which the results commit a government to a particular course of action.” Even though the results of the plebiscite were not binding, the Ninth Circuit concluded that the transmission of those results to the federal government and the UN satisfied this standard.
Second, Davis showcases that the Fifteenth Amendment embraces a rainbow electorate. Although its primary purpose was to enfranchise black men nationwide and to empower Congress to protect the right to vote free of racial discrimination, the Fifteenth Amendment’s plain language protects all races. Guam’s restriction of the franchise to a minority of Guamanians runs afoul of the Fifteenth Amendment.
On this point, Davis is a descendant of Rice v. Cayetano, a 2000 Supreme Court decision striking down a provision of the Hawaii Constitution that restricted the right to vote for trustees of the Office of Hawaiian Affairs to “Hawaiians.” Similar to the Guam statute, the Hawaii Constitution defined “Hawaiians” as “those persons who are descendants of people inhabiting the Hawaiian Islands in 1778,” the year that Captain Cook landed in Hawaii. As I have detailed elsewhere, the Rice Court concluded that the Hawaii Constitution’s use of ancestry was a proxy for race and was therefore forbidden under the Fifteenth Amendment as an “explicit, race-based voting qualification.” Davis is yet another example of the Fifteenth Amendment’s protections extending to classifications that closely align with “race or color,” such as language minority status.
Third, and once again building off Rice, the Ninth Circuit declined to apply strict scrutiny and simply invalidated the suffrage restriction after it determined that the law was an explicit racial classification. In other words, a facially discriminatory law is irrefutably invalid under the Fifteenth Amendment. This is a subtle but important distinction from Fourteenth Amendment jurisprudence, which applies strict scrutiny to explicit racial classifications like affirmative action programs. This approach also diverges from how the Shaw line of cases treats race-based redistricting, where strict scrutiny is triggered not when race is used as part of the redistricting process but only when race subordinates traditional redistricting principles.
Even though the Court appropriately denied cert in Davis, another Fifteenth Amendment case is on the horizon. Last week, Arizona filed a cert petition seeking review of an en banc Ninth Circuit decision invalidating its out-of-precinct voting rules and ballot-collection laws on statutory and constitutional grounds. I’ve previously posted on this blog about the Ninth Circuit’s holding as to the Fifteenth Amendment and its potential to subject Arizona to bail-in under Section 3(c) of the Voting Rights Act. Arizona’s cert petition also raises questions concerning Section 2 of the VRA’s application to vote-denial claims. In order to reverse the Ninth Circuit’s decision, the Court would need to grant cert on both the statutory and constitutional questions. The Fifteenth Amendment may be heading to the Supreme Court after all.