August 30, 2016

August 30, 2016 | Commentary on Elections, Rule of Law

Jim Crow Rears Its Ugly Head in Guam

And Loretta Lynch and the NAACP are nowhere to be found.

A group of racial activists in the Pacific are beginning the process of separating from the union one of America’s most important strategic assets in the Pacific theater. On Thursday morning, in a federal courtroom on the other side of the world, in the capital, Hagatna, the Territory of Guam will argue that it may exclude any residents of the island who are white, black, or non-Chamorro from registering to vote and from participating in a plebiscite over the future relationship of Guam to the United States.

As I explained when this case was first filed back in 2011, Guam permits only “native inhabitants” to vote. This is a bloodline qualification, the same as the odious “one drop” rule in the racial-segregation codes that were used to prohibit anyone with a “drop” of African-American blood from political participation in some parts of the United States in the 19th and early 20th centuries. The political leadership of Guam apparently sees nothing wrong with applying the same type of discriminatory rule against the residents of the island.

Guam is the most western deep-water port in the Pacific and hosts a critical U.S. naval base. The home of Andersen Air Force Base, it is also the forward tip of the spear for American airpower, serving as a critical point from which the United States can protect its interests, assist its allies, deter potential enemies, and quickly respond with overwhelming power to defeat an aggressor. The proponents of the racially exclusionary election are visceral opponents of the U.S. military presence on Guam, formerly going so far as to try to impose tolls on anyone leaving Andersen.

The Center for Individual Rights and J. Christian Adams, an attorney and former Justice Department official, challenged the racially discriminatory election in federal court. They are representing Arnold “Dave” Davis, a retired Air Force major who made his home on the beautiful tropical island and is the plaintiff in this lawsuit. Davis’s problem is that he is white and has no Chamorro blood. When he submitted his voter-registration application to the Decolonization Registry, the application was rejected because of his race. The plebiscite advocates in Guam routinely refer to him to in racially derogatory terms; Michael Bevacqua, a member of the Independence for Guam Task Force, has called him an “annoyingly retarded haole.”

Crucial to resolution of this case are the 14th and 15th Amendments to the Constitution, which guarantee equal protection to all voters and prohibit discrimination based on race or ancestry. In Oklahoma and most recently in Hawaii, in Rice v. Cayetano (2002), the Supreme Court has struck down voting laws that vest the right to vote on criteria based on ancestry or bloodline. 

In Rice, the Supreme Court said that considering ancestry “implicates the same grave concerns as a classification specifying a particular race by name.” The Court held that the 15th Amendment prohibited a provision of the Hawaiian constitution that excluded non-Hawaiian “natives” from voting for the trustees of the Office of Hawaiian Affairs, a unit of the state government. The trustees were state government officials who managed various public lands and properties. If you did not possess the favored ancestral bloodlines going back to a native who lived in Hawai in 1778, you could not vote. 

The Supreme Court struck down Hawaii’s voting restriction. The Court held that the voting laws established by Hawaii were “neither subtle nor indirect,” since they specifically granted “the vote to persons of defined ancestry and to no others.” Such “use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve.”

To base decisions on your ancestry when parceling out political power is anathema to the 15th Amendment. It is the sort of vile evil that the Voting Rights Act of 1965 rooted out. But it is alive and well on Guam and will continue unless a federal judge finally acts to stop this modern, progressive “identity politics” version of Jim Crow discrimination.

Guam is arguing that Congress allowed racial discrimination in voting when it extended a measure of self-governance to the territory 66 years ago. Fortunately for the interests of justice, Congress actually gave citizens on Guam greater protection of voting rights than most Americans enjoy. For example, Congress prohibited Guam from passing any restrictions other than the requirements that voters be citizens, residents, and “competent,” meaning not insane or lacking mental awareness. Also banned on Guam by congressional statute are racial discrimination and denial of equal protection — guarantees that, as is pointed out in the plaintiff’s briefs, are even more robust than the 14th Amendment.

Yet in the face of such blatant, unapologetic racial discrimination, the Justice Department is nowhere to be found in the Guam litigation. The NAACP is likewise absent, as well as a host of other civil-rights organizations that have spent millions of dollars making the questionable claim that requiring an ID to vote or reducing the number of days of early voting is discriminatory. Arnold Davis may be white, but the discriminatory racial classification Guam is defending is also being used to exclude any black or Asian residents of the island from registering and voting.

Not only did the Justice Department refuse to help Davis, but Eric Holder became the first attorney general ever to visit the U.S. territory, in 2012, meeting with local dignitaries and political leaders. He voiced no criticism of the discriminatory voting practices imposed by the territorial government. Adams and the Center for Individual Rights have fought this legal battle alone since 2011.

The case was initially dismissed by Chief Judge Frances Marie Tydingco-Gatewood when she held that because the plebiscite election had not yet been scheduled, Davis did not have standing to file suit. His case was supposedly not yet “ripe,” even though the government had refused to allow him to register to vote, just as local governments in the South refused to allow blacks to register to vote during the Jim Crow era.

Fortunately, the Ninth Circuit Court of Appeals recognized the error of her ruling and reversed her judgment in May 2015. The court found that Davis’s claim was ripe because he alleged that he is “currently subject to unlawful unequal treatment in the ongoing registration process.” On Thursday, after extensive briefing in the case, Judge Tydingco-Gatewood will hear oral arguments on the substantive merits of Davis’ constitutional claims against Guam. Both sides will be arguing that they should receive summary judgment.  

Once again, the Justice Department will be noticeably absent. Attorney General Loretta Lynch, who after the Ninth Circuit remanded the case had the opportunity to reverse Holder’s refusal to intervene in the case, instead continued the department’s policy of ignoring the government-sanctioned, government-initiated voting discrimination on Guam.

In her official court biography, it is noted that Tydingco-Gatewood is of Chamorro and Pohnpeian descent” and that she is “Guam’s first Chamorro woman judge.” Let’s hope she can exhibit the same courage that J. Waties Waring, a southern white judge, showed when he issued unpopular rulings against segregation and Jim Crow laws despite the criticism and threats he knew he would receive from local political leaders.

Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation. He is the coauthor, with John Fund, of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Elections, Rule of Law

This piece first appeared in National Review Online.