Memo to Guthertz: Silence is Golden

by Hans A. von Spakovsky

As previously reported, Guam is embroiled in a political dispute over whether it should remain a U.S. territory or gain independence. Anti-American “Chamorro” activists have implemented an election system that prohibits anyone except fellow Chamorros from voting in the upcoming plebiscite.

Chamorro activists aren’t just pro-independence, they are rock solid anti-American. They particularly object to the U.S. military presence of forward deployed B-52 bombers and a navy attack sub base. They are also seeking to gum up the redeployment of Marines from Japan to Guam. Their favored term for America: the “colonizer.”

Of course, not everyone on Guam shares these views. The Washington-based Center for Individual Rights (CIR) and former Justice Department election lawyer Christian Adams have brought suit challenging the Chamorro-centric election system on behalf of retired Air Force Major Dave Davis, who has been excluded from voting because of his race.

Recently, Davis was required to make “initial disclosures” of witnesses he believes have relevant evidence. A who’s who of the elite political class on Guam, Davis’s list included a cadre of anti-American activists, among them: Guam senator Judi Guthertz (D.).

Guthertz is a fierce defender of the racially discriminatory election scheme and an outspoken opponent of the American military presence on Guam. She once introduced legislation to place a toll booth outside the gates of Andersen Air Force Base to extract even more money from U.S. service personnel.

The very idea that she might have to appear before Davis’s attorneys for a deposition so incensed Guthertz, she dashed off an opinion piece attacking both Davis and CIR. In it, she writes:

I described CIR then as “narrowly focused on undoing any government remedies intended to compensate for past discrimination against minorities. And yes, that would include Chamorros and Micronesians.” My sympathy was based on the thought that the real motive for CIR paying Mr. Davis’ legal bills for his suit might be slightly less noble than presented in his columns, and the media and not exactly what he intended. Now comes Guam attorney Mun Su Park informing me and 48 other Guam citizens, including Gov. Calvo, that we must submit to depositions intended to help him build his case that the proposed political status plebiscite reflects improper or illegal racial elements discriminating against Mr. Davis, who wasn’t allowed to add his name to the Chamorro Registry. 

The senator could have used a good lawyer . . . to tell herto keep quiet when litigation is ongoing. Her commentary can only help the plaintiff.

In a case of this sort, the Voting Rights Act makes available to plaintiffs a wide array of evidence to demonstrate a hostile racial atmosphere. This includes racial appeals in campaigns, even appeals as subtle as showing Chamorro family ties on campaign posters. In the past, groups like the NAACP have used the broad protections of the Voting Rights Act to do a comprehensive examination of the political culture in lawsuits against white-dominated governments.

In Guam, where the plaintiff is white and the defendants are not, a local legislator’s bitterness toward enforcing civil rights is now on full display. Senator Guthertz’s public lament sounds like something from Mississippi officials, circa 1962.

Guam is defending the challenged law by saying race isn’t explicitly mentioned. Good luck. The Voting Rights Act is routinely used to strike down supposedly race-neutral laws, particularly when they have a sweeping prohibition on voting that clearly targets members of a particular race.

Thankfully, the government of Guam is up against some of the nation’s top civil-rights litigators in this case. Unless Guam settles in what appears to be a straightforward and easily proved case of racial discrimination, the Chamorro activists may learn the hard way what a previous generation of defenders of Jim Crow discrimination learned: Federal voting rights are not something to be trifled with.

— Hans von Spakovsky is a senior fellow in The Heritage Foundation’s Center for Legal and Judicial Studies.

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