A May 8 decision of the Ninth Circuit Court of Appeals has given new attorney general Loretta Lynch her first public test: Will she break from Eric Holder’s policies by enforcing voting-rights law on a race-neutral basis, as Congress intended, or will she continue Holder’s non-neutral enforcement policy?
For those who don’t remember, in 2011 the Center for Individual Rights and J. Christian Adams filed a lawsuit against the U.S. territory of Guam on behalf of Arnold Davis, a retired Air Force officer. The suit alleged blatant racial discrimination by the territorial government after it had refused to allow Davis to register for a plebiscite over Guam’s future relationship with the United States because he is white. Only individuals considered “Native Inhabitants” were allowed to register to vote with the “Decolonization Registry,” a policy that excluded the majority of Guam citizens who are of Western European, American, African, Asian, and Pacific-Islander descent, since only Chamorros, the racial designation given to the natives who originally inhabited Guam, are considered “Native Inhabitants.”
Guam’s refusal to allow Davis to register based on his race seemed on its face an obvious violation of the Voting Rights Act (VRA), the Fifteenth Amendment, and the equal-protection clause of the Fourteenth Amendment. However, when Davis complained to the U.S. Justice Department, which is responsible for enforcing the VRA, the Justice Department refused to sue Guam or to intervene on Davis’s behalf. A federal district-court judge in Guam held that Davis had no standing to file a lawsuit because he had not yet suffered any injury, and that his claim was not ripe because the plebiscite had not yet been scheduled at the time.
Will she break from Eric Holder’s policies by enforcing voting-rights law on a race-neutral basis, as Congress intended, or will she continue Holder’s non-neutral enforcement policy?
Fortunately, a three-judge panel of the Ninth Circuit disagreed, holding that Davis had asserted a judicially cognizable injury, and that his claim was ripe. As the Ninth Circuit panel explained, “Davis’s allegation — that Guam law provides a benefit to a class of persons that it denies him [the right to participate in a registration process that will determine whether a plebiscite will be held] — is ‘a type of personal injury [the Supreme Court has] long recognized as judicially cognizable.’” It’s an injury that the federal judge in Guam, Frances M. Tydingco-Gatewood, would never suffer: She is Chamorro, as she proudly notes in her official biography.
The panel also ruled that Judge Tydingco-Gatewood was wrong on the ripeness issue:
The registration process is ongoing and Guam must hold the plebiscite if 70 percent of eligible Native Inhabitants register. By being excluded from the registration process, Davis claims he is unlawfully denied a right currently enjoyed by others: to help determine whether a plebiscite will be held. The ripeness question thus “coincides squarely with standing’s injury in fact prong.”
The Ninth Circuit remanded the case to the district court in Guam so it can proceed with making a substantive decision on the merits of Davis’s constitutional and statutory claims.
The Justice Department’s refusal to enforce the VRA in Guam was in keeping with its practice under Eric Holder of refusing to enforce the Voting Rights Act against racial minorities, no matter how egregious the violation. But this case is now back before Judge Tydingco-Gatewood, and we have a new attorney general.
It will be interesting to see whether Lynch instructs her office to intervene on behalf of Davis to help stop the unabashed racial discrimination being practiced by the territorial government. As Arnold Davis correctly says, the intent of this discrimination is “to empower fewer than 40 percent” of the island’s adult residents to make “a profoundly important political decision” about Guam’s future.
The passage of the Voting Rights Act was necessitated in the first place by the white officials who denied black Americans their rightful say in the political decisions affecting their lives. It prohibits all racial discrimination in voting based on race. Does Loretta Lynch really intend to condone such a blatant violation of that noble principle?
— Hans A. von Spakovsky, a former member of the Federal Election Commission, is a senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.