Politics & Policy

Guam Has a Racist Voting Law. The Justice Department Is Finally Helping to Fight It.

(Erik De Castro/Reuters)
It took Jeff Sessions to make the department fulfill its duty.

It looks like Arnold Davis is finally getting some justice.

I have written numerous updates about the voting-rights lawsuit that Davis, a retired Air Force officer, filed back in 2011 against the territory of Guam (see here, here, here, and here). Guam refused to allow Davis, a long-time resident of Guam, to register to vote for a plebiscite on the future of the territory because he is white and not Chamorro, the racial designation given to the natives who originally inhabited Guam.

Through eight long years of litigation, Davis has been represented by J. Christian Adams and the Center for Individual Rights. The Eric Holder/Loretta Lynch Justice Department refused to represent Davis or otherwise assist with the lawsuit. Holder even made a ceremonial visit to Guam in 2012, one in which he voiced no criticism whatsoever of the territorial government, or even of the racist attacks that Guam’s community leaders and government officials have launched against Davis.

Finally, in March of this year, a federal judge in Guam ruled in favor of Davis and issued a permanent injunction against the territory, barring it from enforcing its discriminatory registration law. Judge Frances Tydingco-Gatewood held that limiting voter registration to so-called Native Inhabitants of the island violated both the 14th and 15th Amendments. The Constitution does not allow the government “to exclude otherwise qualified voters in participating in an election where public issues are decided simply because those otherwise qualified voters do not have the correct ancestry or bloodline.”

After Guam lost in March, it appealed the decision to the Ninth Circuit Court of Appeals. On November 28, after eight years of studied indifference, the U.S. Justice Department under Attorney General Jeff Sessions finally did the right thing: It filed an amicus brief in the Ninth Circuit supporting Arnold Davis.

DOJ’s brief, which was filed by John Gore, the acting assistant attorney general of the Civil Rights Division, argues that “Guam’s plebiscite law intentionally discriminates based on race.” It directly violates Supreme Court precedent set in Rice v. Cayetano, a 2000 decision in which the Court threw out a similar Hawaii law. DOJ points out that the Fourteenth and Fifteenth Amendments both apply to Guam; the fact that it is a territory does not deprive its residents of those constitutional protections. The brief asks the Ninth Circuit to uphold the district court’s decision.

The Obama administration refused to enforce federal law barring racial discrimination in voting, housing, employment, and education on a race-neutral basis.

This follows on a lawsuit filed in September by the Civil Rights Division against the government of Guam and its Chamorro Land Trust Commission for violations of the Fair Housing Act in discriminating against non-Chamorros. The government and its land trust owns about 15 percent of the land on the island. It leases one-acre residential tracts at a cost of $1 per year for 99 years and also provides below-market-rate loans and numerous housing-related benefits. However, not all residents of the island are eligible – only Chamorros. So if Arnold Davis wanted such a lease, he would not be eligible for one, just as Guam told him he couldn’t vote.

As the saying goes in Washington, “personnel is policy,” and that is certainly true in both of these cases. The Obama administration refused to enforce federal law barring racial discrimination in voting, housing, employment, and education on a race-neutral basis. The Holder/Lynch Justice Department didn’t care if you were being discriminated against unless you were a member of one of its favored groups, a distinction that does not exist in our anti-discrimination laws. The Equal Protection Clause of the 14th Amendment, as well as federal statutes such as the Voting Rights Act and the Fair Housing Act, protect all Americans from racial discrimination.

It took a Jeff Sessions Justice Department to finally recognize that.

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