Voting restriction on Article 12 violates US Constitution

Gov. Benigno R. Fitial has asked the CNMI Election Commission to stop the ongoing registration of Northern Marianas descent, saying that allowing only those who are considered NMI descent to vote on the fate of Article 12 is a violation of the U.S. Constitution.

In a letter to Commonwealth Elections Commission chairwoman Frances M. Sablan dated March 18, 2008, the CNMI’s chief executive said he disagrees with the new voting registration procedure that seeks to implement the provisions of Article 18 (5)(c) of the CNMI Constitution and urged the commission to re-examine its approach to this problem.

Election Commission executive director Gregorio Sablan said, though, that he would continue to conduct the voter registration unless told otherwise by the courts or the commission.

The commission is currently conducting a registration process for all Northern Marianas descent in preparation for 2011, when CNMI voters go to the polls to vote whether to repeal, keep, or amend Article 12, which limits landownership in the CNMI exclusively to NMDs.

Article 18 (5)(c) says that only NMDs can vote on this issue. Fitial is saying that this is a violation of the U.S. Constitution.

“I am persuaded that this proposed distinction between United States citizens—those swearing that they are of Northern Marianas descent and those who do not—violates the United States Constitution,” he said.

Fitial said his reasons for opposing this registration program are legal, political, and practical in nature.

Fitial, who based his decision on the legal opinion of Howard P. Willens, his special legal counsel, said that U.S. courts have emphasized on several occasions the right to vote as one of the most important rights of citizens under the U.S. Constitution, “and have invoked several constitutional provisions to prevent local governments from restricting this right in an arbitrary or discriminatory manner.”

He pointed out that the relevant provisions of the U.S. Constitution are made applicable to the Commonwealth under Section 501 of the Covenant.

“I am obligated under my oath of office—as are all CNMI officials—to uphold the provisions of the U.S. Constitution applicable to the Commonwealth. For this reason alone, I believe that the Commission’s registration program seeking to acquire information regarding the status of voters relating to their qualifications to own land under Article 12 of the CNMI Constitution is inappropriate and should be discontinued,” said Fitial in his letter to Sablan.

Willens, who analyzed Article 18 (5)(c) with the help of Professor Ronald D. Rotunda of George Mason University in Virginia, said that the Commonwealth is entitled to limit the right to own land in the CNMI to persons considered Northern Marianas descent but the voting restrictions imposed by Article 12 (5)(c) would be invalidated by the courts if it were challenged under the 14th and 15th Amendments to the U.S. Constitution.

The governor also said that the new voting registration procedure is inherently divisive and limits the Commonwealth’s sense of community and unity in dealing with the many problems it is currently facing.

“As is apparent, we are in the third year of a serious economic depression and the Legislature and my administration are doing our best to reach agreement about how we allocate limited government revenues to provide essential public services to our citizens,” he said.
Fitial said the debate on who could vote on the fate of Article 12 would divide the island community at its most vulnerable time.

The governor also pointed out that the administrative difficulties in applying this requirement as a basis for determining eligibility to vote is another reason why the commission should not proceed with the voter registration program.

“I am sure that the commission considered the potential problems that will certainly develop if this registration program continues in place. Relatively few Commonwealth voters understand the definition of Northern Marianas descent in Article 12 of the CNMI Constitution and the ease with which mistakes will be made as to which voters qualify and which do not.”

He said that even some members of the Commonwealth’s business community are not qualified to be considered NMI descent because they happened to be in Guam in 1950 and became U.S. citizens at the time, thereby disqualifying them from ever achieving the TTPI citizenship, which is an element of the definition of Northern Marianas descent in Article 12.

Fitial also pointed out that many younger voters may no longer meet the 25 percent criterion stated in Article 12 because of intermarriages over the past two generations in their families.

Ditto for many well-established members of the Chamorro and Carolinian communities, who will have difficulty, if challenged, in identifying an ancestor who was either born or domiciled in the Northern Marianas by 1950 and either was, or later became, a TTPI citizen.

Fitial told Sablan that he has asked his lawyers to provide the commission with an appropriate legal opinion setting forth reasons for concluding that Article 18 (5)(c) violates the U.S. Constitution.

“I wish to assure the commission that this administration’s lawyers will represent and defend the commission if it elects to terminate this registration program and is sued as a result.”

CEC’s Sablan that the commission is “very pleased” that the issue on the Article 18 (5)(c), or voter registration requirement, is being given the attention that that it so “urgently deserves.”

Sablan said that the CEC and previous administrations have been “wrestling” with the issue since February 2000.

“That’s eight years and three governors. But whether we like it or not, we cannot avoid what is in our Constitution unless the court tells the commission to do otherwise,” Sablan said.

According to him, “personal feelings” toward the voter registration requirement issue does not count.

“Whether I disagree with him [Fitial] or not, we do not ignore our Constitution just because we don’t like it,” Sablan said.

He added that as executive director of the commission, he only takes orders and instructions from the commission.

“We will continue to conduct voter registration as per Article 18 (5) (c) unless the commission or the court instructs me to do otherwise,” Sablan said.

Chairwoman Sablan could not be reached for comments as of press time. [B][I](With Rianne Pangelinan-Brown)[/I][/B]