Judge: Non-NMD voters can vote on Article 12 initiative

In a landmark decision, U.S. District Court for the NMI Chief Judge Ramona V. Manglona ruled yesterday that qualified voters who are not of Northern Marianas descents must have the opportunity to vote on Article 12 initiative and any other initiative to amend Article 12.

In a 51-page decision, Manglona said that Northern Marianas descent, as defined in Section 4 of Article 12 of the Commonwealth Constitution, is a racial classification, and under federal law it may not serve as the basis for preventing otherwise qualified voters from voting on proposed amendments to Article 12.

“Even if Northern Marianas descent were not a racial classification, it would be unconstitutional to deny non-NMDs the right to vote on Article 12 initiatives because the restriction is not narrowly tailored to achieve a compelling state purpose,” Manglona said.

The judge issued the ruling in favor of John H. Davis Jr., a registered voter in the CNMI who, through counsel Jeanne H. Rayphand, sued the Commonwealth Election Commission in his desire to vote on any initiative to amend Article 12.

Article 12 restricts the acquisition of permanent and long-term interests in real property to persons of Northern Marianas descent.

A separate provision of the CNMI Constitution, Article 18 Section 5(c), prohibits qualified voters who are not NMDs from voting on Article 12 initiatives.

Davis is suing the Commonwealth Election Commission, CEC chair Frances M. Sablan, CEC executive director Robert A. Guerrero, and Gov. Eloy S. Inos for eight claims.

In her decision, Manglona said the constitutional protections of the 14th and 15th Amendments with respect to the right to vote on initiatives to modify or repeal land-alienation restrictions are applicable in the Commonwealth.

Manglona permanently prohibited the Commonwealth from enforcing Article 18, Section 5(c), and Public Law 17-40 and any CEC rules and regulations implementing that law that would prevent or hinder Davis and other qualified voters who are not NMDs from voting on Article 12 ballot initiatives.

In 2011, then-governor Benigno R. Fitial signed into law Public Law 17-40 that established the NMD Registry within the Commonwealth Election Commission and mandated the production of an official NMD identification card “that will be issued only to persons who are qualified under Article 12 Section 4 of the NMI Constitution.”

Manglona said the Commonwealth may continue to maintain the NMD Registry and issue official NMD identification cards for purposes not associated with voting, but is permanently stopped from using the Registry and ID cards to qualify voters or to identify qualified voters at the polls.

Manglona ruled that Inos is not a proper party and dismissed him from the lawsuit.

Manglona allowed Davis 10 days from yesterday to submit in court his claim for attorney’s fees and costs.

The judge directed the clerk to enter judgment for Davis on the first, second, third, fourth, fifth and seventh claims for relief, and for defendants on the sixth and eight claims for relief.

Manglona said the case remains open, pending disposition of Davis’ request for fees and costs.

Davis’ first four claims allege that Article 18, Section 5(c) of the CNMI Constitution and Public Law 17-40 violate his right to vote as secured by the 14th and 15th Amendments.

Davis’ fifth claim is that these same two Commonwealth laws violate his federal statutory voting right. His seventh claim is against all defendants for deprivation of his civil rights.

In his sixth claim, Davis alleges that CEC executive director Guerrero, and CEC chair Sablan, acting in their official capacities, are applying discriminatory standards in determining his qualification to vote.

His eighth claim is a taxpayer action to stop the unlawful expenditure of public funds.

In September 2013, the House passed the Senate version of Legislative Initiative 18-I. The primary purpose of the initiative is to amend Article 12, Section 4 so that a U.S. citizen or national who has “at least some degree of Northern Marianas Chamorro or Northern Marianas Carolinian blood” will be “deemed a bona fide person of NMD for all purposes under Article 18. Voters will vote on this initiative on Nov. 4, 2014.

Two years ago, Davis also brought a court action, asking the court to declare that Article 18, Section 5(c) and its enabling laws deprive him of his right to vote as guaranteed by the 14th and 15th Amendments of the U.S. Constitution.

Manglona dismissed that lawsuit because it was not ripe—no Article 12 initiative had qualified for the ballot yet.

One such initiative has now cleared the Legislature and will be put before the voters this November.

Manglona said that, with only a few months remaining before an Article 12 initiative appears on the ballot, time is of the essence.

Davis needs to know whether he may vote, and supporters and opponents of the initiative need to know whether to expend resources to court his vote and the votes of other non-NMD citizens, Manglona said.

On Davis’ taxpayer claim, Manglona said that Davis has made no showing of an injury to himself as a taxpayer as he alleges only the generalized grievance of all taxpayers when tax money is spent for an allegedly improper purpose.

Manglona said Davis therefore lacks standing to bring a taxpayer lawsuit in federal court.

Defendants deny that Article 18 Section 5 (c) violates the 15th Amendment. They assert that NMD is not is a racial classification, but a political one.

Manglona said the U.S. Supreme Court has made it clear that the 15th Amendment “establishes a national policy…not to be discriminated against as voters in elections to determine public governmental policies…”

Manglona said Article 12 initiatives are elections that “determine public governmental policies.”

“Every Commonwealth citizen otherwise qualified to vote can claim a profound interest in the outcome of the ballot initiatives,” she said.

Manglona said Article 12 ballot initiatives are not special limited-purpose elections, but general-interest elections in which all qualified voters have the right to participate.

Manglona said the exclusion of non-NMDs from voting on Article 12 risks perpetuating the sort of outdated and overbroad stereotypes about NMDs and non-NMDs that the equal protection clause is designed to combat.

Manglona said equal protection of the laws applies in the Commonwealth with respect to voting on Article 12 initiatives.