‘No showing that today’s NMD voters need protection’

The Commonwealth has made no showing that today’s Northern Marianas descent voters need protection, according to U.S. District Court for the NMI Chief Judge Ramona V. Manglona.

Manglona said the power to modify Article 12 is not new, citing that in 1985, Commonwealth voters—including both NMDs and non-NMDs—ratified two amendments to Article 12 as proposed by the second constitutional convention.

Manglona said one amendment extended the long-term leasehold period from 40 years to 55 years; the other raised the proportion of NMD directors and of voting shares held by NMDs—needed for a corporation to be considered NMD—from 51 percent to 100 percent.

Manglona made these determinations in her landmark decision on Tuesday in which she ruled that qualified voters who are not NMDs must have the opportunity 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.

Manglona issued the ruling in favor of John H. Davis Jr., a registered voter in the CNMI and a non-NMD, who, through counsel Jeanne H. Raphand, sued the Commonwealth Election Commission and its officials in his desire to vote on any initiative to amend Article 12.

In her decision, Manglona said that allowing voters, including non-NMDs, to modify Article 12 was prior to the passage of Section 5 (c) in 1999, in which voters approved Senate Legislative Initiative 11-1, which amended Section 5 of Article 18 by adding subsection (c).

Article 18 Section 5(c) prohibits qualified voters who are not NMDs from voting on Article 12 initiatives.

Manglona said the CNMI government has not suggested that the social contract between the government and the people was damaged by the participation of non-NMDs in the ratification vote, or that the political legitimacy of those amendments has been seriously questioned.

“The Commonwealth has intimated that its compelling interest is limited to proposals for repeal—that is, limited to ensuring that the beneficiaries of Article 12 themselves consent to relinquishing its protections,” Manglona said. “But if that is so, then the voting restrictions on Article 12 amendments are overboard and not narrowly tailored to cure the alleged evil.”

The judge said that narrow tailoring is problematic for other reasons, too.

The Commonwealth asserts that the voting restrictions seek to eliminate “the potential to allow many ‘resourceful and comparatively wealthy businessmen’ to vote to abolish the very protections that currently prevent them from exploiting the NMD population.”

Manglona said the Commonwealth’s quotation from a Ninth Circuit ruling makes the silent substitution of “businessmen” for “outside investors.”

By doing so, the judge said, this effectively expands the scope of Article 12’s aim beyond what the Covenant allows.

Manglona said the Covenant enabled “the people of the Northern Marianas…to prevent the alienation of their land to outsiders…”

“Nowhere does it indicate a concern over the malign influence of insiders—non-NMD citizens who make the Commonwealth their home and are entitled to vote in all other general elections in the CNMI,” she said.

Manglona pointed out that the Commonwealth presents no evidence that the disenfranchisement of non-NMDs in Article 12 ballot initiatives will prevent comparatively wealthy business people from exploiting NMDs.

“Nor does it appear categorically to be true,” she said.

Manglona said it is equally possible that many non-NMD voters are not wealthy; and that while they may be able to afford a long-term lease in a depressed housing market, they would be priced out of a reinvigorated market for land in fee simple if restrictions were lifted.

Also, the judge noted, there may be wealthy NMDs who have amassed cheap land over the past 40 years and would favor repealing Article 12 in anticipation of windfall profits.

“If that alternative set of speculative assumptions were to prove accurate, Section 5(c) of Article 18 could be a formula for disaster—assuming, as the Commonwealth seems to have done, that the best interest of most Northern Marianas Chamorros and Carolinians is to leave Article 12 alone or only trim it at the edges,” she said.

Manglona said the 25-year period has run, and the Commonwealth government may now repeal all land-alienation restrictions or continue to regulate long-term interests in land.

The judge was referring to Covenant Section 805 that requires the Commonwealth government to restrict the alienation of permanent and long-term interests in land until at least 25 years after the termination of the Trusteeship Agreement.

A presidential proclamation terminated the Trusteeship Agreement on Nov. 3, 1986.

Manglona also stated that the effect on changes to Article 12 will not fall disproportionately on NMDs.

“All citizens have an equal interest in whether they are entitled to buy real property, and on what terms,” she said. “The interest of the non-privileged class in whether the privilege will be extended to them is as substantial as the interest of the privileged class in whether it will remain exclusive.”