The right to vote in the CNMI

By Jose S. Dela Cruz
Special to the Saipan Tribune

As we all know, the NMI Constitution is the basic governing law of the CNMI. It was adopted by the people of the CNMI in 1976, and has been amended since. Any proposed amendment to the NMI Constitution is decided by all the people of the CNMI, not just by “some of the people.” The makeup (i.e. the composition) of “the people of the CNMI” has changed over the past 30 years. When the original NMI Constitution was adopted in 1976, literally all the people of the CNMI were “persons of Northern Marianas descent.” Since that time, however, many U.S. citizens who are not of Northern Marianas descent have come to the CNMI, made it their home, and have been voting here.

A constitutional question has just recently been raised: whether the NMI Constitution could limit the right to vote to “persons of NMI descent” with respect to a proposed constitutional amendment relating to the right to own land in the CNMI. It is my opinion that the answer to this question is clearly “No.” All citizens of the United States who are residing in the CNMI—both those of NMI descent and those who are not of NMI descent—have a right to vote as U.S. citizens and as CNMI residents with respect to amending any provision of the NMI Constitution. The constitutional provision limiting the right to own land to persons of NMI descent does not have and cannot have any bearing on who could vote in NMI elections, including elections to amend Article 12. The fundamental reason for this is because the U.S. Constitution gives every eligible U.S. citizen in a jurisdiction (state, territorial or commonwealth) a right to vote. It does not distinguish between those who could own land and those who could not. Indeed, on matters involving land ownership, person who are not of NMI descent, to the extent that they are adversely affected by Article 12, have just as much right to vote on land ownership matters, as do persons of NMI descent.

Any legal impediment created by the government by law or otherwise—such as Senate Legislative Initiative 11-1 that prohibits U.S. citizens who are not of NMI descent from voting on land ownership matters—is clearly unconstitutional. Such voting restriction is very similar to the “voter-literacy test” requirement and the requirement that voters pay a “poll tax” in order to vote that were practiced in the United States during the past century. Such voting requirements have since been banned by the U.S. Supreme Court. The CNMI should not resurrect a similar requirement in different clothing.

The fact that a proposed amendment to the NMI Constitution involves the CNMI land ownership law (under which non-NMDs could not own land) does not mean that non-NMD U.S. citizens could or should be disenfranchised from voting on amending the NMI Constitution that every citizen in the CNMI is subject to. If a certain segment of the voting population could be disenfranchised from voting on land matters, then the NMI Constitution could also be amended to limit voting on education matters, for example, to only those voters who have children going to school. All you have to do is pass an amendment to the NMI Constitution to this effect. And, if this type of limitation on voting rights were allowed, then Alexis de Tocqueville, the 19th century French historian, would be clearly correct in his assessment over 150 years ago that the danger of democracy lies in the “tyranny of the majority.”

It is indeed very unfortunate (and seriously misguided) that Senate Legislative Initiative 11-1 was passed in 1999 to prohibit U.S. citizens who are permanently residing in the Commonwealth (but who are not of NMI decent) from voting on land ownership matters. Although Article 12, which regulates the ownership of land in the CNMI to persons of NMI descent, has been adjudicated by the federal courts as being constitutional under the U.S. Constitution, it does not follow from that ruling that it is also constitutional to disenfranchise a segment of the CNMI community from voting on a proposed amendment to the NMI Constitution with respect to land ownership.

The right to vote is a completely different right from the right to own land. While the right to own land has been declared as being not fundamental in the territories, pursuant to the Insular Cases that were decided at the beginning of the 20th century, the right to vote is a fundamental right of all U.S. citizens in the American democracy. The right to vote is an attribute of U.S. citizenship. It is not an attribute based on land ownership. Indeed, a voting requirement stating that only those citizens who could or do own land could vote is exactly the kind of restriction that the U.S. Supreme Court would immediately strike down as unconstitutional. The right to vote by all U.S. citizens in any jurisdiction of the United States is the very essence of American democracy. Indeed, one of the fundamental reasons why the people of the CNMI joined the United States 30 years ago is to be a part of the American political family and enjoy the rights and freedoms guaranteed under its democratic system of government. One of these rights is the right to vote.

There are some of us who would then go on to rightfully raise several valid questions. For example: So why can’t we vote for the U.S. President? Why are the people of the CNMI still unrepresented in the U.S. Congress? Why are CNMI citizens (both those who are and are not of NMI descent) treated like “second-class citizens?” Why does the U.S. Congress, on occasion, treat the CNMI with little regard for our economic welfare? The answer to these and other valid questions would require a much longer explanation than my purpose in writing this. (And I have been told that my letters are either “too long” or “too high-brow.”) For now, let me just get back and conclude this matter.

In our democracy, all U.S. citizens have the right to vote with respect to who their elected leaders will be and what the basic governing law of our jurisdiction should be. A majority of the electorate in a democracy, however, cannot decide who could vote and who could not vote with respect to amending any provision of our Constitution. To disenfranchise other U.S. citizens who live in and are permanently residing in the CNMI from voting to amend the basic governing law of the CNMI (the law that governs everyone in the CNMI), even if the proposed amendment involves only the matter of land ownership, would clearly run afoul of the U.S. Constitution.

The CNMI Attorney General, as the chief legal officer of the Commonwealth, has an obligation to issue a clear legal opinion on this issue immediately, so that the CNMI Commission on Elections would be guided accordingly, in the event of any election to amend Article 12. The courts (CNMI or federal) would have to render a declaratory judgment on the issue at some point, because the constitutional restriction on voting on land matters is still “in the book,” so to speak.