Validity of Article 18 (5)(c) of the CNMI Constitution

[B]By HOWARD P. WILLENS[/B] [I]Special to the Saipan Tribune[/I] [I]Editor’s Note: The following is text of the opinion issued by the author in response to a request from Gov. Benigno R. Fitial.[/I] [B][I]First of two parts[/I][/B]

You have asked me the legal issues raised by Article 18 (5)(c) of the CNMI Constitution restricting the right of persons who are not of Northern Marianas Descent as defined in Article 12 of the Constitution to vote on amendments to Article 12. In particular, you have inquired whether such a restriction on the right to vote of United States citizens otherwise qualified to vote in the Commonwealth would violate any provision of the United States Constitution. This memorandum summarizes my conclusions on this question.1

[B]Summary of conclusions[/B]

The legal issues raised by Article 18 (5)(c) need to be considered in light of Section 805 of the Covenant and Article 12 of the CNMI Constitution. Under these provisions, which have been upheld by the federal courts, the Commonwealth is entitled to limit the right to own land in the Commonwealth to persons who fall under the definition of Northern Marianas Descent. Based on the constitutionality of Article 12, supporters of the voting restrictions imposed by Article 18 (5)(c) contend that these limitations will be similarly upheld by the federal courts. I have concluded to the contrary and believe that this limitation of the right to vote would be invalidated by the courts if it were challenged under the Fourteenth Amendments to the United States Constitution. The constitutional right of United States citizens to vote has repeatedly been given the highest priority by the United States Supreme Court and there are no court decisions upholding restrictions such as those imposed by Article 18 (5)(c) of the CNMI Constitution.

[B]Background[/B]

Section 805 of the Covenant authorized the Commonwealth to impose restrictions on land ownership. The representatives of both the United States and the Northern Marianas people agreed early in the negotiations that such restrictions would be desirable, if they were permissible under the United States Constitution. In its final form Section 805 states that such restrictions were necessary “in view of the importance of land for the culture and traditions of the people of the Northern Mariana Islands, and in order to protect them against exploitation and to promote their economic advancement and self-sufficiency.” By way of a compromise between the negotiating parties, Section 805 requires such restrictions “until twenty-five years after the termination of the Trusteeship Agreement [2011],” after which the Commonwealth is free to continue, amend, or terminate such restrictions on the ownership and sale of permanent and long-term interests in land.

Section 805 of the Covenant was implemented by Article 12 of the CNMI Constitution, drafted by the Constitutional Convention in 1976 and approved by the Northern Marianas people by referendum in 1977. According to the Analysis of the Constitution approved by the Convention,

“The Convention followed three basic principles in implementing the restrictions on land alienation mandated by the Covenant. First, the Convention used only those restrictions necessary to the accomplishment of the purpose that underlies the Covenant. Second, the Convention avoided the use of any racial or ethnic classification to accomplish its purpose. Its classifications are based on neutral principles of birth, domicile, incorporation and other essential attributes. Third, the Convention spent a great deal of time and effort to find the least restrictive means of accomplishing its purpose.”2

Section 4 of Article 12 of the Constitution defines Northern Marianas Descent as follows:

“A person of Northern Marianas descent is a person who a citizen or national of the United States and who is of at least one-quarter Northern Marianas Chamorro or Northern Marianas Carolinian blood or a combination thereof or an adopted child of a person of Northern Marianas descent if adopted while under the age of eighteen years. For purposes of determining Northern Marianas descent, a person shall be considered to be a full-blooded Northern Marianas Chamorro or Northern Marianas Carolinian if that person was born or domiciled in the Northern Mariana Islands by 1950 and was a citizen of the Trust Territory of the Pacific Islands before the termination of the Trusteeship with respect to the Commonwealth.”

Shortly after the Convention completed its work, a debate developed among legal commentators whether such provisions were permissible under the United States Constitution.3

After extended litigation in the Commonwealth regarding the validity and scope of Article 12, the constitutional question was resolved by the United States Court of Appeals for the Ninth Circuit in 1992.4 According to the court: “This case requires us to determine whether the constitutional guarantee of equal protection of the laws limits the ability of the United States and the Commonwealth to impose race-based restrictions on the acquisition of permanent and long-term interests in Commonwealth land.” 958 F.2d at 1451. The court rejected the contention that Covenant Section 805 and Article 12 violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. In so ruling, the court relied on principles first articulated by the U.S. Supreme Court in a series of cases that came to be known as the Insular Cases, decided after Hawaii, the Philippines, and Puerto Rico were acquired by the United States after the Spanish-American War in 1898. This analysis required a determination by the court whether Congress possessed the legal authority to limit the application of a particular constitutional right in the Commonwealth by its approval of the Covenant. According to the court, “In the territorial context, the definition of a basic and integral freedom must narrow to incorporate the shared beliefs of diverse cultures, Thus, the asserted constitutional guarantee against discrimination in the acquisition of long-term interests in land applied only if the guarantee is fundamental in this international sense.” Id. at 1460.

The Ninth Circuit decided that the right to have equal access to land acquisition was not fundamental under this analysis and Congress therefore had the power to approve Section 805 of the Covenant. The court emphasized that “land in the Commonwealth is a scarce and precious resource” and that “the vital role native ownership of land plays in the preservation of NMI social and cultural stability [cannot] be underestimated.” Id. at 1461. The court relied heavily on the 1976 Analysis of the Constitution and the article by Convention counsel in concluding that “land is principally important in the Commonwealth not for its economic value but for its stabilizing effect on the natives’ social system.” The court summarized this portion of its holding by declaring: “The land alienation restrictions are properly viewed as an attempt, albeit a paternalistic one, to prevent the inhabitants from selling their cultural anchor for short-term economic gain, thereby protecting local culture and values and preventing exploitation of the inexperienced islanders at the hands of resourceful and comparatively wealthy outside investors.” Id. The court also concluded that it would be “impractical and anomalous” to deny the United States the authority to approve the challenged provisions and thereby “frustrate the mutual interests that led to the Covenant.” Id. at 1462.

Article 18(5)(c) was approved by the Commonwealth voters in 1999. It limited the right of otherwise qualified CNMI voters to vote on amendments to Article 12 if they did not meet the definition of Northern Marianas Descent set forth in Article 12. No amendment to Article 12 has been on the ballot since the enactment of these voting restrictions. However, in recent years several legislative initiatives have been discussed in the Commonwealth Legislature which would amend Article 12 and during the past few months there has been discussion of initiatives that might be considered at a special election in 2008. As a result, the Commonwealth Election Commission has developed special registration requirements that would enable the Commission to comply with the voting restrictions of Article 18 (5)(c) if that became necessary. They have prepared an affidavit by which voters could swear under penalty of perjury that they are of Northern Marianas Descent. The Commission would permit all qualified voters—whether of Northern Marianas Descent or not—to vote on any proposed amendments to Article 12. It would, however, mark the ballots of one group of voters (presumably to non-NMD voters) so that those votes could readily be excluded if a federal or CNMI court upheld the voting restrictions. The Commission was seeking to avoid litigation, if possible, and thought that the proposed registration procedures might further that objective because of the possibility (and perhaps the likelihood) that the votes of the non-NMD voters would not be determinative and therefore resolution of the constitutional issue would not be necessary.

[B]Discussion[/B]

Supporters of Article 18 (5)(c) understandably rely on the court’s opinion upholding Covenant Section 805 and Article 12 as providing support for these voting restrictions, which also depend on the definition of Northern Marianas Descent. If only persons of Northern Marianas Descent can own land without restriction in the Commonwealth under Article 12, the proponents of Article 18 (5)(c) contend that only voters of Northern Marianas Descent should be able to vote on proposed amendments to Article 12. There are two major difficulties with this line of argument: (1) The Ninth Circuit decision addressed the specific question before it relating to the power of the federal government to authorize restrictions on land ownership and provides no precedent for limitations on voting rights imposed by the CNMI Government; and (2) The U.S. Supreme Court has ruled in several different contexts that restrictions on the right to vote violate the Fourteenth and Fifteenth Amendments of the United States Constitution.

[B]1. The Limitations of the Ninth Circuit Opinion on Land Alienation[/B]

As summarized above, the central question before the Ninth Circuit was whether the United States had the authority by approving the Covenant to enable the Commonwealth to develop and enforce limitations on the ownership of land with respect to certain members of the community. With respect to the current question, the validity of the voting limitations imposed by Article 18 (5)(c), there is no involvement (and certainly no approval) by the federal government. Accordingly, there is no room for application of the Insular Cases analysis to this question. The Commonwealth’s right to impose such voting restrictions will be no greater, or no less, than the right of the States or other political entities in the United States. The decision of the Ninth Circuit upholding Section 805 and Article 12 has no persuasive force in assessing the constitutionality of these voting restrictions.

The U.S. Supreme Court has held that the right to vote is “fundamental,” because it is a right that “is preservative of other basic civil and political rights.” Reynolds v. Sims, 377 U.S. 533, 562 (1964). Because the right to vote is fundamental, “any alleged impairment of the right should be subjected to ‘strict scrutiny’ by the Court”—the most rigorous test used by the Court is assessing the constitutionality of legislative provisions.5 As Professor Rotunda stated in his treatise on constitutional law, the right to vote is “the right that is preservative of all our rights and at the heart of democracy.”6

The fact that a majority of the Commonwealth’s voters approved this restriction on the right to vote has no legal significance. As the Supreme Court said in Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 736 (1964): “An individual’s constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State’s electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause. Manifestly, the fact that an apportionment plan is adopted in a popular referendum is insufficient to sustain its constitutionality or to induce a court of equity to refuse to act.”

[B]2. The Constitutionality of the Commonwealth’s Voting Restrictions[/B]

There are three different constitutional theories that courts are likely to consider in evaluating this provision of the CNMI Constitution: (1) Application of the Equal Protection Clause of the Fourteenth Amendment to State limitations on the right to vote on non-racial grounds; (2) Application of the Fifteenth Amendment to State limitations on the right to vote that are racial in nature; and (3) Application of the Privileges and Immunities Clause of the Fourteenth Amendment to State differentiation of classes of citizens based on their length of residence in the State…

[B]A. Validity of Limitations on the Right to Vote on Non-Racial Grounds[/B]

As emphasized above, the Supreme Court has stressed the fundamental nature of the right to vote. In the leading case of Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), the Court stated that though the right to vote is “not regarded strictly as a natural right, but as a privileges merely conceded by society, according to its will, under certain circumstances, nevertheless it is a fundamental political right, because preservative of all rights.” This central principle has been reaffirmed by federal courts on numerous occasions for more than a century since this landmark ruling. It has been relied upon by occasions for more than a century since this landmark ruling. It has been relied upon by the Court to invalidate State laws that seek to deny the vote to classes of voters and is the basis on which Article 18 (5)(c) is almost certain to be declared in violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

In Hill v. Stone, 421 U.S. 289 (1975), the Court struck down a Texas law that forbade property tax increases unless a majority of the property owners agreed. The Texas law provided for a “dual box election procedure” to be used in the State’s local bond elections. Under this procedure, all persons owning taxable property voted in one box, and all other registered voters (the none-property owners) cast their ballots in a separate box. The results in both boxes were tabulated and the bond issue would pass only if it were approved by a majority vote in both boxes. The Court held that the Texas law created a classification that unconstitutionally disfranchised persons otherwise qualified to vote, solely because they had not listed any property for taxation. According to the Court, as long as the election is not none of “special interest,” any classification restricting the franchise on grounds other than residence, age, and citizenship cannot stand unless the district or State can demonstrate that the classification serves a compelling State interest. The bond election, affecting only the property owners, was not a “special interest” election, even though the servicing of the debt would be paid entirely out of property taxes. Instead, the Court held that the election was a matter of “general interest” because it affected more than the property owners.7

Other State efforts to limit voting to property owners have been invalidated by the Supreme Court as a violation of the Equal Protection Clause of the Fourteenth Amendment. In Cipriano v. City of Houma, 395 U.S. 701 (1969), the Court emphasized that the bonds involved were intended to finance extension and improvement of the city’s utility system and that the operation of a utility system obviously affects both property owners and non-property owners. Similarly, in City of Phoenix v. Kolodiejski, 399 U.S. 204 (1970), the Court reasoned that all city residents, whether property owners or not, had a common interest in the facilities that the bond issue would make available, and they would all be substantially affected by the outcome of the election, both in terms of the benefits provided and the obligations incurred.8

In a different context, the Supreme Court also relied on the Equal Protection Clause to invalidate a New York law that limited the right to vote in board of education elections to persons who owned or leased taxable real property in the school district or who had children enrolled in the public schools. Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969). The Court acknowledged that the school district was supported by a property tax, but stressed that not only parents and property owners were interested in the conduct of local school affairs. The law violated equal protection because it had impermissibly excluded many persons with an interest in the decisions of the school board.

The limitation on the right to vote embodied in Article 18 (5)(c) based on the definition of Northern Marianas Descent violated the Equal Protection Clause of the Fourteenth Amendment as interpreted by the Supreme Court. In the absence of any property tax in the Commonwealth, there is no distinction here between persons who pay property taxes and those who do not. Furthermore, some persons of Northern Marianas Descent may not hold or lease any property, whereas many persons not of Northern Marianas Descent do lease residential or commercial properties. Most importantly, all residents of the Commonwealth have an interest in the provisions of Article 12 and their impact on the overall economy of the CNMI. The disenfranchisement of the U.S. citizens in the Commonwealth who are not of Northern Marianas Descent cannot be rationalized in any manner that immunizes this limitation from successful challenges under the Equal Protection Clause.

[B][I]To be continued[/I][/B]

1 The Office of the Attorney General agrees with the conclusions in this memorandum. We wish to acknowledge the contribution to our legal analysis of Professor Ronald D. Rotunda, who was asked by the Attorney General to examine this issue on a pro bono basis in 2006. Professor Rotunda is one of the most distinguished constitutional law scholars in the United States. He is presently a University Professor and Professor of Law at George Mason University in Virginia, after teaching for many years at the University of Illinois. He is a magna cum laude graduate of Harvard College and a magna cum laude graduate of Harvard Law School, where he served as a member of the Harvard Law Review. He has coauthored the most widely used book on legal ethics and is the author of a leading course book on constitutional law, Modern Constitutional Law (West Publishing Co., 8th ed. 2007). He has served in a variety of important advisory positions in the United States and foreign countries, has authored several other books, and has written more than 200 articles in various law reviews, journals, newspapers, and books in this country and in Europe.

2 Analysis of the Constitution of the Commonwealth of the Northern Mariana Islands (December 6, 1976), p. 164.

3 Anticipating legal challenge, counsel for the 1976 Convention published an article that discussed the Convention’s work and, in particular, set forth the legal rationale under which the land alienation provisions of the Covenant and the Constitution should be upheld by the Supreme Court. Willens and Siemer, “The Constitution of the Norhern Mariana Islands: Constitutional Principles and Innovation in a Pacific Setting.” 65 Georgetown Law Journal 1373-1481 (1977). Other writers disagreed. Branch, “The Constitution of the Northern Mariana Islands: Does a Different Cultural Setting Justify Different Constitutional Standards?” 9 Denver Journal of International Law and Policy 35-67 (1980); Leary, The Northern Marianas Covenant and American Territorial Relations (Berkeley, CA: Institute of Governmental Studies, University of California, 1980).

4 Wabol v. Villacrusis, 898 F.2d 1381 (9th Cir. 1990), as amended, 908 F.2d 411, as amended 958 F.2d 1450, cert. Denied sub nom., Philippine Goods, Inc. v. Wabol, 506 U.S. 1027 (1992)

5 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitional Law ¶18.3 (West Group, 3rd ed. 1998).

6 Id. at ¶20.47.

7 The only election that the Supreme Court has held to be a “special interest” election was one involving water districts. In Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973), the Court held that a water district created for the purpose of acquiring, storing, and distributing water for agricultural purposes could constitutionally have a board of directors selected by an election in which votes were allocated according to the assessed value of each voter’s land. Because of its “special limited purpose and of the disproportionate effect of its activities on landowners as a group,” the Court held that the water district election was of sufficient “special interest” to a single group that the franchise could constitutionally be denied to others.” Id. at 728.

8 See also Quinn v. Millsap, 491 U.S. 95 (1989) (invalidating under the Equal Protection Clause a provision of the Missouri Constitution limiting the right to vote to real property owners the appointment of members to the “board of freeholders” charged with the duty of drafting a reorganization plan for city and country government).

[I]Howard P. Willens is special legal counsel to Gov. Benigno R. Fitial.[/I]