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

By Howard P. Willens
Special to the Saipan Tribune

[I]Editor’s Note: The following is the second part of the opinion issued by the author in response to a request by Gov. Benigno R. Fitial. The first part of this article was published in yesterday’s edition, March 29, 2008. Visit the Archives section of www.saipantribune.com to access it.[/I] [B]Last of two parts

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

The Fifteenth Amendment prohibits the States from denying the right of United States citizens to vote “on account of race, color, or previous condition of servitude.” The definition of Northern Marianas Descent in Article 12 of the CNMI Constitution is not based on racial criteria; it defines this status in light of objective criteria—birth or domicile in the Northern Mariana Islands by 1950 and Trust Territory of the Pacific Islands citizenship at any time before 1986. In upholding Article 12 against constitutional challenge, however, the Ninth Circuit did characterize the restrictions as “race-based” and some CNMI decisions have done the same.9 If the voting restrictions of Article 18 (5)(c) are challenged, a court applying the heightened scrutiny standard is likely to consider the racial implications of the definition of Northern Marianas Descent. Two important Supreme Court rulings might be relied upon to invalidate these restrictions as constituting race-based restrictions on voting in violation of the Fifteenth Amendment.

In Guinn v. United States, 238 U.S. 347 (1915), the Supreme Court considered an Oklahoma law that included a grandfather clause. The law required a literacy test to qualify to vote, but citizens were excused from that requirement if they were “lineal descendant[s]” of persons who were “on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation.” In short, those persons whose ancestors were entitled to vote under Oklahoma’s previous voting laws were exempted from the eligibility test. The Supreme Court unanimously invalidated this grandfather clause. The Court recognized that the challenged law “contains no express words of an exclusion from the standard which it establishes of any person on account of race, color, or previous condition of servitude, prohibited by the 15th Amendment, but the standard itself inherently brings that result into existence since it is based purely upon a period of time before the enactment of the 15th Amendment, and makes that period the controlling and dominant test of the right of suffrage.” 238 U.S. at 364-65.

More recently, the Court in Rice v. Cayetano, 528 U.S. 495 (2000), invalidated provisions in the Hawaii Constitution limiting the right to vote in a statewide election for trustees responsible for administering a state agency known as the Office of Hawaiian Affairs. The Office implemented programs designed for the benefit of “Hawaiians” (descendants of people inhabiting the islands in 1778) and “Native Hawaiian” (descendants of not less than one-half part of the races inhabiting the islands before 1778). The right to vote for trustees was limited to Hawaiians, the larger class of persons, which naturally included the smaller class of Native Hawaiians. The Supreme Court held that the ancestry restrictions were a proxy for race and amounted to a “clear” violation of the Fifteenth Amendment.

Hawaii’s argument that this was a “special purpose election” was rejected by the Court. Even if the voting scheme was permissible under the Fourteenth Amendment, the Court held that it would still need to comply with the Fifteenth Amendment. The Court specifically concluded that the voting limitation was not saved from unconstitutionality on the theory that the restriction merely ensures an alignment of interests between fiduciaries and beneficiaries of a trust. Reemphasizing the breadth and importance of the Fifteenth Amendment, the Supreme Court declared:

“The Amendment grants protection to all persons, not just members of a particular race. The design of the Amendment is to reaffirm the equality of the races at the most basic level of the democratic process, the exercise of the voting franchise. A resolve so absolute required language as simple in command as it was comprehensive in reach. Fundamental in purpose and effect and self-executing in operation, the Amendment prohibits all provisions denying or abridging the voting franchise of any citizen or class of citizen on the basis of race.” 528 U.S.at 512.

Differences between the laws invalidated in these two Supreme Court decisions and Article 18 (5)(c) do exist that should be emphasized in an effort to demonstrate the “non-racial” character of Article 12. It is certainly true that the definition of Northern Marianas Descent excluded (and continues to exclude) persons who are predominantly Carolinian and Chamorro in lineage, but whose ancestors failed to meet the objective criteria of the definition. On the other hand, there were persons who did qualify under the definition of Northern Marianas Descent even though they had no Chamorro or Carolinian ancestors, because their ancestors did meet the objective criteria of the definition. Even recognizing these exceptions, however, a reviewing court might elect to look at the overriding purpose and impact of the definition over the years and consider it sufficiently “racial” in nature to warrant its invalidation under the Fifteenth Amendment.

[B]B. Differential Treatment of Citizens under the Privileges and Immunities Clause of the Fourteenth Amendment[/B]

The Fourteenth Amendment provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” The U.S. Supreme Court has interpreted this constitutional provision as invalidating a wide range of State efforts to treat differently based on their length of residence in the State.

In Saenz v. Roe, 526 U.S. 489 (1999), the Supreme Court ruled that a California law giving a preference to long-time residents of the State with respect to welfare benefits violated the Privileges and Immunities Clause of the Fourteenth Amendment. The California law limited the amount of benefits paid under the Aid to Families with Dependent Children program to newly arrived citizens in the State, who would receive only the amount they would have received in the State in which they previously lived. The Court held that the Privileges and Immunities Clause guaranteed newly arrived citizens the same rights as long-time citizens of the State. The Court emphasized that because “the right to travel embraces the citizen’s right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty.” 526 U.S. at 505.

An Alaska statute distinguishing among citizens based on length of residence was similarly rejected by the Supreme Court in Zobel v. Williams, 457 U.S. 55 (1982).The Alaska law based annual payments from its mineral earnings to its citizens on each year of residence in the State sine 1959, the first year of Alaska’s statehood. Alaska residents of the State since 1978 sued, claiming that Alaska’s dividend plan violated their right to equal protection and their constitutional right to migrate to Alaska, to establish residence there, and their right to enjoy the full rights of Alaskan citizenship on the same terms as all other citizens. The Supreme Court agreed, commenting that “the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship only with simple residence. That Clause does not provide form and does not allow for, degrees of citizenship based on length of residence. And the Equal Protection Clause would not tolerate such distinctions.” 457 U.S. at 69.

Although not technically based on length of residence, distinguishing among U.S. citizens in the Commonwealth based on the definition of Northern Marianas Descent in Article 12 of the CNMI Constitution may be vulnerable under the Fourteenth Amendment as interpreted in these and similar cases.10 Both California and Alaska were seeking to implement laws allocating benefits or dividend payments favoring long-term residents over more recent arrivals. The Commonwealth, on the other hand, by Section 18 (5)(c) seeks to establish degrees of citizenship by denying the right to vote on Article 12 issues to those United States citizens who are not of Northern Marianas Descent. A critical examination of the definition of Northern Marianas Descent set forth in Article 12 might well persuade a court that the definition generally (and intentionally) favors those citizens whose families have the deepest roots in the community and disfavors those citizens whose families came to the CNMI sine 1960. Although a reviewing court might well agree with the Ninth Circuit that these distinctions can be justified with respect to land ownership under Article 12, it is likely to be more skeptical about extending them to the right to vote.

[B]Conclusion[/B]

The CNMI Government lawyers who have considered this question have concluded that Article 18 (5)(c) of the CNMI Constitution would be held to violate the United States Constitution if challenged in court. The Supreme Court’s rulings on limitations on voting based on the Equal Protection Clause discussed in this memorandum are unambiguous and decisive with respect to the restrictions contained in Article 18 (5)(c). It is probable that a reviewing court would go no further than to rest its decision on that line of authorities. If the court were to address the other contentions discussed in this memorandum and likely to be raised in any lawsuit, we believe that there is a substantial risk that the court would also conclude that the restrictions violate the Fifteenth Amendment or the Privileges and Immunities Clause of the Fourteenth Amendment.

9 Diamond Hotel Co., Ltd. V. Matsunaga, Appeal No. 93-203 (N.M.I. Sup. Ct. January 15, 1995) (refers to Article 12’s prohibition on sale and ownership of land as “ethnic-based”).

10 See also Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985) (invalidating New Mexico law awarding preferential tax benefits to veterans who were State residents before May 8, 1976); Vlandis v. Kline, 412 U.S. 441 (1973) (invalidating New York law affording preferential tuition rates for State universities to older State citizens); Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986) (invalidating New York law creating civil service preferences for resident veterans who had been New York residents at the time they entered military service).

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 presently is 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 ethnics 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.

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