Do racial classification in prior cases have an impact on Article 12 itself?

The third lecture in the Law In The Community Lecture Series raised the question of whether Article 12’s racial classification in Davis v Commonwealth will have an impact on Article 12 itself.

Professor Rose Cuison-Villazor of the University of California at Davis School of Law discussed the Davis v Commonwealth case in her presentation on Tuesday at the American Memorial Park amphitheater.

In Davis v Commonwealth, the U.S. District Court for the NMI held that Article 18, which limits the right to vote on constitutional amendments to Article 12 to registered voters of Northern Marianas descent, violates the 14th and 15th Amendments to the U.S Constitution.

“In the case of a proposed amendment to Article 12 of this Constitution, the word “voters” shall be limited to eligible voters under Article 8 who are also persons of Northern Marianas descent as described in Article 12, Section 4,” Villazor said.

Villazor also cited Public Law 17-40 that established an NMD Registry and created an official NMD identification card that “will be issued only to persons who are qualified pursuant to Article 12, Section 4.”

Villazor said that in the case of Davis, the Article 12 ancestry test is an effective substitute or proxy for race because it excludes all persons whose ancestors are not Chamorro or Carolinian.

“In fairness, the drafters should not stand accused of injecting a racist ideology into a racially neutral concept,” Villazor said, adding that NMD is not a political classification.

Villazor noted that the proposed amendment to Article 12, if passed, will violate the Equal Protection Clause of the U.S. Constitution that also applies to the CNMI.

One noted area of the Davis case is that “exclusion of non-NMDs from voting on Article 12 risks perpetuating the sort of outdated and overbroad stereotypes about NMDs and non-NMDs that the Equal Protection Clause is designed to combat.”

The Equal Protection Clause is part of the 14th Amendment to the U.S Constitution that provides that no state shall deny to any person within its jurisdiction “the equal protection of the laws.”

“The voting restriction effectively expands the scope of Article 12’s aim beyond what the Covenant allows,” Villazor said.

She said the validity of Article 12 is uncertain under the U.S. Supreme Court’s ruling in the Rice versus Cayetano case in 2000. In that case, the Supreme Court struck down a blood-quantum restriction law in the context of voting in a state election.

Villazor questioned whether the proposed amendment constitutes a racial category and therefore unconstitutional or a political one and is thus constitutional.

The presentation also brought up the question whether Article 12 should be abolished, kept, or amended.

This November, the CNMI ballot will include an initiative that would allow voters to decide whether to amend Article 12.