Rayphand: No US citizen should be denied the right to vote

The U.S. Supreme Court has denied a Commonwealth petition for a re-examination of an appeals court decision affirming district judge Ramona V. Manglona’s ruling that voters who are not of Northern Marianas descent must be able to vote on Article 12 initiative and any other initiatives to amend Article 12.

The U.S. Supreme Court’s Office of the Clerk informed the U.S. Court of Appeals for the Ninth Circuit’s clerk that the petition for a writ of certiorari filed by Gov. Ralph DLG Torres and the Commonwealth Election Commission has been denied. No other details were included in the notice.

Jeanne Rayphand, who represents John Davis Jr. in the case, told Saipan Tribune yesterday that the U.S. high court’s order is the final and only order.

That means the decision of the 9th Circuit and the U.S. District Court is in effect, Rayphand said.

She said “Northern Marianas descent “ is a racial classification and U.S. citizens who are not of “Northern Marianas descent” may not be denied the right to vote—a fundamental right.

“No United States citizen should ever be denied the right to vote. And that is what this case was about: the right to vote,” she said.

Joseph Horey, who represents the Northern Marianas Descent Corp., filed the petition before the U.S. Supreme Court on behalf of Torres and the CEC, and its officials.

Attorney General Edward Manibusan, however, informed the U.S. Supreme Court’s clerk of court last June 30 that such filing was unauthorized. Manibusan pointed out that none of petitioners— Torres, CEC, and CEC officials—have the authority to file the petition.

The petitioners’ question to the U.S. Supreme Court was whether the term “persons of Northern Marianas descent” is an impermissible “racial” classification under the 15th Amendment.

When asked yesterday about the high court’s decision, Horey said the denial of the writ means that, with respect to voting rights on land issues, one chapter is closed. The rest of the book, however, remains to be written, he said.

“From now on, a political approach to the issue, not a judicial one, will be necessary,” he added.

Possible options, Horey said, include a constitutional amendment redefining the term “persons of Northern Marianas descent” in a less “racial” way, and/or negotiating an amendment to the Covenant so as to include the 15th Amendment among the CNMI’s exemptions from the U.S. Constitution (as is the case for American Indian nations).

He said these kinds of issues can be explored in various contexts and forums, including Section 902 discussions, a constitutional convention, or the Second Political Status Commission.

“Diligence, patience, flexibility and creativity will be essential to the ultimate success of any such efforts,” Horey said.

Last February, the Ninth Circuit denied the NMDC petition to intervene in the lawsuit.

The Ninth Circuit judges awarded Davis $16,237 in attorney’s fees and costs, to be paid to Davis’ counsel, Rayphand.

The Ninth Circuit affirmed Manglona’s 2014 decision in December 2016.

In a 51-page decision issued in May 2014, Manglona ruled that the term “Northern Marianas descent,” as defined in Section 4 of Article 12 of the CNMI Constitution, is a racial classification, and may not serve as the basis for preventing qualified voters from voting on proposed amendments to Article 12.

“Even if Northern Marianas descent were not a racial classification, it would be unconstitutional to deny non-NMDs the right to vote on Article 12 initiatives because the restriction is not narrowly tailored to achieve a compelling state purpose,” Manglona said.

Manglona issued the ruling in favor of Davis, a registered voter in the CNMI who sued CEC, its chairperson and executive director, and then-CNMI Gov. Eloy S. Inos in his desire 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 NMD.

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

CEC and its co-defendants, through the Office of the Attorney General, appealed to the Ninth Circuit.

The NMDC, headed by John D. Gonzales, filed petitions to intervene in Davis’ lawsuit and seek a rehearing en back or by the full Ninth Circuit.

NMDC noted the “lack of action” by the Attorney General’s Office, which decided not to challenge the Ninth Circuit ruling.