Guam AG Advises Dismissal Of Native Plebiscite Discrimination Case
By Geraldine Castillo
HAGÅTÑA, Guam (Marianas Variety Guam, July 17, 2012) – Arnold "Dave" Davis by his own admission – that a plebiscite is nowhere near happening in Guam’s future – has illustrated why a magistrate judge was correct in recommending that his complaint be dismissed, according to the Attorney General’s Office.
A response to Davis’ objection to a recommended dismissal of his case was filed by Assistant Attorney General Robert M. Weinberg yesterday in the District Court of Guam, reaffirming Magistrate Judge Joaquin Manibusan’s report and recommendation that the complaint be dismissed "on the grounds that the controversy presented is not ripe for judicial review."
A class action suit was filed by Davis in November last year, claiming he was denied from registering in the Decolonization Registry which was to be used for a plebiscite on Guam’s political status. He filed his complaint against the local government and the Guam Election Commission, alleging racial discrimination because he did not have the ancestral ties of a "native inhabitant" required to register.
Two weeks after Manibusan issued his report and recommendation, Davis filed an objection on July 2, urging the court to fully hear his claims as he argues they are ripe enough for judicial review.
However, AAG Weinberg pointed out that Davis contradicted his own claim in an opinion article by Davis that was published May 28, 2012 in the Marianas Variety.
"Mr. Davis is complaining to this court that he is not permitted to register for an election that he predicts to the rest of the world ‘will forever be an alluring mirage out there on the horizon,’ unless the laws he challenges are amended," Weinberg said, citing the article. "By Mr. Davis’ own admission, this matter is not and may never be ripe for judicial review. The magistrate judge was correct."
Because a plebiscite has yet to be scheduled or established, the court holds that it has no jurisdiction because the matter is too premature for review.
Although Davis – in his objection to the dismissal – refers to decades of civil rights history and jurisprudence when applying the Voting Rights Act, the cases he cites involve elections for public office, for example, and not advisory plebiscites.
"It is the cruelest of ironies that Mr. Davis employs the Voting Rights Act – intended to protect minorities in the exercise of their right to an effective vote – to condemn to permanent silence a dwindling people who have yet to experience the exercise of the inalienable right of ‘consent of the governed’ exhorted in the Declaration of Independence," Weinberg wrote.
Weinberg deduced that Davis’ claims are not ripe because "Davis does not believe the plebiscite he asks to be permitted to register for will ever happen." Additionally, if the plebiscite were to occur, Davis cannot claim any injury in the case because the outcome of the plebiscite is only advisory and is not intended to represent the views of the island as a whole, thus his political rights are not affected in any way.
"Even if ‘native inhabitants of Guam’ were a race-based classification – and it is not – until such time as the territory of Guam formally enters the union, a non-binding plebiscite intended to solicit and transmit the views of the remnants of a colonized people does not offend the Constitution or the Voting Rights Act," Weinberg concluded.
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