June 14, 2013

Courts can't ignore discrimination in the political process

By Jonathan Wood Attorney

Today PLF attorneys filed an amicus brief in the Ninth Circuit supporting Arnold Davis, a Guam resident defending his right to participate in the political process irrespective of his race. The Guam legislature authorized a referendum regarding the island’s future relationship with the United States. Sadly, the legislature decided that it only cares what some residents think, and bars everyone else from participating in the referendum process. The referendum will be put on the ballot whenever 70% of the “Native Inhabitants of Guam” register for it. And only those residents will be allowed to vote. Davis’ suit alleges that “Native Inhabitants of Guam” limits participation to Chamorros (the indigenous population of Guam) and excludes all other races.

The trial court dismissed the case for lack of standing. Standing is a doctrine that limits access to federal courts to plaintiffs who have suffered an injury that can be redressed by the courts. The doctrine prevents courts from hearing cases brought by someone with no interest in the lawsuit. It’s why I, a California resident, can’t challenge New York’s soda ban—a law doesn’t injure me unless I’m subject to it, no matter how foolish I think it may be. The trial court decided that Davis doesn’t have standing to challenge Guam’s discriminatory regime because the Native Inhabitants might never place the referendum on the ballot. If they don’t, he won’t be denied his right to vote (which is the only injury that the Court considered).

But Davis is suffering an injury. Because he cannot participate in the process for placing the referendum on the ballot, he has been denied equal treatment in the political process due to his race. This injury confers standing.

The Supreme Court described discrimination in the political process as an “insidious and pervasive evil.” The Court has struck down many discriminatory political procedures other than an outright denial of the right to vote, including the thinly disguised grandfather clause (which exempted voters from literacy requirements if their ancestors could vote before the 15th Amendment was adopted) and the disgusting “whites-only” primary (preventing black voters from participating in Texas’ Democratic Party primary). Each of these unconstitutional practices could not have been struck down without the recognition that individuals subjected to unequal treatment in the political process suffer a serious injury.

If the Court forecloses standing in these cases, it will only invite abuse. Consider what this would mean for a state initiative process—which 36 states have. If Arkansas changed its referendum process so that no measure could be placed on the ballot unless a petition was signed by 10% of the state’s white population and only white citizens could vote on the measure, a black voter would be unable to challenge the petition requirement. She would be told to wait and see whether the white voters ever chose to put a referendum on the ballot. Only then could she challenge the restriction on her right to vote. This result is plainly wrong. She is injured by the regime as soon as it is imposed because it discriminates against her in the political process—it prevents her from participating in the process for placing the measure on the ballot because of her race. And so should Davis, because he has suffered the same injury.

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