NMDC counsel Horey says Davis’ lawsuit ‘a case of a wolf in sheep’s clothing’
The Northern Marianas Descent Corp., a not-for-profit group, has submitted a brief supporting the Commonwealth Election Commission’s and Gov. Eloy S. Inos’ appeal to reverse the federal court’s ruling that would allow voters who are not of Northern Marianas descent to vote on Article 12 initiative or any other initiatives to amend Article 12.
At a news briefing yesterday at the Carolinian Utt in Garapan, NMDC president Herman R. Guerrero disclosed that they filed an amicus curiae (friend of the court) brief before the U.S. Court of Appeals for the Ninth Circuit last week.
An amicus curiae refers to a brief filed in court by any entity who is not a party to a case.
Attorney Joseph E. Horey filed the brief on behalf of NMDC. When asked if he is representing NMDC pro bono (for free), Horey said they’re “currently working on it.”
Horey said NMDC filed the brief in support of the voting restriction and in support of the government’s position, urging the Ninth Circuit to reverse U.S. District Court for the NMI Chief Judge Ramona Manglona’s decision and allow the restriction to stand.
When asked what grounds they cited in their brief, Horey said they argued some issues a bit differently from how the government argued them.
“That’s what the court wants to see in an amicus brief. The court does not need another organization to come in and say we agree with what the other party already said,” Horey stated.
What’s more helpful to the court, he said, is to look at the issues from other perspectives and some arguments that may haven’t been seen from the parties.
The lawyer said they included some additional arguments beyond those already raised by the government a week earlier.
Horey clarified that NMDC was not involved in the sequestration of ballots issue that the government recently brought before the District Court.
“We’re just addressing the main merits of whether the voting restriction should be upheld,” the lawyer added.
In the brief, Horey described John H. Davis Jr.’s lawsuit as “case of a wolf in sheep’s clothing.”
Though styled as a reverse discrimination case, Davis’ lawsuit has nothing to do with preventing racial discrimination or protecting civil rights, Horey said.
Instead, Davis’ case seeks to deny a multi-ethnic people—people of Northern Marianas descent—the means to secure a fundamental right guaranteed to them by the Covenant, namely the benefit of the CNMI’s government power, notwithstanding federal law, to restrict the acquisition of long-term interests in CNMI land to NMDs, Horey said.
He said Article 18 Section 5(c) of the CNMI Constitution further implements and safeguards the integrity of the rights guaranteed by Section 805.
Horey said that Manglona’s decision finding it unconstitutional was fatally flawed, as she failed to adequately consider the CNMI’s exceptional status under U.S. constitutional law, including the threshold issue of whether the 14th and 15th amendments, as they apply to the CNMI via the Covenant, even reach Article 18, Section 5 (c).
Horey said this is not a case of a state abridging the right to vote in a state election on account of race.
“This is a constitutionally exceptional jurisdiction utilizing a recognized classification derived from a political agreement designed to protect the future of the CNMI and its people,” he said.
He said Article 18 Section 5 (c) of the CNMI Constitution is beyond the reach of the 14th and 15th Amendments to the U.S. Constitution and thus incapable of being unconstitutional.
Horey said even if it is not beyond the reach of those amendments, Article 18, 5 (c) still violates neither.
Moreover, he said, even if Article 18 Section 5 (c) is determined to violate those amendments, it is still valid because its adoption, as an exercise of CNMI self-government, limits the force of those amendments in the CNMI.
“The people of the Northern Marianas had the Hawaiian example (and countless similar examples) before them when they entered into the Covenant, and it was their clear intent, with respect to their lands, that no such epitaph would ever be written about them,” he said, adding the Ninth Circuit should reverse Manglona’s judgment.
Aside from Guerrero and Horey, among those present at the briefing were NMDC member Remy Sablan, NMD advocates Lino Olopai and Analee Villagomez, Saipan senatorial candidate Jesus Taisague, delegate candidate Andrew Salas, and others.
Talking about equal voting rights, Sablan questioned why the people of the CNMI can’t vote for the U.S. president.
Davis, a registered voter in the CNMI and a non-NMD, sued CEC and its officials in his desire to vote on any initiative to amend Article 12. Manglona ruled in favor of Davis.
In that May 20, 2014, landmark decision, Manglona ruled that qualified voters who are not NMD must have the opportunity to vote on Article 12 initiative or any other initiatives to amend Article 12.
CEC appealed to the Ninth Circuit.
CEC and Inos then filed the motion for sequestration before the Ninth Circuit last Oct. 10, but the appellate court rejected it and instead indicated that they should file the motion in the District Court. Manglona also denied the motion.