FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARNOLD DAVIS, on behalf of himself 

and all others similarly situated,

Plaintiff-Appellee,

v.

GUAM; GUAM ELECTION 

COMMISSION; ALICE M. TAIJERON;

MARTHA C. RUTH; JOSEPH F. MESA;

JOHNNY P. TAITANO; JOSHUA F.

RENORIO; DONALD I. WEAKLEY;

LEONARDO M. RAPADAS,

Defendants-Appellants.

No. 17-15719

D.C. No.

1:11-cv-00035

OPINION

Appeal from the United States District Court

for the District of Guam

Frances Tydingco-Gatewood, Chief District Judge, 

Presiding

Argued and Submitted October 10, 2018

University of Hawaii Manoa

Filed July 29, 2019

Before: Kim McLane Wardlaw, Marsha S. Berzon,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Berzon
2 DAVIS V. GUAM

SUMMARY*

Civil Rights / Fifteenth Amendment

The panel affirmed the district court’s summary 

judgment in favor of plaintiff, a Guam resident, who 

challenged a provision of Guam’s 2000 Plebiscite Law that 

restricted voting to “Native Inhabitants of Guam.”

Guam’s 2000 Plebiscite Law provided for a “political 

status plebiscite” to determine the official preference of the 

“Native Inhabitants of Guam” regarding Guam’s political 

relationship with the United States. Plaintiff alleged, among 

other things, that the provision of that law restricting voting 

to “Native Inhabitants of Guam” constituted an 

impermissible racial classification in violation of the 

Fifteenth Amendment, which provides that the right of a 

United States citizen to vote shall not be denied or abridged 

by the United States or by any State on account of race, color 

or previous condition of servitude.

The panel first rejected Guam’s contention that the 

Fifteenth Amendment was inapplicable to the plebiscite 

because that vote will not decide a public issue but rather 

requires Guam to transmit the results of the plebiscite to 

Congress, the President and the United Nations. The panel 

held that despite its limited immediate impact, the results of 

the planned plebiscite commit the Guam government to take 

specified actions and thereby constitute a decision on a 

public issue for Fifteenth Amendment purposes.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
DAVIS V. GUAM 3

The panel applied Rice v. Cayetano, 528 U.S. 495 

(2000), and Davis v. Commonwealth Election Comm’n, 844 

F.3d 1087 (9th Cir. 2016), which respectively invalidated 

laws in Hawaii and the Commonwealth of the Northern 

Mariana Islands limiting voting in certain elections to 

descendants of particular indigenous groups because those 

provisions employed ancestry as a proxy for race in violation 

of the Fifteenth Amendment. The panel held that Guam’s 

2000 Plebiscite Law suffered from the same constitutional 

flaw. The panel determined that history and context 

confirmed that the “Native Inhabitants of Guam” voter 

eligibility restriction so closely paralleled a racial 

classification as to be a proxy for race. The panel therefore 

concluded that its use as a voting qualification violated the 

Fifteenth Amendment as extended by Congress to Guam.

COUNSEL

Julian Aguon (argued), Special Assistant Attorney General; 

Kenneth Orcutt, Deputy Attorney General; Office of the 

Attorney General, Tamuning, Guam; for DefendantsAppellants.

Lucas C. Townsend (argued); Douglas R. Cox, Gibson Dunn 

& Crutcher LLP, Washington, D.C.; J. Christian Adams, 

Election Law Center PLLC, Alexandria, Virginia; Michael 

E. Rosman, Center for Individual Rights, Washington, D.C.; 

Mun Su Park, Law Offices of Park & Associates, Tamuning, 

Guam; for Plaintiff-Appellee.

Dayna J. Zolle, Attorney; Civil Rights Division, United 

States Department of Justice, Washington, D.C.; for Amicus 

Curiae United States.
4 DAVIS V. GUAM

OPINION

BERZON, Circuit Judge:

Guam’s 2000 Plebiscite Law provides for a “political 

status plebiscite” to determine the official preference of the 

“Native Inhabitants of Guam” regarding Guam’s political 

relationship with the United States. Guam Pub. L. No. 25-

106 (2000). Our question is whether the provisions of that 

law restricting voting to “Native Inhabitants of Guam”

constitutes an impermissible racial classification in violation 

of the Fifteenth Amendment.1

Rice v. Cayetano, 528 U.S. 495 (2000), and Davis v. 

Commonwealth Election Comm’n, 844 F.3d 1087 (9th Cir. 

2016), respectively invalidated laws in Hawaii and the 

Commonwealth of the Northern Mariana Islands limiting 

voting in certain elections to descendants of particular 

indigenous groups because those provisions employed 

“[a]ncestry [as] a proxy for race” in violation of the Fifteenth 

Amendment. Rice, 528 U.S. at 514. Guam’s 2000 Plebiscite 

Law suffers from the same constitutional flaw. History and 

context confirm that the “Native Inhabitants of Guam” voter 

eligibility restriction so closely parallels a racial 

classification as to be a proxy for race. Its use as a voting 

qualification therefore violates the Fifteenth Amendment as 

extended by Congress to Guam.

 1 Because we affirm the district court on Fifteenth Amendment 

grounds, we do not address Davis’s arguments that the 2000 Plebiscite 

Law violates the Fourteenth Amendment, the Voting Rights Act, and the 

Organic Act of Guam.
DAVIS V. GUAM 5

I

The factual background of this case is intertwined with 

the history of Guam (the “Territory”), of its indigenous 

people, and of its colonization. We recognize that this 

history, like history in general, is subject to contestation both 

as to exactly what happened in the past and as to the 

interpretation of even well-established facts. We do not 

attempt to settle those debates. “Our more limited role, in the 

posture of this particular case, is to recount events as 

understood by the lawmakers, thus ensuring that we accord 

proper appreciation to their purposes in adopting the policies 

and laws at issue.” Rice, 528 U.S. at 500.

Guam has long been inhabited by an indigenous people, 

commonly referred to as Chamorro. See William L. Wuerch 

& Dirk Anthony Ballendorf, Historical Dictionary of Guam 

and Micronesia 40–44 (The Scarecrow Press, Inc. 1994); 

Developments in the Law, Chapter Four: Guam and the 

Case for Federal Deference, 130 Harv. L. Rev. 1704, 1722 

(2017). Beginning in the sixteenth century, Spain colonized 

Guam. Then, in 1899, after the Spanish-American war, 

Spain ceded Guam to the United States through Article II of 

the 1898 Treaty of Paris. Until 1950, Guam remained under 

the control of the U.S. Navy, except for a Japanese 

occupation from 1941 through 1944. See Guam v. Guerrero, 

290 F.3d 1210, 1214 (9th Cir. 2002). In 1950, responding to 

petitions from Guam’s inhabitants, Congress passed the 

Organic Act of Guam. Pub. L. No. 81-630, 64 Stat. 384 

(1950) (codified at 48 U.S.C. §§ 1421–24) (“Organic Act”).

The Organic Act (1) designated Guam as an 

unincorporated territory of the United States subject to 

Congress’s plenary power, 48 U.S.C. § 1421a; 

(2) established executive, legislative, and judicial branches 

of government for the Territory, id. §§ 1422–24, as well as a 
6 DAVIS V. GUAM

limited Bill of Rights modeled after portions of the Bill of 

Rights in the Federal Constitution, id. § 1421b;2 and 

(3) extended U.S. citizenship to three categories of people:

(a)(1): All inhabitants of the island of Guam 

on April 11, 1899, including those 

temporarily absent from the island on that 

date, who were Spanish subjects, who after 

that date continued to reside in Guam or other 

territory over which the United States 

exercises sovereignty, and who have taken no 

affirmative steps to preserve or acquire 

foreign nationality[, and their children.]

(a)(2): All persons born in the island of Guam 

who resided in Guam on April 11, 1899, 

including those temporarily absent from the 

island on that date, who after that date 

continued to reside in Guam or other territory 

over which the United States exercises 

sovereignty, and who have taken no 

affirmative steps to preserve or acquire 

foreign nationality[, and their children.]

(b): All persons born in the island of Guam 

on or after April 11, 1899 . . . Provided, That 

in the case of any person born before the date 

of enactment of [the Organic Act], he has 

 2 Absent an act of Congress, federal constitutional rights do not 

automatically apply to unincorporated territories. Guerrero, 290 F.3d 

at 1214. In 1968, Congress amended the Organic Act to extend certain 

federal constitutional rights to Guam, including the Fifteenth 

Amendment. See 48 U.S.C. § 1421b(u).
DAVIS V. GUAM 7

taken no affirmative steps to preserve or 

acquire foreign nationality.

8 U.S.C. § 1407 (1952), repealed by Pub. L. No. 82-414, 

§§ 101(a)(38), 301(a)(1) 66 Stat. 163, 171, 235 (1952) 

(codified at 8 U.S.C. §§ 1101(a)(38), 1401(a)).

According to the 1950 Census—which derived its racial 

categories from “that which is commonly accepted by the 

general public”—the Chamorro population comprised the 

single largest racial group in Guam at the time (45.6%). See 

U.S. Bureau of the Census, Census of Population: 1950, Vol. 

II at 54–46 tbl. 36 (1953) (“1950 Census”). The second 

largest racial group was White (38.5%), and the rest of the 

population was Filipino, Chinese, or other races. Virtually 

all non-Chamorro people residing in the Territory were 

either already U.S. citizens (99.4% of all Whites were U.S. 

citizens) or were born outside the jurisdiction of the United 

States and therefore likely not citizens by authority of the 

Organic Act (e.g., 94.4% of Filipinos were non-citizens). As 

of 1950, 98.6% of all non-citizens in Guam were Chamorro. 

Id. at 54–49 tbl. 38.

The citizenship provisions of the Organic Act were in 

force for less than two years. In 1952, Congress enacted the 

Immigration and Nationality Act of 1952 (“INA”), which, 

among other things, repealed the citizenship provisions of 

the Organic Act, see Pub. L. No. 82-414, § 403(a)(42), 66 

Stat. 163, 280, and conferred U.S. citizenship on all persons 

born in Guam after passage of the new INA. See id. 

§§ 101(a)(38), 301(a)(1), 66 Stat. 163, 171, 235 (codified at 

8 U.S.C. §§ 1101(a)(38), 1401(a)).

In the decades following passage of the Organic Act, 

some of Guam’s inhabitants continued to advocate for more 

political autonomy. Those efforts eventually resulted in, 
8 DAVIS V. GUAM

among other things, “An Act to Establish the Chamorro 

Registry,” enacted by the Guam legislature in 1996. Guam 

Pub. L. No. 23-130, § 1 (codified as amended at 3 Guam 

Code Ann. §§ 18001–31) (“Registry Act”), repealed in part 

by Guam Pub. L. No. 25-106 (2000). The Registry Act 

created a registry of “Chamorro individuals, families, and 

their descendants.” Id. § 1. It referred to the “Chamorro” as 

the “indigenous people of Guam” who possess “a distinct 

language and culture.” Id.

3 The Act’s stated purpose was for 

the registry to “assist in the process of heightening local 

awareness among the people of Guam of the current struggle 

 3 Another section of the Registry Act defined “Chamorro”:

(a) Chamorro means those persons defined by 

the U.S. Congress in Section IV of the Organic 

Act of Guam . . . and their descendants:

(1) All inhabitants of the island of Guam on 

April 11, 1899, including those temporarily 

absent from the island on that date, who were 

Spanish subjects, who after that date 

continued to reside in Guam or other territory 

over which the United States exercises 

sovereignty, and have taken no affirmative 

steps to preserve or acquire foreign 

nationality; and

(2) All persons born in the island of Guam, 

who resided in Guam on April 11, 1899, 

including those temporarily absent from the 

island on that date, who after that date 

continued to reside in Guam or other territory 

over which the United States exercises 

sovereignty, and who have taken no 

affirmative steps to preserve or acquire 

foreign nationality.

Registry Act § 20001(a).
DAVIS V. GUAM 9

for Commonwealth, of the identity of the indigenous 

Chamorro people of Guam, and of the role that Chamorros 

and succeeding generations play in the island’s cultural 

survival and in Guam’s political evolution towards selfgovernment.” Id.

One year later, the Guam legislature established the 

“Commission on Decolonization for the Implementation and 

Exercise of Chamorro Self-Determination,” Guam Pub. L. 

No. 23-147 (1997) (codified at 1 Guam Code Ann. §§ 2101–

15) (“1997 Plebiscite Law”), repealed in part by Guam Pub. 

L. No. 25-106 (2000). The Legislature established the 

Commission on Decolonization “in the interest of the will of 

the people of Guam, desirous to end colonial discrimination 

and address long-standing injustice of [the Chamorro] 

people.” Id. § 1. The purpose of the Commission on 

Decolonization was to “ascertain the desire of the Chamorro 

people of Guam as to their future political relationship with 

the United States.” Id. § 5. It was charged with writing 

position papers on the political status options for Guam and 

with conducting a public information campaign based on 

those papers. Id. §§ 6–9. The 1997 Plebiscite Law also called 

for a “political status plebiscite” during the next primary 

election, in which voters would be asked:

In recognition of your right to selfdetermination, which of the following 

political status options do you favor?

1. Independence

2. Free Association

3. Statehood
10 DAVIS V. GUAM

Id. § 10. Voting in the plebiscite was to be limited to 

“Chamorro People,” defined as “[a]ll inhabitants of Guam in 

1898 and their descendants who have taken no affirmative 

steps to preserve or acquire foreign nationality.” Id. §§ 2(b), 

10. The Commission on Decolonization was then directed to 

“transmit [the results of the plebiscite] to the President and 

Congress of the United States and the Secretary General of 

the United Nations.” Id. § 5.

Before the planned date of the self-determination 

plebiscite, the Supreme Court in Rice v. Cayetano

invalidated a Hawaii law restricting the right to vote in 

certain elections to “Hawaiians,” defined as the descendants 

of people inhabiting the Hawaiian Islands in 1778. 528 U.S. 

at 499. A month after Rice was decided, the Guam legislature 

enacted the law at issue in this case. Guam Pub. L. No. 25-

106 (2000) (codified at 3 Guam Code Ann. §§ 21000–31,

1 Guam Code Ann. §§ 2101–15) (“2000 Plebiscite Law”).

The 2000 Plebiscite Law contains several interrelated 

provisions: First, it leaves the Registry Act intact and creates 

a separate “Guam Decolonization Registry” in which those 

voters qualified for the new political status plebiscite would 

be listed.4 3 Guam Code Ann. §§ 21000, 21026. Those 

 4 The 2000 Plebiscite Law modified the definition of “Chamorro” in 

the Registry Act, to the following:

(a) ‘Chamorro’ shall mean:

(1) all inhabitants of the Island of Guam on April 

11, 1899, including those temporarily absent from 

the Island on that date and who were Spanish 

subjects; and
DAVIS V. GUAM 11

qualified to register, and therefore to vote, in the plebiscite 

must be “Native Inhabitants of Guam,” defined as “those 

persons who became U.S. Citizens by virtue of the authority 

and enactment of the 1950 Organic Act of Guam and 

descendants of those persons.” Id. § 21001(e).

Second, the 2000 Plebiscite Law retains the Commission 

on Decolonization but amends portions of the 1997 

Plebiscite Law to replace all references to “Chamorro” with 

“Native Inhabitants of Guam.” 1 Guam Code Ann. §§ 2101–

02, 2104–05, 2110. As revised, the law establishing a new 

plebiscite provides:

The general purpose of the Commission on 

Decolonization shall be to ascertain the intent 

of the Native Inhabitants of Guam as to their 

future political relationship with the United 

States of America. Once the intent of the 

Native Inhabitants of Guam is ascertained, 

the Commission shall promptly transmit that 

desire to the President and the Congress of 

 (2) all persons born on the Island of Guam prior

to 1800, and their descendants, who resided on 

Guam on April 11, 1899, including those 

temporarily absent from the Island on that date, 

and their descendants;

(i) ‘descendant’ means a person who has 

proceeded by birth, such as a child or 

grandchild, to the remotest degree, from any 

‘Chamorro’ as defined above, and who is 

considered placed in a line of succession 

from such ancestor where such succession is 

by virtue of blood relations.

2000 Plebiscite Law § 12.
12 DAVIS V. GUAM

the United States of America, and to the 

Secretary General of the United Nations.

Id. § 2105.

Finally, the 2000 Plebiscite Law states that “[t]he intent 

of [the law] shall not be construed nor implemented by the 

government officials effectuating its provisions to be race 

based, but founded upon the classifications of persons as 

defined by the U.S. Congress in the 1950 Organic Act of 

Guam.” 3 Guam Code Ann. § 21000. Rather, the intent of 

the law is “to permit the native inhabitants of Guam, as 

defined by the U.S. Congress’ 1950 Organic Act of Guam to 

exercise the inalienable right to self-determination of their 

political relationship with the United States of America,” as 

that “right has never been afforded.” Id.

One subsequent amendment to the plebiscite relevant to 

this case followed. In 2010, the Guam legislature passed a 

law providing that individuals who received or had been 

preapproved for a Chamorro Land Trust Commission 

(“CLTC”) property lease would be automatically registered 

in the Guam Decolonization Registry. Guam Pub. L. No. 30-

102, § 21002.1 (codified at 3 Guam Code Ann. § 21002.1). 

The CLTC was created in 1975 to administer leases for lands 

that the United States had seized from Guam inhabitants 

during and after World War II and had later returned to the 

Guam government. See Guam Pub. L. 12-226 (codified as 

amended at 21 Guam Code Ann. §§ 75101–75125). Persons 

eligible to receive CLTC leases must be “Native 

Chamorros,” defined as “any person who became a U.S. 

citizen by virtue of the authority and enactment of the 

Organic Act of Guam or descendants of such person.” 

21 Guam Code Ann. §§ 75101(d), 75107(a).
DAVIS V. GUAM 13

Arnold Davis, a non-Chamorro resident of Guam, sought 

to register for the Guam Decolonization Registry and 

thereby to qualify as a voter in the plebiscite. He was denied 

registration because he did not meet the definition of “Native 

Inhabitant of Guam.” Davis filed suit in 2011, challenging 

the 2000 Plebiscite Law on grounds that it violated the 

Fourteenth and Fifteenth Amendments of the Constitution, 

the Voting Rights Act of 1965, and the Organic Act.

At the time the suit was filed, the plebiscite had not yet 

occurred, and no date was set for it to take place. Davis v. 

Guam, Civil Case No. 11-00035, 2013 WL 204697, *2–3 

(D. Guam 2013) (“Davis I”). Relying on the uncertain 

timing of the plebiscite, the district court initially dismissed 

the case for lack of standing and ripeness. Id. at *9. We 

reversed that dismissal on appeal, holding that Davis’s 

alleged unequal treatment was a sufficient injury to establish 

standing and that his claim was ripe because he adequately 

alleged that he was “currently being denied equal treatment 

under Guam law.” Davis v. Guam, 785 F.3d 1311, 1315–16 

(9th Cir. 2015) (“Davis II”).

After remand to the district court the parties filed crossmotions for summary judgment. The district court granted 

Davis’s motion for summary judgment and permanently 

enjoined Guam from conducting a plebiscite restricting 

voters to Native Inhabitants of Guam. Davis v. Guam, No. 

CV 11-00035, 2017 WL 930825, at *1 (D. Guam 2017) 

(“Davis III”).

The district court concluded, first, that the plebiscite was 

an election for Fifteenth Amendment purposes because the 

result of the vote would decide a public issue. Id. at *11. 

Next, the court determined that although “Native Inhabitants 

of Guam” is not an explicit racial classification, the history 

and structure of the 2000 Plebiscite Law reveal that “the very 
14 DAVIS V. GUAM

object of the statutory definition in question here . . . is to 

treat the Chamorro people as a ‘distinct people.’” Id. at *8 

(quoting Rice, 528 U.S. at 515). The 2000 Plebiscite Law 

therefore used “ancestry as a proxy for race,” the district 

court held, in violation of the Fifteenth Amendment. Id.

The court also decided that the 2000 Plebiscite Law 

violated the Equal Protection Clause of the Fourteenth 

Amendment. Applying strict scrutiny, the court held the law 

was not narrowly tailored to a compelling state interest as all 

inhabitants of Guam, not just its “Native Inhabitants,” have 

an interest in the results of the plebiscite. Id. at *12–*14. The 

district court concluded that less restrictive alternatives exist, 

including “conducting a poll with the assistance of the 

University of Guam.” Id. at *14.

This appeal followed. “We review a district court’s 

decision on cross motions for summary judgment de novo.” 

Commonwealth Election Comm’n, 844 F.3d at 1091.

II

Congress has provided that the Fifteenth Amendment 

“shall have the same force and effect [in Guam] as in the 

United States.” 48 U.S.C. § 1421b(u); accord Davis II, 

785 F.3d at 1314 n.2. That Amendment provides: “The right 

of citizens of the United States to vote shall not be denied or 

abridged by the United States or by any State on account of 

race, color, or previous condition of servitude.” U.S. Const. 

amend. XV, § 1. The Fifteenth Amendment is 

“comprehensive in reach,” and applies to “any election in 

which public issues are decided or public officials selected.” 

Rice, 528 U.S. at 512, 523 (quoting Terry v. Adams, 345 U.S. 

461, 468 (1953)).
DAVIS V. GUAM 15

Guam argues that the Fifteenth Amendment is 

inapplicable to the plebiscite because that vote will not 

decide a public issue. It notes that the 2000 Plebiscite Law 

requires Guam to transmit the results of the plebiscite to 

Congress, the President, and the United Nations but will not, 

itself, create any change in the political status of the 

Territory. That is so. But, despite its limited immediate 

impact, the results of the planned plebiscite commit the 

Guam government to take specified actions and thereby 

constitute a decision on a public issue for Fifteenth 

Amendment purposes.

We begin by noting that any suggestion that the Fifteenth 

Amendment be read restrictively should be viewed with 

skepticism. The right to vote is foundational in our 

democratic system. See Kramer v. Union Free Sch. Dist. No. 

15, 395 U.S. 621, 626 (1969); Harper v. Va. State Bd. of 

Elections, 383 U.S. 663, 667 (1966); Reynolds v. Sims, 

377 U.S. 533, 555 (1964). Protecting the franchise is 

“preservative of all rights,” because the opportunity to 

participate in the formation of government policies defines 

and enforces all other entitlements. Yick Wo v. Hopkins, 

118 U.S. 356, 370 (1886). “Other rights, even the most basic, 

are illusory if the right to vote is undermined.” Wesberry v. 

Sanders, 376 U.S. 1, 17 (1964). For that reason, the Fifteenth 

Amendment is “comprehensive in reach.” Rice, 528 U.S. 

at 512. The text of the Fifteenth Amendment states broadly 

that the right “to vote” shall not be denied. U.S. Const. 

amend. XV, § 1. It does not qualify the meaning of “vote” in 

any way. In light of the text and the unique importance of 

the Fifteenth Amendment, where there is any doubt about 

the Fifteenth Amendment’s boundaries we err on the side of 

inclusiveness.
16 DAVIS V. GUAM

We have no need here to define the precise contours of 

what it means to “decide” a “public issue” under the 

Fifteenth Amendment. See Rice, 528 U.S. at 523. It is at least 

clear that the Amendment includes any government-held 

election in which the results commit a government to a 

particular course of action. That requirement is met here.

First, the issue the 2000 Plebiscite Law would decide is 

public in nature. A basic premise of our representative 

democracy is “the critical postulate that sovereignty is vested 

in the people.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 

779, 794 (1995). Because the government “derives all its 

powers directly or indirectly from the great body of the 

people,” The Federalist No. 39, at 241 (James Madison) 

(Clinton Rossiter ed., 1961), the government necessarily 

exercises authority on behalf of the public when it acts. In 

that sense, its actions are of public concern.

The Supreme Court acknowledged this foundational 

principle in Terry v. Adams, which addressed a related 

question—whether an election held by a private organization 

constituted state action for purposes of the Fifteenth 

Amendment. Terry held that the Jaybird Democratic 

Association’s primary elections, which functionally 

determined the Democratic Party’s candidates for public 

office in a Texas county, violated the Fifteenth Amendment 

by excluding black voters. 345 U.S. at 470 (plurality 

opinion). The Court concluded that although the Jaybird 

primaries were private in the sense that they were conducted 

by a private entity, they served a public function because 

they chose candidates for public office. The Jaybird 

primaries were therefore covered by the Fifteenth 

Amendment. Id. at 469–70.

A plurality of the Court explained this conclusion as 

follows: “Clearly the [Fifteenth] Amendment includes any 
DAVIS V. GUAM 17

election in which public issues are decided or public officials 

selected. Just as clearly the Amendment excludes social or 

business clubs.” Id. at 468–69. Decades later, the Rice

majority adopted the formulation of the Terry plurality—that 

the Fifteenth Amendment applies to “any election in which 

public issues are decided or public officials selected.” 

528 U.S. at 523 (quoting Terry, 345 U.S. at 468). This focus 

is confirmed by another passage in the Terry plurality 

opinion on which Rice relied. That passage specified that the 

Fifteenth Amendment establishes a right “not to be 

discriminated against as voters in elections to determine 

public governmental policies or to select public officials, 

national, state, or local.” Id. at 514 (emphasis added) 

(quoting Terry, 528 U.S. at 467).

In this case, the 2000 Plebiscite Law prescribes that the 

Commission on Decolonization—a governmental body—

will make an official transmission to Congress, the 

President, and the United Nations, and the results of the 

plebiscite will determine the content of the message 

transmitted. See 1 Guam Code Ann. § 2105. What a 

governmental body will communicate to other governmental 

entities is assuredly a “public issue”—a matter of 

“governmental polic[y].” Terry, 345 U.S. at 467–68.

Second, the election called for by the 2000 Plebiscite 

Law commits Guam to a particular course of action: A 

governmental commission with prescribed duties would be 

bound to transmit the result of the plebiscite to the federal 

government and to the United Nations. By requiring the 

transmission of the plebiscite results, the 2000 Plebiscite 

Law mandates that the Commission on Decolonization take 

a public stance in support of the result. 3 Guam Ann. Code 

§ 21000 (“It is the purpose of this legislation to seek the 

desires to those peoples who were given citizenship in 1950 
18 DAVIS V. GUAM

and to use this knowledge to further petition Congress and 

other entities to achieve the stated goals.”). So, regardless of 

whether the result of the plebiscite ultimately affects the 

political status of Guam, the plebiscite will “decide” a public 

issue—what position a governmental entity will advocate 

before domestic and international bodies.

The plebiscite therefore will both concern a “public 

issue”—Guam’s official communication with other 

governmental bodies—and “decide” it, in that it will commit 

a governmental body to communicate the position 

determined by the plebiscite. Given these two features, the 

election is, under Rice, subject to the Fifteenth Amendment’s 

protection against racial restrictions on the right to vote.

Were this plebiscite not covered by the Fifteenth 

Amendment, the scope of the Amendment’s prohibition on 

race-based voting restrictions in elections would be 

significantly narrowed. Elections regularly require a 

governmental body to take a stance on issues even though 

there may be no on-the-ground changes in policy. For 

example, state initiatives sometimes authorize permission to 

make a policy change, but the actual policy change is 

contingent on future occurrences. See, e.g., Proposition 7, 

Assemb. B. 807, 2017–2018 Leg., Reg. Sess. (Cal. 2018) 

(allowing the state legislature to vote to change daylight 

savings time, if the change is allowed by the federal 

government).5 Moreover, in presidential elections, political 

 5 State statutory and constitutional limits govern what propositions 

can be the subject of state initiatives or referenda. See, e.g., Am. Fed’n 

of Labor v. Eu, 36 Cal. 3d 687, 703 (1984) (holding that a state initiative 

requiring the legislature to enact a resolution which did not itself change 

California law exceeded scope of the initiative power under the 

California Constitution); Harper v. Waltermire, 213 Mont. 425, 428 

(1984) (same with respect to Montana initiative under the Montana 
DAVIS V. GUAM 19

parties in several states employ nonbinding primaries, in 

which primary voters may express their preference for a 

candidate but the delegates to a party’s national convention 

are not, technically, bound by that preference. See Nathaniel 

Persily, Candidates v. Parties: The Constitutional 

Constraints on Primary Ballot Access Laws, 89 Geo. L.J. 

2181, 2219 n.127 (2001).6 Concluding that the Fifteenth 

Amendment only applies to elections triggering an 

immediate substantive action would exempt a broad 

category of elections from Fifteenth Amendment protection.

We hold that Guam’s 2000 Plebiscite Law is subject to 

the requirements of the Fifteenth Amendment.

III

We turn to the core of the Fifteenth Amendment issue: 

Does the 2000 Plebiscite Law deny citizens the right to vote 

“on account of race?” U.S. Const. amend. XV, § 1.7

 Constitution). Those limits are distinct from the question of whether the 

Fifteenth Amendment applies if an initiative or referendum is held.

6 We do not decide whether these elections are definitively subject 

to the requirements of the Fifteenth Amendment. We note them only as 

examples of the type of elections that might be affected if the Fifteenth 

Amendment applied only to elections that triggered immediate 

substantive outcomes.

7 We address only the constitutionality of the plebiscite under 

Section 1 of the Fifteenth Amendment. Our opinion affects neither 

Congress’s power under Section 2 to enact appropriate legislation 

enforcing the Amendment nor the analysis of voting restrictions under 

the Fourteenth Amendment, which may be subject to heightened scrutiny 

rather than an absolute bar. See, e.g., Harper, 383 U.S. at 667 (holding 

that poll taxes in elections must be “carefully and meticulously 

scrutinized” under the Equal Protection Clause (citation omitted)).
20 DAVIS V. GUAM

The Fifteenth Amendment’s prohibition on race-based 

voting restrictions is both fundamental and absolute. See 

Shaw v. Reno, 509 U.S. 630, 639 (1993). As “[t]here is no 

room under the Amendment for the concept that the right to 

vote in a particular election can be allocated based on race,” 

the levels of scrutiny applied to other constitutional 

restrictions are not pertinent to a race-based franchise 

limitation. Rice, 528 U.S. at 523 (emphasis added). This 

clear-cut rule reflects the importance of the franchise as “the 

essence of a democratic society” and recognizes that “any 

restrictions on that right strike at the heart of representative 

government.” Reynolds, 377 U.S. at 555.

Moreover, the Fifteenth Amendment applies with equal 

force regardless of the particular racial group targeted by the 

challenged law. Although originally enacted to guarantee 

emancipated slaves the right to vote after the Civil War, the 

generic language of the Fifteenth Amendment “transcend[s] 

the particular controversy which was the immediate impetus 

for its enactment.” Rice, 528 U.S. at 512. The Amendment’s 

prohibition on racial discrimination “grants protection to all 

persons, not just members of a particular race.” Id. Its 

“mandate of neutrality” is thus straightforward and 

universal: “If citizens of one race having certain 

qualifications are permitted by law to vote, those of another 

having the same qualifications must be” permitted to vote as 

well. Id. (quoting United States v. Reese, 92 U.S. 214, 218 

(1875)).

Determining whether a law discriminates “on account of 

race” is not, however, always straightforward. Voting 

qualifications that, by their very terms, draw distinctions 

based on racial characteristics are of course prohibited. See

Nixon v. Herndon, 273 U.S. 536 (1927); South Carolina v. 

Katzenbach, 383 U.S. 301, 325 (1966) (collecting cases). 
DAVIS V. GUAM 21

But “[t]he (Fifteenth) Amendment nullifies sophisticated as 

well as simple-minded modes of discrimination.” Gomillion 

v. Lightfoot, 364 U.S. 339, 342 (1960) (quoting Lane v. 

Wilson, 307 U.S. 268, 275 (1939)). So, in addition to facial 

racial distinctions, classifications that are race neutral on 

their face but racial by design or application violate the 

Fifteenth Amendment.

The well-established hallmarks of such discrimination 

for constitutional purposes are discriminatory intent, see 

Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 481–82 (1997); 

City of Mobile v. Bolden, 446 U.S. 55, 62–63 (1980) 

(plurality opinion), and discriminatory implementation, see

Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45, 

53 (1959) (“Of course a literacy test, fair on its face, may be 

employed to perpetuate that discrimination which the 

Fifteenth Amendment was designed to uproot.”).

One category of facially neutral restrictions that runs 

afoul of the Fifteenth Amendment is a classification so 

closely intertwined with race that it is a “proxy for race,” as 

the Supreme Court found to be the case in Rice, 528 U.S. at 

514. Rice addressed a voting qualification in statewide 

elections for the trustees of the Office of Hawaiian Affairs, 

a state agency that administers programs for the benefit of 

descendants of Native Hawaiians. Id. at 498–99. The Hawaii 

Constitution limited voting in those elections to 

“Hawaiians,” defined by statute as “any descendant of the 

aboriginal peoples inhabiting the Hawaiian Islands which 

exercised sovereignty and subsisted in the Hawaiian Islands 

in 1778, and which peoples thereafter have continued to 

reside in Hawaii.” Id. at 509 (quoting Haw. Rev. Stat. § 10-

2). Rice held that the Hawaiian voting restriction was racial 

“in purpose and operation.” Id. at 516. It reasoned as 

follows:
22 DAVIS V. GUAM

Ancestry can be a proxy for race. It is that 

proxy here. . . . For centuries Hawaii was 

isolated from migration. The inhabitants 

shared common physical characteristics, and 

by 1778 they had a common culture. Indeed, 

the drafters of the statutory definition in 

question emphasized the “unique culture of 

the ancient Hawaiians” in explaining their 

work. The provisions before us reflect the 

State’s effort to preserve that commonality of 

people to the present day. In the 

interpretation of the Reconstruction era civil 

rights laws we have observed that “racial 

discrimination” is that which singles out 

“identifiable classes of persons . . . solely 

because of their ancestry or ethnic 

characteristics.” Saint Francis Coll. v. AlKhazraji, 481 U.S. 604, 613 (1987). The very 

object of the statutory definition in question 

and of its earlier congressional counterpart in 

the Hawaiian Homes Commission Act is to 

treat the early Hawaiians as a distinct people, 

commanding their own recognition and 

respect. The State, in enacting the legislation 

before us, has used ancestry as a racial 

definition and for a racial purpose.

Id. at 514–15 (second alteration in original) (citations 

omitted).

To confirm its conclusion, Rice looked to the history of 

the “Hawaiian” definition at issue and determined that 

previously proposed versions of the qualification had 

expressly referred to “Hawaiians” as a race. Id. at 515–516. 

The Court concluded that removal of the “race” reference 
DAVIS V. GUAM 23

did not change the classification of individuals allowed to 

vote in the election. The voter qualification therefore 

remained race-based although it no longer proclaimed as 

such. Id. at 516. Rice provides key guidance for determining 

whether the 2000 Plebiscite Law’s restriction of the vote to 

“Native Inhabitants of Guam” is race-based.

A

Our first inquiry is whether, as Davis maintains, Rice

held all classifications based on ancestry to be impermissible 

proxies for race. It did not.

The Supreme Court selected its words carefully when it 

struck down the voting restrictions at issue in Rice. It stated 

that “[a]ncestry can be a proxy for race” in the context of the 

Fifteenth Amendment, not that it always is. Id. at 514 

(emphasis added).

The Court’s determination that the challenged voting 

qualification’s use of ancestry “is that proxy here,” id., rested 

on the historical and legislative context of the particular 

classification at issue, not on the categorical principle that all 

ancestral classifications are racial classifications. The Court 

focused specifically on the fact that in 1778, the individuals 

inhabiting the Hawaiian Islands were a “distinct people” 

with common physical characteristics and shared culture. Id. 

at 515. Limiting the franchise to descendants of that distinct 

people, the Court reasoned, singled out individuals for 

special treatment based on their “ethnic characteristics and 

cultural traditions.” Id. at 515, 517. Rice buttressed that 

conclusion with evidence from the legislative history of the 

challenged statute, which referred to “Hawaiians” as a 

“race.” Id. at 516. In other words, the Court recognized that 

ancestral tracing can be a characteristic of a racial 

classification, but is not itself always sufficient to identify 
24 DAVIS V. GUAM

such a classification. And it concluded that the ancestral 

classification at issue was problematic because it operated as 

a race-based voting restriction. If the Court had meant to 

suggest that all classifications based on ancestry were 

impermissible, it would have had no need to examine the 

unique history of the descendants allowed to vote under the 

challenged law.

Davis contends that one sentence in Rice indicates 

otherwise—that all ancestry classifications are 

impermissible racial classifications: “‘[R]acial 

discrimination’ is that which singles out ‘identifiable classes 

of persons . . . solely because of their ancestry or ethnic 

characteristics.’” Id. at 515 (second alteration in original) 

(quoting Saint Francis Coll., 481 U.S. at 613). But that 

interpretation wrenches the sentence in Rice from its context. 

Rice quoted Saint Francis Coll. to support its conclusion that 

the specific classification at issue in Rice was a racial 

classification.8 After an exhaustive account of Hawaii’s 

 8 Saint Francis Coll. does not suggest that all ancestral 

classifications are racial ones either. That case addressed whether 

discrimination based specifically on “Arabian ancestry” constituted 

racial discrimination for purposes of 42 U.S.C. § 1981. 481 U.S. at 607. 

After recounting the legislative history of § 1981 and the understanding 

of race at the time the statute was passed in 1870, the Court concluded 

the following:

Based on the history of § 1981, we have little trouble 

in concluding that Congress intended to protect from 

discrimination identifiable classes of persons who are 

subjected to intentional discrimination solely because 

of their ancestry or ethnic characteristics. Such 

discrimination is racial discrimination that Congress 

intended § 1981 to forbid, whether or not it would be 

classified as racial in terms of modern scientific 

theory. [Section] 1981, at a minimum, reaches 
DAVIS V. GUAM 25

history, the Court determined that the voter eligibility 

classification singled out persons solely because of their 

ancestral relationship to a culturally and ethnically distinct 

population, and went on to conclude that “[a]ncestral tracing 

of this sort achieves its purpose by creating a legal category 

which employs the same mechanisms, and causes the same 

injuries, as laws or statutes that use race by name.” Id. at 517 

(emphasis added). Nowhere did the Court suggest that 

classification by ancestry alone was sufficient to render the 

challenged classification a racial one.

B

Rice did not go on to explain further the connection 

between ancestry and race, or to explain what it meant by 

“ethnic characteristics and cultural traditions.” Id. And 

modern courts have generally resisted defining with 

precision the legal concept of race and more specifically, the 

relationship between ancestry and the legal concept of race.

Racial categories were once thought to be grounded in 

biological fact, but shifting understandings of which groups 

constitute distinct races throughout history reveal such 

categories to be “social construct[s],” the boundaries of 

which are subject to contestation and revision. Ho ex rel. Ho 

v. S.F. Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998); 

 discrimination against an individual because he or she 

is genetically part of an ethnically and 

physiognomically distinctive sub-grouping of homo 

sapiens. It is clear from our holding, however, that a 

distinctive physiognomy is not essential to qualify for 

§ 1981 protection.

Id. at 613 (footnotes and internal quotation marks omitted).
26 DAVIS V. GUAM

see also Saint Francis Coll., 481 U.S. at 610 n.4; United 

States v. Nelson, 277 F.3d 164, 176 n.12 (2d Cir. 2002).9

Still, as a legal concept, a racial category is generally 

understood as a group, designated by itself or others, as 

socially distinct based on perceived common physical, 

ethnic, or cultural characteristics. So, for example, Abdullahi 

v. Prada USA Corp. stated that “[a] racial group as the term 

is generally used in the United States today is a group having 

a common ancestry and distinct physical traits,” 520 F.3d 

710, 712 (7th Cir. 2008), a definition also reflected in a 

federal statute outlawing genocide. See 18 U.S.C. § 1093(6) 

(“[T]he term ‘racial group’ means a set of individuals whose 

identity as such is distinctive in terms of physical 

characteristics or biological descent.”). Saint Francis Coll.

held that racial discrimination includes discrimination based 

on “ethnic characteristics,” 481 U.S. at 612–613, and Rice 

emphasized that the “unique culture of the ancient 

Hawaiians,” combined with their common ancestry—that is, 

biological descent—distinguished them as a race. 528 U.S. 

 9 Examples of this contestation and revision have at times reached 

our highest court. In the early twentieth century, the Supreme Court 

decided a number of cases delineating who qualified as white and were 

therefore afforded its privileges. In Ozawa v. United States, 260 U.S. 178 

(1922), the Court held that a man of the “Japanese race born in Japan” 

was not a “white person” and therefore was not qualified to be 

naturalized under the country’s then-racially restrictive naturalization 

laws. It reasoned that the term “white person” was synonymous with the 

“Caucasian race.” Id. at 189, 197–98. A year later, the Court, however, 

held that a man of South Asian descent born in India did not qualify as a 

“white person” despite acknowledging that many scientific authorities at 

the time considered South Asians to be members of the Caucasian race. 

United States v. Thind, 261 U.S. 204, 210–15 (1923); see also Gong Lum 

v. Rice, 275 U.S. 78 (1927) (upholding a state court ruling requiring an 

American citizen of Chinese descent to attend school for “colored” 

children and not for white children).
DAVIS V. GUAM 27

at 514–15.10 These various concepts remain somewhat 

distinct, but all embrace the core concept of a group of 

people distinguished based on certain identifiable traits.

Just as race is a difficult concept to define, so is 

ancestry’s precise relationship to race. Ancestry identifies 

individuals by biological descent. See Ancestry, Black’s Law 

Dictionary (10th ed. 2014) (“A line of descent; collectively, 

a person’s forebears; lineage.”); Ancestor, Oxford English 

Dictionary (2d ed. 1989) (“One from whom a person is 

descended, either by the father or mother; a progenitor, a 

forefather.”). Racial categories often incorporate biological 

descent, as the mechanism through which present day 

individuals viewed as a distinct group are thought to be 

connected to an earlier set of individuals with identifiable 

physical, ethnic, or cultural characteristics. For example, 

state laws mandating the enslavement and later segregation 

and subjugation of African Americans identified them by the 

percentage of blood they possessed from African American 

ancestors. See, e.g., Loving v. Virginia, 388 U.S. 1, 5 n.4 

(1967); Plessy v. Ferguson, 163 U.S. 537, 552 (1896); Neil 

Gotanda, A Critique of “Our Constitution Is Color-Blind,”

 10 See also Hernandez v. State of Tex., 347 U.S. 475, 478 (1954) 

(“Throughout our history differences in race and color have defined 

easily identifiable groups which have at times required the aid of the 

courts in securing equal treatment under the laws. But community 

prejudices are not static, and from time to time other differences from 

the community norm may define other groups which need the same 

protection. Whether such a group exists within a community is a question 

of fact.”); D. Wendy Greene, Title VII: What’s Hair (and Other RaceBased Characteristics) Got to Do With It?, 79 U. Colo. L. Rev. 1355, 

1385 (2008) (“Race includes physical appearances and behaviors that 

society, historically and presently, commonly associates with a particular 

racial group, even when the physical appearances and behavior are not 

‘uniquely’ or ‘exclusively’ ‘performed’ by, or attributed to a particular 

racial group.”).
28 DAVIS V. GUAM

44 Stan. L. Rev. 1, 24 n.94 (1991). Until 1952, Congress 

imposed racial restrictions on who could be naturalized as 

citizens. See 8 U.S.C. § 703 (repealed 1952). Among those 

eligible for naturalization were “white persons, persons of 

African nativity or descent, and persons who are descendants 

of races indigenous to the continents of North or South 

America,” as well as those with a “preponderance of blood” 

from those groups. Id. § 703(a)(1), (2). Race and ancestry 

thus frequently overlap or are treated as equivalents by 

courts. See, e.g., Hirabayashi v. United States, 320 U.S. 81, 

100 (1943) (“Distinctions between citizens solely because of 

their ancestry are by their very nature odious to a free people 

whose institutions are founded upon the doctrine of equality. 

For that reason, legislative classification or discrimination 

based on race alone has often been held to be a denial of 

equal protection.”).

But ancestry and race are not identical legal concepts. 

State and federal laws are replete with provisions that target 

individuals based on biological descent without reflecting 

racial classifications. These include laws of intestate 

succession, see, e.g., Ariz. Rev. Stat. § 14-2103 (requiring 

passing of property based on lineage in the absence of a 

surviving spouse); Cal. Prob. Code §§ 240, 6402 (same); 

Unif. Prob. Code § 2-103 (Nat’l Conference of Comm’rs on 

Unif. State Laws 2010) (same); see also Hodel v. Irving, 

481 U.S. 704, 716 (1987) (“In one form or another, the right 

to pass on property—to one’s family in particular—has been 

part of the Anglo-American legal system since feudal 

times.”); citizenship, see, e.g., 8 U.S.C. §§ 1431, 1433 

(conferring citizenship on children born outside the United 

States if at least one parent is a U.S. citizen); id. § 1153 

(immigrant visa preferences for children of U.S. citizens and 

lawful permanent residents); and child custody laws, see, 

e.g., Haw. Rev. Stat. § 571-46(7) (providing visitation 
DAVIS V. GUAM 29

privileges for “parents, grandparents, and siblings” of child). 

As Justice Stevens observed in his dissent in Rice, “There 

would be nothing demeaning in a law that established a trust 

to manage Monticello and provided that the descendants of 

Thomas Jefferson should elect the trustees.” 528 U.S. at 545 

& n.16.11

Moreover, the Supreme Court has squarely rejected any 

categorical equivalence between ancestry and racial 

categorization. Morton v. Mancari, 417 U.S. 535 (1974), 

upheld a Bureau of Indian Affairs hiring preference for 

“Indians,” defined as an individual possessing “one-fourth 

or more degree Indian blood and be a member of a Federallyrecognized tribe.” 417 U.S. at 553 n.24. Although the hiring 

preference classified individuals based on biological 

ancestry, the Supreme Court concluded that the 

classification was “political rather than racial in nature.” Id.

Mancari determined that the hiring preference treated 

“Indians not as a discrete racial group, but, rather, as 

members of quasi-sovereign tribal entities,” stressing the 

“unique legal status of Indian tribes under federal law and 

. . . the plenary power of Congress, based on a history of 

treaties and the assumption of a ‘guardian-ward’ status, to 

legislate on behalf of federally recognized Indian tribes.” Id. 

at 551, 554.

Since Mancari, the Supreme Court and our court have 

reaffirmed ancestral classifications related to American 

Indians without suggesting that they constitute racial 

classifications. See Del. Tribal Bus. Comm. v. Weeks, 

 11 See also Sarah Krakoff, They Were Here First: American Indian 

Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491, 496 

n.21 (2017) (collecting “laws [that] recognize and honor ancestry”

outside the Indian law context).
30 DAVIS V. GUAM

430 U.S. 73, 79 n.13, 89 (1977); United States v. Zepeda, 

792 F.3d 1103, 1110 (9th Cir. 2015) (en banc); see also Doe 

v. Kamehameha Schs./Bernice Pauahi Bishop Estate, 

470 F.3d 827, 851–52 (9th Cir. 2006) (en banc) (Fletcher, J., 

concurring) (listing federal laws concerning Indians that rely 

on ancestry); Krakoff, supra, at 501 (explaining that 

American Indian tribal status “assumes ancestral ties to 

peoples who preceded European (and then American) 

arrival”). This well-settled law regarding classifications of 

American Indians confirms that not all ancestral 

classifications are racial ones.

In sum, biological descent or ancestry is often a feature 

of a race classification, but an ancestral classification is not 

always a racial one.

C

That ancestry is not always a proxy for race does not 

mean it never is.

We have previously outlined the contours of proxy 

discrimination when addressing statutory discrimination 

claims:

Proxy discrimination is a form of facial 

discrimination. It arises when the defendant 

enacts a law or policy that treats individuals 

differently on the basis of seemingly neutral 

criteria that are so closely associated with the 

disfavored group that discrimination on the 

basis of such criteria is, constructively, facial 

discrimination against the disfavored group. 

For example, discriminating against 

individuals with gray hair is a proxy for age 

discrimination because “the ‘fit’ between age 
DAVIS V. GUAM 31

and gray hair is sufficiently close.” McWright 

v. Alexander, 982 F.2d 222, 228 (7th Cir. 

1992).

Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 

1142, 1160 n.23 (9th Cir. 2013). The Supreme Court has 

recognized that “[a]ncestry can be a proxy for race” in the 

Fifteenth Amendment context. Rice, 528 U.S. at 514; see 

Commonwealth Election Comm’n, 844 F.3d at 1092. Guinn 

v. United States, for example, held that although an 

exemption to a voting literacy test did not expressly classify 

by race, “the standard itself inherently brings that result into 

existence.” 238 U.S. 347, 364–65 (1915).12 Although proxy 

discrimination does not involve express racial 

classifications, the fit between the classification at issue and 

the racial group it covers is so close that a classification on 

the basis of race can be inferred without more.13 For that 

reason, proxy discrimination is “a form of facial 

discrimination.” Pac. Shores Props., 730 F.3d at 1160 n.23.

Notably, proxy discrimination does not require an exact 

match between the proxy category and the racial 

classification for which it is a proxy. “Simply because a class 

. . . does not include all members of the race does not suffice 

to make the classification race neutral.” Rice, 528 U.S. 

at 516–17. In Rice the classification at issue—though not 

explicitly racial—was so closely intertwined with race, 

given the characteristics of Hawaii’s population in 1778, that 

 12 See also Stephen M. Rich, Inferred Classifications, 99 Va. L. Rev. 

1525, 1532 (2013) (discussing how the Supreme Court has inferred facial 

racial classifications based on a “legislation’s form and practical effect”).

13 We do not address whether ancestry can be a proxy for race in 

contexts beyond the scope of the Fifteenth Amendment.
32 DAVIS V. GUAM

the law was readily understood to be discriminatory in 

“purpose and operation.” Id. at 516. At its core, Rice inferred 

the racial purpose of the Hawaii law from the terms of the 

classification combined with historical facts, concluding that 

Hawaii’s racial voter qualification was “neither subtle nor 

indirect.” Id. at 514.

Relying on Rice, we held in Davis v. Commonwealth 

Election Comm’n that an ancestry-based voting restriction in 

the Commonwealth of the Northern Mariana Islands 

(“CNMI”) was a proxy for race discrimination in violation 

of the Fifteenth Amendment. 844 F.3d at 1093. 

Commonwealth Election Commission concerned a provision 

of the CNMI Constitution limiting voting in certain CNMI 

elections to U.S. citizens or nationals “who [are] of at least 

one-quarter Northern Marianas Chamorro or Northern 

Marianas Carolinian blood,” a classification defined as 

someone who was “born or domiciled in the Northern 

Mariana Islands by 1950 and . . . a citizen of the Trust 

Territory of the Pacific Islands before the termination of the 

Trusteeship with respect to the Commonwealth.” Id. at 1090 

(quoting N. Mar. I. Const. art XII, § 4). We concluded that 

“the stated intent of the provision [was] to make ethnic 

distinctions,” even though the provision was technically 

tethered to an ancestor’s residence in 1950, and even though 

there was “historical evidence that some persons who were 

not of Chamorro or Carolinian ancestry lived on the islands 

in 1950.” Id. at 1093 (emphasis added). We reasoned that the 

voter qualification at issue “tie[d] voter eligibility to descent 

from an ethnic group;” the qualification “referenced blood 

quantum to determine descent” much like the Hawaiian law 

invalidated in Rice; and the statute implementing the 

classification referenced race. Id. As in Rice, the CNMI law 

left no reasonable explanation for the voting qualifications 

except that voter eligibility was race-based.
DAVIS V. GUAM 33

D

Like the classifications invalidated in Rice and 

Commonwealth Election Commission, the classification 

“Native Inhabitants of Guam” in this case serves as a proxy 

for race, in violation of the Fifteenth Amendment. The 2000 

Plebiscite Law limits voting to “Native Inhabitants of 

Guam,” which it defines as “those persons who became U.S. 

Citizens by virtue of the authority and enactment of the 1950 

Organic Act of Guam and descendants of those persons.” 

3 Guam Code Ann. § 21001(e). The Organic Act granted 

U.S. citizenship to three categories of people and their 

descendants. In summary, those categories are:

(1) Individuals born before April 11, 1899, who 

lived in Guam on that date as Spanish 

subjects, and who continued to reside in some 

part of the U.S. thereafter.

(2) Individuals born in Guam before April 11, 

1899, who lived in Guam on that date, and 

who continued to reside in some part of the 

U.S. thereafter.

(3) Individuals born in Guam on or after 

April 11, 1899.

8 U.S.C. § 1407 (1952). This definition is so closely 

associated with the express racial classification “Chamorro” 

used in previously enacted statutes that it can only be 
34 DAVIS V. GUAM

sensibly understood as a proxy for that same racial 

classification.14

The 2000 Plebiscite Law’s immediate predecessors were 

not shy about using an express racial classification. The 

Registry Act established an official list of “Chamorro” 

people, defined according to the Organic Act, as inhabitants 

of Guam in 1899 who were Spanish subjects or were born in 

Guam before 1899, and the descendants of those individuals. 

Registry Act § 20001(a). In its legislative findings and 

statement of intent, the Registry Act provided: “The Guam 

Legislature recognizes that the indigenous people of Guam, 

the Chamorros, have endured as a population with a distinct 

language and culture despite suffering over three hundred 

years of colonial occupation by Spain, the United States of 

America, and Japan.” Id. § 1. It further stated: “The Guam 

Legislature . . . endeavors to memorialize the indigenous 

Chamorro people . . . who continue to develop as one 

Chamorro people on their homeland, Guam.” Id. Finally, the 

Registry Act recognized that “[t]he Legislature intends for 

this registry to assist in the process of heightening local 

awareness among the people of Guam of the current struggle 

for Commonwealth, of the identity of the indigenous 

Chamorro people of Guam, and of the role that Chamorros 

and succeeding generations play in the island’s cultural 

survival and in Guam’s political evolution towards selfgovernment.” Id. As part of those purposes, the law 

recognized that the registry may be used “for the future 

 14 Guam acknowledged in the district court that the term 

“Chamorro” refers to a distinct racial category and does not seriously 

contest otherwise on appeal. We have similarly recognized “Chamorro” 

as a racial classification for Fifteenth Amendment purposes. See

Commonwealth Election Comm’n, 844 F.3d at 1093 (treating “Northern 

Marianas Chamorro” as a racial classification).
DAVIS V. GUAM 35

exercise of self-determination by the indigenous Chamorro 

people of Guam.” Id.

The Registry Act formally tied the definition of 

Chamorro to the race-neutral language of the Organic Act. 

But the enactment as a whole rested on the concept that the 

Chamorro were a “distinct people” with a “common 

culture,” the very hallmarks of racial classification Rice

relied upon in concluding that “Hawaiian” defined a racial 

group for Fifteenth Amendment purposes. See 528 U.S. 

at 514–15.

The 1997 Plebiscite Law, which the 2000 Plebiscite Law 

built directly upon, similarly employed express racial 

classifications. The 1997 law called for a plebiscite limited 

to the “Chamorro people of Guam,” defined as “[a]ll 

inhabitants of Guam in 1898 and their descendants who have 

taken no affirmative steps to preserve or acquire foreign 

nationality.” 1997 Plebiscite Law § 2(b). Like the Registry 

Act, the 1997 Plebiscite Law repeatedly employed the term 

“Chamorro” to note a distinct group and described that group 

as facing “colonial discrimination” and “long-standing 

injustice.” Id. § 1.

Additionally, the Guam legislature has long defined the 

term “Native Chamorro” for purposes of the Chamorro Land 

Trust Commission to include “any person who became a 

U.S. citizen by virtue of the authority and enactment of the 

Organic Act of Guam or descendants of such person.” Guam 

Pub. L. No. 15-118 (1980) (codified at 21 Guam Code Ann. 

§ 75101(d)). The CLTC qualifies Native Chamorros to lease 

land the United States previously seized from Guam’s 

inhabitants during and after World War II and later returned 

to the Guam government. After passage of the 2000 

Plebiscite Law, the Guam legislature enacted a law 

providing that individuals who receive a lease or were 
36 DAVIS V. GUAM

preapproved for one through the CLTC are automatically 

registered in the Guam Decolonization Registry, thereby 

qualifying them to vote in the plebiscite. 3 Guam Code Ann. 

§ 21002.1.

Several similarities between the 2000 Plebiscite Law and 

its predecessors reveal that “Native Inhabitants of Guam” is 

a proxy for “Chamorro,” and therefore for a racial 

classification. First, the 2000 Plebiscite Law’s definition of 

“Native Inhabitants of Guam” is nearly indistinguishable 

from the definitions of “Chamorro” in the Registry Act, the 

1997 Plebiscite Law, and the CLTC. “Native Inhabitants of 

Guam” incorporates all the citizenship provisions of the 

Organic Act, as does the definition of “Native Chamorro” in 

the CLTC; the Registry Act and the 1997 Plebiscite Law 

mirror the first two sections of those provisions. Compare

2000 Plebiscite Law § 21001(e); 21 Guam Code Ann. 

§ 75101(d); Registry Act § 20001(a); 1997 Plebiscite Law 

§ 2(b), with 8 U.S.C. § 1407 (1952).15 That Guam applies 

 15 The Registry Act’s and the 1997 Plebiscite Law’s definition of 

“Chamorro” do not incorporate the third citizenship provision of the 

Organic Act, which grants citizenship to individuals born in Guam on or 

after April 11, 1899. 8 U.S.C. § 1407(b) (1952). Because the INA 

replaced the citizenship provisions of the Organic Act in 1952, see

Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 

§ 403(a)(42), 66 Stat. 163, 280, this third provision uniquely includes 

only individuals who were born in Guam between 1899 and 1952 but 

were not descendants of individuals residing in Guam before 1899. The 

inclusion of this third provision into the definition of “Native Inhabitants 

of Guam” does not meaningfully differentiate the term “Native 

Inhabitants of Guam” from the term “Chamorro.” Even including the 

third citizenship provision of the Organic Act, it appears that as of 1950

98.6% of people who were non-citizen nationals, and thereby likely 

received citizenship pursuant to the Organic Act, were categorized as 

“Chamorro.” See 1950 Census at 54-49 tbl. 38.
DAVIS V. GUAM 37

nearly identical definitions to the terms “Chamorro,” a racial 

category, and “Native Inhabitants of Guam” indicates that 

these terms are interchangeable. The closeness of the 

association is sufficient to conclude that the term “Native 

Inhabitants of Guam” is a proxy for the “Chamorro” 

classification.

Second, the 2000 Plebiscite Law maintains nearly 

identically the features of the facially race-based Registry 

Act and the 1997 Plebiscite Law. This continuity confirms 

the 2000 Plebiscite Law’s changes to the Chamorro 

classification were semantic and cosmetic, not substantive.16

The 2000 Plebiscite Law creates a “Guam 

Decolonization Registry” that mirrors the earlier Registry 

Act. The new registry is structured similarly to the earlier 

one, including requiring an affidavit to register, compare

2000 Plebiscite Law § 21002, with Registry Act § 20002; 

administering the registry through the Guam Election 

Commission, compare 2000 Plebiscite Law § 21001(d), with

Registry Act § 20001(c); and criminalizing false 

registration, compare 2000 Plebiscite Law § 21009, with

Registry Act § 20009.

The 2000 Plebiscite Law also amends the 1997 Plebiscite 

Law to eliminate references to “Chamorro” people, but 

otherwise retains the same features. See 2000 Plebiscite Law 

§§ 7, 9–11. Both statutes establish non-binding elections on 

 16 The 2000 Plebiscite Law slightly changed the definition of 

“Chamorro” in the Registry Act to include individuals born in Guam 

prior to 1800 and their descendants. See 2000 Plebiscite Law § 12; supra, 

n.4. However, this post-hoc revision does not change the near identical 

resemblance between the definitions of “Native Inhabitants of Guam” in 

the 2000 Plebiscite Law and the original definition of “Chamorro” in the 

Registry Act.
38 DAVIS V. GUAM

Guam’s future political status relationship with the United 

States, the results of which will be transmitted to the federal 

government and to the United Nations. Compare 2000 

Plebiscite Law §§ 10–11, with 1997 Plebiscite Law §§ 5, 10. 

Given the similarity in the substantive provisions and in the 

definitions of “Chamorro” and of “Native Inhabitants of 

Guam,” the substitution of terms does not erase the 1997 

Plebiscite Law’s premise for the voting restriction—to treat 

the Chamorro as a “distinct people.” Rice, 528 U.S. at 515.

Finally, the timing of the 2000 Plebiscite Law’s 

enactment confirms its racial basis. The 2000 Plebiscite Law 

was enacted on March 24, 2000, just one month after Rice 

was decided. In Rice, Hawaii had revised its definition of 

“Hawaiian” from an earlier version, by replacing the word 

“races” with “peoples.” Id. at 515–16. The Supreme Court 

concluded based on the drafters’ own admission that “any 

changes to the language were at most cosmetic.” Id. at 516. 

Although we have no similar admission, the same is true 

here. After Rice, Guam’s swift reenactment of essentially the 

same election law—albeit with a change in terms—indicates 

that the Guam legislature’s intent was to apply cosmetic 

changes rather than substantively to alter the voting 

restrictions for the plebiscite.

Guam’s primary argument to the contrary is that “Native 

Inhabitants of Guam” is not a racial category but a political

one referring to “a colonized people with a unique political 

relationship to the United States because their U.S. 

citizenship was granted by the Guam Organic Act.” It 

attempts to distinguish this case from Rice on the ground that 

the voter qualification here is tethered not to presence in the 

Territory at a particular date but to the passage of a specific 

law—the Organic Act—which altered the legal status of the 

group to which the ancestral inquiry is linked.
DAVIS V. GUAM 39

But indirect or tiered racial classifications, tethered to 

prior, race-based legislative enactments, are subject to the 

same Fifteenth Amendment proscription on race-based 

voting restrictions as are explicitly racial classifications. In 

Guinn, the Supreme Court invalidated an Oklahoma 

constitutional amendment that established a literacy 

requirement for voting eligibility but exempted the “lineal 

descendant[s]” of persons who were “on January 1, 1866, or 

at any time prior thereto, entitled to vote under any form of 

government, or who at that time resided in some foreign 

nation.” 238 U.S. at 356–7. That classification, like the one 

at issue here, was facially tethered to specific laws—the 

voter eligibility laws in existence in 1866 before the 

Fifteenth Amendment was ratified. In that year, only eight 

northern states permitted African Americans to vote. See

Benno C. Schmdit, Jr., Principle and Prejudice: The 

Supreme Court and Race in the Progressive Era Part 3, 

82 Colum. L. Rev. 835, 862 (1982). Guinn held the 

challenged Oklahoma voting qualification incorporated—

without acknowledging their racial character—a set of 

former race-based statutory restrictions. 238 U.S. at 364–65. 

In essence, the Court recognized that Oklahoma was 

reviving its earlier race-based voting restrictions, thereby 

violating the Fifteenth Amendment.

Nor is Guam’s argument that the classification here is 

political supported by the Supreme Court’s recognition that 

classifications based on American Indian ancestry are 

political in nature. Laws employing the American Indian 

classification targeted individuals “not as a discrete racial 

group, but, rather, as members of quasi-sovereign tribal 

entities.” Mancari, 417 U.S. at 554; see also Rice, 528 U.S. 
40 DAVIS V. GUAM

at 518–20; United States v. Antelope, 430 U.S. 641 (1977).17

Both the Supreme Court and we have rejected the 

application of Mancari for Fifteenth Amendment purposes 

with respect to non-Indian indigenous groups, namely those 

in Hawaii and the CNMI respectively. See Rice, 528 U.S. at 

518–20; Commonwealth Election Comm’n, 844 F.3d at 

1094.18 Nothing counsels a different result in this case. 

Here, the parallels between the 2000 Plebiscite Law and 

previously enacted statutes expressly employing racial 

classifications are too glaring to brush aside. The near 

identity of the definitions for “Native Inhabitants of Guam” 

and “Chamorro,” the lack of other substantive changes, and 

 17 Although Mancari’s rationale was premised on the recognized 

quasi-sovereign tribal status of Indians, “the Supreme Court has not 

insisted on continuous tribal membership, or tribal membership at all, as 

a justification for special treatment of Indians,” and neither has 

Congress. Kamehameha Schs., 470 F.3d at 851 (Fletcher, J., concurring) 

(collecting cases and statutes).

18 Because we affirm the district court on Fifteenth Amendment 

grounds, we reserve judgment on whether the Mancari exception may 

apply to the “Native Inhabitants of Guam” classification outside the 

Fifteenth Amendment context. Rice, which rejected the application of 

Mancari to Hawaiians for Fifteenth Amendment purposes, was careful 

to confine its analysis to voting rights under that amendment. It stated 

that “[t]he validity of the voting restriction is the only question before 

us,” 528 U.S. at 521, and emphasized the unique character of voting 

rights under the Fifteenth Amendment. Id. at 512, 523–24; cf. 

Commonwealth Election Comm’n, 844 F.3d at 1095 (“[L]imits on who 

may own land are quite different—conceptually, politically, and 

legally—than limits on who may vote in elections to amend a 

constitution.”); Kamehameha Schs., 470 F.3d at 853 (Fletcher, J., 

concurring) (arguing that Native Hawaiians are a political—and not 

racial—classification for Fourteenth Amendment purposes because, in 

part, “[u]nlike Rice, the case before us does not involve preferential 

voting rights subject to challenge under the Fifteenth Amendment”).
DAVIS V. GUAM 41

the timing of the 2000 Plebiscite Law’s enactment all 

indicate that the Law rests on a disguised but evident racial 

classification.

* * * *

Concluding that the 2000 Plebiscite Law employs a 

proxy for race is not to equate Guam’s stated purpose of 

“providing dignity in . . . allowing a starting point for a 

process of self-determination” to its native inhabitants with 

the racial animus motivating other laws that run afoul of the 

Fifteenth Amendment, see, e.g., Gomillion, 364 U.S. at 347; 

Guinn, 238 U.S. at 364–65. Our decision makes no judgment 

about whether Guam’s targeted interest in the selfdetermination of its indigenous people is genuine or 

compelling. Rather, our obligation is to apply established 

Fifteenth Amendment principles, which single out voting 

restrictions based on race as impermissible whatever their 

justification. Just as a law excluding the Native Inhabitants 

of Guam from a plebiscite on the future of the Territory 

could not pass constitutional muster, so the 2000 Plebiscite 

Law fails for the same reason.

IV

We hold that Guam’s limitation on the right to vote in its 

political status plebiscite to “Native Inhabitants of Guam” 

violates the Fifteenth Amendment and so AFFIRM the 

district court’s summary judgement order.