Arnold Davis v. Guam

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARNOLD DAVIS, on behalf of himself No. 13-15199
and all others similarly situated,
Plaintiff-Appellant, D.C. No.
1:11-cv-00035
v.

GUAM; GUAM ELECTION OPINION
COMMISSION; ALICE M. TAIJERON;
MARTHA C. RUTH; JOSEPH F. MESA;
JOHNNY P. TAITANO; JOSHUA F.
RENORIO; DONALD I. WEAKLEY;
LEONARDO M. RAPADAS,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge,
Presiding

Argued and Submitted
August 27, 2014—Hagatna, Guam

Filed May 8, 2015

Before: Mary M. Schroeder, Alex Kozinski, and
N. Randy Smith, Circuit Judges.

Opinion by Judge Kozinski;
Dissent by Judge N.R. Smith
2 DAVIS V. GUAM

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district
court’s dismissal, on standing and ripeness grounds, of an
action brought by a resident of Guam who is not eligible to
vote in a plebiscite concerning Guam’s future political
relationship with the United States because he is not a Native
Inhabitant.

Plaintiff alleged that Guam’s Native Inhabitant
classification is an unlawful proxy for race. Plaintiff sought
a declaration that limiting registration to Native Inhabitants
is unlawful, and an injunction against using any registry other
than Guam’s general voter registry in determining who is
eligible to register for, and vote in, the plebiscite.

The panel held that plaintiff’s challenge to Guam’s
registration restriction asserted a judicially cognizable injury
that would be prevented or redressed if the district court were
to grant his requested relief. Plaintiff therefore had Article III
standing to pursue his challenge to Guam’s alleged race-
based registration classification. The panel further held that
the claim was ripe because plaintiff alleged he was currently
subjected to unlawful unequal treatment in the ongoing
registration process.

The panel held that because plaintiff did not argue on
appeal that the district court erred by dismissing his claim

*
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

against Leonardo Rapadas, the Attorney General of Guam,
any claim of error was waived.

Dissenting, Judge N.R. Smith stated that given the
speculative and remote course of events that stood between
plaintiff and his contemplated injury, the matter was not ripe
for adjudication, and the district court correctly dismissed
plaintiff’s complaint.

COUNSEL

Douglas R. Cox, Scott P. Martin (argued) and Marisa C.
Maleck, Gibson, Dunn & Crutcher LLP, Washington, D.C.,
Michael E. Rosman, Center for Individual Rights,
Washington, D.C., Mun Su Park, Law Offices of Park and
Associates, Tamuning, Guam and J. Christian Adams,
Election Law Center, PLLC, Alexandria, Virginia for
Plaintiff-Appellant.

Leonardo M. Rapadas, Attorney General, and Robert M.
Weinberg, Assistant Attorney General (argued), Office of the
Attorney General of Guam, Tamuning, Guam for Defendants-
Appellees.

Meriem L. Hubbard, Joshua P. Thompson and Jonathan
Wood, Pacific Legal Foundation, Sacramento, California for
Amicus Curiae Pacific Legal Foundation.

Julian Aguon, Law Office of Julian Aguon, Hagatna, Guam
for Amicus Curiae Anne Perez Hattori.
4 DAVIS V. GUAM

OPINION

KOZINSKI, Circuit Judge:

Pursuant to a law passed by the Guam legislature, eligible
“Native Inhabitants of Guam” may register to vote in a
plebiscite concerning Guam’s future political relationship
with the United States. Guam will conduct the plebiscite if
and when 70 percent of eligible Native Inhabitants register.
Plaintiff Arnold Davis is a Guam resident who isn’t eligible
to register because he is not a Native Inhabitant. He alleges
that Guam’s Native Inhabitant classification is an unlawful
proxy for race. At this stage, we must determine only
whether Davis has standing to challenge the classification and
whether his claims are ripe.

I. BACKGROUND

Guam law directs the territory’s Commission on
Decolonization to “ascertain the intent of the Native
Inhabitants of Guam as to their future political relationship
with the United States of America.” 1 Guam Code Ann.
§ 2105. The same law also provides for a “Political Status
Plebiscite.” Id. § 2110. The plebiscite would ask eligible
Native Inhabitants to choose among three options:
(1) “Independence,” (2) “Free Association with the United
States of America” or (3) “Statehood.” Id. It would be
conducted by Guam’s Election Commission on the same day
as a general election. Id. The Commission on
Decolonization would then be required to transmit the
plebiscite’s results to the President, Congress and the United
Nations as reflecting “the intent of the Native Inhabitants of
Guam as to their future political relationship with the United
States.” Id. § 2105.
 DAVIS V. GUAM 5

Guam will hold the plebiscite if and when 70 percent of
all eligible Native Inhabitants1 register with the Guam
Decolonization Registry. 1 Guam Code Ann. § 2110;
3 Guam Code Ann. §§ 21000, 21003. Native Inhabitants
aren’t required to register, although some will be registered
automatically unless they submit a written request not to be
registered. 3 Guam Code Ann. § 21002.1. Guam reports that
the 70 percent threshold isn’t close to being met. Thus,
Guam hasn’t set a date for the plebiscite and perhaps never
will.

Davis tried to register with the Decolonization Registry,
but the application was rejected because Davis isn’t a Native
Inhabitant. Davis agrees he’s not a Native Inhabitant but
claims that the Native Inhabitant classification violates the
Fifth, Fourteenth and Fifteenth Amendments, as well as the
Voting Rights Act and the Guam Organic Act2 because it is

1
Guam law defines “Native Inhabitants” as persons who became U.S.
citizens by virtue of the Guam Organic Act of 1950 and their descendants.
1 Guam Code Ann. § 2102. The Organic Act granted citizenship to three
classes of persons: (1) Spanish subjects who inhabited Guam on April 11,
1899, when Spain ceded Guam to the United States in the Treaty of Paris
(and their children); (2) persons who were born on Guam and resided there
on April 11, 1899 (and their children); and (3) persons born on Guam on
or after April 11, 1899, when Guam was subject to U.S. jurisdiction. See
Organic Act of Guam, Pub. L. No. 630, 64 Stat. 384, 384 (Aug. 1, 1950).
2
The Organic Act extends the rights afforded by several constitutional
provisions to Guam, including the Fifth Amendment, the Equal Protection
Clause of the Fourteenth Amendment and the Fifteenth Amendment.
48 U.S.C. § 1421b(u); Guam v. Guerrero, 290 F.3d 1210, 1214–15 (9th
Cir. 2002). The Organic Act also contains its own anti-discrimination
provisions. See, e.g., 48 U.S.C. § 1421b(n). The Voting Rights Act
applies to Guam, a U.S. territory. 52 U.S.C. § 10101(a)(1) (formerly
42 U.S.C. § 1971(a)(1)).
6 DAVIS V. GUAM

a “proxy for race.” Davis seeks a declaration that limiting
registration to Native Inhabitants is unlawful, and an
injunction against using any registry other than Guam’s
general voter registry in determining who’s eligible to
register for, and vote in, the plebiscite.

The district court held that Davis lacks standing and his
claims are unripe. According to the district court, Davis
hasn’t been injured because “there is no discernible future
election in sight.” “To suffer a real discernible injury,” the
district court held, Guam’s restriction on voter registration to
Native Inhabitants “would have to be, by necessity, related to
an election that is actually scheduled.” We have jurisdiction
pursuant to 28 U.S.C. § 1291 and review de novo. Bova v.
City of Medford, 564 F.3d 1093, 1095 (9th Cir. 2009).

II. STANDING AND RIPENESS

To “satisfy the standing requirements imposed by the
‘case’ or ‘controversy’ provision of Article III,” Davis must
show that he has suffered, or will imminently suffer, a
“concrete and particularized” injury to a “judicially
cognizable interest.” Bennett v. Spear, 520 U.S. 154, 167
(1997); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992). That injury must be “fairly traceable to the
challenged action of the defendant[s],” and it must appear
likely that the injury would be prevented or redressed by a
favorable decision. Bennett, 520 U.S. at 167; see also Allen
v. Wright, 468 U.S. 737, 751 (1984). When determining
Article III standing we “accept as true all material allegations
of the complaint” and “construe the complaint in favor of the
complaining party.” Maya v. Centex Corp., 658 F.3d 1060,
1068 (9th Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490,
501 (1975)).
 DAVIS V. GUAM 7

Guam law gives some of its voters the right to participate
in a registration process that will determine whether a
plebiscite will be held. Davis alleges that the law forbids him
from participating on the basis of his race. Davis’s
allegation—that Guam law provides a benefit to a class of
persons that it denies him—is “a type of personal injury [the
Supreme Court has] long recognized as judicially
cognizable.” Heckler v. Mathews, 465 U.S. 728, 738 (1984).
The plaintiff in Mathews challenged a provision of the Social
Security Act that required certain male workers (but not
female workers) to make a showing of dependency as a
condition for receiving full spousal benefits. Id. at 731–35.
The statute, however, “prevent[ed] a court from redressing
this inequality by increasing the benefits payable to” the male
workers. Id. at 739. Thus, the lawsuit couldn’t have resulted
in any tangible benefit to Mathews. The Supreme Court
nevertheless held that Mathews had standing to challenge the
provision because he sought to vindicate the “right to equal
treatment,” which isn’t necessarily “coextensive with any
substantive rights to the benefits denied the party
discriminated against.” Id.; see also Allen, 468 U.S. at 762;
13A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice & Procedure §§ 3531.4 at 215–16,
3531.6 at 454–56 (3d ed. 2008). We read Mathews as
holding that equal treatment under law is a judicially
cognizable interest that satisfies the case or controversy
requirement of Article III, even if it brings no tangible benefit
to the party asserting it. Guam’s alleged denial of equal
treatment to Davis is thus a judicially cognizable injury.

Guam concedes that its law excludes Davis from the
registration process because he’s not a Native Inhabitant. It
argues, however, that the Native Inhabitant classification
can’t injure Davis because the plebiscite is “not self executing
8 DAVIS V. GUAM

and effects no change in political status, right, benefit or
privilege for any individual.” But this contradicts Mathews,
which held that unequal treatment is an injury even if curing
the inequality has no tangible consequences. 465 U.S. at 739.
Moreover, Guam understates the effect of any plebiscite that
would be held if the registration threshold were triggered.
After the plebiscite, the Commission on Decolonization
would be required to transmit the results to the President,
Congress and the United Nations, 1 Guam Code Ann. § 2105,
thereby taking a public stance in favor of whatever outcome
is favored by those voting in the plebiscite.3 If the plebiscite
is held, this would make it more likely that Guam’s
relationship to the United States would be altered to conform
to that preferred outcome, rather than one of the other options
presented in the plebiscite, or remaining a territory. This
change will affect Davis, who doubtless has views as to
whether a change is appropriate and, if so, what that change
should be. Guam law thus does provide a tangible benefit to
Native Inhabitants that Davis alleges he is unlawfully denied:
the right to help determine whether a plebiscite is held. This
is not unlike the right to participate in jury service, which
may not be denied on a constitutionally unequal basis. See
Batson v. Kentucky, 476 U.S. 79, 87 (1986) (citing Carter v.

3
The U.S. House of Representatives, for one, has indicated that it has
open ears. In a 1998 resolution, it acknowledged the Commission on
Decolonization and “reaffirm[ed] its commitment to the United States
citizens of Guam for increased self-government, consistent with self-
determination for the people of Guam.” H.R. Res. 494, 105th Cong.,
144 Cong. Rec. 25922, 25922–23 (1998).
 DAVIS V. GUAM 9

Jury Comm’n of Greene Cnty., 396 U.S. 320, 329–30
(1970)).4

Davis’s challenge to the Native Inhabitant classification
is also ripe because he alleges he’s currently being denied
equal treatment under Guam law. The registration process is
ongoing and Guam must hold the plebiscite if 70 percent of
eligible Native Inhabitants register. By being excluded from
the registration process, Davis claims he is unlawfully denied
a right currently enjoyed by others: to help determine whether
a plebiscite will be held. The ripeness question thus
“coincides squarely with standing’s injury in fact prong.”
Bova, 564 F.3d at 1096 (quoting Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en
banc)); see also 13B Federal Practice & Procedure
§ 3531.12 at 163.

Guam maintains that its plebiscite law does not, in fact,
violate Equal Protection, the Fifteenth Amendment or the
Voting Rights Act. But we need not resolve these issues to
determine whether Davis’s claims satisfy the case or
controversy requirement of Article III. These are merits
questions, and standing doesn’t “depend[] on the merits of the

4
Although Batson involved a criminal defendant’s challenge to his
conviction, the Court reiterated its holding in Carter that when a state
“den[ies] a person participation in jury service on account of his race, the
[s]tate unconstitutionally discriminate[s] against the excluded juror.”
Batson, 476 U.S. at 87; see also Carter, 396 U.S. at 329 (“People
excluded from juries because of their race are as much aggrieved as those
indicted and tried by juries chosen under a system of racial exclusion.”).
Whether participation in Guam’s registration process is “deemed a right,
a privilege, or a duty,” Guam must “hew to federal constitutional criteria”
when determining who is eligible to register. Id. at 330.
10 DAVIS V. GUAM

plaintiff’s contention that particular conduct is illegal.”
Warth, 422 U.S. at 500.

CONCLUSION

Davis’s challenge to Guam’s registration restriction
asserts a judicially cognizable injury that would be prevented
or redressed if the district court were to grant his requested
relief. Davis therefore has Article III standing to pursue his
challenge to Guam’s alleged race-based registration
classification. The claim is ripe because Davis alleges he is
currently subject to unlawful unequal treatment in the
ongoing registration process. Therefore, we need not decide
whether any of the other injuries Davis alleges follow from
Guam’s Native Inhabitant restriction would be sufficient to
confer standing independently. In particular, we express no
view as to whether the challenged law resulted in the type of
“stigmatizing” harm that we’ve held may be a judicially
cognizable injury in the Establishment Clause context. See
Catholic League v. City & Cnty. of S.F., 624 F.3d 1043,
1052–53 (9th Cir. 2010) (en banc). Nor do we decide
whether an alleged violation of the Voting Rights Act is itself
a judicially cognizable injury.

In the district court, Davis also sought to enjoin Leonardo
Rapadas, the Attorney General of Guam, from enforcing a
provision of Guam’s criminal law that makes it a crime for a
person who knows he’s not a Native Inhabitant to register for
the plebiscite. See 3 Guam Code Ann. § 21009. The district
court held that Davis lacked standing to seek this injunction
because he had not “shown that he is subject to a genuine
threat of imminent prosecution.” While Rapadas is still listed
as a nominal defendant on appeal, Davis doesn’t argue that
the district court erred in dismissing this claim. Therefore,
 DAVIS V. GUAM 11

any claim of error is waived. See Wagner v. Cnty. of
Maricopa, 747 F.3d 1048, 1059 (9th Cir. 2013).

We decline Davis’s suggestion that we reach the merits of
his claims in the event we find his claims to be justiciable.
Instead we leave it to the district court to consider the merits
of Davis’s non-waived claims in the first instance.

AFFIRMED in part, REVERSED in part, and
REMANDED.

Appellees other than Rapadas shall pay costs on
appeal. Rapadas shall recover his costs, if any, from
Davis.

N.R. SMITH, Circuit Judge, dissenting:

The majority holds that federal courts have jurisdiction in
this case based on precedent not applicable to its decision.
For that reason, I must dissent.

Currently Guam is an unincorporated, organized territory
of the United States.1 Guam’s legislature found that the
native inhabitants of Guam “have been subjected to incessant

1
Guam became an “organized” territory after Congress enacted the
Guam Organic Act in 1950, which granted the people of Guam United
States citizenship and established institutions of local government. Guam
is “unincorporated,” because not all provisions of the U.S. Constitution
apply to the territory. DOI Dep’t of Insular Aff., Report on the State of
the Islands (1997), http://www.doi.gov/oia/reports/Chapter-4-Guam.cfm
(last visited Apr. 15, 2015).
12 DAVIS V. GUAM

control by external colonial powers” and have never been
afforded the right to self-determination as to their political
relationship with the United States. 1 Guam Code. Ann.
§ 2101. Therefore, in 2004, Guam’s legislature enacted
1 Guam Code. Ann. § 2110. It provides:

(a) The Guam Election Commission shall
conduct a “Political Status Plebiscite”, at
which the following question, which shall be
printed in both English and Chamorro, shall
be asked of the eligible voters:

In recognition of your right to
self-determination, which of the following
political status options do you favor? (Mark
ONLY ONE):

1. Independence ( )

2. Free Association with the United States
of America ( )

3. Statehood ( ).

Person eligible to vote shall include those
persons designated as Native Inhabitants of
Guam, as defined within this Chapter of the
Guam Code Annotated, who are eighteen (18)
years of age or older on the date of the
“Political Status Plebiscite” and are registered
voters on Guam.

The “Political Status Plebiscite” mandated in
Subsection (a) of this Section shall be held on
 DAVIS V. GUAM 13

a date of the General Election at which
seventy percent (70%) of the eligible voters,
pursuant to this Chapter, have been registered
as determined by the Guam Election
Commission.

From the plain language of the statute, it is apparent that
(1) the Guam legislature wants to gather the opinion of the
Native Inhabitants of Guam regarding political status options;
(2) to gather that opinion, the legislature scheduled a future
plebiscite (poll) asking for an indication of what political
status option is favored by such Native Inhabitants; and
(3) the poll will not occur unless seventy percent of the
Native Inhabitants of Guam register to be polled.

It is a fundamental principle that federal courts are courts
of limited jurisdiction, limited to deciding “cases” and
“controversies.” U.S. Const. art. III, § 2. The Supreme Court
has repeatedly insisted that a case or controversy does not
exist, unless the plaintiff shows that “he has sustained or is
immediately in danger of sustaining some direct injury as the
result of the challenged official conduct.” City of L.A. v.
Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks
omitted) (emphasis added). The Court admonished that the
“injury or threat of injury must be both real and immediate,
not conjectural or hypothetical.” Id. (internal quotation
marks omitted) (emphasis added). “[R]ipeness is peculiarly
a question of timing,” and ripeness is particularly at issue
when a party seeks pre-enforcement review of a statute or
regulation. Thomas v. Anchorage Equal Rights Com’n,
220 F.3d 1134, 1138 (9th Cir. 2000). A “claim is not ripe for
adjudication if it rests upon contingent future events that may
not occur as anticipated, or indeed may not occur at all.”
Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009)
14 DAVIS V. GUAM

(quoting Texas v. United States, 523 U.S. 296, 300 (1998)).
The Supreme Court has consistently held that the ripeness
doctrine aims “to prevent the courts, through premature
adjudication, from entangling themselves in abstract
disagreements.” Thomas v. Union Carbide Agric. Prods. Co.,
473 U.S. 568, 580 (1985) (internal quotation marks omitted).
“Where a dispute hangs on future contingencies that may or
may not occur, it may be too impermissibly speculative to
present a justiciable controversy.” In re Coleman, 560 F.3d
1000, 1005 (9th Cir. 2009) (internal quotation marks and
citations omitted).

The district court found Davis’s alleged injury was not
ripe. “Although a district court’s determination of federal
subject matter jurisdiction is reviewed de novo, the district
court’s factual findings on jurisdictional issues must be
accepted unless clearly erroneous.” Stock W., Inc. v.
Confederated Tribes of the Colville Reservation, 873 F.2d
1221, 1225 (9th Cir. 1989) (internal citations omitted). The
district court conducted a hearing and then made certain
factual findings as to the ripeness of Davis’s claim. The
district court found that: (1) there is no date currently set for
the plebiscite; (2) “there is no discernible future election in
sight”; (3) there is no “real threat of the election occurring
any time soon”; (4) there is “little likelihood that the
plebiscite will be scheduled any time in the near future”;
(5) Davis’s own statements actually support the conclusion
that the “plebiscite is not likely to occur any time soon, or if
at all”; (6) Davis had not “successfully argued [or] shown that
he is presently threatened with or has already suffered any
irreparable damage or injury because he cannot register for a
plebiscite that is more than likely not to occur.” The district
court concluded that “until the plebiscite [Davis] seeks to
register for is “certainly impending,” that Davis had no claim.
 DAVIS V. GUAM 15

The district court’s factual findings are supported by the
record. Davis does not challenge the findings as clearly
erroneous. The majority does not hold the findings to be
clearly erroneous. Applying the ripeness precedent to these
findings, this controversy fails for ripeness. The inability to
register for an opinion poll, that is not currently scheduled
and unlikely to ever occur, is not a matter of “sufficient
ripeness to establish a concrete case or controversy.”
Thomas, 473 U.S. at 579. Whether the plebiscite occurs is
contingent on a series of events that have not yet occurred
and may never occur. Thus, at this point, there is not a
“realistic danger” that the plebiscite will occur. Babbitt v.
United Farm Workers Nat’l. Union, 442 U.S. 289, 298
(1979). Our court’s role is “neither to issue advisory opinions
nor to declare rights in hypothetical cases, but to adjudicate
live cases or controversies.” Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000).
Davis’s allegations of future injury are too speculative to be
“of sufficient immediacy and reality” to satisfy the
constitutional requirement of ripeness. See In re Coleman,
560 F.3d at 1005.2 Thus, the matter is not ripe and our court
has no jurisdiction.

2
The Sixth Circuit appears to be the only Circuit that has directly
addressed the question of when an alleged deprivation of voting rights is
ripe. The court found the Constitution protects an individual’s
“fundamental right to vote not the right to register to vote.” Lawson v.
Shelby Cnty., 211 F.3d 331, 336 (6th Cir. 2000) (emphasis added).
Accordingly, the court found that the cause of action accrued on election
day, “when [the plaintiffs] presented themselves at their polling station
and were refused the right to vote,” not when they were “notified that their
registrations had been rejected” for refusing to provide social security
numbers. Id. Unlike this case, the “vote” at issue in Lawson involved an
actual election.
16 DAVIS V. GUAM

In its decision, the majority instead concludes that Davis
has standing to challenge the plebiscite, not based on voting
rights cases, but based on one’s ability to seek Social Security
benefits.3 In fact, the majority cites no precedent suggesting
that forbidding Davis from registering for this plebiscite
implicates the voting rights protected under the Constitution.
The Fifteenth Amendment only applies to an “election in
which public issues are decided or public officials selected.”
Terry v. Adams, 345 U.S. 461, 468 (1953) (emphasis added).
Davis does not allege that he is being denied the right to
register for an election. Davis does not allege the plebiscite
will select “candidates for public or party office.” See
52 U.S.C. § 10310(c). Davis does not allege the plebiscite
will change Guam’s Constitution. Davis does not allege the
plebiscite will enact, amend, or repeal any statute. Despite
the language in the majority’s opinion to the contrary, Davis
does not allege the plebiscite will change the rights of
Guam’s citizens or that the plebiscite itself will change or
decide Guam’s political status in relationship with the United
States. Rather, the injury alleged by Davis is merely being
denied the right to register to participate in an opinion poll
that will likely never occur. Clearly, the inability to register

3
I note the majority also cites Batson v. Kentucky, 476 U.S. 79, 85–86
(1986) to support its position. Op. 8. However, in Batson, the United
States Supreme Court held that a prosecutor’s use of peremptory
challenges based on race violates the Equal Protection Clause of the
Fourteenth Amendment. Batson, 476 U.S. at 85–86. The Court’s focus
was protecting the defendant’s constitutional right to a trial by jury. Id.
The Court found that the jury must be “indifferently chosen to secure the
defendant’s right under the Fourteenth Amendment.” Id. at 87 (internal
quotation marks omitted) (emphasis added). It is difficult to understand
how the majority extrapolated the holding in this case to its conclusion
that Davis’s right to register for the plebiscite “is not unlike the right to
participate in jury service, which may not be denied on a constitutionally
unequal basis.” Op. 8.
 DAVIS V. GUAM 17

for this opinion poll is not equivalent to being denied the right
to register to vote in the type of vote contemplated and
protected by the Constitution.

Even if prohibiting Davis from registering for the
plebiscite were a violation of his voting rights, this case
“involves too remote and abstract an inquiry for the proper
exercise of the judicial function.” Texas v. United States,
523 U.S. 296, 300 (1998). The plebiscite is not currently
scheduled and as the district court found, it is not likely to
ever occur! The condition precedent to even scheduling the
opinion poll is obtaining the registration of seventy percent of
the eligible voters. Failing to satisfy this requirement (an
event that even Davis describes as a “mirage”), the poll will
not take place. Yet, amazingly, the majority finds these
circumstances present a case ripe for resolution.

The majority mistakenly suggests that Heckler v.
Mathews, 465 U.S. 728 (1984) would apply.4 However, in
Mathews, there was no question that Social Security pension
benefits would be paid. There was no uncertainty as to

4
The plaintiff in Mathews claimed that he was subjected to unequal
treatment as to Social Security benefits “solely because of his gender.”
Mathews, 465 U.S. at 738. Specifically, the plaintiff alleged that “as a
nondependent man, he receiv[ed] fewer benefits than he would if he were
a similarly situated woman.” Id. The Court focused on two factors when
determining the plaintiff had standing (1) his injury was concrete as “there
was no doubt about the direct causal relationship between the
government’s alleged deprivation of appellee’s right to equal protection
and the personal injury appellee has suffered—denial of Social Security
benefits solely on the basis of his gender”; (2) that he was denied equal
treatment solely because of gender (a protected class). Id. at 739–40 &
n.9. The court concluded that the plaintiff’s standing did not depend on
his ability to obtain increased Social Security benefits if he prevailed. Id.
at 737.
18 DAVIS V. GUAM

application of the allegedly unconstitutional pension offset
provision. Thus, there was no question the issue was ripe.
Indeed, the Court was not asked to determine ripeness and the
Court did not address ripeness. Rather, the issue before the
Court was determining the plaintiff’s standing. The Court
was asked to answer the question of whether the plaintiff’s
standing was dependant on his ability to receive additional
benefits if he prevailed. See Mathews, 465 U.S. at 735–38.

Thus, the majority’s conclusion that this case is ripe is
without precedent and ignores the district court’s extensive
factual findings as to ripeness. Can you imagine the hours the
district court will now have to spend resolving Davis’s many
alleged claims, including claims of alleged unequal treatment
under the Fourteenth Amendment, alleged stigmatizing harm
under the Establishment Clause, alleged violations of the
Voting Rights Act, even though this plebiscite will never
occur?

Given the speculative and remote course of events that
stands between Davis and his contemplated injury, this matter
is not ripe for adjudication, and the district court correctly
dismissed Davis’s complaint.