Sablan v. Tenorio

MACK, Special Judge,

concurring in part and dissenting in part:

I concur with the majority’s decision and opinion set forth in sections IV (regarding claimed violation of the Senate Rules) and V (regarding claimed violation of the Open Government Act).

I concur with the decision to affirm the dismissal of the remaining claims against the legislature and individual Senators, but for the reasons set forth in the lower court’s decision. I respectfully dissent from the majority’s opinion set forth in sections I, n and III and from its decision to affirm the dismissal of the claims against the Governor. As to those claims, I would reverse.

I

The plaintiff, Jesus R. Sabían, is a citizen of the United States of America, a resident of Saipan, Commonwealth of the Northern Mariana Islands (CNMI), and an elected official, a Senator in the CNMI Legislature. He filed suit in the Superior Court against the CNMI Governor, Ninth Commonwealth Legislature and some individual Senators, challenging actions by the Governor and Senate removing him from his position as President *365of the Senate. Sabían included an equal protection claim under the CNMI Constitution, the U.S. Constitution and 42 U.S.C. § 1983,71 alleging that his voting rights had been illegally infringed and diluted due to the malapportionment of the CNMI Senate districts. He sought declaratory and injunctive relief regarding this latter claim, asking that Covenant72 § 203(c) and N.M.I. Const, art. II, § 2(a), which mandate Senate districts based on geography rather than population, be declared unconstitutional and that the legislature and Governor be ordered to reapportion the Senate.

Justiciability

The lower court ruled that the constitutionality of Covenant § 203(c) is a justiciable question. Apportionment is not a non-justiciable political question. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Nor is the Covenant beyond the purview of constitutional challenge. Commonwealth v. Atalig, 723 F.2d 682 (9th Cir.), cert. denied, 467 U.S. 1244, 104 S. Ct. 3518, 82 L. Ed. 2d 826 (1984); Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir.), cert. denied sub nom., Philippine Goods, Inc. v. Wabol, 506 U.S. 1027, 113 S. Ct. 675, 121 L. Ed. 2d 598 (1992); see also Covenant § 903 (permitting judicial review of Covenant issues). The lower court fully and correctly discussed these authorities and the issue. For the reasons stated in the lower court’s decision, I agree that this challenge to the apportionment of the Senate presents a justiciable case.

n

The lower court also ruled that Commonwealth officials, including the Governor, when sued in their official capacities for injunctive relief, are “persons” under 42 U.S.C. § 1983. It did not reach the issue of whether members of the Ninth Commonwealth Legislature are also “persons” under the federal statute because it held that the legislature has absolute immunity. The majority takes issue with the lower court’s order of analysis. I would affirm the lower court’s ruling that the Governor, acting in his official capacity, is a “person” in a suit for declaratory and injunctive relief under .§ 1983. I would also affiim the lower court’s decision to dismiss the § 1983 claim against the legislature and individual Senators because of legislative immunity.

Legislative Immunity

Absolute legislative immunity73 shields legislatures and legislators from having to answer or defend suits based on the conduct of legitimate legislative activity. Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 731-732, 100 S. Ct. 1967, 1974-1975, 64 L. Ed. 2d 641, 653-654 (1980). Under Sablan’s sole claim74 against the legislature, he seeks a court order directing it to enact legislation creating a different apportionment scheme.75 The court cannot do this without upsetting the separation of powers fundamental to the U.S. and CNMI constitutions. Consumers Union, supra. The legislature and individual legislators are absolutely immune from the claim for relief for the alleged unconstitutional apportionment.76 *366They need not defend and the court need not consider whether they are “persons” for purposes of a § 1983 claim.

The lower court granted the defendants’ motion to dismiss the claims against the Governor on the ground that he also has absolute legislative immunity with respect to Sabían’s claims. The court ruled that the Governor’s constitutionally-mandated duty to create an apportionment scheme if the legislature fails to do so is a legislative task. The majority on appeal affirms this analysis. I disagree.

The Governor is constitutionally charged with some apportionment responsibilities. Under N.M.I. Const, art. II, § 4(b), the Governor must promulgate a reapportionment or redistricting plan if the legislature fails to act within a specified period. Sablan’s claim against the Governor is based on this duty. I am not convinced that delegation of apportionment duty to the Governor under such circumstances means that the Governor then performs a legislative function. The cases cited by the lower court do not support its conclusion that the Governor is protected by legislative immunity.77 In my view, the CNMI Constitution’s delegation of duty to the Governor effectively makes gubernatorial apportionment an executive function,78 further assisting the Governor in the conduct of elections. It should be noted that N.M.I. Const, art. II, § 4(b) also requires the CNMI Supreme Court to fashion a redistricting plan if the Governor fails to act. This does not make the Court’s job legislative, but judicial. See In re Kansas Congressional Districts Reapportionment Cases, 540 F. Supp. 1200, 1202 (D. Kan. 1982) (citing White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348, 37 L. Ed. 2d 335 (1973)) (“Congressional redistricting is primarily the state legislature’s task, but becomes a judicial task when the legislature fails to redistrict”)..

Furthermore, executive functions relating to appointment of officials and general responsibility for elections make officers like governors amenable to § 1983 suits for malapportionment. See, e.g., David v. Cahill, 342 F. Supp. 463 (N.J. 1972) (governor, secretary of state and superintendent of elections enjoined from conducting further elections under unconstitutional plan); In re Kansas Congressional Districts Reapportionment Cases, 745 F.2d 610 (10th Cir. 1984) (court sustained action against governor and secretary of state and effectuated redistricting); Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed.2d 481 (1964) (overruling lower court, Supreme Court sustained apportionment challenge against governor and secretary of state).

N.M.I. Const, art. VIII, § 3 assigns the legislature the duty to enact election procedures. The legislature has delegated much of its authority to a Board of Elections, and has given the Governor the power to appoint the members of that agency. 1 CMC § 6101 et seq. Enforcement of criminal penalties for violation of election laws is also an executive function. 1 CMC §§ 6341, 6501 et seq.

The majority notes that courts have permitted suits against governors to enjoin enforcement of unconstitutional apportionment, and from proclaiming, certifying or conducting any election. Majority opinion, supra, at note 41. Although Sabían does not specifically request this relief, his second amended complaint does ask for a “special election” and for “other and further relief as the Court deems just and proper.” Even if the Governor’s apportionment duties under the Covenant are construed as legislative action protected by legislative immunity, his enforcement authority regarding election matters provides an adequate basis to find that he is a proper party defendant. Consumers Union, 446 U.S. at 734-35, 100 S. Ct. at 1976, 64 L. Ed. 2d at 655-56 (action against Virginia Supreme Court sustained on its enforcement authority, even though its promulgation of rules *367was termed legislative). Sabían has sufficiently79 requested relief on a well-pleaded claim against the Governor to the effect that the CNMI Senate districts are unconstitutionally apportioned.

For these reasons, I would reverse the lower court’s dismissal of the claims against the Governor because of his “legislative” immunity.

“Person” under 42 U.S.C, § 1983

When acting in his official capacity, the Governor is a “person” subject to declaratory and injunctive relief under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).

Therefore, I would consider the merits of Sablan’s claim that his equal protection rights have been violated by Covenant and CNMI Constitutional provisions requiring a Senate apportioned on the basis of geography rather than population.80

m

Apportionment: Background and History

The CNMI is a Micronesian island chain north of the equator in the western Pacific Ocean. The population is distributed among the three main islands of Saipan, Rota and Tinian, with a few people residing on some of the other islands (referred to collectively as the “Northern Islands”) .

The Northern Mariana Islands (NMI) were formerly part of the Trust Territory of the Pacific Islands (TTPI), administered by the U.S. under a Trusteeship Agreement with the United Nations.81 The NMI had previously been administered or ruled successively by Spain82 (for approximately 400 years), Germany and Japan (both in the 20th century). The Trusteeship Agreement established a temporary administration during which the U.S. was to help the islands advance politically, economically and socially, and to work toward self-determination. During the U.S. administration, TTPI inhabitants participated in self-government through evolving systems. The Mariana Islands Legislature was, for some time, a unicameral legislature; the Congress of Micronesia was a bicameral legislature. During the TTPI administration, legislative districts with representation apportioned by population were introduced to the people of Micronesia.

The U.S. was obligated to assist Micronesians to achieve freely-expressed political self-determination. To meet that obligation, the U.S. began discussions with TTPI representatives about the possibility of a future relationship. In 1969 status negotiations, the NMI expressed a strong desire to “immediately unite (or ‘re integrate’) with the United States Territory of Guam,” motivated by “ethnic kinship with residents of Guam and . . . ties of language, religion, culture and blood.”83 When this proved unfeasible, the NMI negotiated for separate status, culminating in the execution of the Covenant. On June 17, 1975, NMI voters approved the Covenant in a plebiscite with a favorable vote of 78.8%; 55% was needed for passage.84 On March 24, 1976, the *368U.S. Congress enacted the Covenant as P.L. 94-241.85

The population of the main islands of the NMI at the inception of the Commonwealth was approximately 14,332, distributed as follows: Saipan, 12,514, Rota, 1,104, and Tinian, 714. See Howard P. Willens & Deanne C. Siemer, The Constitution of the Northern Mariana Islands: Constitutional Principles and Innovations in a Pacific Setting [hereinafter “Willens & Siemer”], 65 GEO. L.J. 1373, 1416, n. 174 (1977) (citing figures based on 1973 census and 28th annual State Department report on the TTPI).

The 1990 Census86 reported the CNMI’s population at 43,345, distributed as follows: Saipan, 38,896, Rota, 2,295, and Tinian, 2,118. The Northern Islands were reported as having 36 people. These citizens reside and vote in the Saipan Senatorial District.

Covenant § 203(c) requires that one house of the CNMI’s bicameral legislature be apportioned on a geographic basis, with each of the three “chartered municipalities”87 having equal numbers of representatives. Thus, in the nine-member CNMI Senate each island senatorial district is apportioned three Senators. N.M.I. Const, art. II, § 2(a).

The framers of the Covenant and CNMI Constitution knew that apportionment based on geography rather than population was at variance with the U.S. Supreme Court ruling in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964).88 Reynolds held that both houses in a state legislature must be apportioned on a population basis to comport with the Fourteenth Amendment’s equal protection guarantee.89 To justify the departure from U.S. Constitutional voting rights standards, the framers created a legislative history explaining their reasoning.

In examining the challenge raised by Sabían,90 the Court should scrutinize the reasons for this departure from constitutional standards, with reference to the Insular Cases.91

Insular Cases

In the Insular Cases92 the U.S. Supreme Court held that all constitutional rights guaranteed to inhabitants of the several states do not necessarily follow the flag into *369unincorporated territories.93 As a corollary to this principle, the Court also held that Congress is constitutionally prohibited from denying fundamental and personal rights in territories. ‘“Doubtless Congress, in legislating for the territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments . . . .”’ Dorr v. United States, 195 U.S. 138, 146, 24 S. Ct. 808, 812, 49 L. Ed. 128 (1904) (quoting Church of Jesus Christ of Latter Day Saints v. United States, 136 U.S. 1, 10 S. Ct. 792, 34 L. Ed. 481 (1889)).

To paraphrase and apply the analysis of the court in Wabol, 958 F.2d at 1459, the threshold inquiry is whether Congress could, under the Territorial Clause of the U.S. Constitution, properly exclude application of the Equal Protection Clause as applied in Reynolds to voting rights in the CNMI. Put another way, did Congress exceed its powers under U.S. Const, art. IV, § 3 by insulating Covenant § 203(c) from the reach of the Equal Protection Clause?94

This is a question regarding constitutional limits upon the authority of the U.S. Congress, not about decisions made by the framers of the Covenant.95

The Insular Cases provide a two-step analytical framework for determining whether a constitutionally-protected right applies of its own force in an unincorporated territory. First, is the right fundamental in the international sense? Second, would application of the right be impractical and anomalous in the territory? This two-step analysis is designed to further both the protection of fundamental rights and Congresses’ ability to form political alliances. Wabol, 958 F.2d at 1461.

The two steps in this analysis are interrelated and not discrete; the test requires some balancing.

Thus, the unincorporated territory doctrine of the Insular Cases, as interpreted in Reid,96 emphasizes that the determination whether a particular constitutional provision applies to an unincorporated territory depends on the degree to which the provision is deemed to be fundamental and whether the provision is consistent with the needs, customs, traditions, culture, and institutions of the territory. When a more basic or fundamental guarantee of personal liberty is at issue, the doctrine of the Insular Cases requires a greater inconsistency before the constitutional provision is found to be inapplicable than when a less fundamental constitutional guarantee is at issue.

Willens & Siemer, 65 Geo. L.J. at 1396 (footnote added).

The burden of proof should be on the government, arguing in favor of the limitation.

An appropriate judicial standard would undoubtedly begin with the presumption that the United States Constitution should be fully applicable in any territory under the sovereignty of the United States. The burden of proof with respect to any proposed exception from the United Slates Constitution should be allocated to that party claiming that special circumstances in a particular territory justify such an exception.

Id. at 1398.

A Fundamental Right in the International Sense

The question of what constitutes a fundamental right in the international sense is not easily resolved.

*370The “fundamental” constitutional rights identified as applying of their own force in the unincorporated territories included certain aspects of due process and, apparently, the right to just compensation. Although the cases intimated that the broad spectrum of basic natural or personal rights — such as freedom of speech and the press, free access to courts of justice, entitlement to due process of law and to equal protection of the laws, and “such other immunities as are indispensable to a free government” — might also fall within the class of “fundamental” rights applicable to the unincorporated territories, that question remained unanswered because the cases focused principally upon constitutional protections deemed not to apply ex proprio vigore to the unincorporated territories. Thus, for all that has been written, the incorporation doctrine and the resolution of the subsidiary question of what constitutional provisions apply to unincorporated territories remain confused and ambiguous.

Id. at 1394-95 (citations omitted).

There are no cases determining the exact issue before us. There is scant indication elsewhere97 and none that is binding or authoritative.

The strong language of Reynolds indicates that the U.S. Supreme Court considers equal protection at the ballot box a fundamental right.

Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long
as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.

Reynolds, 377 U.S. at 562, 84 S. Ct. at 1382, 12 L. Ed. 2d at 527.

[T]he Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of the place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race ... or economic status .... And the democratic ideals of equality and majority rule, which have served this nation so well in the past, are hardly of any less significance for the present and the future.

Id., 377 U.S. at 566, 84 S. Ct. at 1384, 12 L. Ed. 2d at 529-30 (citations omitted).

The right to vote in a fair and unimpeded manner, and to have that vote count equally with others, is essential to a republican form of government. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535, 11 L. Ed. 2d 481, 492 (1964). “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote.” Gray v. Sanders, 372 U.S. 368, 381, 83 S. Ct. 801, 809, 9 L. Ed. 2d 821, 830-31 (1963).

For the U.S. to claim sovereignty98 over any people and deny some of them in their local governance an equal voice at the ballot box based on where they live is a gross distortion of the fundamental concept of government of the people, by the people, and for the people.99 As noted *371in Reynolds, this type of discrimination is as invidious as discrimination based on race.

Nor is discrimination acceptable in the international sense of fundamental freedoms. Article 6, section 3 of the Trusteeship Agreement required the U.S. to “protect the rights and fundamental freedoms of all elements of the population without discrimination.” The United Nations Charter, at Chapter XII, Article 76, sets as basic objectives of the trusteeship system the encouragement of “respect for human rights and for fundamental freedoms for all without discrimination as to race, sex, language, or religion.”

Both Governor Tenorio and Sabían acknowledge that the Universal Declaration of Human Rights100 and the International Covenant on Civil and Political Rights101 set a standard of “universal and equal suffrage.” Appellee’s Brief at 36; Appellant’s Brief at 43-45.

The International Covenant provides that the U.S., as a party,

undertakes “to respect and to ensure" to all individuals within its territory and under its jurisdiction the rights recognized in the [International] Covenant “without distinction of any kind such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”; to adopt legislative or other measures necessary to give effect to these rights and to provide an effective remedy to those whose rights are violated.
The rights enumerated in the Covenant include: self-determination, right to life; right to liberty and security of person . . . right to vote and participate in public affairs; and equal protection of the law.

U.S. Senate Executive Report 102-23, 102d Cong., 2d Sess. § V(l) (1992).102

This body of international authorities lends strong support to the conclusion that equality in voting rights is a fundamental right in the international sense under Insular Cases analysis.

The lower court determined that the “one person, one vote” principle was not a fundamental right in the international sense because the U.S. Senate is not apportioned on that basis but is nonetheless part of a fundamentally fair republican form of government. It is also common in international law for international bodies to base voting rights on national status and not on the populations of the member nations.103

I do not find this analysis persuasive. Laws governing sovereign entities cannot be compared to the rights of individuals to participate in local governance.104 If a fundamental right means anything, it certainly means the right to nondiscriminatory participation in local government. In exercising its authority under the Territorial Clause, the U.S. Congress cannot favor some citizens over others in local governance by allowing them a more powerful voice at the ballot box.105

The lower court’s comparison of the NMI’s efforts to express self-determination with those of the U.S. in its founding is also flawed. I question whether the different islands of the NMI possessed sovereignty independently of each other. Each island was already a part of the Marianas District of the TTPI. They were governmental units (i.e., “chartered municipalities”), not sovereign entities.106 And while they were engaged in the important task of self-determination, they did not form a new nation but instead joined the U.S. political family.

There are other important distinctions as well. The U.S. was founded with thirteen original colonies as states and the possibility of countless more being added. The possible combinations among the representatives in forming coalitions were numerous, and the likelihood of *372the majority will being denied was small. In contrast, the Covenant establishes only three Senatorial districts.107 The likelihood of the majority of the population on Saipan being thwarted by the minority on Rota and Tinian is virtually assured.

If such a scheme were permissible, an individual citizen’s ability to exercise an effective voice in the only instrument of state government directly representative of the people might be almost as effectively thwarted as if neither house were apportioned on a population basis. Deadlock between the two bodies might result in compromise and concession on some issues. But in all too many cases the more probable result would be frustration of the majority will through minority veto in the house not apportioned on a population basis ....

Reynolds, 377 U.S. at 576, 84 S. Ct. at 1389, 12 L. Ed. 2d at 535.

In my view, when the U.S. Congress agreed to Commonwealth status for the NMI, it had to provide for the international fundamental right of nondiscrimination in voting, and was thus compelled to apply the Fourteenth Amendment’s “one person, one vote” principle, absent some very strong showing that to do so would be “impractical or anomalous.”

Impractical or Anomalous?

In determining whether it was impractical or anomalous to apply the “one person, one vote” principle in the Commonwealth, we must consider the political experience of the people of the NMI. Prior to the inception of the Commonwealth, they had already been exposed to apportionment based on population and geographical districts in their experience with the Congress of Micronesia. During the birth of the CNMI, they showed a keen understanding of and aptitude for self-governance, evidenced by their adoption of a republican form of government, with voting and representatives and taxes and a constitution; they demonstrated flexibility and sophistication. They chose to have a Governor although they had no prior experience with this office.108 It can certainly be said that the people of the NMI were adept in grasping the principles of democracy.

The presumption favoring full application of the U.S. Constitution in a territory109 is buttressed by the experience and capacity of the people of the NMI to have proportional representation in election districts.

Governor Tenorio submits that the freedom of each island to negotiate separately with the U.S. or foreign countries110 and the unwillingness of Rota and Tinian residents to accede to a union with Saipan unless they had extra voting power are practical considerations outweighing potential application of the “one person, one vote” principle. In other words, for the U.S. Congress to secure the union of the NMI under the Covenant, it had to forego applying this fundamental right.

Political and cultural considerations were certainly compelling in judicial analysis of the land alienation restriction when its constitutionality was challenged. See Wabol, supra (examined in greater detail infra). However, that restriction applies in favor of all of the indigenous population of the NMI; it is reasonable to assume that most NMI residents supported the restriction and would have withheld their approval of the Covenant without it. In contrast, the Covenant provision mandating greater voting power for Rota and Tinian favored only 1,818 people out of 14,332. The effect of non-inclusion of this provision in the Covenant is mere conjecture.111

*373Much emphasis is laid on the cultural and historical differences between Saipan and Rota and Tinian. This is used to explain why Rota and Tinian demanded disproportionate representation112 in the Senate and why application of the “one person, one vote” principle would be impractical and anomalous in the Commonwealth. However, the reasons for an exception to application of the U.S. Constitution in a territory must be based on fact, not opinion or other unsubstantiated conjecture. Wabol, 958 F.2d at 1461.

There were obviously variations in the histories of each of the islands of the Marianas. See Don A. Farrell, History of the Northern Mariana Islands [hereinafter “Farrell”] 285, 505, 531, 537 (Phyllis Koontz ed., 1991). However, this divergence did not necessarily divide the people. Even among delegates to the 1976 CNMI Constitutional Convention, these asserted differences between the islands were not apparent. Delegate Olympio T. Borja said: “I have seen a lot of references in the news media about so-called ‘geographical differences’ at this Convention. For myself, however, I wonder just what geographic differences are being referred to?” 1 Journal of the Northern Mariam Islands Constitutioml Convention 88 (1976).

Examination of historical materials confirms that at the time of the adoption of the Covenant and CNMI Constitution, most of the people on Saipan, Tinian and Rota spoke the same language (Chamorro),113 shared a common cuisine, practiced (predominantly) the Catholic faith, and had the same island culture.114 It is, in fact, not unusual for members of the same family to live on different islands. Cf. Farrell, supra, 532-33.

In 1969, a few years prior to the commencement of Covenant negotiations, the people of the NMI expressed their desire to seek political union with Guam, claiming extensive ties of culture, religion and kinship.115 This desire was first expressed as early as 1950 in a petition from the Rota Council to the United Nations visiting mission. Id. at 34. It had been a consistent goal for many people of the NMI until rejected by the people of Guam. Id. at 532-44. Even after rejection by Guamanians, more Northern Mariana islanders voted for reunification with Guam than for any other choice of status.

The Covenant negotiators tried to rationalize extra voting power for Rota and Tinian by maintaining that the people of these islands were so different from the Saipanese that they would back out of a union without concessions. The historical variations of Rota were apparently extended to cover Tinian in this rationalization. The strongly-expressed wishes of the islanders for twenty-five years to be reunited with Guam due to ethnic and cultural ties were completely ignored. The historical record does not support the categorical statement that intense dissimilarities made voting discrimination necessary. Although the Covenant negotiating history does contain conclusory statements that this concession was necessary to appease Rota and Tinian and complete the Covenant negotiations, the entire historical record does not support the claim that the union was doomed to failure without waiver of the “one person, one vote” principle.116 The exception to population-based apportionment was not proposed or insisted upon until the last round of Covenant negotiations, in January 1975.117 This fact further casts doubt on the essential nature of Covenant § 203(c) to the conclusion of the negotiations.

What fueled the debate over CNMI Senate apportionment was the desire of a smaller community to have more say and greater power.118 Is this enough to warrant *374the U.S. Congresses’ departure from fundamental rights for U.S. citizens in the Commonwealth? In light of the importance accorded the will of the people both in the U.S. and internationally, I think not.

[T]o sanction minority control of state legislative bodies would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result. Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will.

Reynolds, 377 U.S. at 565, 84 S. Ct. at 1383, 12 L. Ed. 2d at 529.

Governor Tenorio maintains that Covenant § 203(c) was “narrowly tailored” to protect the minority rights of the people of Rota and Tinian.119 This assertion is not supported by the historical record.

A draft version of Covenant § 203(c) provided for a unicameral legislature and stated that the “Constitution of the Northern Mariana Islands may provide for a distribution of the legislature’s membership on the basis of appropriate considerations in addition to population.”120 Allowing for considerations other than population is consistent with Reynolds. Thus, the draft Covenant already provided some relief for Rota and Tinian’s concerns. The Rota delegates who raised concerns and dissatisfaction with Saipan’s power asked for a bicameral legislature. This alone would assist in having their voices heard.121

Acceding to the demand of the Rota and Tinian delegates for a Senate apportioned on geographic/political boundaries without regard to population may have been politically expedient and hastened the conclusion of lengthy and difficult negotiations. However, I cannot agree that applying nondiscriminatory voting rights in the CNMI would therefore be impractical or anomalous.122

The lower court’s analysis of why application of the “one person, one vote” principle would be impractical and anomalous in the CNMI hinges upon the conjecture that the Covenant would not have been concluded unless an express exception to it was provided. I reject this proposition for the reasons stated above.

More importantly, the lower court seemed reluctant to embark on the task of reapportionment, should it find otherwise.123 I can certainly understand this reluctance, but cannot sanction it. Cases coming before the courts are often “perplexing and complicated.”124 Judges must, however, carry out their duties, even though politically impopular or unusually difficult.

*375Insular Cases Analysis: Conclusion

There are two provisions in the Covenant125 and another in the CNMI Constitution126 that specifically provide for exceptions from U.S. Constitutional protections. The Ninth Circuit Court of Appeals has twice visited the Covenant or CNMI Constitution to ascertain whether challenged exceptions violate U.S. Constitutional equal protection guarantees, and has upheld the exceptions.127 This case challenges the unresolved exception.

In the two cases decided, the arguments for divergence from application of the U.S. Constitution as in the several states was much stronger than in this case. In Atalig, supra, the issue was whether the denial of a jury trial in certain criminal cases offended due process. The Atalig court could cite prior pronouncements of the U.S. Supreme Court128 in concluding that grand jury indictment and jury trials are procedural protections and not always accorded the status of fundamental rights. With substantial precedent, the Atalig court was on firm ground in ruling that deviation from the U.S. Constitution injudicial procedures was permissible.

In Wabol, supra, the issue was whether a restriction on ownership of land in the Commonwealth to those of NMI descent was permissible. The Wabol court explored new ground, but could easily see that land is scarce in the Commonwealth and has a cultural value very different from that held in the wide expanse of the United States. The court was also guided by the Trusteeship Agreement, which required the U.S. to protect the inhabitants of the Commonwealth “against the loss of their lands." The court upheld the exception to the U.S. Constitutional equal protection standard because “interposing this constitutional provision would be both impractical and anomalous" regarding their land. Wabol, 958 F.2d at 1462.

This case presents the most difficult issue, an exception to the Fourteenth Amendment’s protection from discrimination in voting. There is no precedent for waiver of the “one person, one vote” principle involved.

I conclude that because the right to nondiscriminatory voting is a fundamental right, even in the international sense, the reasons for variance from the “one person, one vote” principle given here do not outweigh the presumption in favor of applying the right. In short, applying the “one person, one vote” principle in the CNMI is not impractical or anomalous.

Therefore, under Insular Cases analysis, I would rule that the U.S. Constitution’s Fourteenth Amendment protection of voting rights has “followed the flag” into the CNMI.

Apportionment: Violation of Equal Protection

The apportionment of the Senate is based strictly on geography, coinciding with political units of the CNMI government. The Saipan Senatorial District, comprising Saipan and the Northern Islands, has three Senators; the Tinian Senatorial District, comprising Tinian and the uninhabited island of Aguiguan, has three Senators; and the Rota Senatorial District, comprising Rota, has three Senators. The effect of this apportionment scheme is noted in the appendix to this dissent.

There was no attempt or good faith effort129 in the Covenant or CNMI Constitution to apportion the Senate based on population. Although the Fourteenth Amendment does not require the same precision of mathematical equality in apportionment as does U.S. Const, art. I, § 2 for the U.S. Congress,130 and while some other state interests, such as preserving political units and having compact districts, may be considered,131 the primary criterion for constitutional apportionment must be population.132 As stated in Abate v. Mundt, 403 U.S. 182 at 185-86, 91 S. Ct. 1904 at 1907, 29 L. Ed. 2d 399 at *376403 (1971), the Supreme Court has “never suggested that certain geographic areas or political interests are entitled to disproportionate representation.”

Accordingly, we have underscored the danger of apportionment structures that contain a built-in bias tending to favor particular geographic areas or political interests or which necessarily will tend to favor, for example[,] less populous districts over their more highly populated neighbors, see Hadley v. Junior College District, 397 U.S. 50, 57-58, 25 L. Ed. 2d 45, 51 90 S. Ct. 791 (1970).

Id.

Covenant § 203(c) does not provide for equal or nearly equal voting rights among CNMI citizens.133 It violates the Fourteenth Amendment’s equal protection-based “one person, one vote” principle.

The fact that the voters approved the Covenant, including Covenant § 203(c), does not immunize it from constitutional challenge. Voter approval of a state constitutional amendment for an apportionment plan inconsistent with the “one person, one vote” principle did not prevent the U.S. Supreme Court from ruling it unconstitutional in Lucas v. Forty-Fourth Gen. Assembly of Colorado, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964). In Lucas, the Supreme Court quoted with approval the following: “One’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections,” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 1185, 87 L. Ed. 628 (1943), and “[n]o plebiscite can legalize an unjust discrimination,” Hall v. St. Helena Parish Sch. Bd., 197 F. Supp. 649, 659 (E.D. La. 1961), aff’d, 368 U.S. 515, 82 S. Ct. 529, 7 L. Ed. 2d 521 (1962). Lucas, 377 U.S. 736 & n.29, 84 S. Ct.1474 & n.29, 12 L. Ed. 2d 647 & n.29.

Sablan’s request for relief can be realistically addressed in only one of two places: the CNMI courts or the federal courts. He has no effective political solution.134

Because the challenged provision is part of Covenant Article II, any amendment is premised on mutual consent of the CNMI and the U.S.135 Even if the governments of the U.S. and the Commonwealth undertook revision of Covenant Article II, the present Senate, in which Senators from Rota and Tinian have six of the nine votes, would likely block approval of a revision basing apportionment on population.

N.M.I. Const, art. XVIII provides for legislative or popular initiatives to amend the Constitution. However, the mechanics of these options leave little hope for a political change in apportionment. A popular initiative petition must be “signed by at least fifty percent of the persons qualified to vote in the Commonwealth and at least twenty-five percent of the persons qualified to vote in each senatorial district.” N.M.I. Const, art. XVIII, § 4(a). It then goes to the legislature, where it must get a majority vote,136 and then to the people. Id. A legislative initiative must start with a three-fourths majority vote in each house before being placed on a ballot for the people to consider. N.M.I. Const, art. XVIII, § 3.

These provisions effectively preserve Rota and Tinian’s disproportionate political power, regardless of what population changes or other political shifts may occur. This inflexibility is out of character with the democratic principles of our government and the living nature of our constitutional foundation.

Finally, while the challenge to the apportionment scheme of the CNMI Senate strikes at one of the “fundamental provisions of the Covenant,” I believe that the Covenant will not fall with the determination that this provision is impermissible. The Covenant itself provides that cases and controversies arising under the Covenant are justiciable. Covenant § 903. The challenge to the apportionment plan was anticipated in the negotiations and agreement on the Covenant and so the possibility of this section being stricken was also part of the bargain. The need to hammer out specific new language for Senate apportionment can be managed within the existing framework of Section 902, designated by the Covenant for U.S.-CNMI consultations.

*377IV

Conclusion

For the foregoing reasons, I would reverse the lower court’s ruling on Sablan’s claim concerning denial of his equal protection-based voting rights due to malapportionment of the CNMI Senate. I would hold that the “one person, one vote” principle applies in the CNMI through Insular Cases analysis, and that Covenant § 203(c) and N.M.I. Const, art. II, § 2(a) violate the Fourteenth Amendment to the U.S. Constitution.

I would remand to the Superior Court, directing it to retain jurisdiction and to allow the Governor sufficient time before the next Senatorial election to fashion a constitutional apportionment plan through the correct political processes. Should the Governor fail to do so prior to a deadline set by the court, the court would then design and mandate an appropriate apportionment plan, based on CNMI Senate districts of as nearly equal numbers of the population as possible.

APPENDIX 137

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Sablan also pleaded, in general language, a substantive due process claim under the U.S. Constitution for the infringement of his voting rights. This claim may be cognizable in light of Schneider v. Rusk, 377 U.S. 163. 168, 84 S. Ct. 1187, 1190, 12 L. Ed. 2d 218, 222 (1964), and Bolling v. Sharpe, 347 U.S. 497, 499, 74 S. Ct. 693, 694, 98 L. Ed. 884 (1954). See note 80, infra.

Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, 48 U.S.C. § 1801 note, reprinted in CMC at B-101 et seq. (hereinafter “Covenant).

“Absolute” legislative immunity is not, in fact, absolute. It applies only to legitimate legislative activity. Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967); Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951).

Sabían makes no allegation that the legislature or Named Senators acted beyond the scope of legitimate legislative action. “A legislature, though elected under an unfair apportionment scheme, is nonetheless a legislature empowered to act.” City of Cedar Rapids v. Cox, 108 N.W.2d 253, 262-63 (Iowa 1961) (cited in Baker v. Carr, 369 U.S. 186, 250 n.5, 82 S. Ct. 691, 727 n.5, 7 L. Ed. 2d 663, 705 n.5 (1962)).

There are cases in which a legislature is a defendant in an apportionment case. See, e.g., Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964). Apparently, in Lucas the defendants did not raise the issue of legislative immunity.

The legislature or individual legislators could waive this immunity and choose to defend the apportionment scheme, thereby making themselves liable in the future for attorney fees if the scheme is declared unconstitutional. Daggett v. Kimmelman, 617 F. Supp. 1269 (D.N.J. 1985), aff’d, 811 F.2d 793, 795 & n.2 (3d. Cir. 1987). Because our civil rules permit parties to plead in the alternative, the legislature’s defense of the Covenant apportionment scheme should not be construed as *366a waiver of the immunity defense, which was properly raised and argued. Cf. Eslinger v. Thomas, 476 F.2d 225, 228 (4th Cir. 1973) (legislative immunity not waived by failure to raise the defense in pleadings where it was raised at trial); Connor v. Winter, 519 F. Supp. 1337 (S.D. Miss. 1981) (although defense raised “belatedly,” state legislators enjoyed absolute immunity from suit).

In Eslinger, supra, cited by the lower court, the legislature was held immune for passing a resolution; the only claim against the governor and lieutenant governor related to their inaction when the plaintiff informally sought help in pushing the legislature to change its resolution. In Saffioti v. Wilson, 392 F. Supp. 1335 (S.D.N.Y. 1975), also cited by the lower court, the governor’s exercise of veto power was at issue; the court held that he was not immune from suit and considered whether the veto was arbitrary or capricious. These cases do not support the proposition that apportionment, when constitutionally delegated to the executive branch under certain circumstances, is a legislative function.

The majority cites Forrester v. White, 484 U.S. 219, 227, 108 S. Ct. 538, 544, 98 L. Ed. 2d 555 (1988). Forrester, as noted by the majority, does provide that determination of judicial immunity depends upon the function and not the person. The Court held that a judge does not automatically have judicial immunity for all acts; he is subject to suit by an employee for discrimination. In the instant case, it is the executive authority of the Governor that is at issue, in contrast to the non-judicial acts of the judge in Forrester.

Sablan’s complaint references the Governor’s duties regarding appointment of officials, but does not specifically mention his duties regarding elections. However, in a motion to dismiss, the complaint is read in a light most favorable to the appellant, as noted in the majority opinion. I would apply this rule of liberal construction in Sablan’s favor.

The majority discusses whether Sabían has also sufficiently pleaded a claim for violation of substantive due process or other constitutionally-protected rights directly under the U.S. Constitution. Cf. Bivens v. Six Un-Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (permitting direct constitutional claim against federal agents). Voting rights have a substantive aspect that is protected by the U.S. Constitution. Because I would reverse on the 42 U.S.C. § 1983 claim, however, I do not reach the issue of whether Sabían would also succeed on a direct claim under the U.S. Constitution. I only observe that due process protections under the Fifth Amendment are generally considered to apply in unincorporated territories ex proprio vigore. Colon-Rosich v. Puerto Rico, 256 F.2d 393 (1st Cir. 1958); Mora v. Mejias. 206 F.2d 377 (1st Cir. 1953). I further note that consideration of a substantive due process claim concerning voting rights may necessarily involve evaluating a CNMI voter’s access to the ballot in both houses, and that there is some concern as to whether even the CNMI House of Representatives is apportioned within population parameters. See Howard P. Willens & Deanne C. Siemer, The Constitution of the Northern Mariana Islands: Constitutional Principles and Innovations in a Pacific Setting [hereinafter “Willens & Siemer"], 65 Geo. L.J. 1373, at 1414-23 (1977).

Trusteeship Agreement for the Former Japanese Mandated Islands (1947), reprinted in CMC at A-201 et seq.

Spain ruled all of the Mariana Islands, including Guam.

Report of the Future Political Status Commission, Congress of Micronesia, at 33-34 (1969).

See Secretarial Order No. 2973 (Apr. 10, 1973), issued by Secretary of the Interior Rogers C.B. Morton.

Prior court decisions have set out the salient details of this history. See Wabol v. Villacrusis, 958 F.2d 1450, 1458-59 (9th Cir.), cert. denied sub nom., Philippine Goods, Inc. v. Wabol, 506 U.S. 1027, 113 S. Ct. 675, 121 L. Ed. 2d 598 (1992); Commonwealth of the N. Mariana Islands v. Atalig, 723 F.2d 682 (9th Cir.), cert. denied, 467 U.S. 1244, 104 S. Ct. 3518, 82 L. Ed. 2d 826 (1984); Hillblom v. United States, 896 F.2d 426 (9th Cir. 1990).

It is appropriate for the court to take judicial notice of census records. City of Port Arthur, Texas v. United States, 517 F. Supp. 987, 992 n.5 (D.C.D.C. 1981), aff’d, 459 U.S. 159, 103 S. Ct. 530, 74 L. Ed. 2d 334 (1982).

The chartered municipalities were the islands of Saipan, Rota and Tinian.

See Hearings on Marianas Political Status Before the Subcommittee on Territorial and Insular Affairs of the House Committee on Interior and Insular Affairs, 94th Cong., 1st Sess., at 98-99 (1975) (“We . . . forewarned them that such a provision might be successfully challenged in the courts on the basis that it violated the one-man-one-vote principle”).

377 U.S. at 568, 84 S. Ct. at 1385, 12 L. Ed. 2d at 531.

To qualify to be a Senator, Sabían must be eligible to vote in the CNMI. N.M.I. Const, art. II, § 2(c). Thus he meets the test for standing specified in Hillblom v. United States, 3 CR 294 (D.N.M.I. 1988).

There is some tension in the cases as to whether the Territorial Clause of the U.S. Constitution applies to the CNMI and whether analysis under the Insular Cases, which is based on the Territorial Clause, is warranted. As I view it, the basis for the U.S. Congresses’ authority to negotiate the Covenant with the CNMI is the express authority granted in the Territorial Clause, along with its power to enter into international agreements.

I consider the CNMI a U.S. territory in the sense that it is a geographic and political area under U.S. sovereignty. In the inception of the Covenant, the U.S. was required to exercise its territorial power and must have complied with the Insular Cases.

The Covenant is not a treaty. If it were, U.S. Senate ratification by a two-thirds majority would have been required, and no House action would have been necessary. U.S. Const, art. n, § 2, cl. 2. The Covenant did not obtain the required U.S. Senate approval under the treaty power of the U.S.

When the people of the Commonwealth voted for the Covenant, they engaged in a declaration of self-determination; when the U.S. Congress enacted P.L. 94-241, they exercised the Territorial Clause power under the U.S. Constitution.

However, once the Covenant became effective, U.S. authority in the CNMI became limited by the Covenant and is not now co-extensive with the plenary power of the Territorial Clause. See, e.g., United States ex rel. Richards v. DeLeon Guerrero, 4 F.3d 749, 754 (9th Cir. 1993).

Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088 (1901); Hawaii v. Mankichi, 190 U.S. 197, 23 S. Ct. 787. 47 L. Ed. 1016 (1903); Dorr v. United States, 195 U.S. 138, 24 S. Ct. 808, 49 L. Ed. 128 (1904); Balzac v. Porto Rico, 258 U.S. 298, 42 S. Ct. 343, 66 L. Ed. 627 (1922).

An unincorporated territory is, for example, one not destined for statehood. Dorr, supra; Atalig, 723 F.2d at 688. It is clear that the CNMI is unincorporated. Wabol, 958 F.2d at 1459, n.18.

As noted in Wabol, 958 F.2d at 1459, “[i]t appears that in approving the Covenant and the Commonwealth Constitution, the federal government was potentially constrained by both the Trusteeship Agreement and the United States Constitution.” The Trusteeship Agreement specifically provided that the U.S. had to “protect the rights and fundamental freedoms of all elements of the population without discrimination.” Since Sabían did not raise this claim, it may be inappropriate to consider. However, the Trusteeship Agreement sheds light on what rights are considered fundamental in the international sense, for purposes of Insular Cases analysis. See discussion infra.

The amicus argued forcefully before this Court that a decision invalidating Covenant § 203(c) would “have taken the expectations and the hopes and the wishes of the people that were exercising their right of self-determination for the first time in history and . . . say . . . ‘You made it wrong.’” Transcript of oral argument at 65 (July 6, 1995). However, the issue is not about the actions of Covenant negotiators or voters. The issue is the scope and extent of U.S. Congressional authority. The Covenant negotiators clearly understood that the U.S. Congress might not have the authority to waive application of the Fourteenth Amendment to voting rights. They took a risk, a gamble; their willingness to take this risk does not bind the Court to interpret the U.S. Constitution according to their desires.

Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957).

See legislative history of P.L. 89-552, at U.S.C.C.A.N. vol. 2, 89th Cong., 2d Sess., Report of the Secretary of the Interior to House Committee on Interior and Insular Affairs (Mar. 28, 1966), in which the Secretary, in support of legislation for redistricting in Guam and application of the “one person, one vote” principle, stated: “It is our view that the ‘one man, one vote’ rule enunciated by the Supreme Court, which rule is not now applicable in the territories, should, in the future, be a measure of the propriety of territorial apportionment.”

Similarly, see legislative history of P.L. 89-548, at U.S.C.C.A.N. vol. 2, 89th Cong., 2d Sess., Report of the Secretary of the Interior to Speaker of the House (Mar. 3, 1966), in which the Secretary supports legislation for application of the “one person, one vote” principle to the Virgin Islands.

These records imply that the “one person, one vote” principle is not automatically extended to the territories; there is, however, no discussion or explanation of this view.

Covenant § 101 places the CNMI under U.S. sovereignty.

In Dorr, supra, the U.S. Supreme Court quoted from a source averring that “the people, except as Congress shall provide for, are not of right entitled to participate in political authority until the territory becomes a state.” 195 U.S. at 148, *37124 S. Ct. at 812, 49 L. Ed. 128. This suggests that Congress could, under the Territorial Clause, refuse the vote altogether. However, the issue presented by this case is whether, in exercising its territorial powers, Congress can permit the vote in a discriminatory manner.

Adopted by the United Nations General Assembly in 1948.

The U.S. is also a party to this International Covenant, an agreement which implements the Universal Declaration of Human Rights.

Excerpts included at addenda to Appellee’s Brief; see also history of enactment and ratification therein.

Georg Shwarzenberger, A Manual OF International Law 64 (5th ed. 1967) (referring to “sovereign equality” in the United Nations Charter).

The CNMI Legislature is vested with power over all rightful subjects of legislation, but this is constrained to “local self-government.” Covenant §§ 103, 203(c).

Such favoritism to one or two segments of the population over others would also be in derogation of the U.S.’s Trust Agreement obligation to “protect the rights and fundamental freedoms of all elements of the population without discrimination.”

Compare to the history of the founding of the U.S. as set forth in Wesberry v. Sanders, 376 U.S. 1, 9-17, 84 S. Ct. 526, 530-535, 11 L. Ed. 2d 481, 487-92 (1964).

There is also provision for a fourth senatorial district to be established for the Northern Islands should their population reach 1,000. It is presently at 36. The maximum number of districts is four.

See Willens & Siemer, 65 GEO. LJ. at 1427.

Id., 65 Geo. LJ. at 1398, quoted supra.

Nowhere is this "right” established. Even the authority of the NMI to negotiate separately from the rest of the TTPI was questioned. See Cong, of Micronesia Sen. Joint Res. No. 38 (1973) and Cong, of Micronesia Sen. Report No. 62 (1973); cf. Mariana Islands Dist. Legis. Res. No. 1973 (1973) (passed in reaction to these concerns, this resolution asserts such authority based on a letter from President Nixon to U.S. negotiator Franklin Haydn Williams directing him to negotiate with the “Mariana Islands”; the letter does not indicate that there would or could be negotiations with any separate island).

The Covenant needed only 55% of the vote in order to be accepted in the plebiscite election. It garnered 78.8%, with 93% of the electorate voting. The populations of Rota and Tinian comprised approximately 12.8% of the total NMI population. The Covenant was accepted by a substantial margin, greater than the percentage of NMI population in Rota and Tinian. Furthermore, the desire to have close ties with the U.S. was predominant for many years. See, e.g., Don A. Farrell, History of the Northern Mariana Islands 497-98, 537 (Phyllis Koontz ed., 1991) (people of the Northern Mariana Islands expressed their desire for U.S. citizenship in 1950 to visiting United Nations mission and in 1961 poll).

This is usually phrased as “equal representation” for the islands, but it is equal for the geographic or political entity of each island and not equal for the people.

Cf. House Report No. 94-364, 94th Cong., 2d Sess., on Covenant § 203(c) (use of Chamorro language could be required for employment through exercise of legislature’s authority under this provision).

The only significant minority was and is on Saipan and consists of Carolinians, islanders who have ancestors from the Caroline Islands. The real cultural distinction is between the minority on Saipan and the rest of the NMI population of Chamorros. CNMI Archives document 034127, E.E. Archer, Transcript of working session of negotiations at 6 (Feb. 11, 1975) (copy attached as Exhibit 9 to Brief of Amicus Curiae).

Congress of Micronesia, Report of the Future Political Status Commission at 33-34 (1969).

See also CNMI Archives document 034117, Transcript of working session of negotiations at 6 (Feb. 8, 1975) (questioning whether Guam and the Northern Marianas could be integrated at the request of Guam, and noting that it would be more convenient administratively) (copy attached as Exhibit 8 to Brief of Amicus Curiae).

Eleventh Rota Mun. Council, 1st Reg, Sess., Res. No. 11 MC-27-1975 (Jan. 20, 1975) (copy attached as Exhibit 6 to Brief of Amicus Curiae).

The concern felt by the people of Rota stems from both a disenchantment with the past and a guarded optimism about the future. Under the present Trust Territory administration, Rotanese have consistently been treated as the poor cousins of our Saipan neigh*374bors. We have submitted budget requests which have been ignored, while the approved budget affecting Rota is controlled and administered by the District Administrator on Saipan. We have sought financial assistance from the District legislature for our Municipal Operating expenses and the response has been unsatisfactory. Unfortunately, these requests were made necessary by a combination of factors including the limitations placed on our municipal taxing powers under the Trust Territory Code. Recommendations made by our District Administrator’s Representative and his department heads, our Municipal Council, and our Mayor have been consistently disregarded.

Id.

Appellee’s Brief at 31, 45, quoting Northern Marianas Constitutional Convention, Analysis of the Constitution of the Commonwealth of the Northern Mariana Islands at 31 (1976).

December 19, 1974, Draft of Covenant.

See Reynolds, 377 U.S. at 576-577, 84 S. Ct. at 1389, 12 L. Ed. 2d at 535-36 (discussion of benefits of bicameralism, despite requirement that both houses be apportioned primarily on basis of population).

I reach this conclusion based on my review of the historical record. Sabían urges that the historical record is in error and contains disputed facts that the lower court erroneously resolved in favor of the defendants. This resolution of disputed facts on summary judgment warrants reversal. Thus, I disagree with the majority opinion at section HI, supra.

However, in my view, even assuming that the historical record of facts truly reflects the situation, there is insufficient basis for finding that application of non-discriminatory voting districts would be impractical or anomalous.

“[C]hanging the structure of the Senate by judicial order would indeed be ‘impractical and anomalous.’” Sablan v. Tenorio, Civ. No. 94-0500 (N.M.I. Super. Ct. July 18, 1994) (Memorandum Decision on Motions to Dismiss and Judgment at 32).

Baker, 369 U.S. at 245, 82 S. Ct. at 725, 7 L. Ed. 2d at 702 (Douglas, J., concurring).

Covenant §§ 203(c) (malapportioned Senate) and 805 (land alienation restriction).

N.M.I. Const, art. I, § 8 (giving the legislature authority to provide for jury trials, which it did inconsistently with the U.S. Constitution).

Atalig, supra; Wabol, supra.

Dorr, supra; see also Government of Virgin Islands v. Bodle, 427 F.2d 532 (3d Cir. 1970).

See Karcher v. Daggett, 462 U.S. 725, 103 S. Ct. 2653, 77 L. Ed. 2d 133 (1983) (establishing two-prong test for federal congressional apportionment cases: [1] good faith effort to reduce or eliminate population differences and [2] legitimate state goal to explain all significant variations from equality).

See Mahon v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320. modified, 411 U.S. 922, 93 S. Ct. 1475, 36 L. Ed. 2d 316 (1973).

Reynolds, 377 U.S. at 577, 84 S. Ct. at 1390, 12 L. Ed. 2d at 536.

Id., 377 U.S. at 579, 84 S. Ct. at 1390, 12 L. Ed. 2d at 537 (the overriding objective in reapportionment must be “substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State”).

See appendix for chart of deviations.

Compare Davis v. Mann, 377 U.S. 678, 689. 84 S. Ct. 1441, 1447, 12 L. Ed. 2d 609, 616 (1964) (noting absence of political remedy in apportionment dispute) with Lucas, 377 U.S. at 736, 84 S. Ct. at 1473, 1474, 12 L. Ed. 2d at 647 (presence or absence of available political remedy is of no constitutional significance).

See Covenant § 105 (providing that modification of Article II and certain other provisions requires mutual consent).

Even assuming that one-fourth of the voters of Rota and Tinian would sign the petition, the Senators from Rota and Tinian could easily block this, having six of the nine votes in the Senate.

Form based on appendix to Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed. 2d 535 (1969).