Davis plebiscite appeal filed with U.S. Supreme Court


Guam’s bid to overturn the 9th Circuit Court’s decision in the Dave Davis plebiscite case has now been filed with the U.S. Supreme Court.

The international law firm Kirkland and Ellis has asked the U.S. Supreme Court to review the 9th Circuit Court’s decision striking down the Guam law authorizing a non-binding political status plebiscite.

The so-called ‘petition for writ of certiorari’ was filed with the high court on Thursday in Washington D.C. which was the deadline for submitting it.

Guam attorney Michael Phillips was initially asked to file the appeal. However, Kirkland and Ellis took over after contacting the Leon Guerrero administration and offering to take on the case pro bono, or at no cost to GovGuam.

The Supreme Court may agree to review the 9th Circuit Decision in which case arguments would be scheduled for some time next year.

If they decide not to hear it, then the appeal is over, and Guam’s plebiscite law would remain unconstitutional and in violation of the 15th amendment as both Chief Guam District Court Judge Frances Tydingco-Gatewood and the 9th Circuit Court of Appeals have already ruled.

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What are the limits of the Fifteenth Amendment?

In their petition seeking to convince the Supreme Court to take on the appeal Kirkland and Ellis lawyers maintain that the case “turns on a critical question that this Court has never addressed in this context.”

The question is – “What are the limits of the Fifteenth Amendment in an advisory plebiscite implicating the self-determination of a U.S. territory?”

Kirkland and Ellis argue that Guam’s plebiscite law is nothing more than a “targeted survey of public opinion that neither selects government officials nor directs public policy” yet the Ninth Circuit concluded that it “is nonetheless a ‘vote’ within the meaning of the Fifteenth Amendment.”

“That interpretation extends the reach of the Fifteenth Amendment beyond this Court’s precedent,” states the petition and it “has no basis in history and destroys Guam’s ability to ask its native inhabitants about important political-status issues.”

Kirkland and Ellis maintain that all prior U.S. Supreme Court Fifteenth Amendment decisions uphold “the right to vote in traditional elections, such as those involving the selection of public officials.”

The petition argues that those prior decisions “neither imply nor support a holding that the term ‘vote’ includes more than that.”

A different argument

The argument made by Kirkland and Ellis differs from the argument made by Guam attorney Mike Phillips in his November request to the high court for an extension to the deadline for filing an appeal in the Davis case.

Phillips drew attention to the conflicting opinions issued by the 6th and the 9th Circuits on the 15th Amendment.

He argued that the Ninth Circuit’s ruling in the Davis case “not only conflicts with the Sixth Circuit’s view and holding regarding the 15th Amendment but also cripples any federal or local attempt to resolve the political status of Guam’s native inhabitants through the government of Guam.”

In response to a request for comment, Phillips said: “As a courtesy to Governor, who is no longer my client, and to the new law firm Kirkland & Ellis, I must refrain from commenting.”

Kirkland and Ellis has not yet responded to a request for comment.