In 2000, the legislature of Guam created a Decolonization Registry, for the purpose of compiling a list of Guam residents who are descended from anyone who was living on Guam in 1898. The purpose of the Registry was to prepare for a plebiscite on the future political status of Guam. The legislature believed that such a vote should be limited to descendants of people who comprised Guam, in the year in which it fell under U.S. rule.

A resident of Guam, Arnold Davis, sued in 2012 in federal court to overturn the restriction on who could register for this plebiscite. He was not descended from anyone who had lived on Guam in 1898. The U.S. District Court in Guam ruled that the case was not ripe, because the law also said that no vote would be held until 70% of the eligible voters had signed up for the registry, and at the time only about 10% of the eligible voters had signed up. In 2015, the Ninth Circuit ruled that Davis had a right to a decision, regardless that the proposed vote was years away, and might never be held.

The Ninth Circuit sent the case back to the U.S. District Court, which ruled that the restriction on who could register violated the U.S. Constitution, specifically the 15th amendment. Guam appealed, and on October 10, 2018, the Ninth Circuit heard the case again, this time on the merits. The case is now Davis v Guam, 17-15719. The three judges who heard the case are Kim McLaine Wardlaw, Marsha Berzon, and Johnnie Rawlinson. Here is an article that explains the background of the Decolonization Registry.

On October 9, the Utah Republican Party asked the U.S. Supreme Court to hear Utah Republican Party v Cox. This is the case in which the Tenth Circuit had upheld a Utah election law, telling parties that they must allow candidates to petition onto the party’s primary ballot. The Utah Republican Party does not object to nominating by primary. But it only wants candidates on its primary ballot who showed significant support at a party endorsements meeting.

The text of the cert petition is 37 pages, case 18-450. It argues forcefully that freedom of association does not permit state governments to override the wishes of the party, as to how the party nominates. As far as is known, this is the first time any state unit of the Democratic or Republican Party has asked the U.S. Supreme Court to overturn a state law that tells parties how they nominate candidates, except for the 2000 California decision that overturned California’s mandatory blanket primary. The brief forcefully argues that the language in a 1974 U.S. Supreme Court case, American Party of Texas v White, that says “it is too plain for argument” that states can tell parties they must nominate by primary, was mistaken. In any case, that sentence in American Party of Texas was dicta. Justice Byron White, who wrote that opinion, was not being asked by any party to decide whether the state could force it to nominate by primary. He just added that sentence, gratuitously. But lower courts have long taken it to be binding. Thanks to Rick Hasen for the link to the brief.

Virginia law lets all qualified parties decide whether to nominate by primary or convention. They are free to use primaries for some races and conventions for other races, in the same election year. However the law also says if an incumbent office-holder is running for re-election, he or she can override the wishes of the party. A unit of the state Republican Party is currently suing to overturn that law.

On October 10, the Fourth Circuit refused the state’s request for a stay of the U.S. District Court decision. The U.S. District Court had declared the law unconstitutional. The Fourth Circuit also said oral argument will be held in this case sometime between December 11 and December 13.

The order identifies the three judges who are assigned to the case. They are J. Harvie Wilkinson, a Reagan appointee; Diana Gribbon Motz, a CLinton appointee; and Allyson K. Duncan, a Bush Jr. appointee. The case is Sixth Congressional District Republican Committee v Alcorn, 18-1111.