Motion for Summary Judgment, Segovia Plaintiffs

8/19/2019 Motion for Summary Judgment, Segovia Plaintiffs

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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LUIS SEGOVIA, JOSE ANTONIO TORRES,

PAMELA LYNN COLON, TOMAS ARES,ANTHONY BUNTEN, LAVONNE WISE,IRAQ AFGHANISTAN AND PERSIAN GULF

VETERANS OF THE PACIFIC, and LEAGUEOF WOMEN VOTERS OF THE VIRGIN

ISLANDS,

Plaintiffs,

v.

BOARD OF ELECTION COMMISSIONERSFOR THE CITY OF CHICAGO,

MARISEL A. HERNANDEZ,

in her official capacity as Chairman of theBoard of Election Commissioners for the City

of Chicago,

KAREN KINNEY,in her official capacity as Rock Island County

Clerk,

UNITED STATES OF AMERICA,

ASHTON CARTER,in his official capacity as the Secretary of

Defense,

FEDERAL VOTING ASSISTANCEPROGRAM,

MATT BOEHMER,

in his official capacity as Director of the FederalVoting Assistance Program,

Defendants.

Case No. 15-cv-10196

Judge Joan B. Gottschall

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT AND

OPPOSITION TO FEDERAL DEFENDANTS’ MOTION TO DISMISS

Case: 1:15-cv-10196 Document #: 48 Filed: 03/16/16 Page 1 of 23 PageID #:179


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Date: March 16, 2016

Leevin T. Camacho

The Law Office of Leevin T. Camacho194 Hernan Cortez AvenueSuite 216

Hagåtña, Guam 96910(617) 477-8894

[email protected]

Luis G. Rivera MarínRivera Marín & Talavera Law Offices

112 Uruguay StreetHato Rey, Puerto Rico 00918

(787) [email protected]

Semaj Johnson

Law Offices of K.A. Rames PCSuite 3, 2111 Company Street

Christiansted, St. Croix, Virgin Islands 00820(340) 773-7284

[email protected]

Charles F. Smith

Lara A. Flath155 N. Wacker Drive, Suite 2700Chicago, Illinois 60606


[email protected]

Geoffrey M. WyattMichael McIntosh

Marisa B. Van SaanenW. Graham McCall

1440 New York Avenue N.W.Washington, D.C. 20005


Neil C. Weare

We the People Project1666 Connecticut Avenue N.W.

Suite 500Washington, DC 20009


Attorneys for Plaintiffs



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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................................................................................... ii

INTRODUCTION ...................................................................................................................... 1

BACKGROUND ........................................................................................................................ 2

STANDARD............................................................................................................................... 6

ARGUMENT .............................................................................................................................. 7

I. UOCAVA And MOVE Violate Equal Protection By Barring Former State

Residents Residing In Guam, Puerto Rico, And The U.S. Virgin Islands FromVoting In Federal Elections In Illinois, While Allowing All Other Former State

Residents Residing Overseas To Do So. .......................................................................... 7

A. The Statutes Are Subject to Strict Scrutiny. .......................................................... 8

B. Regardless of the Level of Scrutiny, Both Statutes Fail. ..................................... 11

II. Plaintiffs’ Injury Is Traceable to UOCAVA as Well as MOVE. ..................................... 15

CONCLUSION ......................................................................................................................... 15



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ii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Burdick v. Takushi,504 U.S. 428 (1992) ................................................................................................................8

Celotex Corp. v. Catrett ,477 U.S. 317 (1986) ................................................................................................................7

Dunn v. Blumstein,405 U.S. 330 (1972) ...................................................................................................... 8, 9, 11

E.E.O.C. v. Concentra Health Services,496 F.3d 773 (7th Cir. 2007) ...................................................................................................7

Evans v. Cornman,398 U.S. 419 (1970) ........................................................................................................ 14, 15

Gray v. Sanders,372 U.S. 368 (1963) ............................................................................................................ 8, 9

Harper v. Virginia State Board of Elections,383 U.S. 663 (1966) ............................................................................................................ 8, 9

Howard v. State Board of Election Laws,976 F. Supp. 350 (D. Md. 1996) ............................................................................................ 15

Igartúa De La Rosa v. United States,32 F.3d 8 (1st Cir. 1994) .........................................................................................................9

Katzenbach v. Morgan,384 U.S. 641 (1966) .............................................................................................................. 10

Kramer v. Union Free School District No. 15,395 U.S. 621 (1969) ................................................................................................................8

Norman v. Reed ,

502 U.S. 279 (1992) ................................................................................................................8

Obama for America v. Husted ,697 F.3d 423 (6th Cir. 2012) ...................................................................................................8

Patriotic Veterans, Inc. v. Indiana,736 F.3d 1041 (7th Cir. 2013) .................................................................................................7



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iii

Romer v. Evans,517 U.S. 633 (1996) .............................................................................................................. 11

Romeu v. Cohen,265 F.3d 118 (2d Cir. 2001) ....................................................................................................9

Saunders v. City of Chicago, Nos. 12-cv-09158 et al., 2013 WL 6009933 (N.D. Ill. Nov. 13, 2013) .....................................7

Smith v. City of Chicago,457 F.3d 643 (7th Cir. 2006) ................................................................................................. 11

Tamayo v. Blagojevich,526 F.3d 1074 (7th Cir. 2008) .................................................................................................6

Yick Wo v. Hopkins,118 U.S. 356 (1886) ................................................................................................................1

FEDERAL STATUTES

42 U.S.C. § 1983 .........................................................................................................................2

52 U.S.C. § 20301 ............................................................................................................. 1, 4, 15

52 U.S.C. § 20302 .......................................................................................................................3

52 U.S.C. § 20304 ..................................................................................................................... 15

52 U.S.C. § 20306 ..................................................................................................................... 15

52 U.S.C. § 20307 ..................................................................................................................... 15

52 U.S.C. § 20310 ................................................................................................................... 3, 4

STATE STATUTES

10 Ill. Comp. Stat. 5/1-3 ..............................................................................................................4

10 Ill. Comp. Stat. 5/5-4 ..............................................................................................................4

10 Ill. Comp. Stat. 5/6-21 ............................................................................................................4

10 Ill. Comp. Stat. 5/6-24 ............................................................................................................4

10 Ill. Comp. Stat. 5/20-1 ........................................................................................................ 1, 4

10 Ill. Comp. Stat. 5/20-2 ............................................................................................................4

10 Ill. Comp. Stat. 5/20-2.2 .........................................................................................................4



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FEDERAL RULES

Fed. R. Civ. P. 8(a)(2) .................................................................................................................6

Fed. R. Civ. P. 12(b)(6) ...............................................................................................................6

Fed. R. Civ. P. 56(a) ....................................................................................................................7

OTHER AUTHORITIES

Department of Defense Instruction 1000.04 & Encl. 3 (Sept. 13, 2012) .......................................4

Exec. Order No. 12,642, 53 Fed. Reg. 21, 975 (June 8, 1988) ......................................................4

H.R. Rep. No. 94-649 (1975) .......................................................................................... 3, 12, 13

H.R. Rep. No. 99-765 (1986) ......................................................................................................3

Overseas Citizens Voting Rights Act of 1975, Pub. L. No. 94-203 (1976) ............................. 3, 12

S. Rep. No. 94-596 (1976)......................................................................................................... 12



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INTRODUCTION

This case presents the question whether federal and state governments may discriminate

between former state citizens who move overseas in deciding who may vote in federal elections

in their former state of residence. Under the federal Uniformed and Overseas Citizens Absentee

Voting Act, 52 U.S.C. §§ 20301 to 20311 (“UOCAVA”) and the Illinois Military Overseas Voter

Empowerment Act, 10 Ill. Comp. Stat. 5/20-1 et seq. (“MOVE”), a former Illinois resident may

vote in federal elections in Illinois if she moves almost anywhere in the world outside the

continental United States – including the Northern Mariana Islands (“NMI”) and, under Illinois

law, American Samoa – but not if she moves to Guam, Puerto Rico, or the U.S. Virgin Islands.

This discrimination lacks any rational justification and violates equal protection as a

matter of law. As the Supreme Court has long recognized, the right to vote is “preservative of all

rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Thus, laws that draw distinctions

between similarly situated voters – extending the franchise to some but not others – are subject to

strict scrutiny, requiring narrow tailoring to serve a compelling governmental interest.

In their motion to dismiss, the federal defendants disagree that strict scrutiny should

apply to UOCAVA.1 They rely on First and Second Circuit decisions that declined to apply

strict scrutiny to UOCAVA in challenges that failed to raise the distinction that UOCAVA draws

between the Territories themselves. The federal defendants also argue that strict scrutiny is

improper because that law primarily sought to expand voting rights, not restrict them. But unlike

other laws that have sought to expand voting rights incrementally, the laws at issue here

protected full enjoyment of the right to vote for federal office to almost every former state citizen

residing overseas worldwide, singling out only certain disfavored Territories for exclusion.

1 The federal defendants are the United States, Secretary Ashton Carter, the Federal Voting Assistance

Program, and Matt Boehmer.



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Under these circumstances, the rationale of incremental reform is not plausible, and strict

scrutiny is appropriate.

Defendants cannot meet this exacting test. No plausible government interest is advanced

by the discrimination the laws impose against former state residents residing in Guam, Puerto

Rico, or the U.S. Virgin Islands. Indeed, the discriminatory effect of these laws directly

contradicts Congress’s stated purpose of remedying the “highly discriminatory” treatment of

overseas voters in enacting the predecessor to UOCAVA. Accordingly, the discrimination

imposed by these laws cannot be justified under any level of scrutiny, even rational-basis.

Thus, as further detailed in this motion, the Court should hold that UOCAVA and MOVE

violate equal protection by selectively not protecting plaintiffs’ right to vote; grant summary

judgment in plaintiffs’ favor; and deny the federal defendants’ motion to dismiss.2

BACKGROUND

When a U.S. citizen moves outside the fifty states, she loses full enjoyment of her right to

vote unless Congress or her former state of residence acts through statute to protect it. Absent

such action, a former state citizen residing overseas in a foreign country or U.S. Territory will be

unable to vote for President or voting representation in Congress. To protect the right to vote,

for many years Congress and state legislatures have enacted legislation to extend absentee voting

rights to U.S. citizens who would otherwise be denied full enjoyment of the right to vote.

Over forty years ago, Congress responded to inconsistencies in state laws governing the

eligibility of citizens residing overseas to vote in federal elections by passing the Overseas

2 Plaintiffs do not dispute the federal defendants’ assertion that the federal defendants are not liable under 42U.S.C. § 1983. (See Mot. To Dismiss (“MTD”) at 15.) Plaintiffs sue federal defendants directly under the Due

Process Clause of the Fifth Amendment based on the federal defendants’ violation of the equal-protection

component of due process. (See Compl. ¶ 54 (noting that § 1983 protects “against state interference specifically”

and stating that the rights at issue are also protected by the Fourteenth and Fifth Amendments).)



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Citizens Voting Rights Act of 1975. See H.R. Rep. No. 94-649, pt. 1, at 2 (1975), reprinted in

1975 U.S.C.C.A.N. 2358, 2359. As explained in the House committee report accompanying the

legislation, state laws governing overseas voters often protected the right of military personnel

and federal employees residing overseas to vote, while not providing similar protections to

“private citizen[s]” residing overseas. Id. at 1-3, 1975 U.S.C.C.A.N. at 2359-60.

The House committee recognized “this treatment of private citizens outside the United

States to be highly discriminatory” and considered “this discrimination . . . to be unacceptable as

a matter of public policy, and to be suspect under the equal protection clause of the 14th

amendment.” Id. at 3, 1975 U.S.C.C.A.N. at 2360. To remedy these problems, the 1975 Act

provided that “[e]ach citizen residing outside the United States shall have the right to register

absentee for, and to vote by, an absentee ballot in any Federal election in the State . . . in which

he was last domiciled immediately prior to his departure from the United States” as long as he

was qualified to vote, “even though while residing outside the United States he does not have a

place of abode or other address in such State.” Overseas Citizens Voting Rights Act of 1975,

Pub. L. No. 94-203, § 3, 89 Stat. 1142, 1142 (1976) (repealed 1986).

Congress “consolidated and updated” the 1975 Act and other prior law affecting overseas

voters by passing UOCAVA in 1986. H.R. Rep. No. 99-765, at 6-7 (1986), reprinted in 1986

U.S.C.C.A.N. 2009, 2010-11. As relevant here, UOCAVA provides that “[e]ach State shall

permit . . . overseas voters to use absentee registration procedures and to vote by absentee ballot

in general, special, primary, and runoff elections for Federal office.” 52 U.S.C. § 20302(a)(1).

An “overseas voter” is defined to include, as relevant here, “a person who resides outside the

United States and (but for such residence) would be qualified to vote in the last place in which

the person was domiciled before leaving the United States.” Id. § 20310(5)(C). And the



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“‘United States,’ where used in the territorial sense, means the several States, the District of

Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa”

– but not the NMI. See id. § 20310(8). Consequently, federal law requires the states to provide

for absentee voting by former residents who move to the U.S. Territory of the NMI or to another

country. But UOCAVA does not require states to provide similar rights to former residents who

move to Guam – another U.S. Territory located just over 50 miles south of the NMI – or Puerto

Rico, the U.S. Virgin Islands, or American Samoa.3

In Illinois, these federal requirements are implemented under MOVE. It provides that

former Illinois citizens residing indefinitely “outside the territorial limits of the United States”

can vote in federal elections in Illinois. 10 Ill. Comp. Stat. 5/20-2 to -2.2. Illinois defines the

“territorial limits of the United States” as a U.S. state, the District of Columbia, Puerto Rico,

Guam, and the U.S. Virgin Islands. Id. 5/20-1(1).4 Thus, like UOCAVA, MOVE allows former

residents who reside overseas to vote from any foreign country or the NMI, but not such former

residents who live in Guam, Puerto Rico, or the U.S. Virgin Islands. Unlike UOCAVA, MOVE

also allows former state residents living in American Samoa to vote in federal elections.

Accordingly – as the state defendants expressly acknowledge in their answers – former

Illinois residents who live overseas “would not be eligible . . . to apply for a mail or absentee

ballot in Illinois if a resident of [Guam, Puerto Rico, or the U.S. Virgin Islands], but would be so

3 UOCAVA vests primary responsibility f or enforcement of its requirements in a “Presidential designee.” 52

U.S.C. § 20301(a). The current designee is the Secretary of Defense, defendant Ashton Carter, see Exec. Order No.

12,642, 53 Fed. Reg. 21, 975, 21,975 (June 8, 1988), and the Secretary’s authority has been delegated to defendant

Federal Voting Assistance Program, of which defendant Matt Boehmer is the director and, in that role, has theauthority to administer FVAP and carry out its statutorily assigned functions and responsibilities. See Department of

Defense Instruction 1000.04 & Encl. 3 (Sept. 13, 2012).

4 Illinois law charges state “election authorit[ies]” with the administration of MOVE. 10 Ill. Comp. Stat.5/20-2.2. The state defendants here are the Board of Election Commissioners for the City of Chicago, which is the

election authority for Chicago, and its Chairwoman, Marisel A. Hernandez; and Karen Kinney, who, in her capacity

as County Clerk for Rock Island County, is the election authority for that county. See id. 5/1-3(8); id. 5/5-4; id. 5/6-

21; id. 5/6-24.



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eligible if a resident of NMI, American Samoa, or another country.” (See Rule 56.1 Stmt. ¶ 62;

Ans. Of Bd. Of Elec. Comm’rs For The City Of Chicago & Langdon D. Neal (“Chicago Ans.”)

¶¶ 11.a, 12.a, 13.a, ECF No. 27; Ans. Of Karen Kinney In Her Official Capacity As Rock Island

Cty. Clerk (“Rock Island Ans.”) ¶ 15.a, ECF No. 30.)5

Plaintiffs Luis Segovia, Jose Antonio Torres, Pamela Lynn Colon, Tomas Ares, Anthony

Bunten, and Lavonne Wise are former residents of Illinois who are denied the right to vote in

federal elections in Illinois because they reside in Guam, Puerto Rico, or the U.S. Virgin Islands.

(Rule 56.1 Stmt. ¶¶ 6, 9, 19, 25, 31, 36, 40; Segovia Decl. ¶ 1; Torres Decl. ¶ 1; Colon Decl. ¶ 1;

Ares Decl. ¶ 1; Bunten Decl. ¶ 1; Wise Decl. ¶ 1.) A number of these individual plaintiffs have

served their country in military or federal civil offices (or both). (See, e.g., Rule 56.1 Stmt. ¶¶

10-13, 15, 20-21, 26, 32, 37; Segovia Decl. ¶¶ 2-5, 7 (National Guard veteran and current civil

employee with the Navy); Torres Decl. ¶¶ 2-3 (Vietnam-era veteran and former postal

employee); Colon Decl. ¶ 2 (former Federal Public Defender); Ares Decl. ¶ 2 (Vietnam-era

veteran and son of U.S. Army Infantry member); Bunten Decl. ¶ 2 (veteran of the Navy).) Each

individual would vote in federal elections in Illinois today if allowed to do so. (Rule 56.1 Stmt.

¶¶ 16-17, 22-23, 29-30, 33-34, 37-38, 41-42; Segovia Decl. ¶ 9; Torres Decl. ¶¶ 4-5; Colon Decl.

¶¶ 5-6; Ares Decl. ¶¶ 3-4; Bunten Decl. ¶¶ 2-3; Wise Decl. ¶¶ 2-3.)

Plaintiffs Iraq Afghanistan and Persian Gulf War Veterans of the Pacific (“IAPGVP”)

and League of Women Voters of the Virgin Islands (“LWV-VI”) are organizations that count

among their members residents of Guam and the U.S. Virgin Islands who are former Illinois

5 “Rule 56.1 Stmt.” refers to the concurrently filed statement required under Local Rule 56.1(a)(3). Inaddition to the state defendants’ answers and the complaint, supporting materials on which the Rule 56.1 Statement

relies include declarations from each of the plaintiffs or a representative thereof, and are denominated by the

plaintiff’s name in citations in the text – for example, as “Segovia Decl.” to refer to the Declaration of Luis Segovia.

These declarations are filed concurrently.



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residents. (Rule 56.1 Stmt. ¶¶ 8, 45, 51; IAPGVP Decl. ¶ 1; LWV-VI Decl. ¶ 1.) Both

organizations believe that if former Illinois residents residing in Guam and the U.S. Virgin

Islands enjoyed the same rights as other former Illinois residents now living overseas to vote

absentee in federal elections in Illinois, it would provide new opportunities for political

engagement on the issues and causes these organizations promote in Guam and the U.S. Virgin

Islands. (Rule 56.1 Stmt. ¶¶ 48, 51; IAPGVP Decl. ¶ 4; LWV-VI Decl. ¶ 3.)

Because UOCAVA and MOVE do not permit former Illinois residents living in Guam,

Puerto Rico, and the U.S. Virgin Islands to vote in federal elections in Illinois, however, these

plaintiffs are denied access to the political process that is open to their fellow former state

residents residing literally anywhere else on Earth outside the continental United States –

including other U.S. Territories like American Samoa and the NMI. Because there is no

justification in any law or legislative history for this disparate treatment – much less a

justification that serves a compelling governmental interest or even has any rational basis –

plaintiffs seek an order from this Court enjoining defendants to permit them to vote absentee in

future federal elections in Illinois under fundamental equal-protection principles.

STANDARD

In order to survive a Rule 12(b)(6) challenge, a complaint must “ provide a ‘short and

plain statement of the claim showing that the pleader is entitled to relief,’ sufficient to provide

the defendant with ‘fair notice’ of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d

1074, 1081 (7th Cir. 2008) (quoting Fed. R. Civ. P. 8(a)(2)). Where, as here, the factual

sufficiency of the pleadings is not disputed, the only question is whether the facts alleged “raise

the possibility of relief above the ‘speculative level,’ assuming that all of the allegations in the

complaint are true.” Saunders v. City of Chicago, Nos. 12-cv-09158 et al., 2013 WL 6009933, at



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*3 (N.D. Ill. Nov. 13, 2013) (quoting E.E.O.C. v. Concentra Health Services, 496 F.3d 773, 776

(7th Cir. 2007)).

Pursuant to Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett , 477 U.S. 317,

322 (1986). Summary judgment is “an appropriate adjudicative procedure” here, “where the

parties agree that none of the relevant facts are in dispute and the resolution hinges solely on an

issue of law.” Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1045 (7th Cir. 2013).

ARGUMENT

The Court should grant plaintiffs summary judgment and deny the federal def endants’

motion to dismiss because it is an undisputed fact that the individual plaintiffs are denied the

right to vote in federal elections in Illinois solely because they each reside in certain disfavored

Territories excluded from overseas voting rights by UOCAVA and MOVE. This exclusion

violates equal-protection principles as a matter of law under any level of scrutiny.

I.

UOCAVA And MOVE Violate Equal Protection By Barring Former State Residents

Residing In Guam, Puerto Rico, And The U.S. Virgin Islands From Voting In

Federal Elections In Illinois, While Allowing All Other Former State Residents

Residing Overseas To Do So.

Because UOCAVA and MOVE confer the right to vote in federal elections on some

residents within the U.S. Territories, while denying that right to other similarly situated residents

of the same geographical unit – and because this discrimination does not advance any

identifiable government interest – the statutes violate equal protection rights under any level of

scrutiny. The Court should apply strict scrutiny because this case involves the fundamental right

to vote and an unequal and arbitrary extension of that right. But even under rational-basis

scrutiny, the statutes violate equal-protection as applied to these plaintiffs because there is no



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the franchise to others” (former Illinois residents living outside states who reside in Territories

other than the NMI and, under UOCAVA, American Samoa). See Dunn, 405 U.S. at 337.

The federal defendants argue that UOCAVA should be subject only to rational-basis

r eview because it does not “‘infringe [the right to vote] but rather limits the state’s ability to

restrict it.’” (MTD at 10 (quoting Igartúa De La Rosa v. United States, 32 F.3d 8, 10 & n.2 (1st

Cir. 1994) (per curiam)).) This argument mischaracterizes UOCAVA, which “classifies voters

in disparate ways,” Dunn, 405 U.S. at 337, requires states to grant the franchise “to the

electorate” while drawing “lines” between those who are in the electorate and those who are not,

Harper , 383 U.S. at 665, and expressly relies on “homesite” to “‘distinguish[] between qualified

voters,’” id. at 667 (quoting Gray, 372 U.S. at 380).6

The federal defendants’ reliance on the First Circuit’s decision in Igartúa and the Second

Circuit’s decision in Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001) (cited in MTD at 10) is

misplaced for similar reasons. Igartúa and Romeu rejected strict scrutiny, but their reasoning

does not support defendants here because they considered a different constitutional challenge –

that UOCAVA distinguished between former state residents living in Territories on the one hand

and those living in foreign countries on the other. Plaintiffs submit that Igartúa and Romeu erred

in deciding this issue, but in any event the challenge here is based in significant part on the

discrimination between the Terr i tor ies themselves in that UOCAVA compels states to permit

former residents who live in the NMI to vote but not those who live in the other Territories – a

discrimination neither Igartúa nor Romeu even had occasion to acknowledge, much less address.

6 Notably, because UOCAVA and MOVE extend voting rights, the question whether the Constitution affordsthe Territories themselves representation in Congress ( see MTD at 2-4) is a red herring. Plaintiffs are not arguing

that they have a right to seat a representative of Guam, Puerto Rico, or the U.S. Virgin Islands in Congress. Instead,

their argument is that the vote, once extended to one segment of former state citizens residing overseas, cannot be

withheld from other similarly situated citizens.



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In any event, the federal defendants’ argument that UOCAVA only restricts state action could

only apply to UOCAVA, not to MOVE or the state defendants, because state law clearly does

extend voting rights to one set of overseas voters while denying it to another.

The federal defendants also contend that strict scrutiny should not apply because the

Supreme Court has applied rational-basis review to laws that incrementally expand voting rights,

relying on Katzenbach v. Morgan, 384 U.S. 641 (1966) (cited in MTD at 10-11). But the

differences between Katzenbach and this case only underscore the propriety of applying strict

scrutiny here. The law at issue in Katzenbach was truly incremental in the sense that it expanded

voting rights to one group – by barring states from applying English literacy requirements to

voters educated in American-flag schools in Puerto Rico in a language other than English – but

not to voters educated in all other schools around the world that taught in a language other than

English. 384 U.S. at 652, 656. As the Supreme Court explained, Congress’s approach was

plausibly viewed as incremental because Congress might have had “greater familiarity with the

quality of instruction in American-flag schools”; there was a “unique historic relationship

between the Congress and the Commonwealth of Puerto Rico”; Congress had an “awareness of

the Federal Government’s acceptance of the desirability of the use of Spanish as the language of

instruction in Commonwealth schools”; and Congress “has fostered policies encouraging

migration from the Commonwealth to the States.” Id. at 658.

Here, by contrast, neither UOCAVA nor MOVE is incremental. These laws do not

expand voting rights to one group of overseas voters of which Congress or Illinois has special

cognizance or with which they have a special relationship. To the contrary, UOCAVA and

MOVE are essentially the reverse of the law at issue in Katzenbach because they effect near

global expansion of the right to vote in federal elections to overseas citizens – except as to the



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handful of certain Territories they single out for exclusion. As the Supreme Court has held, laws

that single out particular groups for less favorable treatment under generally applicable laws that

expand rights are inherently suspect. See Romer v. Evans, 517 U.S. 620, 633 (1996) (observing

that respect for equal- protection principles “explains why laws singling out a certain class of

citizens for disfavored legal status or general hardships are rare” and invalidating state law that

exempted gay citizens from the protections of anti-discrimination laws)7 The same result should

obtain here, and UOCAVA and MOVE’s discriminatory treatment of former state residents

based on where they move overseas should be subject to strict scrutiny.

B.

Regardless of the Level of Scrutiny, Both Statutes Fail.

Regardless whether strict scrutiny, rational-basis review, or some intermediate form of

scrutiny applies, both UOCAVA and MOVE violate equal-protection principles as applied to

these plaintiffs.

First , UOCAVA does not pass muster under any standard of review. The federal

defendants do not even attempt to demonstrate that UOCAVA’s distinction between former state

citizens residing in the NMI or a foreign country and former state residents living in the other

U.S. Territories is “‘necessary to promote a compelling state interest.’” See Dunn, 405 U.S. at

337 (citation omitted). And even under rational- basis review, a statute’s classification of persons

must be rationally related to a legitimate state interest. Smith v. City of Chicago, 457 F.3d 643,

650 – 51 (7th Cir. 2006).

No such interest exists or is advanced by UOCAVA. Congress’s stated interest in

ensuring overseas voting rights was to remedy the “highly discriminatory” treatment facing

7 Romer did not apply strict scrutiny and apparently assumed without deciding that the state law there was

subject to rational-basis review on the purported ground that the law at issue did not burden a fundamental right or

target a suspect class. See 517 U.S. at 631-32. That assumption was dubious, but in any event the instant case does

involve the fundamental right to vote.



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“private citizens outside the United States” – discrimination that Congress found “to be

unacceptable as a matter of public policy, and to be suspect under the equal protection clause.”

H.R. Rep. No. 94-649, pt. 1, at 2, 1975 U.S.C.C.A.N. at 2360. Plainly, imposing a new

discrimination between citizens residing in the NMI or a foreign country on the one hand and

those residing in other U.S. Territories on the other would contradict rather than advance this

interest and could not possibly satisfy strict scrutiny – or even rational-basis review.

The only other explanation of fered for the NMI’s favored status under UOCAVA is the

speculation in the federal defendants’ motion that it was essentially an accident of “historical

timing” because UOCAVA was passed shortly before “the Covenant between the U.S. and the

NMI regarding its territorial status was . . . fully effectuated.” (MTD at 13.) Even on its own

terms, the argument at best attempts to provide an historical explanation for unconstitutional

discrimination; it in no sense establishes any government interest in allowing former state

citizens residing in the NMI or a foreign country to continue voting in their former states while

denying the same right to former state citizens residing in the other Territories.

In any event, the argument lacks even explanatory force because the relationship between

the United States and the islands that now comprise the NMI long preexisted UOCAVA. See

generally S. Rep. No. 94-596 (1976), reprinted in 1976 U.S.C.C.A.N. 448 (explaining that the

Northern Mariana Islands were part of the Trust Territory of the Pacific Islands, which had been

administered by the United States since 1947). Indeed, the 1975 Act that UOCAVA replaced

expressly addressed the Trust Territory of the Pacific Islands and excluded former state citizens

residing there from the right to vote in federal elections in their prior states of residence. See

Overseas Citizens Voting Rights Act of 1975, Pub. L. No. 94-203, §§ 2-3, 89 Stat. at 1142.



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As such, the apparent premise of the federal defendants’ argument – that the NMI was

not addressed simply because it did not yet exist or have an established relationship with the

United States – is wrong as a matter of history. Congress clearly understood the implications of

overseas voting laws for the residents of those islands; it simply chose – for no apparent reason –

to elevate the status of former state residents living there above the status of similar residents

living in American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands.

Ignoring the special status afforded the NMI and American Samoa under MOVE and the

UOCAVA (as it operates in Illinois), the federal defendants also contend that the disparate

treatment given to former state citizens who move to U.S. Territories and those who move to

foreign countries is justified because “citizens that move from the United States to Puerto Rico,

Guam, or the U.S. Virgin Islands . . . acquire new voting rights in these territories and may vote

in local elections” for territorial officials, including nonvoting delegates to Congress, citing the

decisions of the First Circuit in Igartúa and the Second Circuit’s decision in Romeu. (MTD at

12.) But this argument fails to offer any explanation for the discrimination among the former

state residents in the different Territories – an issue that neither Igartúa nor Romeu addresses,

rendering both cases unhelpful to defendants.8

8 Plaintiffs submit that these cases are wrongly decided to the extent that they upheld UOCAVA’s

discrimination between former state citizens residing in foreign countries and those residing in the Territories. The

government interest that Congress sought to advance under UOCAVA was to end the “highly discriminatory”

treatment of overseas citizens. It did so not by appointing nonvoting delegates to represent the interests of citizens

residing abroad but instead by directing the states to provide meaningful representation of overseas voters in the

federal political process by extending the right to vote. See H.R. Rep. No. 94-649, pt. 1, at 2, 1975 U.S.C.C.A.N. at

2359 (explaining that the “citizen outside the United States has distinct congressional interests” because an overseas

citizen “is interested, for example, in the exchange rate of the dollar, social security benefits, or the energy

situation”) (emphasis added). The disparate treatment of former state citizens residing in the Territories – basedsolely on the fact that they can participate in local government, without federal voting representation – cannot be

reconciled with Congress’s stated purposes. And it is quite clear that the availability of such local rights is no bar to

extending UOCAVA’s protections to former state citizens residing in the Territories; after all, both American Samoa

and the NMI have local governments and send nonvoting delegates to Congress.



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As such, UOCAVA’s discrimination among Territorial residents was clear ly not intended

to advance any government interest; and necessarily, it is not narrowly drawn or rationally

related to the advancement of such an interest. It therefore violates equal-protection principles as

applied to these plaintiffs.

Second , MOVE likewise cannot survive review under any level of scrutiny. There is no

basis for concluding that the distinction drawn in the Illinois statute (between former Illinois

residents living in the NMI or American Samoa, and former Illinois residents living in other U.S.

Territories) serves any government interest – much less a compelling or even minimally

legitimate one. Indeed, in their answers to the complaint, all state defendants stated that they are

“without knowledge or information sufficient to form a belief as” to whether any legislature has

ever “articulated a legitimate justification” for the lines drawn by MOVE among former Illinois

citizens residing overseas. (See Rule 56.1 Stmt. ¶ 63; Chicago Ans. ¶ 53; Rock Island Ans. ¶

53.) Needless to say, discrimination that has no known justification cannot satisfy equal-

protection requirements under any standard of review.

Notably, the Supreme Court has invalidated state law imposing similar discrimination

against residents based on where they live. In Evans v. Cornman, 398 U.S. 419 (1970), for

instance, the Supreme Court struck down a state statute that distinguished between voters with

equal stakes in the outcome of a given election. Id. at 426. The Court held that a “total

exclusion from the franchise” of residents of the federal enclave of the National Institutes of

Health in Maryland was not justified wher e “residents of the NIH grounds are just as interested

in and connected with electoral decisions . . . as are their neighbors who live off the enclave.” Id.

So too here. Former residents of Illinois who live in Puerto Rico, Guam, and the U.S.

Virgin Islands are “just as interested in and connected with electoral decisions” as former



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Date: March 16, 2016

Leevin T. Camacho

The Law Office of Leevin T. Camacho

194 Hernan Cortez AvenueSuite 216Hagåtña, Guam 96910


Luis G. Rivera Marín

Rivera Marín & Talavera Law Offices112 Uruguay Street

Hato Rey, Puerto Rico 00918(787) 946-9400

[email protected]

Semaj JohnsonLaw Offices of K.A. Rames PC

Suite 3, 2111 Company StreetChristiansted, St. Croix, Virgin Islands 00820


Respectfully submitted,

s/ Charles F. SmithCharles F. Smith

Lara A. Flath

155 N. Wacker Drive, Suite 2700Chicago, Illinois 60606(312) 407-0700

[email protected]@probonolaw.com

Geoffrey M. Wyatt

Michael McIntoshMarisa B. Van Saanen

W. Graham McCall1440 New York Avenue N.W.

Washington, D.C. 20005(202) 371-7000

[email protected]

Neil C. WeareWe the People Project

1666 Connecticut Avenue N.W.Suite 500

Washington, DC 20009(202) 304-1202

[email protected]

Attorneys for Plaintiffs



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CERTIFICATE OF SERVICE

I certify that on March 16, 2016, I filed this document using the Court’s Electronic Case

Filing (“ECF”) system, which will automatically deliver a notice of electronic filing to all

parties’ counsel of record who are registered ECF users.

s/ Charles F. Smith

Attorney for Plaintiffs


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