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Case: 1:15-cv-10196 Document #: 58 Filed: 05/03/16 Page 1 of 21 PageID #:413

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 LEAGUE
OF WOMEN VOTERS OF THE VIRGIN
ISLANDS,
Plaintiffs,
v.

Case No. 15-cv-10196

BOARD OF ELECTION COMMISSIONERS
FOR THE CITY OF CHICAGO, MARISEL A.
HERNANDEZ, in her official capacity as
Chairman of the Board 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 ASSISTANCE PROGRAM, and
MATT BOEHMER,
in his official capacity as Director of the Federal
Voting Assistance Program,

Judge Joan B. Gottschall

Defendants.
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY
JUDGMENT AND OPPOSITION TO FEDERAL DEFENDANTS’ CROSS-MOTION
FOR SUMMARY JUDGMENT
Date: May 3, 2016
Leevin T. Camacho
The Law Office of Leevin T. Camacho
194 Hernan Cortez Avenue
Suite 216
Hagåtña, Guam 96910
(617) 477-8894
leevin@guahanlaw.com

Charles F. Smith
Lara A. Flath
John J. Schoettle
155 N. Wacker Drive, Suite 2700
Chicago, Illinois 60606
(312) 407-0700
charles.smith@probonolaw.com

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Luis G. Rivera Marín
Rivera Marín & Talavera Law Offices
112 Uruguay Street
Hato Rey, Puerto Rico 00918
(787) 946-9400
luisg@riveramarin.com
Semaj Johnson
Law Offices of K.A. Rames PC
Suite 3, 2111 Company Street
Christiansted, St. Croix, Virgin Islands 00820
(340) 773-7284
semaj.johnson@rameslaw.com

lara.flath@probonolaw.com
john.schoettle@probonolaw.com
Geoffrey M. Wyatt
Michael McIntosh
Marisa B. Van Saanen
W. Graham McCall
1440 New York Avenue N.W.
Washington, D.C. 20005
(202) 371-7000
geoffrey.wyatt@probonolaw.com
Neil C. Weare
We the People Project
1666 Connecticut Avenue N.W.
Suite 500
Washington, DC 20009
(202) 304-1202
nweare@equalrightsnow.org
Attorneys for Plaintiffs

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................3
I.

UOCAVA And MOVE Are Subject To Strict Scrutiny And, In Any Event,
Defendants Have Not Identified Any Legitimate Government Interest That Is
Rationally Advanced By The Arbitrary Dividing Lines Drawn By These Laws. ...............3
A.

UOCAVA And MOVE Are Subject To Strict Scrutiny. .........................................3

B.

UOCAVA And MOVE Fail Under Any Level Of Scrutiny. ...................................6

II.

The Federal Defendants’ Remedial Arguments Are Contrary To Law. ............................11

III.

Plaintiffs Have Standing to Challenge UOCAVA Under Well-Settled Equal
Protection Law. ..................................................................................................................12

CONCLUSION ..............................................................................................................................14

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TABLE OF AUTHORITIES
CASES
Boumediene v. Bush,
553 U.S. 723 (2008) ................................................................................................................ 10
Califano v. Westcott,
443 U.S. 76 (1979) .................................................................................................................. 11
Crawford v. Marion County Election Board,
472 F.3d 949 (7th Cir. 2007) .................................................................................................. 14
Dunn v. Blumstein,
405 U.S. 330 (1972) .................................................................................................................. 5
Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero,
426 U.S. 572 (1976) ................................................................................................................ 10
Frank v. Walker,
17 F. Supp. 3d 837, 2014 U.S. Dist. LEXIS 59344 (E.D. Wis. 2014).................................... 14
Frontiero v. Richardson,
411 U.S. 677 (1973) ........................................................................................................ 4, 7, 13
Harper v. Va. State Bd. of Elections,
383 U.S. 663 (1966) .................................................................................................................. 5
Igartúa De La Rosa v. United States,
32 F.3d 8 (1st Cir. 1994) (per curiam) .................................................................................. 3, 4
Katzenbach v. Morgan,
384 U.S. 641 (1966) .................................................................................................................. 5
Levin v. Commerce Energy, Inc.,
560 U.S. 413 (2010) ................................................................................................................ 11
McDonald v. Bd. of Election Comm’rs of Chi.,
394 U.S. 802 (1969) .............................................................................................................. 5, 6
Murphy v. Ramsey,
114 U.S. 15 (1885) .................................................................................................................. 10
Nat’l Council of La Raza v. Cegavske,
800 F.3d 1032 (9th Cir. 2015) ................................................................................................ 14
Romeu v. Cohen,
121 F. Supp. 2d 264 (S.D.N.Y. 2000)..................................................................................... 13

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Romeu v. Cohen,
265 F.3d 118 (2d Cir. 2001)...................................................................................................... 4
Smith v. City of Chi.,
457 F.3d 643 (7th Cir. 2006) ................................................................................................ 7, 9
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) ................................................................................................................ 13
CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const. art. IV, § 3 .................................................................................................................. 10
Pub. L. 94-203, 89 Stat. 1142 (1976) .......................................................................................... 7, 8
OTHER AUTHORITIES
GAO, Elections: Absentee Voting Assistance to Military and Overseas
Citizens Increased for the 2004 General Election, but Challenges
Remain, Apr. 2006, available at
https://www.gpo.gov/fdsys/pkg/GAOREPORTS-GAO-06521/pdf/GAOREPORTS-GAO-06-521.pdf ............................................................................ 11
Harris County Electronic Absentee Systems for Elections Technical
Proposal, available at
https://www.fvap.gov/uploads/FVAP/Grants/Harris_application.pdf .................................... 11
Sam Howe Verhovek, Giant Leap for the Space Crowd: Voting, N.Y.
TIMES, Aug. 26, 1997, http://www.nytimes.com/1997/08/26/us/giantleap-for-the-space-crowd-voting.html .................................................................................... 11
United States Election Assistance Commission, Voting from Abroad: A
Survey of UOCAVA Voters, App’x E (2007), available at
http://www.eac.gov/assets/1/Page/Voting%20from%20Abroad%20A
%20Survey%20of%20UOCAVA%20Voters.pdf .................................................................. 11
Voting Rights for U.S. Citizens Residing Abroad: Hearing on H.R. 3211
Before H. Comm. On H. Admin., 94th Cong. 23 (1975) (statement of
Sen. Mathis) ............................................................................................................................ 11

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INTRODUCTION
Federal defendants are correct that former state residents living overseas in foreign
countries and U.S. Territories have no inherent constitutional guarantee that they will be
provided the right to vote for President and voting representation in Congress once they are no
longer residents of a State. But the Constitution’s guarantee of equal protection nonetheless
prohibits Congress or Illinois from discriminatorily extending absentee voting rights to some
U.S. citizens living overseas, while denying it to other Americans who are similarly situated.
Absent a sufficiently compelling justification, the federal Uniformed and Overseas Citizens
Absentee Voting Act (“UOCAVA”) and the Illinois Military Overseas Voter Empowerment Act
(“MOVE”) violate plaintiffs’ equal-protection rights – not only by discriminating between
former state residents living in foreign countries and those living in U.S. Territories, but also by
drawing lines even as between the Territories, something no court has yet considered. The
federal defendants have failed to offer any identifiable legitimate – much less compelling –
government interest that is advanced by this discrimination. So while strict scrutiny should be
applied here, their arguments fail under any level of scrutiny. The state defendants have not
even attempted a defense, declining to submit any opposition to summary judgment.
The federal defendants oppose summary judgment and now seek entry of summary
judgment on their own behalf in addition to their earlier motion to dismiss. But none of their
arguments have merit.
First, UOCAVA itself violates plaintiffs’ equal-protection rights. Notably, the federal
defendants do not even attempt to argue that UOCAVA could survive heightened scrutiny.
Instead, they argue that heightened scrutiny does not apply because the law expands rather than
restricts voting rights. But as the Supreme Court has recognized, the same equal-protection
framework that governs restrictions on rights applies to governmental benefits when they are

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conferred in a discriminatory manner. And in any event, UOCAVA cannot survive even
rational-basis review. The federal defendants’ attempts to supply post hoc rationalizations are
flawed as an historical matter, but more importantly they fail to explain how any of the suggested
government interests would be advanced by the discriminatory lines drawn in UOCAVA.
Second, the remedy requested by plaintiffs – to expand absentee voting rights to all
former state residents living overseas, including those in Guam, Puerto Rico, and the U.S. Virgin
Islands – is entirely appropriate under controlling Supreme Court precedent. Expansion is
consistent with Congress’s broader purpose of ensuring former state residents living overseas are
not discriminated against when it comes to maintaining their right to vote for President and
voting representation in Congress. The federal defendants offer no plausible alternative remedy
to ameliorate the equal-protection injury posed by UOCAVA.
Third, plaintiffs have standing to sue because plaintiffs’ disenfranchisement is directly
traceable to the discrimination required by UOCAVA. The fact that the federal defendants are
only now raising standing issues for the first time exposes the weakness of both their standing
and merits arguments. Indeed, their argument against standing simply repackages the flawed
merits argument that laws that discriminate in conferring benefits are protected from equalprotection scrutiny. The federal defendants also do not contest that challenges to UOCAVA in
the First and Second Circuits were correct to reach the merits rather than being dismissed on
standing grounds.
Accordingly, and as further detailed below, the Court should grant plaintiffs’ motion for
summary judgment against all defendants and deny the federal defendants’ motions.

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ARGUMENT
I.

UOCAVA And MOVE Are Subject To Strict Scrutiny And, In Any Event,
Defendants Have Not Identified Any Legitimate Government Interest That Is
Rationally Advanced By The Arbitrary Dividing Lines Drawn By These Laws.
The federal defendants do not even attempt to argue that UOCAVA and MOVE survive

any level of scrutiny beyond rational-basis review. Instead, they assert that rational-basis review
applies here, and that UOCAVA satisfies that standard. The federal defendants are wrong on
both counts. Strict scrutiny applies because UOCAVA and MOVE protect the absentee voting
rights of some former state residents living overseas but not others, and this type of selective
enfranchisement that singles out particular groups for disfavored treatment is subject to strict
scrutiny. Regardless what level of scrutiny applies, there is not even a rational basis for these
distinctions. Indeed, as even the federal defendants appear to concede, UOCAVA’s distinctions
between Territorial residents might well have been arbitrary. The only explanations the federal
defendants offer are premised on a misreading of the Overseas Citizens Voting Rights Act of
1975 and in any event fail to identify any legitimate government interest advanced by the
discriminatory treatment. Moreover, none of the federal defendants’ speculative explanations for
UOCAVA’s distinctions serve to explain the discrimination imposed by MOVE. Accordingly,
as detailed further below, the statutes violate plaintiffs’ equal-protection rights under the law.
A.

UOCAVA And MOVE Are Subject To Strict Scrutiny.

As plaintiffs demonstrated in their opening brief (Pls.’ Br. at 8-11, ECF No. 48),
UOCAVA and MOVE must satisfy strict scrutiny because the statutes grant the right to vote to
some citizens while denying the right to vote to others similarly situated. The federal defendants
challenge the application of strict scrutiny on three grounds. None has merit.
First, the federal defendants argue that this Court should follow the decisions in Igartúa
De La Rosa v. United States, 32 F.3d 8 (1st Cir. 1994) (per curiam), and Romeu v. Cohen, 265
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F.3d 118 (2d Cir. 2001), which the federal defendants claim establish that rational basis review
should apply here. (See Defs.’ at Br. 6-7, ECF No. 51.) But Romeu expressly avoided reaching
a decision on level of scrutiny. 265 F.3d at 124 (leaving open whether the distinctions in
UOCAVA should be “appropriately analyzed under rational basis review or intermediate
scrutiny, or under some alternative analytic framework independent of the three-tier standard that
has been established in Equal Protection cases”). And Igartúa, a per curiam decision reached
without the benefit of oral argument in a challenge brought by a pro se litigant, grounded its
rational basis determination on the demonstrably false factual assertion that UOCAVA “does not
distinguish between those who reside overseas and those who take up residence in Puerto Rico,
but between those who reside overseas and those who move anywhere within the United States.”
32 F.3d at 10 (emphasis added). Neither Court had occasion to grapple with the fact, undisputed
by the federal or state defendants here, that UOCAVA and MOVE actually do “distinguish
between those who reside overseas” – whether in foreign countries, the Northern Mariana Islands
(“NMI”), or American Samoa – “and those who take up residence in Puerto Rico,” Guam, or the
U.S. Virgin Islands.1
Second, the federal defendants seek to limit application of the Supreme Court votingrights precedent cited by plaintiffs (see Pls.’ Br. at 8-9) to “state statutes that placed restrictions
on existing voting rights of state residents, effectively infringing upon the right to vote.” (Defs.’
Br. at 7.) Igartúa makes the same mistake. 32 F.3d at 10, n.2. But the notion that strict scrutiny
is reserved for restrictive statutes and not applicable where the government extends a benefit to
one class of individuals while denying it to another is clearly wrong. See, e.g., Frontiero v.
Richardson, 411 U.S. 677, 682 (1973) (applying “close judicial scrutiny” to statute that provided
1

Plaintiffs also maintain in any event that these cases were wrongly decided, as set forth in their opening
brief. (Pls.’ Br. at 9.)

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fringe benefits to male but not female service members). And nothing the federal defendants cite
suggests the contrary.
Moreover, the Supreme Court has made clear that strict scrutiny applies whenever a
“challenged statute grants the right to vote to some citizens and denies the franchise to
others . . . .” Dunn v. Blumstein, 405 U.S. 330, 337 (1972); see also Harper v. Va. State Bd. of
Elections, 383 U.S. 663, 667 (1966) (“[O]nce the franchise is granted to the electorate, lines may
not be drawn which are inconsistent with [equal protection].”). This is precisely the case here,
where UOCAVA and MOVE “grant[] the right to vote to some citizens” (citizens and former
Illinois residents who reside in foreign countries and the NMI and, under MOVE, American
Samoa) and “den[y] the franchise to others” (former Illinois residents who reside in Puerto Rico,
Guam, or the U.S. Virgin Islands). Supreme Court precedent accordingly mandates that the
statutes be struck down unless they survive strict scrutiny. See Dunn, 405 U.S. at 337; Harper,
383 U.S. at 667.
Third, the federal defendants claim that rational-basis review applies because UOCAVA
is “analogous” to the statutes at issue in Katzenbach v. Morgan, 384 U.S. 641 (1966), and
McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802 (1969). (Defs.’ Br. at 8.) But the
federal defendants ignore the obvious and constitutionally significant difference between the
statutes here and those analyzed in Katzenbach and McDonald. As highlighted in plaintiffs’
opening brief, the laws in Katzenbach created an incremental expansion of the right to vote and
identified narrow groups for inclusion (see Pls.’ Br. at 10). McDonald is in the same mold,
involving an incremental expansion of absentee ballot access to a limited class of voters who
have difficulty reaching the polls. Id. at 807-08. The appellants there brought suit claiming that
the law violated the rights of arrestees being held without bail, who did not benefit from similar

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access to absentee ballots. Id. Notably, the Supreme Court first concluded that the denial of
absentee ballots did not “impact on appellants’ ability to exercise the fundamental right to vote,”
394 U.S. at 807, because they were still permitted to vote by other means. Here, by contrast, the
denial of absentee voting rights results in the complete denial of plaintiffs’ right to vote for
President and voting representation in Congress. The Supreme Court then concluded, similarly
to Katzenbach, that the extension of absentee rights to one narrow class of resident voters was a
justifiable incremental reform, “particularly in view of the many other classes of Illinois citizens
not covered by the absentee provisions, for whom voting may be extremely difficult, if not
practically impossible.” Id. at 809-10.
UOCAVA and MOVE present the opposite situation. They effected near-universal
expansion of absentee voting rights to former state residents, singling out only a narrow group of
citizens for exclusion from being able to continue to vote for President and voting representation
in Congress. Indeed, the broad scope of UOCAVA and MOVE protects the voting rights of
former state residents living in foreign countries, the NMI, and American Samoa – together
comprising 99.99% of the land area outside the 50 states – excluding only those who live in
Puerto Rico, Guam, and the U.S. Virgin Islands. As such, these laws are the converse of the
statutes addressed in Katzenbach and McDonald, and the federal defendants therefore may not
seek refuge in the principle that “a statute does not violate equal protection simply because ‘it
could have gone farther than it did.’” (Defs.’ Br. at 8.) Rather, because the laws single out
narrow groups for exclusion from an otherwise universal benefit, they should be subjected to
strict scrutiny. (See Pls.’ Br. at 11.)
B.

UOCAVA And MOVE Fail Under Any Level Of Scrutiny.

Whatever the level of scrutiny, UOCAVA and MOVE violate the Constitution’s
guarantee of equal protection. The federal defendants do not even suggest that UOCAVA and
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MOVE satisfy strict scrutiny. Nor can either statute pass muster even under rational-basis
review. The federal defendants offer a range of speculative bases for Congress’s discrimination
between former residents living overseas in foreign countries and the NMI and those living in
other Territories, but none satisfies the appropriate test by showing that the “difference in
treatment was . . . rationally related to a legitimate state interest,” Smith v. City of Chi., 457 F.3d
643, 651 (7th Cir. 2006).
The starting point is the federal defendants’ candid admission that Congress might have
had no reason at all for UOCAVA’s classification, rendering the statute wholly arbitrary. See
Defs.’ Br. at 10 (conceding possibility that the NMI carve-out was simply a “product of
historical timing” and not a “deliberate choice by Congress”). Arbitrary discrimination by
definition cannot advance any government interest and violates equal protection per se. E.g.,
Frontiero, 411 U.S. at 683 (acknowledging that “legislative classification[s]” that are “‘patently
arbitrary’” cannot survive even “‘traditional’ equal protection analysis” – i.e., rational-basis
review).
The federal defendants speculate that Congress may have made a “deliberate” (but
apparently secret) reason for discriminating against former state citizens residing in Territories
other than the NMI (Defs.’ Br. at 10), but these suggestions all fail because each is premised on a
flawed reading of the Overseas Citizens Voting Rights Act of 1975, UOCAVA’s predecessor.
Specifically, the federal defendants argue that former state citizens residing in the NMI were
granted the right to vote in federal elections under the 1975 Act, and that UOCAVA merely
“maintain[ed] absentee voting rights already operative in [the NMI] under prior law, history, and
practice.” (Defs.’ Br. at 13.) Not so. To be sure, the 1975 Act expressly excluded the Trust
Territory of the Pacific Islands (of which the NMI was a part) from the definition of “United

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States.” Pub. L. 94-203, § 2(3), 89 Stat. 1142, 1142 (1976). But in the subsequent section, the
Act made clear that citizens who “maintain a domicile . . . in any territory or possession of the
United States” – a category defined to include citizens residing in the NMI – were not
guaranteed the right to vote in federal elections in their former state of residence. Id. § 3(2); see
also id. § 2(3) (referring to “American Samoa, the Canal Zone, the Trust Territory of the Pacific
Islands, or any other territory or possession of the United States”) (emphasis added).
Thus, far from “maintain[ing]” voting rights previously granted to former state citizens
residing in the NMI, UOCAVA altered the pre-existing law by uniquely enfranchising such
citizens while denying similar rights to other citizens residing in the Territories. The federal
defendants offer no legitimate interest that Congress sought to further by changing prior law to
protect the right to vote of former state citizens residing in only certain Territories. Quite the
opposite, the federal defendants seek to justify UOCAVA’s disparate treatment of citizens
residing in the Territories by pointing to a supposedly long-standing special provision for voting
rights in the NMI that in fact did not exist. (See, e.g., Defs.’ Br. at 10 (“NMI’s exclusion from
the territorial limits of the United States may be the rational result of Congress recognizing
NMI’s unique, and continually evolving, relationship with the United States.”); id. at 11 (“NMI’s
unique status as a former UN Trust Territory presents a rational basis for UOCAVA’s distinct
treatment of NMI as compared to the other Territories.”); id. at 12 (“NMI retained a unique
combination of characteristics aimed at preserving its independence, rooted in its former status as
a Trust, even after becoming a U.S. Territory.”).) These justifications fail in light of Congress’s
historical exclusion of citizens residing in the NMI (along with citizens residing in all other
Territories) from the right to vote in federal elections. Even if the federal defendants are right to
claim that the NMI long has occupied a unique station among what now make up the Territories,

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that offers no legitimate reason for denying the right to vote to citizens residing in the NMI under
the precursor to UOCAVA and then changing the law with the enactment of UOCAVA in 1986.
Beyond the flawed premise of the federal defendants’ varied arguments that UOCAVA
satisfies rational basis review, the federal defendants also fail to offer any legitimate interests
that are advanced by the distinction among citizens residing in the Territories (even accepting
the counterfactual history of voting rights they proffer). Instead, they offer mere explanations
for drawing the distinction (for instance, that the NMI has a special relationship with the United
States (Defs.’ Br. at 10); that the NMI “independently chose to become part of the United
States,” (id. at 10-11); and that “certain other federal voting statutes likewise treat NMI
differently than the other Territories” (id. at 13)). These explanations, at most, reveal a pattern of
unique dealings between the United States and the NMI. They fall far short of meeting the
requisite standard: that treating citizens residing in the NMI differently from citizens residing in
other Territories for voting purposes specifically is “rationally related to a legitimate state
interest.” See Smith, 457 F.3d at 651. They do not explain, for example, how permitting former
state residents to continue voting for President and voting representatives in Congress while
living in the NMI would advance the “special relationship” between the United States and the
NMI. UOCAVA thus must be struck down under any level of scrutiny.
The practical significance of the federal defendants’ position is no mere quibble. The
federal defendants’ proposed level of scrutiny and attempted justifications, if accepted, would
give Congress a largely free hand to draw arbitrary lines under UOCAVA to suit the interests of
the majority of the moment. One Congress, thinking perhaps that overseas votes in the Americas
are more favorable to the majority party, might limit UOCAVA’s protections to countries and
Territories in that part of the world, justifying the distinction by recognizing our nation’s close

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political and geographic relationship with these areas. Another Congress might only protect the
right to vote of former state residents from states with high numbers of expatriates, justifying the
limitation on the ground that a broader requirement has been overly burdensome on states with a
smaller overseas voting population. Certainly the equal-protection concern that UOCAVA was
intended to ameliorate – the differential treatment between military service members and civlians
living overseas – could have been easily justified under the logic pressed by federal defendants
here. The fact that Congress itself believed such a distinction likely to be unconstitutional
suggests a higher level of scrutiny than rational-basis review is appropriate. As such, the Court
must demand more.
Finally, none of the proffered justifications applies to MOVE, and no other justification
has been offered for the discrimination imposed by that statute, which extends the right to vote
not only to the NMI but also American Samoa. Even if Congress’s purported special
relationship with the NMI could justify the bizarre history of overseas voting rights there, it
strains belief to suppose that the State of Illinois has a similar special relationship with the NMI
or American Samoa. Nor do states enjoy the same constitutional powers over the Territories that
are accorded to Congress. See U.S. Const. art. IV, § 3.2 No other attempted justification of
MOVE’s discriminatory provision can be imagined, and none is forthcoming.3 The state
defendants’ failure to defend MOVE is striking, particularly given the fact that the federal

2

Although Congress has broad powers in the Territories, “its powers are not ‘absolute and unlimited’ but are
subject ‘to such restrictions as are expressed in the Constitution.’” Boumediene v. Bush, 553 U.S. 723, 765 (2008)
(quoting Murphy v. Ramsey, 114 U.S. 15, 44 (1885)). This includes the guarantee of equal protection. See, e.g.,
Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 600 (1976).
3

The state defendants informed counsel for plaintiffs that they do not plan to file a response to plaintiffs’
motion. The Chicago defendants (Board of Election Commissioners for the City of Chicago and Marisel A.
Hernandez) indicated that they have not yet decided whether to adopt the arguments of the federal defendants, but as
set forth in the text, it would not help them if they did, as the federal defendants’ arguments are specific to
UOCAVA and, if anything, argue for the invalidation of MOVE.

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defendants have stated that MOVE, not UOCAVA, is the cause of any constitutional violations
at issue in this case. (See, e.g., Defs.’ Br. at 1.) Accordingly, regardless whether UOCAVA
survives equal-protection scrutiny (and it does not for the reasons set forth above), MOVE’s
discriminatory provisions cannot be sustained.
II.

The Federal Defendants’ Remedial Arguments Are Contrary To Law.
The federal defendants next contend that the remedy plaintiffs seek is inappropriate

because it would require the Court to “rewrite” UOCAVA by extending the absentee-voting
rights of former state citizens to include those residing in Territories other than the NMI. (Defs.’
Br. at 14.) But generally, “extension, rather than nullification, is the proper course” in
circumstances like these, Califano v. Westcott, 443 U.S. 76, 89 (1979), and a court should
implement what it believes Congress “would have willed had it been apprised of the
constitutional infirmity,” Levin v. Commerce Energy, Inc., 560 U.S. 413, 427 (2010). Here,
Congress’s express intent was to expand voting rights to overseas citizens, as the federal
defendants themselves acknowledge on the opening page of their response. (Defs.’ Br. at 1.)
See also Voting Rights for U.S. Citizens Residing Abroad: Hearing on H.R. 3211 Before H.
Comm. On H. Admin., 94th Cong. 23 (1975) (statement of Sen. Mathis) (“[W]hat we are trying
to do is give the greatest number of people the right to participate in the political duties of
American citizens.”).4
The federal defendants also assert that “dramatic consequences” would flow from
extending absentee rights already afforded to former state citizens living in other Territories and

4

Moreover, the federal defendants’ remedial argument would have particularly bizarre results if, as they
contend elsewhere in their brief, plaintiffs are entitled to relief only against the state defendants. If the Court were to
restrict rather than expand Territorial voting rights under MOVE, it would have the untenable consequence of
requiring Illinois to bar former residents in the NMI from voting absentee in federal elections, contrary to
UOCAVA’s express mandates.

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countries. (Defs.’ Br. at 15.) This argument is absurd. Under UOCAVA, states entertain
absentee ballots from Americans residing in any number of the 196 countries around the world;
from Antarctica; and even from outer space.5 Moreover, Illinois already accepts absentee ballots
from one additional Territory, without any apparent adverse results, and the federal defendants
themselves elsewhere tout states’ freedom to extend absentee voting rights beyond the “floor” set
by UOCAVA. (E.g., Defs.’ Br. at 4.) As such, it is not plausible that adding three more
Territories to the universe of eligible absentee voting locations will result in any “dramatic” or
otherwise adverse consequences or disturb congressional intent. To the contrary, denial of
plaintiffs’ claims will mean plaintiffs and other former state residents living in Puerto Rico,
Guam, and the U.S. Virgin Islands will be unable to vote for President in November, a
“dramatic” consequence for these Americans.6
III.

Plaintiffs Have Standing to Challenge UOCAVA Under Well-Settled Equal
Protection Law.
That federal defendants have waited until now to raise a challenge to plaintiffs’ standing

speaks to the weakness of both their standing and merits arguments. This repackaged argument
– that “UOCAVA is a permissive statute” and “does not restrict absentee voting rights
anywhere” (Defs.’ Br. at 6) – is no more compelling in the context of standing than it is as a

5

See, e.g., United States Election Assistance Commission, Voting from Abroad: A Survey of UOCAVA
Voters, App’x E (2007), available at
http://www.eac.gov/assets/1/Page/Voting%20from%20Abroad%20A%20Survey%20of%20UOCAVA%20Voters.p
df; GAO, Elections: Absentee Voting Assistance to Military and Overseas Citizens Increased for the 2004 General
Election, but Challenges Remain, Apr. 2006, at 14, available at https://www.gpo.gov/fdsys/pkg/GAOREPORTSGAO-06-521/pdf/GAOREPORTS-GAO-06-521.pdf; Harris County Electronic Absentee Systems for Elections
Technical Proposal at 3, available at https://www.fvap.gov/uploads/FVAP/Grants/Harris_application.pdf; Sam
Howe Verhovek, Giant Leap for the Space Crowd: Voting, N.Y. TIMES, Aug. 26, 1997,
http://www.nytimes.com/1997/08/26/us/giant-leap-for-the-space-crowd-voting.html.
6

Plaintiffs acknowledge and would welcome the benefits of a political solution, as proposed in the federal
defendants’ opposition (Defs.’ Br. at 15), but the mere fact that Congress has the power to amend UOCAVA or
other laws bearing on the rights of Territorial residents is no bar to this Court’s authority to protect constitutional
rights.

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Case: 1:15-cv-10196 Document #: 58 Filed: 05/03/16 Page 18 of 21 PageID #:430

merits argument. (Compare Defs.’ Br. at 4-6 (calling this a “standing” argument), with Mot. To
Dismiss at 7-9, ECF No. 39 (casting the argument as one of a failure to state a claim).)
As set forth above, the allegedly “permissive” character of UOCAVA does not absolve
the federal government of its duties to honor equal-protection rights; the Supreme Court has
analyzed statutes that confer a benefit in a discriminatory fashion using the same framework that
applies to restrictive statutes. E.g., Frontiero, 411 U.S. at 682; see also, e.g., Weinberger v.
Wiesenfeld, 420 U.S. 636, 647 (1975) (holding that social security benefits for widows “must be
distributed according to classifications which do not without sufficient justification differentiate
among covered employees solely on the basis of sex” and concluding that the law violated equal
protection).
The fact is, UOCAVA requires states to confer a benefit on former state citizens residing
in other countries or in the NMI; but it does not require states to extend the same benefit to
former state residents who, like plaintiffs, live in Guam, Puerto Rico, or the U.S. Virgin Islands.
As a result of that scheme, Illinois (and every other state) is compelled under federal law to allow
former state citizens residing in the NMI and foreign countries to vote. The federal defendants
cannot pass the buck to Illinois any more than state defendants can point the finger back at
Congress. If the federal defendants’ standing argument is right, plaintiffs could be denied
standing to challenge either UOCAVA or MOVE, since both Congress and Illinois could have
gone further to address the voting rights of overseas voters. The reality is that plaintiffs’ injuries
stem both from UOCAVA and MOVE, and plaintiffs therefore have standing to challenge both
statutory regimes.
Notably, the federal defendants also omit the fact that the district court in Romeu
expressly held that the plaintiffs there had standing to challenge both state law and UOCAVA.

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Romeu v. Cohen, 121 F. Supp. 2d 264, 173 (S.D.N.Y. 2000) (holding that the plaintiffs had
standing to attack both UOCAVA and the state laws at issue). And neither the First Circuit in
Igartúa nor the Second Circuit in Romeu found any standing issues requiring them to avoid
reaching the merits in those cases. In short, well-established equal protection law establishes
plaintiffs’ standing to challenge UOCAVA.7
CONCLUSION
For the foregoing reasons, as well as those set forth in their opening brief, plaintiffs
respectfully request that the Court grant summary judgment in their favor and deny the federal
defendants’ motion to dismiss and cross-motion for summary judgment.
Date: May 3, 2016

Respectfully submitted,

Leevin T. Camacho
The Law Office of Leevin T. Camacho
194 Hernan Cortez Avenue
Suite 216
Hagåtña, Guam 96910
(617) 477-8894

s/ Charles F. Smith
Charles F. Smith
Lara A. Flath
John J. Schoettle
155 N. Wacker Drive, Suite 2700
Chicago, Illinois 60606
(312) 407-0700

7

The federal defendants also argue in a footnote that the organizational plaintiffs – Iraq Afghanistan and
Persian Gulf Veterans of the Pacific (“IAPGVP”) and The League of Women Voters of the Virgin Islands (“LWVVI”) – lack standing because plaintiffs have not “ma[d]e specific allegations establishing that at least one identified
member had suffered or would suffer harm.” (Pls.’ Br. at 4 n.4.) In fact, plaintiffs have made numerous
submissions to this Court alleging that IAPGVP’s and LWC-VI’s membership includes current residents of Guam
and the Virgin Islands who are former residents of Illinois – i.e., people who are denied absentee voting rights and
have therefore suffered harm. (E.g., Compl. ¶¶ 16-17, ECF No. 1; Local Rule 56.1 Stmt. ¶¶ 52-61, ECF No. 49;
Decl. of Dr. Gwen Moolenaar ¶¶ 1-4, ECF No. 49-8; Decl. of Rodney Cruz, Jr. ¶¶ 1-5, ECF No. 49-9.) Plaintiffs
submit that no further allegations or evidence are required. E.g., Nat’l Council of La Raza v. Cegavske, 800 F.3d
1032, 1041 (9th Cir. 2015) (“Where it is relatively clear, rather than merely speculative, that one or more members
have been or will be adversely affected by a defendant’s action, and where the defendant need not know the identity
of a particular member to understand and respond to an organization’s claim of injury, we see no purpose to be
served by requiring an organization to identify by name the member or members injured.”). In any event, whether
the organizational plaintiffs have standing has no impact on the individual plaintiffs’ standing. Therefore, even if
the Court were to dismiss the organizational plaintiffs for lack of standing, the equal-protection challenge would
remain to be resolved. For that reason, the Court need not even address the standing issue. See, e.g., Frank v.
Walker, 17 F. Supp. 3d 837, 880, 2014 U.S. Dist. LEXIS 59344, *124 (E.D. Wis. 2014) (finding the issue of
organizational standing moot where individual plaintiffs had standing because, “as long as one plaintiff has standing
to seek the injunctive relief requested, question of standing of additional parties can be ignored”) (citing Crawford v.
Marion County Election Board, 472 F.3d 949, 951 (7th Cir. 2007), rev’d on other grounds, 768 F.3d 744 (7th Cir.
2014)).

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leevin@guahanlaw.com
Luis G. Rivera Marín
Rivera Marín & Talavera Law Offices
112 Uruguay Street
Hato Rey, Puerto Rico 00918
(787) 946-9400
luisg@riveramarin.com
Semaj Johnson
Law Offices of K.A. Rames PC
Suite 3, 2111 Company Street
Christiansted, St. Croix, Virgin Islands 00820
(340) 773-7284
semaj.johnson@rameslaw.com

charles.smith@probonolaw.com
lara.flath@probonolaw.com
john.schoettle@probonolaw.com
Geoffrey M. Wyatt
Michael McIntosh
Marisa B. Van Saanen
W. Graham McCall
1440 New York Avenue N.W.
Washington, D.C. 20005
(202) 371-7000
geoffrey.wyatt@probonolaw.com
Neil C. Weare
We the People Project
1666 Connecticut Avenue N.W.
Suite 500
Washington, DC 20009
(202) 304-1202
nweare@equalrightsnow.org
Attorneys for Plaintiffs

15

Case: 1:15-cv-10196 Document #: 58 Filed: 05/03/16 Page 21 of 21 PageID #:433

CERTIFICATE OF SERVICE
I certify that on May 3, 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