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

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,

Judge Joan B. Gottschall

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,
MATT BOEHMER,
in his official capacity as Director of the Federal
Voting Assistance Program,
Defendants.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT AND
OPPOSITION TO FEDERAL DEFENDANTS’ MOTION TO DISMISS

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Date: March 16, 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
155 N. Wacker Drive, Suite 2700
Chicago, Illinois 60606
(312) 407-0700
charles.smith@probonolaw.com
lara.flath@probonolaw.com

Luis G. Rivera Marín
Rivera Marín & Talavera Law Offices
112 Uruguay Street
Hato Rey, Puerto Rico 00918
(787) 946-9400
luisg@riveramarin.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

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

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
BACKGROUND ........................................................................................................................ 2
STANDARD............................................................................................................................... 6
ARGUMENT .............................................................................................................................. 7
I.

II.

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. .......................................................................... 7
A.

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

B.

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

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

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

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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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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 42
U.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 for 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 the
authority 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. 5/621; 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). In
addition 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 defendants’
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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plausible governmental interest that is rationally served by drawing lines between certain former
state residents living overseas and others for purposes of protecting the right to vote, particularly
in drawing lines between different U.S. Territories.
A.

The Statutes Are Subject to Strict Scrutiny.

As the Supreme Court made clear a half-century ago, “once the franchise is granted to the
electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the
Fourteenth Amendment.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665 (1966); see
also, e.g., Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012) (“The Equal Protection
Clause applies when a state either classifies voters in disparate ways . . . or places restriction on
the right to vote.”) (citations omitted). “[I]f a challenged statute grants the right to vote to some
citizens and denies the franchise to others, ‘the Court must determine whether the exclusions are
necessary to promote a compelling state interest.’” Dunn v. Blumstein, 405 U.S. 330, 337 (1972)
(quoting Kramer v. Union Free School District No. 15, 395 U.S. 621, 627 (1969)); see also
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (explaining that when a statute places a “severe”
restriction on the right to vote, the statute “must be ‘narrowly drawn to advance a state interest of
compelling importance’”) (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). And
specifically, the Supreme Court has closely scrutinized laws that favor voters in one geographical
area over others, concluding that “neither homesite nor occupation ‘affords a permissible basis
for distinguishing between qualified voters within the State.’” Harper, 383 U.S. at 667 (quoting
Gray v. Sanders, 372 U.S. 368, 380 (1963)).
Under these precedents, strict scrutiny clearly applies here. UOCAVA and MOVE
“grant[] the right to vote to some citizens” (former Illinois residents living outside states who
reside in foreign countries and the NMI and, under MOVE, American Samoa) while “den[ying]

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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
review 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 Territories 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 affords
the 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 offered 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 – based
solely 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 clearly 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 equalprotection 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 where “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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residents of Illinois who live in the NMI, American Samoa, or a foreign country. See Evans, 398
U.S. at 426. The division of overseas jurisdictions by both UOCAVA and MOVE for absentee
voting is arbitrary, without justification, and cannot stand.
II.

Plaintiffs’ Injury Is Traceable to UOCAVA as Well as MOVE.
Finally, federal defendants’ principal argument for dismissal – that plaintiffs’ injury is

not caused by UOCAVA because it only sets a floor upon which states may build (see MTD at 79) – lacks merit. This logic, if accepted, could justify the enactment of federal laws requiring
states to guarantee voting rights for one group but not others on entirely arbitrary classifications
– e.g., the first letter of a person’s first name – on the ground that the federal law only sets a
“floor” and the states remain free to extend voting rights to all other groups. By drawing such
distinctions, federal laws give cover to states to make similar distinctions of their own. Cf., e.g.,
Howard v. State Bd. of Election Laws, 976 F. Supp. 350, 351 (D. Md. 1996) (holding that a state
could justify discriminatory treatment of a former state resident because the discrimination
originated in UOCAVA itself). Accordingly, UOCAVA must be subject to constitutional
scrutiny on that basis. 9
CONCLUSION
For the foregoing reasons, plaintiffs respectfully request that the Court grant summary
judgment in their favor and deny the federal defendants’ motion to dismiss. Plaintiffs further
request that the Court hear oral argument on these motions, as plaintiffs believe oral argument
will aid in the elucidation and resolution of the issues presented.
9

Moreover, the argument ignores the distinct array of federal protections that are extended to overseas voters
who enjoy voting status under UOCAVA and that are not guaranteed to others, even if states were to expand upon
UOCAVA’s “floor.” UOCAVA imposes responsibilities on federal officials, for example, to prescribe the form of
certain overseas ballots, set reasonable deadlines for the submission of absentee ballots, ensure that states accept
early submitted registrations, and enforce federal requirements against states as necessary. E.g., 52 U.S.C. §§
20301, 20304, 20306, 20307.

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Date: March 16, 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
leevin@guahanlaw.com

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

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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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