You are on page 1of 23

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 1 of 23 PageID #:520

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’ MEMORANDUM IN SUPPORT OF
SECOND MOTION FOR SUMMARY JUDGMENT
Date: September 23, 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
lara.flath@probonolaw.com

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 2 of 23 PageID #:521

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

john.schoettle@probonolaw.com
Geoffrey M. Wyatt
Michael McIntosh
Marisa B. Van Saanen
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, D.C. 20009
(202) 304-1202
nweare@equalrightsnow.org
Attorneys for Plaintiffs

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 3 of 23 PageID #:522

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
BACKGROUND .............................................................................................................................3
ARGUMENT ...................................................................................................................................3
I.

II.

MOVE’s Discriminatory Exclusion Of Former Illinois Residents Living In Guam,
Puerto Rico, And The U.S. Virgin Islands From The Right To Vote Absentee In
Federal Elections In Illinois Violates Equal Protection. ......................................................3
A.

MOVE Does Not Satisfy Rational-Basis Review. ...................................................3

B.

The Court In Any Event Should Apply Heightened Scrutiny to the
Challenged Classification Under MOVE.................................................................6

UOCAVA And MOVE Violate Plaintiffs’ Rights To Interstate Travel. ...........................10

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

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 4 of 23 PageID #:523

TABLE OF AUTHORITIES
Cases
Adusumelli v. Steiner,
740 F. Supp. 2d 582 (S.D.N.Y. 2010)..................................................................................... 7, 8
Aptheker v. Secretary of State,
378 U.S. 500 (1964) .................................................................................................................. 10
Bethesda Lutheran Homes & Servs., Inc. v. Leean,
122 F.3d 443 (7th Cir. 1997) .................................................................................................... 11
Boumediene v. Bush,
553 U.S. 723 (2008) .................................................................................................................... 9
Califano v. Gautier Torres,
435 U.S. 1 (1978) ...................................................................................................... 9, 11, 13, 14
Carter v. Cleland,
472 F. Supp. 985 (D.D.C. 1979) ............................................................................................... 15
City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432 (1985) .................................................................................................................... 4
Dandamudi v. Tisch,
686 F.3d 66 (2d Cir. 2012).................................................................................................. 7, 8, 9
Department of Agriculture v. Moreno,
413 U.S. 528 (1973) .................................................................................................................... 4
Dunn v. Blumstein,
405 U.S. 330 (1972) ................................................................................................ 11, 12, 13, 14
Edelman v. Jordan,
415 U.S. 651 (1974) .................................................................................................................... 5
Frontiero v. Richardson,
411 U.S. 677 (1973) .................................................................................................................... 4
Graham v. Richardson,
403 U.S. 365 (1971) .................................................................................................................... 6
Guyton v. United States,
453 F.3d 425 (7th Cir. 2006) .................................................................................................... 15

ii

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 5 of 23 PageID #:524

Haig v. Agee,
453 U.S. 280 (1981) .................................................................................................................. 12
Harris v. Rosario,
446 U.S. 651 (1980) .................................................................................................................... 9
Heller v. Doe,
509 U.S. 312 (1993) .................................................................................................................... 4
In re Sulfuric Acid Antitrust Litig.,
446 F. Supp. 2d 910 (N.D. Ill. 2006) ........................................................................................ 15
Johnson v. California,
543 U.S. 499 (2005) .................................................................................................................. 14
Kent v. Dulles,
357 U.S. 116 (1958) .................................................................................................................. 11
Mathews v. Diaz,
426 U.S. 67 (1976) ...................................................................................................................... 9
Memorial Hosp. v. Maricopa County,
415 U.S. 250 (1974) ............................................................................................................ 12, 13
Peoples Rights Org., Inc. v. City of Columbus,
152 F.3d 522 (6th Cir. 1998) ...................................................................................................... 4
Plyler v. Doe,
457 U.S. 202 (1982) ................................................................................................................ 6, 7
Romer v. Evans,
517 U.S. 620 (1996) .................................................................................................................... 4
Romeu v. Cohen,
265 F.3d 118 (2d Cir. 2001)................................................................................................ 13, 14
Saenz v. Roe,
526 U.S. 489 (1999) ............................................................................................................ 11, 12
Sampayan v. Mathews,
417 F. Supp. 60 (D. Guam 1976) .............................................................................................. 11
San Antonio Independent Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) ........................................................................................................................ 6

iii

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 6 of 23 PageID #:525

Schweiker v. Wilson,
450 U.S. 221 (1981) .................................................................................................................... 4
Shapiro v. Thompson,
394 U.S. 618 (1969) .................................................................................................. 5, 11, 12, 13
Sklar v. Byrne,
727 F.2d 633 (7th Cir. 1984) .................................................................................................... 13
Torres v. Puerto Rico,
442 U.S. 465 (1979) .................................................................................................................... 9
United States v. Carolene Prods. Co.,
304 U.S. 144 (1938) .................................................................................................................... 6
United States v. Guest,
383 U.S. 745 (1966) .................................................................................................................. 11
Westland v. Sero of New Haven, Inc.,
601 F. Supp. 163 (N.D. Ill. 1985) ............................................................................................. 15
Zemel v. Rusk,
381 U.S. 1 (1965) ...................................................................................................................... 12
Zessar v. Helander,
No. 05 C 1917, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006) ................................................... 13
Statutes
10 Ill. Comp. Stat. § 5/20-1(1) ........................................................................................................ 3
52 U.S.C. § 20310(8) ...................................................................................................................... 5
Pub. L. No. 94-203, § 2(3), 89 Stat. 1142, 1142 ............................................................................. 5
Other Authorities
Adriel I. Cepeda Derieux, Note, A Most Insular Minority: Reconsidering Judicial Deference to
Unequal Treatment in Light of Puerto Rico's Political Process Failure,
110 Colum. L. Rev. 797 (2010) .............................................................................................. 7, 8
Juan R. Torruella, The Insular Cases: A Declaration of their Bankruptcy, in Reconsidering the
Insular Cases: The Past and Future of the American Empire 62 (Gerald L. Neuman &
Tomiko Brown-Nagin eds. 2015) ............................................................................................... 8

iv

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 7 of 23 PageID #:526

This case concerns former Illinois residents now living in Guam, Puerto Rico, and the
U.S. Virgin Islands (“USVI”) who are not permitted to vote absentee in federal elections in
Illinois even though, under state law, former Illinois residents living in other U.S. Territories –
American Samoa and the Commonwealth of the Northern Mariana Islands (“NMI”) – may do so.
In its order on cross-motions for summary judgment, the Court upheld the Uniformed and
Overseas Citizens Absentee Voting Act (“UOCAVA”), concluding that an equal-protection
challenge to UOCAVA is subject to rational-basis review and that the statute passes muster
because its provision requiring states to allow former residents now living in the NMI to vote
absentee in federal elections furthers “the NMI’s historical relationship with the United States”
and is consistent with the NMI’s “unique political status.” (Mem. Op. & Order (“MSJ Order”) at
31, 39, Dkt. No. 63.) But the Court expressly did not resolve plaintiffs’ equal-protection
challenge to the state statute – the Illinois Military Overseas Voter Empowerment Act
(“MOVE”) – or their substantive due-process claims applicable to both statutes. (See id. at 2 n.1,
18 n.8.) As set forth in this motion, the Court should grant plaintiffs relief on both arguments.
First, MOVE violates equal protection in two ways. Under the reasoning of the Court’s
recent order, MOVE lacks a rational basis for authorizing former Illinois residents living in
American Samoa and the NMI to vote in federal elections while denying the same right to former
Illinois residents living in Guam, Puerto Rico and the USVI. Indeed, in their answers, the state
defendants frankly acknowledged that they are “without knowledge or information sufficient to
form a belief” as to whether any legislature had articulated a legitimate justification for MOVE’s
disparate treatment of former residents living in the Territories.
While the state defendants have expressed a belief at the last hearing that the Court’s
recent order resolves this issue in their favor, it does not. The justifications offered by the

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 8 of 23 PageID #:527

federal defendants for UOCAVA were expressly tied to the federal government’s relationship
with the NMI and the NMI’s unique status within the federal structure – not Illinois.
Moreover, nothing in the Court’s opinion or the federal defendants’ arguments offers an
explanation for placing former Illinois residents in Guam, Puerto Rico, and the USVI in a worse
position than those living in American Samoa under the state scheme. The state defendants have
suggested that this arrangement reflects the old federal scheme prior to UOCAVA’s enactment in
1986, but this argument would be self-defeating. If the state’s justification for its law is an intent
to mirror federal requirements, that rationale falls short because Illinois’s treatment of the
Territories has been out of sync with federal law for three decades.
Further, and in any event, the Court should subject MOVE to heightened scrutiny.
Former Illinois residents living in Guam, Puerto Rico, and the USVI lack meaningful political
power because they are barred from voting for President or voting members of Congress. And,
as current residents of the Territories, this group historically has been the target of prejudice.
Taken in tandem, these factors counsel strongly in favor of applying heightened scrutiny to
MOVE, which disadvantages this discrete and literally “insular” minority group.
Second, both UOCAVA and MOVE violate plaintiffs’ fundamental right to interstate
travel, which is protected by the substantive component of due process. As the Supreme Court
has made clear, the right to interstate travel is fundamental in nature and is violated by laws that
penalize or deter such travel without sufficient justification. UOCAVA and MOVE penalize and
deter travel by Illinois residents to Guam, Puerto Rico, and the USVI by refusing to extend the
right to vote absentee in federal elections in Illinois, even while affording such rights to those
who move to American Samoa or the NMI. Because these distinct classifications do not advance
any substantial government interest, the laws cannot survive scrutiny.

2

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 9 of 23 PageID #:528

BACKGROUND
The pertinent facts are set forth in the Court’s recent order on the cross-motions for
summary judgment, which drew from the parties’ prior Local Rule 56.1 submissions. (See MSJ
Order at 3-10 & n.3 (citing Dkt. Nos. 49, 51-4, 51-5, & 59).)1
ARGUMENT
I.

MOVE’s Discriminatory Exclusion Of Former Illinois Residents Living In Guam,
Puerto Rico, And The U.S. Virgin Islands From The Right To Vote Absentee In
Federal Elections In Illinois Violates Equal Protection.
As described in the Court’s recent order, MOVE authorizes former Illinois residents to

vote absentee if they move to American Samoa and the NMI, but not if they move to the
remaining Territories of Guam, Puerto Rico, or the USVI. (MSJ Order at 9 n.5 (citing 10 Ill.
Comp. Stat. § 5/20-1(1)).) As such, MOVE differs from UOCAVA in that it allows residents of
American Samoa to vote absentee. This distinction violates the Equal Protection Clause under
any level of scrutiny because Illinois has no plausible state interest in maintaining this
distinction. And in any event, this Court should apply heightened scrutiny to MOVE because
historical experience establishes that Territorial residents have been shut out of the political
process and should therefore be treated as a suspect class at least where, as here, a state
government acts with respect to residents of the Territories.
A.

MOVE Does Not Satisfy Rational-Basis Review.

The Court’s recent order concluded that UOCAVA must be subject to rational-basis
review. (MSJ Order at 31.) Even if the same level of scrutiny applies to MOVE, it cannot pass
constitutional review. A statute satisfies rational-basis review only if “‘a rational relationship
exists between the disparity of treatment and some legitimate governmental purpose.’” (Id. at 23
1

To ensure compliance with Local Rule 56.1, plaintiffs have refiled their prior 56.1 statement under a new
docket number and will be providing a courtesy copy to the Court. No changes have been made to the prior version.

3

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 10 of 23 PageID #:529

(quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).) Although the standard is deferential, it “is
not ‘toothless.’” Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th Cir.
1998); see also Schweiker v. Wilson, 450 U.S. 221, 234 (1981). Thus, the Supreme Court
faithfully has applied rational-basis review to invalidate statutes lacking a plausible rational
explanation. See, e.g., Romer v. Evans, 517 U.S. 620, 632 (1996) (holding that statute that
barred government action to protect gays and lesbians “lack[ed] a rational relationship to
legitimate state interests”).2
MOVE fails this test at the threshold because Illinois has no plausible state interest for
favoring former residents now living in American Samoa or NMI over those in other Territories.
Indeed, the state defendants have conceded that they are “without knowledge or information
sufficient to form a belief” as to whether any legislature ever has “articulated a legitimate
justification” for MOVE’s classification. (Rule 56.1 Stmt. ¶ 63; Chicago Ans. ¶ 53; Rock Island
Ans. ¶ 53.) That concession is critical because a statutory classification that has no justification
is arbitrary, which violates equal protection even under rational-basis scrutiny. Frontiero v.
Richardson, 411 U.S. 677, 683 (1973) (acknowledging that “legislative classification[s]” that are
“‘patently arbitrary’” cannot survive even rational-basis review) (citation omitted).
Perhaps recognizing this problem, the state defendants suggested two possible
justifications for MOVE at the last hearing before the Court. But while “‘any rational
justification’” for a statute’s provisions – including one not cited by the legislature – suffices to

2

See also, e.g., City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (striking down
ordinance as applied to denial of a special-use permit for the operation of a group home for the intellectually
disabled where there was no “rational basis for believing that the [group home] would pose any special threat to the
city’s legitimate interests”); Department of Agriculture v. Moreno, 413 U.S. 528, 529, 538 (1973) (invalidating
statute that excluded any household containing an individual who was unrelated to any other household member
from participating in the food-stamp program and explaining that “the classification here . . . is not only ‘imprecise,’
it is wholly without any rational basis”).

4

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 11 of 23 PageID #:530

“‘overcome an equal protection challenge,’” (MSJ Order at 34 (citation omitted)), neither
proffered justification provides a rational justification for MOVE’s distinctions.
It was first suggested that the Court’s determination that UOCAVA satisfies rationalbasis review applies equally to MOVE. Not so. The Court’s holding that there is a rational basis
for distinguishing between the NMI and the other Territories in UOCAVA was expressly
anchored in the federal interests at stake – and, in particular, the NMI’s “unique relationship with
the United States.” (MSJ Order at 34 (emphasis added).) Because Illinois has no comparable
“unique relationship” with the NMI, the Court’s grounds for sustaining UOCAVA do not apply
to MOVE. Moreover, the Court’s recognition that the NMI is “unique” among the Territories
forestalls any argument by the state defendants that the reasons for treating the NMI differently
apply equally to American Samoa.
The state defendants alternatively suggested that MOVE can be sustained by arguing that
the distinctions drawn in that statute were borrowed from the Overseas Citizens Voting Rights
Act of 1975, the precursor to UOCAVA. While the 1975 Act excluded both the NMI and
American Samoa from its definition of “United States,” Pub. L. No. 94-203, § 2(3), 89 Stat.
1142, 1142 (repealed 1986), that law does not provide cover for Illinois because the federal
government cannot “authorize[] the States to violate the Equal Protection Clause.” Shapiro v.
Thompson, 394 U.S. 618, 641 (1969).3 In any event, UOCAVA repealed this definition in 1986,
excluding only the NMI from the definition of “United States” and grouping American Samoa
with the other Territories, 52 U.S.C. § 20310(8). Thus, even if an attempt to track federal law
satisfied rational-basis review while the 1975 Act still was in effect, it cannot provide a plausible
rational explanation for MOVE’s classification three decades after the 1975 Act’s repeal.
3

Shapiro was overruled on other grounds and only to the extent of its treatment of the Eleventh Amendment
in Edelman v. Jordan, 415 U.S. 651, 670-71 (1974).

5

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 12 of 23 PageID #:531

B.

The Court In Any Event Should Apply Heightened Scrutiny to the
Challenged Classification Under MOVE.

In any event, the Court should subject MOVE to heightened scrutiny because historical
experience has shown that Territorial residents have been effectively locked out of the political
process and thus should be treated as a suspect class, at least where state laws erect
classifications based on Territorial residence.
Nearly eighty years ago, the Supreme Court recognized that statutes disadvantaging a
politically powerless class should be evaluated based on a “more searching judicial inquiry.”
United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (contemplating that
heightened scrutiny applies to “legislation which restricts those political processes which can
ordinarily be expected to bring about repeal of undesirable legislation” and statutes rooted in
“prejudice against discrete and insular minorities” that “tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to protect minorities”). The Supreme Court
since has made clear that heightened scrutiny applies to statutes discriminating against “certain
groups” that “have historically been ‘relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process.’” Plyler v. Doe, 457
U.S. 202, 216 n.14 (1982) (citation omitted); see also, e.g., San Antonio Independent Sch. Dist. v.
Rodriguez, 411 U.S. 1, 28 (1973) (referring to “relegat[ion] to such a position of political
powerlessness as to command extraordinary protection from the majoritarian political process”
as one of the “traditional indicia of suspectness”); Graham v. Richardson, 403 U.S. 365, 372
(1971) (reaffirming that “classifications based on alienage . . . are inherently suspect and subject
to close judicial scrutiny” because “[a]liens as a class are a prime example of a ‘discrete and
insular’ minority for whom such heightened judicial solicitude is appropriate”).

6

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 13 of 23 PageID #:532

Consistent with these longstanding equal-protection principles, courts have applied
heightened scrutiny to classifications that single out a politically powerless group for disfavored
treatment. In Plyler, for instance, the Supreme Court struck down a Texas law that denied
undocumented children free public education otherwise provided to children of U.S. citizens or
lawfully admitted noncitizens. 457 U.S. at 205, 230. The Court based its decision, in part, on
the observation that the individuals disadvantaged by the law constituted a “‘shadow population’
of illegal migrants” who lacked “the benefits that our society makes available to citizens and
lawful residents.” Id. at 218-19. More recently, a federal district court in New York applied
heightened scrutiny to a statute that prohibited any noncitizen who was not lawfully admitted for
permanent residence in the United States from entering the pharmacy profession. Adusumelli v.
Steiner, 740 F. Supp. 2d 582, 585, 598-99 (S.D.N.Y. 2010), aff’d sub nom Dandamudi v. Tisch,
686 F.3d 66 (2d Cir. 2012). The court in Adusumelli observed that the relative political
powerlessness of noncitizens not lawfully admitted for permanent residence counseled in favor
of heightened scrutiny because statutes discriminating against such persons “deny benefits and
opportunities to legal residents with no political voice who contribute to society.” Id. at 598.
The Second Circuit affirmed, emphasizing that noncitizens “constitute a discrete and insular
minority because of their limited role in the political process” – not to mention the “‘long history
of invidious discrimination against them.’” 686 F.3d at 77 (citation omitted).
The same concerns about political powerlessness and historical discrimination counsel in
favor of applying heightened scrutiny to MOVE. First, residents of Guam, Puerto Rico, and the
USVI “have historically been ‘relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process.’” Plyler, 457 U.S. at
216 n.14 (citation omitted); see also, e.g., Adriel I. Cepeda Derieux, Note, A Most Insular

7

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 14 of 23 PageID #:533

Minority: Reconsidering Judicial Deference to Unequal Treatment in Light of Puerto Rico’s
Political Process Failure, 110 Colum. L. Rev. 797, 828 (2010) (“[M]odern equal protection
doctrine – particularly its underlying concern for politically powerless actors – justifies
heightened scrutiny of differential treatment towards U.S. citizens residing in Puerto Rico.”).
Indeed, despite their significant “contribut[ions] to society” – including, as highlighted by
plaintiffs’ experiences here, federal military and governmental service – those citizens have “no
political voice,” see Adusumelli, 740 F. Supp. 2d at 598, because they cannot vote for President
or vote for members of Congress. Notably, despite robust “internal political dialogue” in the
Territories and the appointment of “non-voting congressional” delegates (in some Territories for
several decades), “past experience has shown” that these mechanisms have proven impotent to
affect the federal political process because no member of the Executive or voting member of
Congress is accountable to Territorial citizens. Cepeda Derieux, 110 Colum. L. Rev. at 831-33
(discussing Puerto Rico specifically and documenting its exclusion from the political process).
Second, the “‘long history of invidious discrimination against’” Territorial residents
further underscores the necessity of a more searching inquiry into the basis for MOVE’s withinTerritories classification. See Dandamudi, 686 F.3d at 77 (citation omitted). Judge Juan
Torruella recently wrote that the discriminatory treatment of territorial residents “represent[s] the
thinking of a morally bankrupt era in our history that goes against the most basic precept for
which this nation stands: the equality before the law of all of its citizens,” noting that “‘[t]he
racism which caused the relegation of the Negro to a status of inferiority was to be applied to the
overseas possessions of the United States.’” Juan R. Torruella, The Insular Cases: A
Declaration of their Bankruptcy, in Reconsidering the Insular Cases: The Past and Future of the
American Empire 62 (Gerald L. Neuman & Tomiko Brown-Nagin eds. 2015) (quoting Rubin

8

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 15 of 23 PageID #:534

Francis Weston, Racism in U.S. Imperialism: The Influence of Racial Assumptions on American
Foreign Policy, 1893-1946, at 15 (1972)).
In short, because Territorial residents “constitute a discrete and insular minority” in light
of “their limited role in the political process” and the “‘long history of invidious discrimination
against them,’” see Dandamudi, 686 F.3d at 77 (citation omitted), the Court should apply
heightened scrutiny to MOVE’s discrimination among former Illinois residents who move to
Guam, Puerto Rico or the USVI. Notably, the Insular Cases – which the Supreme Court has
criticized but not overruled4 – do not compel a different result because their reasoning concerns
the justification for federal rather than state action. Indeed, the Supreme Court has linked the
rationale of the Insular Cases – that Congress may treat residents of the Territories differently
than residents of the states – to the Constitution’s Territorial Clause, which, as this Court noted,
“specifically authorizes Congress to make rules and regulations respecting territories.” (MSJ
Order at 30 (emphasis added).) See, e.g., Harris v. Rosario, 446 U.S. 651, 651-52 (1980) (per
curiam) (applying rational basis to statute that provided less financial assistance to families with
needy dependent children living in Puerto Rico than families living in states because the
Territorial Clause vests Congress with authority to “treat Puerto Rico differently from States so
long as there is a rational basis for its actions”); Califano v. Gautier Torres, 435 U.S. 1, 3 n.4
(1978) (per curiam) (citing Insular Cases and noting that the district court had rejected an equal
protection challenge to the failure to provide SSI benefits to Puerto Rico residents because
“Congress has the power to treat Puerto Rico differently”); see also Mathews v. Diaz, 426 U.S.
4

See, e.g., Boumediene v. Bush, 553 U.S. 723, 758 (2008) (acknowledging “[i]t may well be that over time
the ties between the United States and any of its unincorporated Territories strengthen in ways that are of
constitutional significance,” citing affirmatively Justice Brennan’s concurrence in Torres v. Puerto Rico, 442 U.S.
465, 475-76 (1979), that “[w]hatever the validity of the [Insular Cases] in the particular historical context in which
they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendment –
or any other provision of the Bill of Rights – to the Commonwealth of Puerto Rico in the 1970’s”).

9

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 16 of 23 PageID #:535

67, 86 (1976) (referring to the “distinction between the constitutional limits on state power and
the constitutional grant of power to the Federal Government” and explaining that “a division by a
State of the category of persons who are not citizens of that State into subcategories of United
States citizens and aliens has no apparent justification, whereas, a comparable classification by
the Federal Government is a routine and normally legitimate part of its business”). The
Constitution includes no similar provision granting the states broad authority to regulate the
affairs of the Territories or to treat residents of the Territories differently. Because application of
the Insular Cases is cabined to federal acts, that precedent does not preclude the Court from
reviewing MOVE under a heightened level of scrutiny.5 And for all the reasons set forth in the
previous section, MOVE cannot survive heightened scrutiny because the Illinois legislature has
not articulated a compelling or substantial government interest advanced by MOVE’s
distinctions.6
II.

UOCAVA And MOVE Violate Plaintiffs’ Rights To Interstate Travel.
Alternatively, the Court should grant plaintiffs summary judgment because UOCAVA

and MOVE both infringe their substantive due process right to interstate travel by rewarding
travel to American Samoa and the NMI while deterring and punishing travel to Guam, Puerto
Rico, and the USVI.
“‘The right to travel is part of the “liberty” of which the citizen cannot be deprived
without the due process of law under the Fifth Amendment.’” Aptheker v. Secretary of State,

5

Nor should the flawed reasoning of the Insular Cases be expanded to new frontiers. As this Court noted,
the Insular Cases have been described as “establishing a race-based doctrine of ‘separate and unequal’ status for
residents of overseas United States Territories,” and the “inconsistencies between the constitutional rights afforded
to United States citizens living in states as opposed to territories have ‘been the subject of extensive judicial,
academic, and popular criticism.’” (MSJ Order at 19 n.9, 20-21 (citations omitted).).
6

The Court need not decide whether strict or intermediate scrutiny applies here. Under any level of
heightened scrutiny – or, indeed, even under rational basis review – MOVE fails.

10

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 17 of 23 PageID #:536

378 U.S. 500, 505 (1964) (quoting Kent v. Dulles, 357 U.S. 116, 125-26 (1958)).7 While the
“‘right’ of international travel” has been subject to “regulat[ion] within the bounds of [ordinary]
due process” and thus protected only against arbitrary or irrational government action, the
“constitutional right of interstate travel is virtually unqualified.” Gautier Torres, 435 U.S. at 4
n.6. Indeed, the “‘[f]reedom to travel throughout the United States has long been recognized as a
basic right under the Constitution.’” Dunn v. Blumstein, 405 U.S. 330, 338 (1972) (quoting
United States v. Guest, 383 U.S. 745, 758 (1966)). For purposes of applying the right to travel,
the Supreme Court has assumed without deciding that the “virtually unqualified constitutional
right” of interstate travel applies “to travel between Puerto Rico and any of the 50 States of the
Union.” Gautier Torres, 435 U.S. at 4 n.6.8 And as the Seventh Circuit has recognized, the
“right to travel or relocate is a right against the federal government as well as against the states.”
Bethesda Lutheran Homes & Servs., Inc. v. Leean, 122 F.3d 443, 448 (7th Cir. 1997).
The Supreme Court has said that the right to travel “embraces at least three different
components”: “the right of a citizen of one State to enter and to leave another State, the right to
be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the
second State, and, for those travelers who elect to become permanent residents, the right to be
treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 500 (1999) (emphasis
added). This formulation of the Court’s precedents reflects the fact that most of those cases
7

The Supreme Court has analyzed the right of travel under numerous constitutional provisions, including the
Due Process Clauses of the Fifth and Fourteenth Amendments. But while “there have been recurring differences in
emphasis within the Court as to the source of the constitutional right of interstate travel,” the Court has generally
found it unnecessary “to canvass those differences” because “[a]ll have agreed that the right exists.” United States
v. Guest, 383 U.S. 745, 759 (1966).
8

It does not appear that the Supreme Court – or any other court for that matter – has conclusively resolved
the question whether the right to interstate travel applies to travel between all U.S. Territories and the fifty states.
Nevertheless, the few cases that have touched on the issue have assumed that such travel is protected. See, e.g.,
Sampayan v. Mathews, 417 F. Supp. 60, 63 (D. Guam 1976) (stating without discussion that the fundamental right to
travel discussed in Shapiro included the “right to travel [to] and reside in the Territory of Guam”).

11

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 18 of 23 PageID #:537

address burdens imposed by states on new residents or visitors to the state. See id. at 500, 502,
504-05 (collecting prior cases, all of which addressed migration into rather than out of a state).
But just as the right to travel limits interference with travel to a state as detailed in Saenz,
so too does it limit interference with travel from a state. Indeed, the Supreme Court has
expressly recognized the bidirectional nature of the right in prior cases. See, e.g., Aptheker, 378
U.S. at 505 (expressly recognizing that the right of international travel embraces the right to
“[t]ravel abroad” – i.e., from the United States to another country); Zemel v. Rusk, 381 U.S. 1,
13-14 (1965) (assuming that a policy of refusing to validate a passport for travel to Cuba would
“act[] as a deterrent to travel to that area,” which restricted the right to international travel but not
to an unconstitutional degree) (emphasis added); Haig v. Agee, 453 U.S. 280, 283, 306-07 (1981)
(upholding the revocation of a passport that left an American citizen stranded in West Germany
but acknowledging that the revocation “undeniably curtails” the freedom to travel abroad). It
follows that states too should have no greater power to restrict or interfere with emigration than
immigration, especially in light of the fundamental character of the right of interstate travel.
Because the right to interstate travel is fundamental, “‘any classification which serves to
penalize [or deter] the exercise of that right, unless shown to be necessary to promote a
compelling governmental interest, is unconstitutional.’” Dunn, 405 U.S. at 339 (quoting
Shapiro, 394 U.S. at 634). Of course, not every law that weighs on the decision to travel is
constitutionally significant; instead, Supreme Court cases have focused on the “extent to which
[the law] serve[s] to penalize the exercise of the right to travel” or whether the law at issue is
“apt to deter migration.” Memorial Hosp. v. Maricopa County, 415 U.S. 250, 257 (1974). Laws
that disadvantage new state residents in the exercise of fundamental rights like voting clearly
violate the right to travel and must pass heightened scrutiny. See, e.g., Dunn, 405 U.S. at 339.

12

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 19 of 23 PageID #:538

But the right implicated need not be “fundamental” in the sense that it is constitutionally
guaranteed. See, e.g., Memorial Hosp., 415 U.S. at 257-58 (deeming right to free health care
fundamental for right-to-travel purposes); Shapiro, 394 U.S. at 631 (same as to welfare benefits).
Rather, a law sufficiently implicates the right to travel and requires heightened scrutiny where it
burdens fundamental rights or “created rights” of sufficient weight that interstate travel can be
said to be penalized or deterred. Sklar v. Byrne, 727 F.2d 633, 638 (7th Cir. 1984).9
Under these principles, UOCAVA and MOVE violate plaintiffs’ fundamental right to
travel by denying them access to important “created rights” – the right to vote absentee in federal
elections in Illinois – thereby penalizing and deterring interstate travel to Guam, Puerto Rico, and
the USVI. There can be no question that the right to vote is an important right – even when it is
“created” rather than constitutionally guaranteed. See, e.g., Zessar v. Helander, No. 05 C 1917,
2006 WL 642646, at *6 (N.D. Ill. Mar. 13, 2006) (acknowledging that there is no constitutional
right to absentee voting but, once the state establishes the right, it is subject to constitutional
requirements because absent constitutional protections the absentee “voters risk the deprivation
of their vote, a liberty interest”). Here, the denial of absentee voting rights to Illinois citizens
moving to certain Territories but not others serves as a deterrent to moving to the disfavored
Territories and penalizes those who nevertheless choose to move there by denying the benefits of
the “created right” afforded to Illinois residents who move to American Samoa or the NMI.
In this respect, the challenge here differs from those rejected in two other cases –
Califano v. Gautier Torres and Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001). Gautier Torres
rejected a freedom-of-travel argument raised by plaintiffs who lost eligibility for Social Security
9

The importance of the burden and its propensity to deter travel is a legal question for the Court to decide,
and does not depend on proof “that anyone was actually deterred from traveling by the challenged restriction,”
Memorial Hosp., 415 U.S. at 257, or that the challenged law was specifically intended to deter migration, see Dunn,
405 U.S. at 339-40.

13

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 20 of 23 PageID #:539

Supplemental Security Income (“SSI”) benefits when moving from the states to Puerto Rico.
435 U.S. at 3. The Court rejected this argument because its “implications” were that new
residents in Puerto Rico could claim entitlement to greater benefits than those who had always
resided there. Id. at 4. The Court also made clear that SSI benefits were not such an important
right as to raise concerns under the right to travel. Id. (payment of monetary benefits is “entitled
to a strong presumption of constitutionality”). Here, by contrast, the “created right” at issue is
more weighty for the reasons set forth above. And although this Court’s prior order emphasized
the fact that the relief plaintiffs are seeking would entitle them to greater benefits than those who
have always lived in the Territories, that effect is already inherent in the schemes established by
UOCAVA and MOVE. After all, former Illinois residents living in American Samoa and the
NMI – unlike the individuals who have always resided in those Territories – are permitted to
vote absentee in Illinois. As such, the “implications” cited in Gautier Torres will prevail in any
event. Similarly, Romeu v. Cohen did not consider the fact that UOCAVA authorizes former
state residents living in one Territory but not the others to vote absentee. Moreover, UOCAVA
and MOVE established “created rights” to vote in some Territories but not others, and it is this
classification – not considered in Romeu – that establishes the infringement of the right here.
Because the laws at issue infringe the right to travel, they cannot be upheld unless they
are narrowly tailored to serve a compelling government interest. Dunn, 405 U.S. at 339. Here,
no party has even suggested that UOCAVA or MOVE’s disparate treatment of the Territories
serves a compelling government interest, nor could they. Moreover, unlike rational-basis review,
heightened review requires affirmative proof of the legislative rationale for the classification at
issue, and it is conceded by all that no legislative rationale has ever been offered. Johnson v.
California, 543 U.S. 499, 505 (2005). Accordingly, neither law can survive heightened review.

14

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 21 of 23 PageID #:540

Finally, plaintiffs’ freedom-of-travel claim is not waived, contrary to the federal
defendants’ suggestion at the hearing on September 14, 2016 that plaintiffs waived their due
process claim by not addressing it in the parties’ briefing in connection with the recently
adjudicated cross-motions for summary judgment. This argument is unavailing because, as the
Court correctly noted, “[t]he parties’ briefs do not address the viability of a standalone due
process claim against the federal defendants.” (MSJ Order at 18 n.8.) Thus, although not
denominated as such, the federal defendants’ and plaintiffs’ motions were in substance for partial
summary judgment on plaintiffs’ equal-protection claim. See Westland v. Sero of New Haven,
Inc., 601 F. Supp. 163, 165 (N.D. Ill. 1985) (determining that dismissing an entire count would
be inappropriate since defendant only addressed one of many causes of action in a count).
Critically, regardless of a motion’s label, substance rather than form governs the effect of a
motion. In re Sulfuric Acid Antitrust Litig., 446 F. Supp. 2d 910, 914 (N.D. Ill. 2006) (citing
Guyton v. United States, 453 F.3d 425, 426-27 (7th Cir. 2006)). Moreover, a court may decline
to address a cause of action that has not been briefed by the parties, leaving it for later resolution.
See Carter v. Cleland, 472 F. Supp. 985, 989 n.4 (D.D.C. 1979), aff’d, 643 F.2d 1 (D.C. Cir.
1980) (electing not to render decision on equal protection claim that had not been briefed by the
parties). Here, the Court properly declined to decide the due process claim until the claim had
been briefed, and plaintiffs have not waived their due process claim.
CONCLUSION
For the foregoing reasons, plaintiffs respectfully request that the Court grant summary
judgment in their favor.
Date: September 23, 2016

Respectfully submitted,

Leevin T. Camacho
The Law Office of Leevin T. Camacho

s/ Charles F. Smith
Charles F. Smith
Lara A. Flath
15

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 22 of 23 PageID #:541

194 Hernan Cortez Avenue
Suite 216
Hagåtña, Guam 96910
(617) 477-8894
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

John J. Schoettle
155 N. Wacker Drive, Suite 2700
Chicago, Illinois 60606
(312) 407-0700
charles.smith@probonolaw.com
lara.flath@probonolaw.com
john.schoettle@probonolaw.com
Geoffrey M. Wyatt
Michael McIntosh
Marisa B. Van Saanen
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, D.C. 20009
(202) 304-1202
nweare@equalrightsnow.org
Attorneys for Plaintiffs

16

Case: 1:15-cv-10196 Document #: 71 Filed: 09/23/16 Page 23 of 23 PageID #:542

CERTIFICATE OF SERVICE
I certify that on September 23, 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