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Case: 1:15-cv-10196 Document #: 79 Filed: 10/21/16 Page 1 of 22 PageID #:716

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LUIS SEGOVIA, JOSE ANTONIO TORRES,
PAMELA LYNN COLON, TOMAS ARES,
ANTHONY BUNTEN, LAVONNE WISE,
IRAQ AFGHANISTAN AND PERSIAN GULF
VETERANS OF THE PACIFIC, and LEAGUE
OF WOMEN VOTERS OF THE VIRGIN
ISLANDS,
Plaintiffs,
v.

Case No. 15-cv-10196

BOARD OF ELECTION COMMISSIONERS
FOR THE CITY OF CHICAGO, MARISEL A.
HERNANDEZ, in her official capacity as
Chairman of the Board of Election
Commissioners for the City of Chicago, KAREN
KINNEY, in her official capacity as Rock Island
County Clerk, UNITED STATES OF
AMERICA, ASHTON CARTER, in his official
capacity as the Secretary of Defense, FEDERAL
VOTING ASSISTANCE PROGRAM, and
MATT BOEHMER, in his official capacity as
Director of the Federal Voting Assistance
Program,

Judge Joan B. Gottschall

Defendants.
PLAINTIFFS’ REPLY IN SUPPORT OF
SECOND MOTION FOR SUMMARY JUDGMENT
AND OPPOSITION TO THE FEDERAL DEFENDANTS’ CROSS-MOTION FOR
SUMMARY JUDGMENT
Date: October 21, 2016
Leevin T. Camacho
The Law Office of Leevin T. Camacho
194 Hernan Cortez Avenue
Suite 216
Hagåtña, Guam 96910
(617) 477-8894

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

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

charles.smith@probonolaw.com
lara.flath@probonolaw.com
john.schoettle@probonolaw.com
Geoffrey M. Wyatt
Michael McIntosh
Marisa B. Van Saanen
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

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
ARGUMENT ...................................................................................................................................2
I.

II.

The State Defendants’ Equal-Protection Arguments Lack Merit. .......................................2
A.

The State Defendants Have Not Shown That MOVE’s Distinctions Are
Rationally Related To A Legitimate Government Interest. .....................................2

B.

The State Defendants Offer No Substantive Argument Against The
Application Of Heightened Scrutiny Based On The Proven History Of
Exclusion Of Territorial Residents From The Political Process. .............................7

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

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

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TABLE OF AUTHORITIES
Cases
American Nurses Association v. Illinois,
783 F.2d 716 (7th Cir. 1986) ...................................................................................................... 6
Califano v. Gautier Torres,
435 U.S. 1 (1978) .......................................................................................................... 10, 13, 14
United States Department of Agriculture v. Moreno,
413 U.S. 528 (1973) .................................................................................................................... 6
Dunn v. Blumstein,
405 U.S. 330 (1972) ........................................................................................................... 11, 14
Fisher v. Reiser,
610 F.2d 629 (9th Cir. 1979) ............................................................................................. 13, 14
Graham v. Richardson,
403 U.S. 365 (1971) .................................................................................................................... 8
Griffin v. Roupas,
385 F.3d 1128 (7th Cir. 2014) .................................................................................................... 5
Matsuo v. United States,
586 F.3d 1180 (9th Cir. 2009) ...................................................................................... 11, 13, 14
Memorial Hospital v. Maricopa County,
415 U.S. 250 (1974) ............................................................................................................ 11, 15
Minnesota Senior Federation v. United States,
273 F.3d 805 (8th Cir. 2001) .............................................................................................. 13, 14
Molina-Crespo v. Califano,
585 F.2d 572 (1st Cir. 1978) ..................................................................................................... 14
Plyler v. Doe,
457 U.S. 202 (1982) .................................................................................................................... 8
Romeu v. Cohen,
265 F.3d 118 (2d Cir. 2001)............................................................................................ 6, 13, 15
Romeu v. Cohen,
121 F. Supp. 2d 264 (S.D.N.Y. 2000)..................................................................................... 3, 9

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Saenz v. Roe,
526 U.S. 489 (1999) .................................................................................................................. 13
Sampayan v. Mathews,
417 F. Supp. 60 (D. Guam 1976) .............................................................................................. 10
San Antonio Independent School District v. Rodriguez,
411 U.S. 1 (1973) ........................................................................................................................ 8
Shapiro v. Thompson,
394 U.S. 618 (1969) .................................................................................................................. 12
Washington v. Davis,
426 U.S. 229 (1973) .................................................................................................................... 6
Zemel v. Rusk,
381 U.S. 1 (1965) ...................................................................................................................... 11

Statutes
10 ILCS 5/16 ................................................................................................................................... 4
10 ILCS 5/20 ............................................................................................................................... 4, 5
10 ILCS 5/29 ................................................................................................................................... 5
52 U.S.C. § 20303 ........................................................................................................................... 4
52 U.S.C. § 20304 ........................................................................................................................... 4

Other Authorities
96th Ill. Gen. Assem., Senate Proceedings, Apr. 29, 2010 ............................................................. 4

iii

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The defendants ask this Court to subscribe to doctrines of federal and state power that are
breathtaking in scope. With respect to the Illinois Military and Overseas Voter Empowerment
Act (“MOVE”), the state defendants argue that the law serves a legitimate state interest in
mirroring federal requirements even while conceding that the law at issue here has not done that
for 30 years. In essence, they argue for a rule of rational-basis review under which legislation
should be deemed rationally related to a legitimate state interest even when – solely by dint of
three decades of legislative neglect – the law at issue no longer serves (and in fact undermines)
the proffered interest. The state defendants also do not even attempt to dispute that Territorial
residents constitute a discrete and insular minority that has been locked out of the political
process, instead arguing that Illinois should have the power to discriminate against this group
solely because no Court has ever held that it cannot do so.
For their part, the federal defendants make the astonishing assertion that the fundamental
right of interstate travel does not extend to travel to the Territories. The implications of this
contention are profound, and would empower Congress and the states to erect bans on travel to
the Territories, or even the District of Columbia, and to impose a host of other penalties on state
citizens who travel to those places. And all of the defendants broadly contend that there are no
restrictions on what a government may do to penalize or deter travel by citizens leaving their
former states of residence, as long as those governments do not discriminate against newcomers.
These positions reflect views of governmental power that are fundamentally at odds with
the American system of government and have no support in the case law. For the reasons set
forth in this reply, these arguments and the others advanced by the defendants should be roundly
rejected, and the Court should hold that MOVE violates plaintiffs’ right to equal protection and
that both MOVE and the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)

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violate their right to travel interstate. If possible, plaintiffs respectfully request resolution of
these claims by October 28th to permit application for an absentee ballot.
ARGUMENT
I.

The State Defendants’ Equal-Protection Arguments Lack Merit.
As set forth in plaintiffs’ opening brief, MOVE violates equal protection because (1) it

does not rationally advance any identifiable state interest, making it infirm under any degree of
scrutiny; and (2) heightened scrutiny should in any event be applied to a state law that makes
distinctions among Territorial residents because historical experience establishes that Territorial
residents have been shut out of the political process and should therefore be treated as a suspect
class.1 The state defendants’ responses – in the main, that legislative neglect should count as a
rational basis and that this Court should not treat Territorial residents as an insular minority
because no prior case has addressed the issue – are without merit, as further discussed below.
A.

The State Defendants Have Not Shown That MOVE’s Distinctions Are
Rationally Related To A Legitimate Government Interest.

As set forth in plaintiffs’ opening brief, MOVE does not satisfy rational-basis scrutiny
because the Legislature expressed no purpose for treating former citizens now residing in the
Territories differently depending on where they live. Moreover, the post hoc bases offered by
the state defendants for this distinction, while perhaps explanatory as to why the law says what it
says, do not explain at all how the distinction advances any state interest today. In opposition,
the state defendants do not dispute that the Legislature itself expressed no reason for favoring

1

The Chicago defendants take issue with the description of the Illinois law as the “Illinois MOVE Act,”
contending that the moniker is “inaccurate” because the MOVE Act was actually a federal law. (Chicago Opp’n 1
n.1, ECF No. 74.) Plaintiffs note in response that the Illinois State Board of Elections hosts a website called
“Illinois Military and Overseas Voter Empowerment (MOVE) site” at http://move.elections.il.gov/, which is set up
for the express purpose of permitting military and overseas voters to register to vote pursuant to the state’s absentee
voting procedures. For that reason, and because “MOVE” is simple and now common shorthand for the Illinois law
in this litigation, plaintiffs will continue to refer to the law under that name.

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former citizens now residing in American Samoa or the Commonwealth of the Northern Mariana
Islands (“CNMI”), nor do they contend that Illinois can claim the same kind of special
relationship with these Territories that was cited by the federal defendants in support of
UOCAVA’s distinct treatment of the CNMI. Instead, the state defendants argue that: (1)
MOVE furthers Illinois’s interest in restricting voting to bona fide residents within the confines
of federal law; (2) MOVE furthers Illinois’s interest in preventing voting fraud; (3) plaintiffs
have not alleged discriminatory purpose; (4) plaintiffs’ position would result in inequitable
treatment among Territorial residents; and (5) plaintiffs have availed themselves of the benefits
of Territorial residence. None of these arguments has merit.
First, the state defendants principally argue that Illinois “‘has a legitimate interest in
restricting the ballot to bona fide residents’” to the extent allowed by federal law, including
UOCAVA. (Chicago Opp’n 10 (quoting Romeu v. Cohen, 121 F. Supp. 2d 264, 284 (S.D.N.Y.
2000)); see also Rock Island Opp’n 3, ECF No. 73-1.) But here, as set forth in plaintiffs’
opening brief, MOVE does not serve that interest because it permits voting by former Illinois
residents who now live overseas or in American Samoa or the CNMI. (Pls.’ Mem. Supp. Mot.
Summ. J. (“Mot.”) 5, ECF No. 71.)
The Chicago defendants note that UOCAVA requires Illinois to allow absentee voting
from most of these places. (Chicago Opp’n 10.) But it does not require Illinois to do so from
America Samoa and has not for 30 years. (Mot. at 5.) The Chicago defendants respond that
Illinois modeled its disparate treatment of the Territories on the Overseas Citizens Voting Rights
Act of 1975, and that the state’s “fail[ure] to keep up with the federal law” should not matter,
arguing that this Court essentially held the same with respect to UOCAVA, which has never

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been amended “to reflect [the CNMI]’s changed status in 1986[.]” (Chicago Opp’n 11; see also
Rock Island Opp’n 5-6 (similarly referring to the Overseas Citizens Voting Rights Act of 1975).)
This argument misconstrues the Court’s ruling. That ruling held that the “historical
timing” sufficed to sustain the arrangement set forth in UOCAVA at the time it was passed,
when the CNMI was not yet a Territory. (Order Granting Mot. Summ. J. (“MSJ Order”) 34,
ECF No. 63.) For the period after the CNMI’s establishment as a Territory later that year, the
Court’s order rested principally on the special relationship between the United States and the
CNMI described by the federal defendants, which continued long past 1986. (See id. 33-39.)
Here, by contrast, Illinois’s putative interest in limiting the right to vote to bona fide residents as
narrowly as permitted by federal law is undermined rather than furthered by the Legislature’s
failure to conform to federal law for 30 years – especially in light of the fact that the Illinois
Legislature has amended state law in recent years to conform with other changes to UOCAVA.
Specifically, in 2011, the Illinois legislature amended the state statute to conform to UOCAVA’s
provisions by allowing for special write-in ballots at primary elections, allowing ballots to be
transmitted by fax or electronic transmission, and allowing the Board of Elections or a Governor
to enact or impose extraordinary procedures regarding voting requirements. See 10 ILCS 5/165.01, 20-1, 20-2.1, 20-2.2, 20-2.3, 20-4, 20-5, 20-25; 52 U.S.C. §§ 20303, 20304; 96th Ill. Gen.
Assem., Senate Proceedings, Apr. 29, 2010, at 100 (statement of Senator Link) (“These changes
are a request of the Federal Voting Absentee . . . (Assistance) Program, within the Department of
Defense, and coordinated with the election laws and provisions of recently enacted Military and
Overseas Voter Empowerment Act.”). But no change was made to update MOVE’s treatment of
former Illinois citizens residing in the Territories to match UOCAVA’s.

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In short, the state defendants are arguing for a rule that decades of legislative neglect
should count as a rational basis. The logic of such a rule would lead to absurd results. For
example, had the Legislature expressly specified the list of countries from which overseas voting
was permitted and included all countries in existence in 1986, but it never updated the list to
reflect the recognition of new countries or the dissolution of others, then the logic of the state
defendants’ argument would compel a construction of the law that would deny the right to vote
absentee to citizens residing in countries newly established after 1986 – e.g., Russia, Ukraine,
Croatia, Namibia, and East Timor. The arbitrariness of such a result is fundamentally
inconsistent with the requirement that a law’s provisions be rationally related to a legitimate
government interest. As such, the Court should reject this argument.
Second, Rock Island makes the related argument that restrictions on absentee voting are
rationally related to the state’s interest in curbing voting fraud, citing Griffin v. Roupas, 385 F.3d
1128, 1131 (7th Cir. 2014). (Rock Island Opp’n 3.) This argument misreads Griffin and makes
no sense. Griffin held only that a state can reasonably reject a system of universal absentee
voting based on concerns about voting fraud and thus rejected claims by working mothers
residing in Illinois that they were entitled to vote absentee. Here, there is no reason to believe
that voting fraud is a particular concern in Guam, Puerto Rico and United States Virgin Islands
(“USVI”) such that allowing absentee voting from those Territories would be problematic in a
way that allowing such voting in American Samoa and CNMI would not be. Moreover, Illinois
law already contains other provisions directed squarely at the issue of voting fraud – none of
which single out Territorial absentee ballots for special scrutiny. See, e.g., 10 ILCS 5/20-5
(requiring certification of eligibility to vote overseas under pain of penalty pursuant to Article 29
of the Election Code); id. §§ 5/29-10, 5/29-19. In analogous circumstances, the Supreme Court

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on rational-basis review rejected a law that set forth different classifications for food-stamp
eligibility based on whether people living together in a single household were related, explaining
that “the challenged classification simply does not operate so as rationally to further the
prevention of fraud.” United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 537 (1973).
Third, relying on Washington v. Davis, 426 U.S. 229, 240 (1976), the state defendants
argue that “disparate treatment in and of itself does not state an equal protection claim[,]” and
that a “discriminatory purpose” must be “alleg[ed].” (Rock Island Opp’n 3; accord Chicago
Opp’n 7.) This argument misunderstands Davis, which distinguished between disparate
treatment (which is actionable) and mere disparate impact (which is not, without more).
Disparate treatment is equivalent to discriminatory purpose for equal-protection purposes, at
least where, as here, the plaintiff is treated differently because of his or her membership in a
group expressly disfavored by the law at issue. E.g., Am. Nurses’ Ass’n v. Illinois, 783 F.2d 716,
722-23 (7th Cir. 1986) (citing Davis and equating disparate treatment and intentional
discrimination as distinct from disparate impact).
Fourth, the state defendants argue that plaintiffs’ requested relief would create a
“distinction of questionable fairness” between former Illinois citizens residing in the Territories
and Territorial residents who never previously resided in a state. (Chicago Opp’n 12-13 (citation
omitted); see Rock Island Opp’n 6-7.) But that distinction – fair or not – already exists with
respect to former Illinois citizens now residing in American Samoa and the CNMI. 2 And there is
no conceivable rational basis for arguing that the distinction is permissible in those Territories,

2

Notably, although the Second Circuit relied on this policy concern in Romeu v. Cohen, 265 F.3d 118, 125
(2d Cir. 2001), the Romeu court apparently did not appreciate that UOCAVA set up precisely the “distinction of
questionable fairness” in the CNMI that the court feared Romeu’s position would create in Puerto Rico.

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but not in Guam, Puerto Rico, or the USVI, or that it would better to disenfranchise all of the
voters in these Territories rather than only some of them.
Fifth, Rock Island relatedly argues that MOVE’s distinctions are justified because a
person who moves to Guam “fully avail[s] himself of all the rights and privileges [of] becoming
a resident of Guam” (Rock Island Opp’n 6-7), but this proffered justification is also arbitrary and
irrational because former Illinois residents who move to American Samoa and the CNMI
presumably also avail themselves of the rights and privileges of residing in those Territories.
In sum, the state defendants have not identified any legitimate state interests or, to the
extent that they have, cannot possibly show how MOVE is rationally related to advancing those
interests – indeed, in the case of their principal justification of restricting the vote to bona fide
residents, MOVE actually undermines that interest. The law thus cannot pass rational-basis
review.
B.

The State Defendants Offer No Substantive Argument Against The
Application Of Heightened Scrutiny Based On The Proven History Of
Exclusion Of Territorial Residents From The Political Process.

In their opening brief, plaintiffs established that heightened scrutiny should be applied to
MOVE because it singles out a politically powerless and insular minority for disfavored
treatment. The state defendants do not meaningfully challenge the substance of plaintiffs’
argument. Rather, the thrust of their opposition is that plaintiffs’ argument necessarily fails
because there is no case on all fours with this one that has applied heightened scrutiny. (See,
e.g., Chicago Opp’n 4, 6-7; Rock Island Opp’n 3.) But this argument only highlights the fact
that the question presented is one of first impression: whether a state statute that singles out
former state residents living in some Territories and bars them from participating in the state’s
electoral process – even while it allows former residents in other Territories to vote – is subject
to heightened scrutiny on the ground that the statute discriminates against a politically powerless
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and insular minority. That the question is novel does not mean that its answer is “no.” Were it
otherwise, a court could not clarify the scope of civil rights in a manner that expands those rights
– a constraint that would run counter to basic fairness and our best legal traditions.
Thus, the focus of the state defendants’ argument – distinguishing the cases cited in
plaintiffs’ brief – simply misses the point. Because the question presented is novel, plaintiffs
necessarily must reason using broadly applicable principles applied in other factual
circumstances. And plaintiffs cannot dispute that these cases illustrate a common principle:
heightened scrutiny applies to classifications that single out a politically powerless group for
disfavored treatment, particularly where that group has faced a history of discrimination. (See
Mot. 6-7 (citing, among other cases, Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982); San Antonio
Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973); Graham v. Richardson, 403
U.S. 365, 372 (1971)).)
That principle supports the conclusion that MOVE must satisfy heightened scrutiny to be
upheld. In MOVE, Illinois has voluntarily undertaken an obligation toward former residents
who leave the state to reside in American Samoa or the CNMI – thereby discriminating among
residents who move to the Territories based on which one they move to. This decision to
discriminate among Territorial residents should be subject to heightened scrutiny because, as
detailed in plaintiffs’ opening brief, history has shown that Territorial residents constitute a truly
insular minority that has been shut out of the political process. MOVE further entrenches this
powerlessness in Guam, Puerto Rico and the USVI by shutting former Illinois citizens residing
there out of a political process that the state has held open to former Illinois citizens residing in
American Samoa and the CNMI. And because Illinois, unlike the federal government, has no
special constitutional authority to legislate for the Territories, the traditional justifications for

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subjecting congressional legislation affecting the Territories only to rational-basis review simply
do not apply here (see Mot. 9-10) – a conclusion that the state defendants do not even attempt to
dispute.
Nor can the Chicago defendants justify the application of rational basis review based on
the sole case that they cite in support of their argument, the out-of-circuit district court opinion in
Romeu v. Cohen, 121 F. Supp. 2d 264 (S.D.N.Y. 2000), aff’d 265 F.3d 118 (2d Cir. 2001) (cited
in Chicago Opp’n 7).3 For one thing, plaintiffs’ argument in this case is fundamentally different
from the one presented in Romeu. The plaintiffs in Romeu argued that heightened scrutiny
should be applied because the statutes at issue had a disparate impact based on race, ethnicity,
alienage, or origin. This case, by contrast is a disparate treatment case, in which plaintiffs
contend that MOVE expressly singles out a politically powerless and historically disadvantaged
minority group for disfavored treatment. Thus, whatever the merits of the district court’s
decision in Romeu, it fails to address the central argument advanced by the plaintiffs here.
Moreover, the court in Romeu anchored its holding on the ground that “several cases suggest that
Congress’s power to make laws regarding Puerto Rico and all the other territories is subject to
rational basis review.” 121 F. Supp. 2d at 282 (emphasis added) (citations omitted). Here, by
contrast, plaintiffs challenge a state’s authority to discriminate among residents of the
Territories. As just noted, the Constitution does not empower states to enact laws with respect to
the Territories, rendering the considerations going to the proper level of scrutiny entirely
different, which the state defendants do not dispute. Accordingly, the Court should subject
MOVE to heightened scrutiny, and because the state defendants have not even attempted to
3

The Chicago defendants twice assert that Romeu “puts to rest” the arguments plaintiffs advance here.
(Chicago Opp’n 7, 13.) These assertions are facially wrong because this Court is by no means bound to follow the
Romeu decisions, whatever they might say. And more importantly, as discussed in the text here and in Part II
below, the Romeu courts did not address or resolve the same arguments that plaintiffs are advancing here.

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argue that such heightened scrutiny could be satisfied, it should hold that MOVE violates equal
protection.
II.

UOCAVA And MOVE Violate Plaintiffs’ Right To Interstate Travel.
As also shown in plaintiffs’ opening brief, the Court should alternatively grant 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.4 Defendants make several arguments: (1)
the right to interstate travel does not encompass travel to the Territories and therefore any
restrictions on travel there are subject only to rational-basis review; (2) the right to travel does
not extend to travel from a state; (3) plaintiffs’ right-to-travel claim is not distinct from their
equal protection claim; and (4) any interference with the right to travel is justified under any
level of scrutiny. The Court should reject these claims.
The first argument – that there is no “fundamental right to travel from a state to a territory
of the United States” (Fed. Opp’n 4, ECF No. 78) – is simply outrageous. As set forth in
plaintiffs’ opening brief, the courts that have considered this issue – including the U.S. Supreme
Court – have assumed that the “virtually unqualified constitutional right to travel” applies to
“travel between Puerto Rico and any of the 50 States of the Union.” (Mot. at 11 (citing Califano
v. Gautier Torres, 435 U.S. 1, 4 n.6 (1978) (per curiam)); see also id. 11 n.8 (citing Sampayan v.
Mathews, 417 F. Supp. 60, 63 (D. Guam 1976), which stated without discussion that the right to
travel encompasses travel to Guam).)5 And the federal defendants’ own authority has made the

4

All three defendant groups address the right to travel, but because the federal defendants’ opposition
subsumes the points made by the other defendants and supplies additional arguments in opposition, plaintiffs’ reply
primarily addresses that submission.
5

The federal defendants bizarrely contend that plaintiffs “provide no support for the notion” that the right
the Supreme Court assumed exists in Gautier Torres actually does exist, but the dictum in that case – along with the
(cont'd)

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same express assumption, see Matsuo v. United States, 586 F.3d 1180, 1184 n.7 (9th Cir. 2009)
(explaining that the discussion of the scope of the right to interstate travel in Gautier Torres
cannot be limited based on the fact that travel to a Territory was involved because the Court
expressly assumed the “‘virtually unqualified constitutional right to travel between Puerto Rico
and any of the 50 States of the Union’”) (quoting 435 U.S. at 4 n.6) – a fact that they do not
disclose in their brief.
The implications of the federal defendants’ assertion are shocking. As they make clear,
the consequence of holding that the right of interstate travel does not extend to travel from the
states to the Territories is that any interference with such travel would be subject only to rationalbasis review. (See Fed. Opp’n 5, 11-12.) According to the federal defendants, although burdens
on the right to travel between and among the states are subject to heightened scrutiny, it “makes
little intuitive sense” to apply the same scrutiny to burdens on travel to the Territories in light of
“Congress’s broad powers under the Territory Clause,” and they chastise plaintiffs’ contrary
position as “not supported by any authority[.]” (Id. 11.)
But the federal defendants’ argument – if accepted by this Court – would imbue Congress
with breathtaking power to bar or penalize travel to the Territories on little more than a
legislative whim. For example, it could ban travel altogether, cf., e.g., Zemel v. Rusk, 381 U.S. 1,
14-15 (1965) (restriction on international travel to Cuba met rational-basis review); or it could
establish durational residency requirements for access to local voting or medical or welfare
benefits, cf., e.g., Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (durational-residency
requirement to vote failed under strict scrutiny); Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250,
________________________
(cont'd from previous page)
fact that other cases have operated on the same assumption – is clearly persuasive authority that such a right should
exist. As such, the federal defendants are wrong in asserting that plaintiffs somehow “waived” their argument.
(Fed. Opp’n 5 n.2.)

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259 (1974) (durational-residency requirement for medical benefits failed under strict scrutiny);
Shapiro v. Thompson, 394 U.S. 618, 631-32 (1969) (same with respect to indigent welfare
benefits). And in light of Congress’s comparably broad powers to govern the District of
Columbia under the District Clause, the same logic would permit Congress to impose barriers on
travel to or from the District as well. There is simply no good reason to recognize the existence
of such power, and the dearth of authority on point speaks to its implausibility rather than any
infirmity in plaintiffs’ position.
Second, defendants argue that the right to travel is not implicated here because what
plaintiffs are seeking is a benefit that other Territorial residents do not enjoy, relying heavily on
Gautier Torres and Romeu. (See Fed. Opp’n 8-10; Chicago Opp’n 13-14; Rock Island Opp’n 89.) This contention lacks merit. Most fundamentally, it mischaracterizes the right that plaintiffs
claim – which is not to enjoy benefits superior to those of other Territorial residents but to enjoy
the same benefits that Illinois accords its former citizens now living in other Territories. Put
differently, it is the treatment of Illinois emigrants – not the treatment of Territorial immigrants –
that is at issue. Critically, as plaintiffs established in their opening brief, the right to travel is
bidirectional and thus protects travel both in and out of a citizen’s state of residence – a
proposition that no defendant seriously disputes. (Mot. at 12.)6
Neither Gautier Torres nor Romeu is to the contrary. In the first case, the Supreme Court
recognized that a state’s obligations to its citizens largely cease when those citizens leave the
6

The state defendants do not even address the bidirectional nature of the right to travel, and while the
federal defendants do address it, they do not dispute this character of the right. (See Fed. Opp’n 9-10.) Instead, the
federal defendants contend that UOCAVA imposes no burden on the right to travel from a state because it merely
sets a floor that states are free to build upon. (See id.; see also id. 14-15.) This Court already rejected that argument
in its order, rightly noting that UOCAVA’s effect on state law makes plaintiffs’ alleged injuries traceable to the
federal defendants. (MSJ Order 17-18.) That reasoning applies here – as the state defendants themselves explain,
Illinois treats its former residents disparately because federal law requires it to do so. (Chicago Opp’n 10.) In any
event, the federal defendants’ argument at most applies to UOCAVA, not MOVE.

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state, and that the right to travel should not be construed to impose an obligation on a state to
continue to provide the same level of benefits to a person simply because she or he once resided
there. 435 U.S. at 3-4. Romeu applied a similar analysis and expressly noted that New York did
not extend the right to vote to anyone residing elsewhere in the United States. See 265 F.3d at
126-27. This case is different: UOCAVA and MOVE have affirmatively extended the right to
vote absentee to some former state citizens residing in the Territories, but not others. Once the
federal or state government creates a new right of sufficient import – here voting, not mere
economic benefits as in Gautier Torres – it cannot place conditions on the right that turn on how
the citizen decides to exercise the right to interstate travel. (See Mot. at 12-13.)7
The federal defendants resist the notion that Gautier Torres can be distinguished on the
basis that it concerned economic benefits, claiming that “every court of appeals to have
considered this question reached the same conclusion based on” Gautier Torres. (Fed. Opp’n 9
(citations omitted).) But the federal defendants again do not tell the whole story about their
cases. All three of the cases they cite – Fisher v. Reiser, 610 F.2d 629 (9th Cir. 1979), Matsuo,
and Minnesota Senior Federation v. United States, 273 F.3d 805 (8th Cir. 2001) – expressly
underscored the fact that the cases before them involved economic rights that were not
sufficiently weighty to implicate the right to travel. Fisher, 610 F.2d at 636 (expressly noting
that the case involved a “supplemental payment for spousal disability,” which did not “have a
necessity or urgency as great as the benefits in Shapiro or Maricopa County”); Matsuo, 586 F.3d
at 1184 & n.6 (specifically noting that Gautier Torres and Matsuo involved similarly funded and

7

The federal defendants also rely on Saenz v. Roe, 526 U.S. 489 (1999), to suggest that the “right to
interstate travel embraces [only] three components” (Fed. Opp’n 6; see also id. 15), but Saenz was not so restrictive.
As plaintiffs noted in their opening brief, Saenz recognized “at least” three components to the right to travel, and
plaintiffs’ argument here is based on the additional aspect of the right relating to the freedom to travel from a state –
a right that has been expressly recognized in the analogous context of international travel. (Mot. at 11-12.)

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administered benefits programs); Minnesota Senior Fed’n, 273 F.3d at 810 (expressly basing
level of review on the fact that the case involved Medicare).8 For all these reasons, the right to
travel is implicated by UOCAVA and MOVE’s disparate treatment of former state citizens
residing in the Territories.
Third, the federal defendants’ arguments that plaintiffs’ right-to-travel claim merely
restates their equal-protection claim (Fed. Opp’n 2-3) or fails for the same reasons as that claim
(id. 10) rest on the mistaken premise that a right-to-travel claim is subject to the same analysis as
an equal-protection claim where, as here, disparate treatment is a central component of the rightto-travel claim. These claims are conceptually distinct – as the federal defendants’ own authority
again recognizes. See Matsuo, 586 F.3d at 1185 n. 8 (“A claim based on the right to travel is
distinct from an equal protection claim.”) (citing Gautier Torres, 435 U.S. at 3 n.4).9 Indeed,
disparate treatment lies at the heart of a number of the Supreme Court’s right to travel cases –
including, for example, Dunn, which held that the right to travel was violated where the State of
Tennessee applied its bona fide residency requirement in disparate fashion by “singl[ing] out the
class of bona fide state and county residents who have recently exercised” the right to travel.
8

The federal defendants are correct that Fisher expressed concern about the scope of a right that protected
travel from a state, see 610 F.2d at 634 (cited in Fed. Opp’n 9), but Fisher expressly disclaimed a blanket rejection
of a right to travel from a state, acknowledging that “we are not prepared to say that a state may never be held to
have some continuing duties to a former resident,” id. at 634 – important qualifying language omitted from the
federal defendants’ brief. Here, the posited right to travel from a state is extremely narrow and is implicated only in
the rare circumstance in which federal or state law affirmatively creates a right for former state residents and the
right is of sufficient weight to be protected by the right to travel as defined in prior cases, avoiding Fisher’s concerns
about “automatically” expanding a state’s obligations to former residents to the same extent as current residents
under the auspices of the right to travel. The federal defendants also argue that Minnesota Senior Federation
expressed concerns about the potential scope of a right not to be deterred from traveling, 273 F.3d at 810 (cited in
Fed. Opp’n 15), but that case acknowledged that Supreme Court cases have credited the deterrence rationale and
concluded only that deterrence of travel did not give rise to constitutional concerns “[i]n these circumstances.”
9

Similarly, the First Circuit, reviewing the plaintiffs’ equal-protection claim following Gautier Torres,
distinguished the plaintiffs’ due-process claim. Molina-Crespo v. Califano, 583 F.2d 572, 574 (1st Cir. 1978). The
First Circuit reversed the district court’s decision that the Gautier Torres decision barred an equal-protection claim
after determining that the Supreme Court only addressed and decided the substantive due process right to travel
claim. Id. (noting that the Gautier Torres opinion noted the equal protection argument but did not decide it).

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405 U.S. at 338; accord, e.g., Mem’l Hosp., 415 U.S. at 255 (explaining that the problem in
Dunn was that the residency requirement was not “uniformly applied”). Here, too, the issue is
that UOCAVA and MOVE establish a right to vote absentee for former citizens residing in the
Territories, but this right is not “uniformly applied” – instead, it applies only to a favored class of
travelers to American Samoa and the CNMI and is withheld from the disfavored class of
travelers to Guam, Puerto Rico, and the USVI.10
Fourth, the federal defendants’ attempt to show that UOCAVA is narrowly tailored lacks
merit.11 They first turn to Romeu for support, noting its conclusion that Congress had a strong
reason for extending voting rights to overseas citizens that does not apply to Territorial citizens.
(Fed. Opp’n at 12-13.) They also note Romeu’s concern about the “distinction of questionable
fairness” within Territories between lifetime residents and those who had moved there from
other states. (Id. at 13.) But as set forth above, these rationales do not make sense as applied to
UOCAVA or MOVE because both laws actually do allow voting in some Territories – just not
all of them. As such, if Congress or Illinois truly intended to avoid this result, both UOCAVA
and MOVE are plainly not narrowly tailored – or even tailored at all – to that interest.
CONCLUSION
For the foregoing reasons, as well as those set forth in the opening brief, plaintiffs
respectfully request that the Court grant summary judgment in their favor, and that the Court also
deny the federal defendants’ cross-motion for summary judgment.
Date: October 21, 2016

Respectfully submitted,
s/ Charles F. Smith

10

In a footnote, the federal defendants purport to incorporate by reference their prior waiver argument. (See
Fed. Opp’n at 3 n.1.) The waiver argument is not properly presented in a footnote and is in any event adequately
refuted in plaintiffs’ opening brief. (Mot. at 15.)
11

No similar argument is advanced by the state defendants.

15

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

Charles 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
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

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CERTIFICATE OF SERVICE
I certify that on October 21, 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