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Case: 1:15-cv-10196 Document #: 74 Filed: 10/19/16 Page 1 of 20 PageID #:669

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LUIS SEGOVIA, et al,
Plaintiffs,
v.
BOARD OF ELECTION
COMMISSIONERS FOR THE CITY OF
CHICAGO, et al.,
Defendants.

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No.: 15-cv-10196
Judge Joan B. Gottschall

DEFENDANTS BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF
CHICAGO AND MARISEL HERNANDEZ’
MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS’ SECOND MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS
BACKGROUND ............................................................................................................................ 1
ARGUMENT .................................................................................................................................. 2
I. ILLINOIS STATUTE EXCLUDING FORMER ILLINOIS RESIDENTS NOW LIVING
IN GUAM, PUERTO RICO AND U.S. VIRGIN ISLANDS FROM CASTING AN
ABSENTEE BALLOT IN ILLINOIS FOR FEDERAL ELECTIONS IS NOT A DENIAL OF
EQUAL PROTECTION ............................................................................................................. 2
A. Challenge to Illinois’ Law Should be Evaluated Using Rational Basis, Not Strict
Scrutiny Test ........................................................................................................................... 2
B. Under the Rational Basis Test, the Illinois Statute is Constitutional .............................. 8
II. ILLINOIS STATUTE EXCLUDING FORMER ILLINOIS RESIDENTS NOW LIVING
IN GUAM, PUERTO RICO AND U.S. VIRGIN ISLANDS FROM CASTING AN
ABSENTEE BALLOT IN ILLINOIS FOR FEDERAL ELECTIONS IS NOT A DENIAL OF
DUE PROCESS ........................................................................................................................ 13
CONCLUSION ............................................................................................................................. 14

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TABLE OF AUTHORITIES
Cases
Better Broadview Party v. Walters, No. 15 C 2445, 2016 WL 374144, at *6 (N.D. Ill. Feb. 1,
2016) ........................................................................................................................................... 3
Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) ........................ 2
Graham v. Richardson, 403 U.S. 365 (1971) ................................................................................. 5
Heller v. Doe by Doe, 509 U.S. 312, 320-321 (1993) .................................................................. 11
Igartua de La Rosa v. United States, 32 F.3d 8 (1st Cir. 1994) (“Igartua I”)................................. 3
Igartua v. United States, 626 F. 592, 612-639 (1st Cir. 2010) (“Igartua IV”) ................................ 7
Igartua-De La Rosa v. United States, 417 F.3d 145, 158-192 (1st Cir. 2005) (“Igartua III”) ........ 7
Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) ....................................................................... 14
One Wisconsin Inst., Inc. v. Thomsen, 15-cv-324-JDP, 2016 WL 4059222, at *53, (W.D. Wis.
July 20, 2016)............................................................................................................................ 11
Plyler v. Doe, 457 U.S. 202 (1982)................................................................................................. 5
Romeu v. Cohen, 121 F.Supp.2d 264 (S.D. N.Y. 2000) ........................................................... 8, 10
Romeu v. Cohen, 265 F. 265 F.3d 118 (2nd Cir. 2001) ................................................. 4, 13, 14, 16
Saenz v. Roe, 526 U.S. 489, 500, (1999) ................................................................................ 15, 16
San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ............................................ 5
United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938) .......................................... 4, 5, 7
Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040 (1976)............................................................. 9
Statutes
10 Ill. Comp. Stat. § 5/20-1.................................................................................................... passim
Overseas Citizens Voting Rights Act of 1975 ........................................................................ 11, 12
Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20310 ....................... passim

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Other Authorities
Pub. L. 99-410, title I, §107, Aug. 28, 29186, 100 Stat. 927 .......................................................... 9
Public Act 81-953 (SB 1146), effective 9/22/1979 ........................................................................ 9
Treatises
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, 828 (2010) ........................................................................................................................... 6
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) ............................................................................................................. 7

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BACKGROUND
The individual plaintiffs are former Illinois residents now living in Guam, Puerto Rico
and the U.S. Virgin Islands who contend that certain provisions of federal law – the Uniformed
and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20310 (“UOCAVA”) – and Illinois law
– 10 Ill. Comp. Stat. § 5/20-1 (referred to by Plaintiffs as the “MOVE” Act1) – prevent them
from voting in federal elections in Illinois.2 Together they contend in their complaint that the
challenged statutes violate plaintiffs’ right to equal protection under the 14th Amendment of the
United States Constitution because they are denied the right to vote in federal elections in Illinois
that is afforded to all other former Illinois residents residing “overseas.” Plaintiffs also contend
they are being denied due process on the grounds that both federal and Illinois statutes violate
plaintiffs’ fundamental right to interstate travel.
Plaintiffs and the federal defendants (United States of America, Secretary of Defense
Ashton Carter, the Federal Voting Assistance Program and its Director, Matt Boehmer) filed
cross motions for summary judgment. The Court granted summary judgment for the federal
defendants and denied Plaintiffs’ summary judgment motion. See, Memorandum Opinion and
Order, (“Mem. Op.”), Dkt #63. After finding that the Court had jurisdiction and that the
individual plaintiffs had standing sue, the Court found that the plaintiffs “do not have a
1

In October 2009, Congress enacted, and the President signed, the Military and Overseas Voter
Empowerment Act (the “MOVE Act”). This act amended the federal Uniformed and Overseas Citizens Absentee
Voting Act (“UOCAVA”) to require that States and local election jurisdictions provide procedures that would allow
military and overseas voters to receive and transmit voter registration and absentee ballot application materials by
“electronic means.” In response to the federal MOVE Act, Illinois adopted Public Act 96,1004, effective Jan. 1,
2011, that amended Article 20 of the Illinois Election Code regarding voting by military and overseas citizens to
bring Illinois law into compliance with Federal law by requiring each election authority to establish procedures that
allow individuals who are entitled to vote absentee under Article 20 to request voter registration applications and
absentee ballot applications by mail or electronically for each election. Although plaintiffs’ reference to the Illinois
statutes applicable to voting by military and overseas civilians as the Illinois “MOVE” Act is inaccurate, this
memorandum may refer to the “MOVE” for sake of simplicity and consistency in the briefs.
2
Two associations counting the Plaintiffs as members are also listed as additional plaintiffs. This
memorandum’s reference to “Plaintiffs” is meant to refer only to the individual Plaintiffs, not the organizations,
whose standing was not ruled upon by this Court. See, Mem. Op., Dkt #63, at 11-12.

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fundamental right to vote via Illinois absentee ballot in federal elections, and the plaintiffs have
not alleged that the UOCAVA discriminates due to their membership in a suspect class.” Mem.
Op., Dkt. #63, at 30. The Court found that plaintiffs’ equal protection claims do not trigger strict
scrutiny and that such claims would be reviewed under the less rigorous rational basis standard
of analysis. The Court concluded that the UOCAVA’s challenged provisions survive rational
basis review. However, the Court noted that the plaintiffs’ due process claim was not briefed and
survived the Court’s rulings on the equal protection claims. The Court also noted that the
parties’ briefs did not resolve plaintiffs’ claims regarding the Illinois statute. Therefore, both
these issues remained unresolved, which has triggered plaintiffs’ second motion for summary
judgment. Dkt. #70.
For the reasons discussed below, the plaintiffs fail to demonstrate that the Illinois statute,
10 Ill. Comp. Stat. § 5/20-1, violates either the Equal Protection Clause or the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.
ARGUMENT
I.
ILLINOIS STATUTE EXCLUDING FORMER ILLINOIS RESIDENTS NOW
LIVING IN GUAM, PUERTO RICO AND U.S. VIRGIN ISLANDS FROM CASTING AN
ABSENTEE BALLOT IN ILLINOIS FOR FEDERAL ELECTIONS IS NOT A DENIAL
OF EQUAL PROTECTION
A.

Challenge to Illinois’ Law Should be Evaluated Using Rational Basis, Not Strict Scrutiny
Test
As a threshold matter, when analyzing the constitutionality of a statute, a court must

begin with the presumption that a legislative act is constitutional. Clements v. Fashing, 457 U.S.
957, 963, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982).
This Court has already noted that if a law burdens a fundamental right, it “is subject to
strict scrutiny, meaning that the discriminatory action is permissible only if it is narrowly tailored
to address a compelling state interest.” Mem. Op., Dkt #63, at 22, citing Better Broadview Party

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v. Walters, No. 15 C 2445, 2016 WL 374144, at *6 (N.D. Ill. Feb. 1, 2016). This Court also
noted, “If no fundamental right is at issue, rational basis review – under which a law is
constitutional if a plausible rational explanation supports it – applies.” Mem. Op., Dkt # 63, at
23.
In ruling on plaintiffs’ first motion for summary judgment, this Court held that while an
Illinois citizen who is qualified to vote in a federal election has a fundamental right to vote,
“United States citizens living in territories do not have the same fundamental right to vote as
United States citizens residing in Illinois who are qualified to vote in federal elections.” Mem.
Op., Dkt #63, at 26. Plaintiffs focused on UOCAVA’s distinction between former residents of
States now living in the Northern Mariana Islands (“NMI”) – which is a trust territory that is not
included within UOCAVA’s definition of “State” or “United States” and whose residents are
permitted to vote in federal elections – and residents of Guam, Puerto Rico and the U.S. Virgin
Islands, which are included within the UOCAVA’s definition of “States” or “United States.”
See, Mem. Op., Dkt #63, at 30. This Court found that neither this distinction, nor the distinction
drawn in Igartua de La Rosa v. United States, 32 F.3d 8 (1st Cir. 1994) (“Igartua I”), and Romeu
v. Cohen, 265 F. 265 F.3d 118 (2nd Cir. 2001) (“distinction between those who reside overseas
and those who take up residence in Puerto Rico [and, as relevant here, Guam and the U.S. Virgin
Islands], but between those who reside overseas and those who move anywhere with in the
United States”), infringes upon a fundamental right. Id. “Accordingly,” this Court held, “the
UOCAVA’s differing treatment of the NMI versus Puerto Rico, Guam, and the U.S. Virgin
Islands does not trigger strict scrutiny.” Mem. Op., Dkt #63, at 31. Instead, this Court analyzed
plaintiffs’ claims in their first summary judgment motion under the rational basis test.
Plaintiffs argue here that the Illinois law should be subject to the heightened strict

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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.” Pl. Mem., Dkt
#71, at 6. The contention that plaintiffs are member of a “suspect class” is apparently being
raised now for the first time in this litigation.3 Indeed, plaintiffs’ complaint in this case never
alleges that plaintiffs are members of a “suspect class.”
Plaintiffs cite several cases where the United States Supreme Court has found that in the
disbursement of public, health and education services or benefits, different treatment of aliens
within a state may run afoul of the Equal Protection Clause. But plaintiffs have not cited a single
case that says that former residents of Illinois (or any state) who move to any U.S. Territory are
members of a “suspect class.”
Plaintiffs cite United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938) for the
proposition 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 “tend seriously to curtail
the operation of those political processes ordinarily to be relied upon to protect minorities.”4 Pl.
Mem., Dkt #71, at 6. In Carolene Products, the question for decision was whether the ‘Filled
Milk Act’ of Congress of March 4, 1923, which prohibited the shipment in interstate commerce
of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or
cream, transcended the power of Congress to regulate interstate commerce or infringes the Fifth
Amendment.
Plaintiffs also cite, among other cases, Plyler v. Doe, 457 U.S. 202 (1982), which

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“[P]laintiffs have not alleged that the UOCAVA discriminates due to their membership in a suspect class.”
Mem. Op., Dkt #63, p. 30.
4
The quotes mentioned above were contained in a footnote added by Justice Stone, which five of the other
Justices did not join.

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considered a Texas law barring children who were not U.S. citizens or “legally admitted aliens”
from state educational fund eligibility; San Antonio Independent Sch. Dist. v. Rodriguez, 411
U.S. 1 (1973), which was a class action was brought on behalf of school children, who were said
to be members of poor families residing in school districts having low property tax base,
challenging reliance by Texas school-financing system on local property taxation; and Graham
v. Richardson, 403 U.S. 365 (1971), which considered the constitutionality of two state’s statutes
that disqualified resident aliens from participating in state-run welfare programs. These three
cases, citing Carolene Products, noted that certain racial and ethnic groups have frequently been
recognized as ‘discrete and insular minorities' who are relatively powerless to protect their
interests in the political process. See Graham v. Richardson, 403 U.S., at 372. But none of these
cases are even remotely analogous to the present case.
Plaintiffs also cite a law review article – 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, 828 (2010), for the proposition that modern
equal protection doctrine – “particularly its underlying concern for politically powerless actors”
– justifies heightened scrutiny of differential treatment toward U.S. citizens residing in Puerto
Rico. Pl. Mem., Dkt #71, at 7-8. But this article notes that it “argues that federal courts have
followed a misguided approach regarding challenges to unequal congressional treatment of
Puerto Rican residents” (110 Colum. L. Rev. at 801) and that “[a] judicial approach towards
equal protection challenges brought by Puerto Rican U.S. citizens modeled on alienage cases
such as Plyler would reclaim a role for the courts in the U.S.-Puerto Rico dynamic.” 110 Colum.
L. Rev. at 834. In other words, the article’s authors acknowledge that, thus far, federal courts

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have been “misguided” and have not adopted the Plyler “alienage” case model.5
And, plaintiffs cite 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), who has commented on the
discriminatory treatment of territorial residents, 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.” Pl. Mem., #71, at 8-9.
However, Judge Torruella’s opinions on “invidious discrimination,” in which he has
drawn upon Justice Stone’s footnote in Carolene Products, particularly as applied to residents of
Puerto Rico, have not gained widespread acceptance among federal courts and he was relegated
to writing lengthy dissents in both Igartua-De La Rosa v. United States, 417 F.3d 145, 158-192
(1st Cir. 2005) (“Igartua III”), and Igartua v. United States, 626 F. 592, 612-639 (1st Cir. 2010)
(“Igartua IV”).
Plaintiffs even finally acknowledge that the Insular Cases, “which the Supreme Court has
criticized but not overruled” (Pl. Mem., Dkt 71, at 9), still control the field when it comes to
federal action over the territories.
But Plaintiffs argue that, “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.” Pl. Mem., Dkt #71, at 10. In other words, plaintiffs want this court to go where no
court has ever gone before – i.e., confer “suspect class” status to former residents of a state who
move to a U.S. territory deemed part of the “United States” and apply a strict scrutiny analysis to
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In its conclusion, the article states, “This Note has argued that courts have misguidedly relied on the
judicially created territorial incorporation doctrine to limit the ability of Puerto Rican residents to redress harms
cause by unequal congressional treatment.” *** In light of the political insularity of U.S. citizens residing in Puerto
Rico, this Note contends greater judicial scrutiny of federal legislation discriminating against Puerto Rico is both
appropriated and normatively desirable.” 110 Colum. L. Rev. at 839.

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statutes – whether federal or State – that do not confer full voting privileges to such individuals.
As noted earlier, plaintiffs have not cited a single case in support of their argument that
former residents of a State who become residents in one of the U.S. territories deemed to be
within the territory of the United State are members of a “suspect class” worthy of a strict or
heightened scrutiny analysis. But one case has already rejected such a claim under facts very
similar to the instant case. In Romeu v. Cohen, 121 F.Supp.2d 264 (S.D. N.Y. 2000), affirmed,
265 F.3d 118 (2nd Cir. 2001), Romeu, a U.S. citizen who lived and voted in New York from 1994
through 1999, became a resident of Puerto Rico in May 1999 and registered to vote there.
Because he was unable to vote for President and Vice President, Romeu requested an absentee
ballot from New York. Having been denied a New York absentee ballot, he sued, arguing,
among other things, that both UOCAVA and the New York statutes were subject to strict
scrutiny because they denied absentee ballots to residents of Puerto Rico on the basis of their
race, ethnicity, alienage or origin. Romeu argued that residents of Puerto Rico are members of a
“suspect class.” The district court, however, rejected the notion that Puerto Ricans are a suspect
class under the Equal Protection Clause. 121 F.Supp.2d 264 at 282. But even assuming that
Puerto Ricans are a suspect class, the court observed, Romeu “failed to proffer facts sufficient
for this Court to ascribe an invidious discriminatory purpose to either UOCAVA or NYEL,”
citing Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040 (1976). Id. The district court
determined that “there is no basis for concluding that either UOCAVA or NYEL invidiously
discriminates against Puerto Ricans on the basis of race, alienage or national origin.” 121
F.Supp.2d at 283.
Romeu clearly puts to rest any notion that plaintiffs here are members of any protected or
suspect class that is the victim of invidious discrimination under either UOCAVA or Illinois law.

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Because plaintiffs here cannot demonstrate the deprivation of any “fundamental right” or
the existence of any invidious discrimination toward a suspect class, strict scrutiny is not
triggered. This Court should, therefore, evaluate plaintiffs’ claims under a rational basis test.
B.

Under the Rational Basis Test, the Illinois Statute is Constitutional

Plaintiffs correctly note that this Court previously concluded that UOCAVA must be
subject to rational basis review. Pl. Mem., Dkt #71, at 3. Plaintiffs argue, however, that even if
the same level of scrutiny applies to the Illinois statute, “it cannot pass constitutional review.” Id.
As this Court noted in its decision rejecting plaintiffs’ first motion for summary
judgment, the Overseas Citizens Voting Rights Act of 1975, 89 Stat. 1142 (“OCVRA”) defined
“United States” as the “several States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam and the Virgin Islands” but not “American Samoa, the Canal Zone, the Trust
Territory of the Pacific Islands, or any other territory or possession of the United States.” Mem.
Op, Dkt #63, at 35-36.
Not coincidently, the State of Illinois amended its laws in 1979 to define the “Territorial
limits of the United States” to mean “each of the several States of the United States and includes
the District of Columbia, the Commonwealth of Puerto Rico, Guam and the Virgin Islands; but
does not include American Samoa, the Canal Zone, the Trust Territory of the Pacific Islands or
any other territory or possession of the United States.” See, 10 Ill. Comp. Stat. § 5/20-1, as
amended by Public Act 81-953 (SB 1146), effective 9/22/1979. See also, Mem. Op., Dkt #63, at
9. Thus, Illinois adopted legislation that tracked exactly the language and provisions of the
OCVRA. Both these statutes, then, “differentiated between (1) the District of Columbia, Puerto
Rico, Guam, and the U.S. Virgin Islands, (2) the Canal Zone ***, American Samoa ***, and the
now-former Trust Territory of the Pacific Islands (which included the NMI); and (3) other
United States Trust Territories or possessions.” Mem. Op., Dkt #63, at 36.
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When Congress enacted UOCVA in 1986, American Samoa became included (instead of
being excluded, as was previously the case) in the definition of “State” and “United States,”
joining the District of Columbia, Puerto Rico, Guam and the Virgin Islands as territories within
the territory of the United States where States were not required to extend absentee voting
privileges. See Pub. L. 99-410, title I, §107, Aug. 28, 29186, 100 Stat. 927.
Illinois, however, never subsequently amended its statutory definition of “Territorial
limits of the United States.” Its definition remains the same as originally enacted in 1979. Thus,
American Samoa (along with the Canal Zone, the Trust Territory of the Pacific Islands
(including NMI) and any other territory or possession of the United States) continue to remain
outside the “territorial limits” of the United States and former Illinois residents taking up
residence in American Samoa (or in those other territories) are eligible to receive an absentee
ballot from Illinois.
As this Court noted in its ruling denying plaintiffs’ first motion for summary judgment,
“[T]o support the rationality of a challenged statute, a defendant is not ‘limited to the
justifications that the legislature had in mind at the time that it passed the challenged provisions –
any rational justification for the laws will overcome an equal protection challenge’,” citing One
Wisconsin Inst., Inc. v. Thomsen, 15-cv-324-JDP, 2016 WL 4059222, at *53, (W.D. Wis. July
20, 2016), and Heller v. Doe by Doe, 509 U.S. 312, 320-321 (1993) (the party challenging a
statute must negate “every conceivable basis which might support it ... whether or not the basis
has a foundation in the record”). Mem. Op., Dkt. #63, at 34. This Court, in considering
UOCAVA’s different treatment of NMI versus other United States territories, noted that at the
time of UOCAVA’s enactment, NMI was not yet a United States’ “Territory,” as the covenant
creating this framework did not become fully effective until three months after Congress passed

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UOCAVA. Mem. Op., Dkt #63, at 33. Indeed, Congress has never amended UOCAVA to
reflect the new post-1986 relationship with NMI and NMI is still not considered a part of the
United States “where used in the territorial sense.” See, 52 U.S.C. § 20310. This Court held that
the “so-called ‘historical timing’ [respecting NMI] supports the UOCAVA’s constitutionality,”
citing City of Chicago v. Shalala, 189 F.3d 598, 605 (7th Cir. 1999) (holding that “a statute must
be upheld against equal protection challenge if there is any reasonable conceivable state of facts
that could provide a rational basis for the classification” so “[a] classification does not fail
rational-basis review because it is not made with mathematical nicety or because in practice it
results in some inequality”), among other cases. Mem. Op., Dkt #63, at 34.
The same reasoning and logic this Court applied in reviewing plaintiffs’ equal protection
claims under the rational basis test and denying their contention that UOCAVA violated the
Equal Protection Clause should be applied here as well to the Illinois statute. In Srail v. Village
of Lisle, Ill., 588 F. 3d 940, 946-47 (7th Circ. 2009), the Seventh Circuit, quoting Shalala, supra,
held that even as regards to a state statute, “if there is a rational relationship between the
disparity of treatment and some legitimate government purpose,” the statute survives rational
basis scrutiny.
Here, Illinois, just like the State of New York in Romeu, “has a legitimate interest in
restricting the ballot to bona fide residents and ensuring that someone who wishes to vote” in the
State does not maintain a place of abode or domicile, is not registered to vote and is not voting in
any other election district, state, territory or possession of the United States.” 121 F.Supp.2d at
284. However, subject to the United States Constitution, the Supremacy Clause and UOCAVA,
Illinois, like every State, is obligated to extend absentee voting privileges to former residents
living outside the territory of the United States. Illinois did so, as reflected in the 1979

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amendments to its election laws, adopting a definition of territorial limits of the United States
that paralleled the OCVRA.
It is evident just from the face of both the OCVRA and 10 Ill. Comp. Stat. § 5/20-1 that
the State of Illinois sought merely to comply with the federal law, but the State failed to keep up
with the federal law when UOCAVA added American Samoa to the list of territories within the
territory of the United States. This failure to amend the Illinois statute is, much like Congress’
failure to the include NMI within the definition of territory of the United States when it adopted
UOCAVA in 1986 – a “product of historical timing.” See, Mem. Op., Dkt #63, at 34. Much like
Congress’ failure to amend UOCAVA to reflect NMI’s changed status in 1986, Illinois failed to
amend its statutes to reflect American Samoa’s (or even NMI’s) changed status in 1986. This
does not mean, however, that Illinois’ statute lacked a rational basis when enacted or is irrational
today.
Plaintiffs argue further that the two State defendants here 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” and that such
concession is “critical because a statutory classification that has no justification is arbitrary,
which violates equal protection even under rational-basis scrutiny.”6 Pl. Mem., Dkt #71, at 4.
The Board is without knowledge or information of any specific “articulation” of a justification
for the Illinois statute’s classification, other than just the plain language of the Illinois statute that
tracked exactly the language in the federal Overseas Citizens Voting Rights Act of 1975 defining
the territorial limits of the United States. What more “articulation” is needed when the clear

6

The first sentence of paragraph 53 of plaintiffs’ Complaint alleged, “[N]o legislature has articulated a
legitimate justification for this arbitrary and disparate treatment of overseas citizens.” Complaint, Dkt #1, at 20.
Literally read, defendants were being asked to admit or deny whether any legislature, whether Congress or of any
State, has articulated a legitimate justification for the different treatment of overseas citizens.

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language of the State statute attempts to mirror the federal law so as to comply with its mandate?
But as the Seventh Circuit observed in Srail, “any rational basis will suffice, even one that was
not articulated at the time the disparate treatment occurred.” (Italics added) 588 F. 3d at 946-47.
Plaintiffs criticize Illinois, arguing that “even if an attempt to track federal law rationalbasis 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.” Pl. Mem., Dkt
#71, at 5. First, the definition of what constitutes the “ ‘United States’, where used in the
territorial sense” was not materially changed in the transition from the 1975 Act to UOCAVA
except that American Samoa, which was formerly excluded, became included in 1986 law. 52
U.S.C. § 20310. Nothing else was substantively changed. So for plaintiffs to argue that Illinois
is following a “repealed” definition is disingenuous. Second, this Court has noted that “a statute
is not invalid under the Constitution because it might have gone farther than it did” as “a
legislature need not strike at all evils at the same time,” quoting Katzenbach v. Morgan, 384 U.S.
641, 657 (1966). Mem. Op., Dkt #63, at 30-31. Reform may be taken “one step at a time”
without creating an equal protection violation, even if those steps are taken slowly over the
course of decades as has occurred here with both Congress and the Illinois legislature. Congress,
three decades later, still has not amended UOCAVA to reflect NMI’s relationship to the United
States. Accordingly, the different treatment of American Samoa and NMI versus Puerto Rico,
Guam and the Virgin Islands, under either UOCAVA or the Illinois statute is not irrational.
Finally, if plaintiffs are granted the opportunity to vote in federal elections using an
Illinois absentee ballot, the Court would be creating the very “distinction of questionable
fairness” by permitting former Illinois residents now living in Puerto Rico, Guam and the U.S.
Virgin Islands to vote in federal elections, while residents of those territories who have not

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previously resided in Illinois will not enjoy that right. See, Mem. Op., Dkt #63, at 40. This is
exactly the concern this Court sought to avoid when ruling on plaintiffs’ first summary judgment
motion when the Court found that, with respect to UOCAVA, “[I]t is rational *** to enact a law
that does not differentiate between residents living in a particular United States Territory based
on whether they could previously vote in a federal election administered by a state.” Mem. Op.,
Dkt #63, at 41. The same rationale should apply here to the Illinois statute.
In short, there is a rational justification for the Illinois statute’s treatment of former
Illinois residents who later take up residency in Puerto Rico, Guam and the U.S. Virgin Islands
versus those who later become residents in other countries and territories outside the United
States, and there is no equal protection violation.
II.
ILLINOIS STATUTE EXCLUDING FORMER ILLINOIS RESIDENTS NOW
LIVING IN GUAM, PUERTO RICO AND U.S. VIRGIN ISLANDS FROM CASTING AN
ABSENTEE BALLOT IN ILLINOIS FOR FEDERAL ELECTIONS IS NOT A DENIAL
OF DUE PROCESS
Alternatively, plaintiffs argue that both UOCAVA and the Illinois statute infringe on
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.” Pl.
Mem., Dkt #71, at 10. Plaintiffs cite Saenz v. Roe, 526 U.S. 489, 500, (1999), for the proposition
that the right to travel embraces “at least three different components”: “the right of a citizen of
one State to enter and 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.” Pl.
Mem., Dkt #71, at 11.
But Romeu v. Cohen, 265 F.3d 118, 126 (2nd Cir. 2001) should put plaintiffs’ due process
argument to rest in short order. In Romeu, the Second Circuit held that the right to travel was not

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violated by either UOCAVA or the New York statute in question. Romeu expressly rejected the
argument that Saenz compelled a finding that the right to travel is violated, stating “[E]ven
assuming for purposes of this opinion that Saenz’s references to States were intended to
encompass also territories and that the reference to the right to enter and leave a State included
also the right to change one’s residence from one political subdivision of the United States to
another, we find no violation of any of the components of the right to travel listed in Saenz.” 265
F.3d at 126. The Romeu court observed that New York had not impaired the plaintiff’s right to
travel to Puerto Rico, although the New York statute “placed a cost on his becoming a permanent
resident of Puerto Rico”, i.e., the loss of the right to vote for President. Id. Had Romeu moved to
another State, he could have voted as a citizen of that State.7
His move to a U.S. territory, in contrast, required that he give up voting for the
office of President. However, neither the NYEL nor the UOCAVA caused that
loss. His loss of the right to vote for President is the consequence of his decision
to become a citizen of a territory in a constitutional scheme that allocates the right
to appoint electors to States but not to territories.
Id. Romeu concluded, “[S]uch consequences of the citizen’s choice do not constitute an
unconstitutional interference with the right to travel.” 265 F.3d at 127.
This Court should follow Romeu’s teachings and reject plaintiffs’ contention here that the
UOCAVA and the Illinois statutes violate due process and the right to travel.
CONCLUSION
For the reasons discussed above, the plaintiffs have failed to demonstrate that the Illinois
statute, 10 Ill. Comp. Stat. § 5/20-1, violates either the Equal Protection Clause or the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. Therefore, the

7

Even then, the individual inherits only those voting rights enjoyed by the citizens of the new State. For
example, if a resident of Illinois who may be an ex-felon moves from Illinois, where he or she is allowed to vote, to
another state that prohibits ex-felons from voting, such former Illinois resident may not be permitted to vote in his or
her new state, thus suffering a loss of rights.

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Board requests that plaintiffs’ second motion for summary judgment be denied and that
judgment be entered in favor of the Board of Election Commissioners for the City of Chicago.
Respectfully submitted,
Board of Election Commissioners for the City of Chicago
and Marisel A. Hernandez, Defendants
By:

/s/ James M. Scanlon
Their attorney

James M. Scanlon
James M. Scanlon & Associates, P.C.
27 N. Wacker Dr. #502
Chicago, IL 60606
Tel. (312) 782-8163

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CERTIFICATE OF SERVICE
I hereby certify that on October 19, 2016, a copy of the foregoing Memorandum of Law
in Opposition to Plaintiffs’ Second Motion for Summary Judgment of Defendants Board of
Election Commissioners for the City of Chicago and Marisel Hernandez was filed electronically
and notice of this filing will be sent to all parties in this case via the Court’s CM/ECF system.

/s/ James M. Scanlon
____________________________
James M. Scanlon
James M. Scanlon & Associates, P.C.
27 N. Wacker Dr. #502
Chicago, IL 60606
Tel. (312) 782-8163