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Case: 16-4240 Document: 27 RESTRICTED Filed: 04/12/2017 Pages: 146

No. 16-4240
No. 16-4240

IIN THE U
N THE NITED S
UNITED TATES C
STATES OURT OF
COURT APPEALS
OF APPEALS
FOR THE S
FOR THE EVENTH C
SEVENTH IRCUIT
CIRCUIT
____________________________________

L UIS S
LUIS EGOVIA, et
SEGOVIA, et al.,
al.,

Plaintiffs-Appellants,
Plaintiffs-Appellants,

v.
v.

UNITED S
UNITED AMERICA, et
TATES OF AMERICA,
STATES et al.,
al.,

Defendants-Appellees.
Defendants-Appellees.
____________________________________

Appeal from
Appeal from an Order of
an Order of the
the United
United States District Court
States District Court
for the
for the Northern
Northern District of Illinois
District of Illinois
The
The Hon. Joan B.
Hon. Joan B. Gottschall,
Gottschall, District Judge
District Judge
District
District No. 1:15-cv-10196
No. 1:15-cv-10196
____________________________________

B APPELLANTS
RIEF OF APPELLANTS
BRIEF
____________________________________

Neil
Neil C. Weare
C. Weare Charles
Charles F.
F. Smith
Smith
We the People
We the People Project
Project Counsel
Counsel of Record
of Record
1666 Connecticut
1666 Avenue, N.W.
Connecticut Avenue, N.W. Lara A.
Lara A. Flath
Flath
Suite
Suite 500
500 John J.
John J. Schoettle
Schoettle
Washington, D.C.
Washington, D.C. 20009
20009 155 N.
155 Wacker Dr.
N. Wacker Dr.
(202)
(202) 304-1202
304-1202 Chicago,
Chicago, Illinois
Illinois 60606
60606
nweare@equalrightsnow.org
nweare@equalrightsnow.org (312)
(312) 407-0700
407-0700
charles.smith@probonolaw.com
charles.smith@probonolaw.com
Leevin
Leevin T.
T. Camacho
Camacho
The
The Law
Law Office of Leevin
Office of Leevin T.
T. Camacho
Camacho Geoffrey M. Wyatt
Geoffrey M. Wyatt
194 Hernan
194 Hernan Cortez Avenue
Cortez Avenue Michael A.
Michael A. McIntosh
McIntosh
Suite
Suite 216
216 Marisa B.
Marisa Van Saanen
B. Van Saanen
Hagåtña,
Hagattia, Guam
Guam 96910
96910 Brendan
Brendan B.
B. Gants
Gants
(617)
(617) 477-8894
477-8894 1440 New
1440 York Avenue,
New York Avenue, N.W.
N.W.
leevin@guahanlaw.com
leevin@guahanlaw.com Washington, D.C.
Washington, D.C. 20005
20005
(202)
(202) 371-7000
371-7000
Case: 16-4240 Document: 27 RESTRICTED Filed: 04/12/2017 Pages: 146

Semaj Johnson
Semaj Johnson
Law
Law Offices of K.A.
Offices of K.A. Rames
Rames PCPC
Suite
Suite 3,
3, 2111
2111 Company
Company Street
Street
Christiansted,
Christiansted, St.
St. Croix, Virgin
Croix, Virgin
Islands
Islands 00820
00820
(340) 773-7284
(340) 773-7284
semaj.johnson@rameslaw.com
semaj.johnson@rameslaw.com

Counsel
Counsel for Plaintiffs-Appellants
for Plaintiffs-Appellants
Case: 16-4240 Document: 27 RESTRICTED Filed: 04/12/2017 Pages: 146

Table Of
Table Of Contents
Contents

Page
Page

Table
Table Of Authorities ...........................................................................................iii
Of Authorities iii

Statement
Statement Concerning
Concerning Oral Argument ............................................................. xi
Oral Argument xi

Jurisdictional Statement.....................................................................................
Jurisdictional Statement 1
1

Introduction
Introduction ......................................................................................................... 1
1

Issues
Issues Presented
Presented .................................................................................................. 3
3

Statement of the
Statement of the Case
Case ......................................................................................... 4
4

A.
A. The
The plaintiffs
plaintiffs .................................................................................. 4
4

B.
B. Overseas voting laws
Overseas voting laws ..................................................................... 7
7

1.
1. The
The Uniformed
Uniformed and and Overseas
Overseas Citizens Absentee
Citizens Absentee
Voting Act
Voting Act ............................................................................ 7
7

2.
2. The Military and
The Military and Overseas
Overseas Voter Voter Empowerment
Empowerment
Act ........................................................................................ 8
Act 8

C.
C. The
The proceedings below ................................................................. 10
proceedings below 10

1.
1. The August 23,
The August 23, 2016 summary-judgment order
2016 summary-judgment order .............. 10
10

2.
2. The
The October
October 28,
28, 2016 summary-judgment order
2016 summary-judgment order ............. 11
11

Summary of the
Summary of the Argument
Argument ............................................................................... 13
13

Standard of Review
Standard of Review ........................................................................................... 15
15

Argument ........................................................................................................... 16
Argument 16

I.
I. The
The District
District Court
Court Erred In Holding
Erred In Holding ThatThat UOCAVA
UOCAVA And And
MOVE’s Arbitrary
MOVE's Arbitrary Treatment Of Former
Treatment Of Former State State Residents
Residents
Survives Any Level
Survives Any Level of
of Scrutiny.
Scrutiny. ............................................................. 16
16

A.
A. UOCAVA’s
UOCAVA's discriminatory
discriminatory provisions
provisions do do not
not inin any
any wayway
advance
advance the federal government’s
the federal government's "unique" “unique” relationship
relationship
with
with the
the NMI.
NMI ............................................................................... 17
17
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B.
B. MOVE’s favored
MOVE's favored treatment of former
treatment of former Illinois
Illinois citizens
citizens
residing in American
residing in American Samoa
Samoa and
and the
the NMI
NMI does does not not
advance
advance any legitimate state
any legitimate state interest.
interest. ........................................ 22
22

II.
II. The
The District
District Court
Court Erred
Erred By By Failing
Failing To To Apply
Apply Heightened
Heightened
Scrutiny
Scrutiny To The Discriminatory
To The Discriminatory Classifications
Classifications Drawn Drawn By By
UOCAVA And MOVE.
UOCAVA And MOVE. ............................................................................ 25
25

A.
A. The
The district court improperly
district court improperly expanded
expanded the the Insular
Insular Cases Cases
to
to hold that the
hold that the right
right to vote is
to vote is not “fundamental” for
not "fundamental" for
citizens of
citizens of the
the Territories
Territories. ............................................................ 25
25

B.
B. The classifications drawn
The classifications drawn by by UOCAVA
UOCAVA and and MOVE
MOVE
selectively extend
selectively extend absentee
absentee votingvoting rights
rights to similarly
to similarly
situated citizens.
situated citizens. .......................................................................... 29
29

C.
C. The classifications in
The classifications in UOCAVA
UOCAVA and MOVE discriminate
and MOVE discriminate
against
against aa suspect
suspect class
class that
that is is uniquely vulnerable to
uniquely vulnerable to the
the
political
political process.
process. ........................................................................... 38
38

III.
III. The
The District
District Court Also Erred
Court Also In Holding
Erred In Holding That
That UOCAVA
UOCAVA And And
MOVE Do
MOVE Do Not Violate Plaintiffs’
Not Violate Plaintiffs' Right
Right To Travel. ............................... 47
To Travel. 47

IV.
IV. This
This Court
Court Has Jurisdiction Over
Has Jurisdiction Over This
This Appeal.
Appeal. .................................... 54
54

Conclusion
Conclusion.......................................................................................................... 56
56

Certificate of Compliance
Certificate of Compliance Pursuant
Pursuant to
to Fed.
Fed. R. App. P.
R. App. P. 32(g)(1)
32(g)(1) ...................... 57
57

Certificate of Compliance
Certificate of with Circuit
Compliance with Circuit Rule
Rule 30(d)
30(d) ........................................... 58
58

Certificate of Service
Certificate of Service ......................................................................................... 59
59

Rule
Rule 30(a)
30(a) Short Appendix ................................................................................ 60
Short Appendix 60

ii
ii
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Table Of
Table Of Authorities
Authorities

CASES
CASES

Aptheker v.
Aptheker v. Secretary of State,
Secretary of State,
378 U.S 500
378 U.S 500 (1964)
(1964)....................................................................................... 48
48

Balzac
Balzac v. Porto Rico,
v. Porto Rico,
258 U.S. 298
258 U.S. 298 (1922)
(1922)...................................................................................... 26
26

Bethesda
Bethesda Lutheran
Lutheran Homes
Homes && Services,
Services, Inc.
Inc. v.v. Leean,
Leean,
122 F.3d
122 F.3d 443
443 (7th
(7th Cir. 1997)........................................................................ 47
Cir. 1997) 47

Boumediene
Boumediene v.
v. Bush,
Bush,
553 U.S. 723
553 U.S. 723 (2008)
(2008)................................................................................ 28,
28, 44
44

Bush
Bush v.
v. Gore,
Gore,
531 U.S. 98
531 U.S. 98 (2000)
(2000).................................................................................. 31,
31, 32
32

Califano
Califano v.
v. Gautier
Gautier Torres,
Torres,
435 U.S. 1
435 U.S. 1 (1978)
(1978)........................................................................ 47,
47, 48,
48, 52,
52, 53
53

City of Cleburne,
City of Cleburne, Texas
Texas v.
v. Cleburne
Cleburne LivingLiving Center,
Center,
473 U.S. 432
473 U.S. 432 (1985)
(1985)...................................................................................... 16
16

In
In re
re Chapman,
Chapman,
328
328 F.3d
F.3d 903
903 (7th
(7th Cir. 2003)........................................................................ 15
Cir. 2003) 15

Community
Community House,
House, Inc.
Inc. v.
v. City of Boise,
City of Boise,
490
490 F.3d 1041 (9th
F.3d 1041 (9th Cir.
Cir. 2007)
2007)...................................................................... 44
44

In
In re
re Conde
Conde Vidal,
Vidal,
818
818 F.3d
F.3d 765
765 (1st
(1st Cir.
Cir. 2016)
2016) ........................................................................ 26
26

Coopers & Lybrand
Coopers & Lybrand v.
v. Livesay,
Livesay,
437 U.S. 463
437 U.S. 463 (1978)
(1978)................................................................................ 54,
54, 56
56

Davis
Davis v.
v. Bandemer,
Bandemer,
478 U.S. 109
478 U.S. 109 (1986)
(1986)...................................................................................... 32
32

Downes
Downes v.
v. Bidwell,
Bidwell,
182 U.S.
182 U.S. 244
244 (1901)
(1901)................................................................................ 27, 28
27, 28

Dunn
Dunn v.
v. Blumstein,
Blumstein,
405 U.S. 330
405 U.S. 330 (1972)
(1972)...............................................................................passim
passim

iii
iii
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Edelman
Edelman v.
v. Jordan,
Jordan,
415 U.S. 651
415 U.S. 651 (1974)
(1974)...................................................................................... 22
22

Ellis
Ellis v.
v. DHL
DHL Express
Express Inc.
Inc. (USA),
(USA),
633
633 F.3d
F.3d 522
522 (7th
(7th Cir.
Cir. 2011)
2011)........................................................................ 15
15

Evans
Evans v.
v. Cornman,
Cornman,
398 U.S. 419
398 U.S. 419 (1970)
(1970)...................................................................................... 30
30

Examining
Examining Board of Engineers,
Board of Architects &
Engineers, Architects & Surveyors
Surveyors v. v. Flores
Flores de de Otero,
Otero,
426 U.S. 572
426 U.S. 572 (1976)
(1976)...................................................................................... 44
44

Frontiero
Frontiero v.
v. Richardson,
Richardson,
411 U.S. 677
411 U.S. 677 (1973)
(1973).......................................................................... 17,
17, 18,
18, 39
39

Graham
Graham v.
v. Richardson,
Richardson,
403 U.S. 365
403 U.S. 365 (1971)
(1971)...................................................................................... 39
39

Griffin
Griffin v.
v. Roupas,
Roupas,
385
385 F.3d 1128 (7th
F.3d 1128 (7th Cir.
Cir. 2004)
2004)...................................................................... 33
33

Haig
Haig v. Agee,
v. Agee,
453 U.S. 280
453 U.S. 280 (1981)
(1981)...................................................................................... 48
48

Harper
Harper v.
v. Virginia
Virginia State Board of
State Board of Elections,
Elections,
383 U.S. 663
383 U.S. 663 (1966)
(1966).................................................................... 30,
30, 32,
32, 34,
34, 35
35

Heckler
Heckler v.
v. Mathews,
Mathews,
465 U.S. 728
465 U.S. 728 (1984)
(1984)................................................................................ 24,
24, 25
25

Heller
Heller v.
v. Doe,
Doe,
509 U.S. 312
509 U.S. 312 (1993)
(1993)...................................................................................... 16
16

Holt
Holt Civic
Civic Club
Club v.
v. City of Tuscaloosa,
City of Tuscaloosa,
439 U.S. 60
439 U.S. 60 (1978)
(1978)........................................................................................ 34
34

Igartúa De La
Igartua De La Rosa
Rosa v.v. United
United States,
States,
32
32 F.3d 8 (1st
F.3d 8 (1st Cir. 1994) ........................................................................ 35,
Cir. 1994) 35, 36
36

Igartúa De La
Igartua De La Rosa
Rosa v.
v. United
United States,
States,
229
229 F.3d 80 (1st
F.3d 80 (1st Cir.
Cir. 2000)
2000) .......................................................................... 36
36

Igartúa De La
Igartua De La Rosa
Rosa v.
v. United
United States,
States,
417
417 F.3d 145 (1st
F.3d 145 (1st Cir.
Cir. 2005)
2005) ........................................................................ 36
36

iv
iv
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Igartúa
Igartua v.
v. United
United States,
States,
626
626 F.3d
F.3d 592
592 (1st
(1st Cir.
Cir. 2010)
2010) ........................................................................ 42
42

Katzenbach v.
Katzenbach v. Morgan,
Morgan,
384 U.S. 641
384 U.S. 641 (1966)
(1966).......................................................................... 36,
36, 37,
37, 38
38

King v.
King Palmer,
v. Palmer,
950
950 F.2d
F.2d 771
771 (D.C.
(D.C. Cir.
Cir. 1991)
1991) ...................................................................... 27
27

Lamers
Lamers Dairy
Dairy Inc.
Inc. v.
v. U.S.
U.S. Department
Department of Agriculture,
of Agriculture,
379
379 F.3d
F.3d 466
466 (7th
(7th Cir.
Cir. 2004)
2004)........................................................................ 38
38

League of Women
League of Women Voters
Voters v. Brunner,
v. Brunner,
548
548 F.3d
F.3d 463
463 (6th
(6th Cir.
Cir. 2008)
2008)........................................................................ 31
31

Lubin
Lubin v. Panish,
v. Panish,
415 U.S. 709
415 U.S. 709 (1974)
(1974)...................................................................................... 31
31

Mathews
Mathews v.
v. Lucas,
Lucas,
427 U.S. 495
427 U.S. 495 (1976)
(1976)...................................................................................... 16
16

McDonald
McDonald v.
v. Board of Election
Board of Election Commissioners
Commissioners of of Chicago,
Chicago,
384 U.S. 641
384 U.S. 641 (1966)
(1966)...................................................................................... 38
38

McDonald
McDonald v.
v. Board of Election
Board of Election Commissioners
Commissioners of of Chicago,
Chicago,
394 U.S. 802
394 U.S. 802 (1969)
(1969)...................................................................................... 30
30

McMillian
McMillian v.
v. Sheraton
Sheraton Chicago
Chicago Hotel
Hotel & & Towers,
Towers,
567
567 F.3d 839 (7th
F.3d 839 (7th Cir.
Cir. 2009)
2009)............................................................ 54,
54, 55,
55, 56
56

Memorial
Memorial Hospital
Hospital v.
v. Maricopa
Maricopa County,
County,
415 U.S. 250
415 U.S. 250 (1974)
(1974)...................................................................................... 49
49

Michigan
Michigan State A. Philip
State A. Philip Randolph
Randolph Institute
Institute v. v. Johnson,
Johnson,
833
833 F.3d 656 (6th
F.3d 656 (6th Cir.
Cir. 2016)
2016)........................................................................ 31
31

Moses
Moses H.
H. Cone
Cone Memorial
Memorial Hospital
Hospital v. v. Mercury
Mercury Construction
Construction Corp., Corp.,
460 U.S. 1
460 U.S. 1 (1983)
(1983).......................................................................................... 43
43

New
New York
York v.
v. United
United States,
States,
505 U.S. 144
505 U.S. 144 (1992)
(1992)...................................................................................... 46
46

Obama
Obama for America v.
for America v. Husted,
Husted,
697
697 F.3d
F.3d 423
423 (6th
(6th Cir.
Cir. 2012)
2012)........................................................................ 35
35

v
v
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Obergefell
Obergefell v.
v. Hodges,
Hodges,
135 S.
135 S. Ct.
Ct. 2584
2584 (2015)
(2015).................................................................................. 26
26

Peoples Rights
Peoples Rights Organization,
Organization, Inc.
Inc. v.
v. City
City ofof Columbus,
Columbus,
152 F.3d
152 F.3d 522
522 (6th
(6th Cir. 1998)........................................................................ 16
Cir. 1998) 16

Plyler v.
Plyler Doe,
v. Doe,
457 U.S. 202
457 U.S. 202 (1982)
(1982)...................................................................................... 39
39

Quiban
Quiban v.
v. Veterans Administration,
Veterans Administration,
928
928 F.2d 1154 (D.C.
F.2d 1154 (D.C. Cir. 1991) .................................................................... 44
Cir. 1991) 44

Reid
Reid v.
v. Covert,
Covert,
354 U.S. 1
354 U.S. 1 (1957)
(1957).......................................................................................... 28
28

Reynolds
Reynolds v.
v. Sims,
Sims,
377 U.S. 533
377 U.S. 533 (1964)
(1964)................................................................................ 27,
27, 45
45

Romer
Romer v.
v. Evans,
Evans,
517 U.S. 620
517 U.S. 620 (1996)
(1996)...................................................................................... 16
16

Romeu
Romeu v.
v. Cohen,
Cohen,
265
265 F.3d 118 (2d
F.3d 118 (2d Cir.
Cir. 2001)
2001) ....................................................... 35,
35, 36,
36, 52,
52, 53
53

Sabangan
Sabangan v. Powell,
v. Powell,
375
375 F.3d 818 (9th
F.3d 818 (9th Cir.
Cir. 2004)
2004)........................................................................ 20
20

Saenz
Saenz v.
v. Roe,
Roe,
526 U.S. 489
526 U.S. 489 (1999)
(1999)...................................................................................... 48
48

Sampayans
Sampayans v.
v. Mathews,
Mathews,
417
417 F.
F. Supp.
Supp. 60
60 (D.
(D. Guam 1976) ................................................................. 48
Guam 1976) 48

San Antonio Independent
San Antonio Independent School
School District
District v. v. Rodriguez,
Rodriguez,
411 U.S. 1
411 U.S. 1 (1973)
(1973).......................................................................................... 39
39

Schweiker
Schweiker v.
v. Wilson,
Wilson,
450 U.S. 221
450 U.S. 221 (1981)
(1981)...................................................................................... 16
16

Shapiro
Shapiro v.
v. Thompson,
Thompson,
394 U.S. 618
394 U.S. 618 (1969)
(1969)................................................................................ 22,
22, 49
49

Sklar
Sklar v.
v. Byrne,
Byrne,
727
727 F.2d 633 (7th
F.2d 633 (7th Cir. 1984)........................................................................ 50
Cir. 1984) 50

vi
vi
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Snead
Snead v.
v. City of Albuquerque,
City of Albuquerque,
663
663 F.
F. Supp. 1084 (D.N.M.
Supp. 1084 1987) ................................................................ 34
(D.N.M. 1987) 34

Torres
Torres v.
v. Puerto
Puerto Rico,
Rico,
442 U.S. 465
442 U.S. 465 (1979)
(1979)...................................................................................... 28
28

U.S.
U.S. Department
Department of Agriculture v.
of Agriculture v. Moreno,
Moreno,
413 U.S. 528
413 U.S. 528 (1973)
(1973)................................................................................ 17,
17, 19
19

United
United States
States v.
v. Carolene
Carolene Products
Products Co., Co.,
304 U.S. 144
304 U.S. 144 (1938)
(1938).................................................................... 38,
38, 39,
39, 40,
40, 42
42

United
United States
States v.
v. Guest,
Guest,
383 U.S. 745
383 U.S. 745 (1966)
(1966)...................................................................................... 47
47

United
United States
States v.
v. Virginia,
Virginia,
518 U.S. 515
518 U.S. 515 (1996)
(1996)...................................................................................... 46
46

United
United States ex rel.
States ex rel. Richards
Richards v.
v. De
De Leon
Leon Guerrero,
Guerrero,
4
4 F.3d
F.3d 749
749 (9th
(9th Cir. 1993)............................................................................ 20
Cir. 1993) 20

Welsh
Welsh v.
v. United
United States,
States,
398 U.S. 333
398 U.S. 333 (1970)
(1970)...................................................................................... 25
25

Wesberry
Wesberry v.
v. Sanders,
Sanders,
376 U.S. 1
376 U.S. 1 (1964)
(1964).................................................................................... 27,
27, 45
45

Wright
Wright v.
v. North
North Carolina,
Carolina,
787
787 F.3d
F.3d 256
256 (4th
(4th Cir.
Cir. 2015)
2015)........................................................................ 31
31

Zemel
Zemel v.
v. Rusk,
Rusk,
381 U.S. 1
381 U.S. 1 (1965)
(1965).......................................................................................... 48
48

Zessar
Zessar v.
v. Helander,
Helander,
No.
No. 05
05 C 1917, 2006
C 1917, WL 642646
2006 WL 642646 (N.D. Ill. Mar.
(N.D. Ill. Mar. 13,
13, 2006)
2006)......................... 50
50

STATUTES
STATUTES

10 Ill.
10 Ill. Comp.
Comp. Stat.
Stat. 5/1-3(8)
5/1-3(8) ....................................................................................... 9
9

10 Ill.
10 Ill. Comp.
Comp. Stat.
Stat. 5/5-4
5/5-4 ........................................................................................... 9
9

10 Ill.
10 Ill. Comp.
Comp. Stat.
Stat. 5/6-21
5/6-21 ......................................................................................... 9
9

vii
vii
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10 Ill.
10 Ill. Comp.
Comp. Stat.
Stat. 5/6-24
5/6-24 ......................................................................................... 9
9

10 Ill.
10 Ill. Comp.
Comp. Stat.
Stat. 5/20-1
5/20-1 ......................................................................................... 9
9

10 Ill.
10 Ill. Comp.
Comp. Stat.
Stat. 5/20-2
5/20-2 ......................................................................................... 9
9

10 Ill.
10 Ill. Comp.
Comp. Stat.
Stat. 5/20-2.1
5/20-2.1 ...................................................................................... 9
9

10 Ill.
10 Ill. Comp.
Comp. Stat.
Stat. 5/20-2.2
5/20-2.2 ...................................................................................... 9
9

28
28 U.S.C. § 1291
U.S.C. § 1291 ........................................................................................... 1,
1, 54,
54, 56
56

28
28 U.S.C. § 1331
U.S.C. § 1331 ....................................................................................................... 1
1

28
28 U.S.C. § 1343(a)(3)
U.S.C. § 1343(a)(3)............................................................................................... 1
1

52
52 U.S.C. § 20301(a)
U.S.C. § 20301(a) ................................................................................................. 8
8

52
52 U.S.C. § 20302(a)(1)
U.S.C. § 20302(a)(1)............................................................................................. 7
7

52
52 U.S.C. § 20310(5)(C)
U.S.C. § 20310(5)(C) ............................................................................................ 8
8

52
52 U.S.C. § 20310(8)
U.S.C. § 20310(8) ................................................................................................. 8
8

Illinois Military and
Illinois Military Overseas Voter
and Overseas Voter Empowerment Act ..............................passim
Empowerment Act passim

Overseas
Overseas Citizens Voting Rights
Citizens Voting Rights Act
Act of
of 1975
1975 .................................................passim
passim

Uniformed
Uniformed and
and Overseas
Overseas Citizens Absentee Voting
Citizens Absentee Voting Act
Act ...............................passim
passim

United
United States
States Constitution,
Constitution, article
article II, §2
II, § 2 ............................................................. 31
31

United
United States
States Constitution,
Constitution, amendment XII ........................................................ 31
amendment XII 31

RULES
RULES

Fed.
Fed. R. App. P.
R. App. P. 4(a)(1)(B)
4(a)(1)(B) ......................................................................................... 1
1

OTHER AUTHORITIES
OTHER AUTHORITIES

53
53 Fed.
Fed. Reg.
Reg. 21,975
21,975 (June 8, 1988)
(June 8, 1988) .......................................................................... 8
8

viii
viii
Case: 16-4240 Document: 27 RESTRICTED Filed: 04/12/2017 Pages: 146

Adriel I.
Adriel I. Cepeda
Cepeda Derieux,
Derieux, A A Most
Most Insular
Insular Minority:
Minority: Reconsidering
Reconsidering
Judicial
Judicial Deference
Deference to
to Unequal
Unequal Treatment
Treatment in in Light
Light of Puerto Rico's
of Puerto Rico's
Political Process
Political Process Failure,
Failure,
110 Colum.
110 Colum. L.L. Rev.
Rev. 797
797 (2010)
(2010) .............................................................. 41,
41, 43
43

Arnold J.
Arnold J. Janicker,
Janicker, Extending
Extending the
the Federal
Federal Franchise
Franchise to to the
the Commonwealth
Commonwealth of of
Puerto Rico:
Puerto Rico: Igartúa
Igartaa de
de la
la Rosa
Rosa v.
v. United
United States,
States,
75
75 St. John’s L.
St. John's L. Rev.
Rev. 509
509 (2001)
(2001) .................................................................. 40
40

Covenant
Covenant to
to Establish
Establish a
a Commonwealth
Commonwealth of of the
the Northern Mariana
Northern Mariana
Islands in Political
Islands in Union with
Political Union the United
with the United States of America
States of America .................. 19
19

Department of Defense
Department of Defense Instruction 1000.04 &
Instruction 1000.04 & Encl.
End. 33 (Sept. 13, 2012)
(Sept. 13, 2012) ................ 8
8

Developments
Developments in
in the
the Law:
Law: U.S.
U.S. Territories,
Territories,
Harv.
Harv. L.
L. Rev. 1617 (2017)
Rev. 1617 (2017)............................................................................ 41
41

Guam and the
Guam and the Case
Case for
for Federal Deference,
Federal Deference,
Harv.
Harv. L.
L. Rev. 1704 (2017)
Rev. 1704 (2017)............................................................................ 26
26

H.R.
H.R. 3576, 13th Cong.
3576, 13th Cong. (2013)
(2013) ................................................................................. 21
21

H.R.
H.R. 5799, 112th Cong.
5799, 112th Cong. (2012)
(2012) ............................................................................... 21
21

H.R. Rep. No.
H.R. Rep. No. 94-649,
94-649, pt. 1, reprinted
pt. 1, reprinted in 1975 U.S.C.C.A.N
in 1975 U.S.C.C.A.N 2358
2358 .......................... 7
7

H.R. Rep. No.
H.R. Rep. No. 99-765,
99-765, reprinted
reprinted in 1986 U.S.C.C.A.N.
in 1986 U.S.C.C.A.N. 2009
2009 .................................. 7
7

James Surowiecki,
James Surowiecki, On Puerto Rico,
On Puerto Rico, Congress
Congress Once Again Fails
Once Again Fails
to Do the
to Do Obvious, New
the Obvious, Yorker, May
New Yorker, May 2,
2, 2016
2016 ............................................. 41
41

Jessica Pupillo,
Jessica Pupillo, Guam, Puerto Rico
Guam, Puerto Rico and
and Virgin
Virgin Islands
Islands Chapters
Chapters Face Face
Unique
Unique Challenges, AAFP (July
Challenges, AAFP (July 31,
31, 2014)
2014).................................................. 41
41

Josh Hicks,
Josh Hicks, Guam: A High
Guam: A High Concentration of Veterans,
Concentration of Veterans,
but
but Rock-Bottom
Rock-Bottom VA
VA Funding, Wash. Post,
Funding, Wash. Post, Oct.
Oct. 29,
29, 2014
2014 ......................... 41
41

Juan R.
Juan R. Torruella,
Torruella, The
The Insular
Insular Cases: A Declaration
Cases: A of Their
Declaration of Their Bankruptcy
Bankruptcy
and
and My
My Harvard Pronouncement, in
Harvard Pronouncement, in Reconsidering
Reconsidering the
the Insular
Insular Cases Cases
(Gerald
(Gerald L.
L. Neuman
Neuman & & Tomiko
Tomiko Brown-Nagin
Brown-Nagin eds.,
eds., 2015)
2015) ........................... 28
28

L.S.
L.S. Rowe,
Rowe, The
The Supreme
Supreme Court and the
Court and the Insular
Insular Cases,
Cases,
18 Annals
18 Annals Am.
Am. Acad.
Acad. Pol.
Pol. &
& Soc.
Soc. Sci.
Sci. 38
38 (1901)
(1901) ......................................... 27
27

ix
ix
Case: 16-4240 Document: 27 RESTRICTED Filed: 04/12/2017 Pages: 146

Lisa M. Kömives,
Lisa M. Komives, Enfranchising
Enfranchising aa Discrete and Insular
Discrete and Insular Minority:
Minority:
Extending
Extending Federal
Federal Voting
Voting Rights
Rights to American Citizens
to American Citizens
Living
Living in
in United
United States
States Territories,
Territories,
36
36 U. Miami Inter-Am.
U. Miami Inter-Am. L.
L. Rev. 115 (2004)
Rev. 115 (2004) ................................................. 42
42

Stanley
Stanley K.
K. Laughlin, Jr., The
Laughlin, Jr., The Constitutional
Constitutional Structure
Structure of of the
the Courts
Courts of of
the
the United
United States
States Territories:
Territories: the
the Case
Case of of American
American Samoa, Samoa,
13 U.
13 U. Haw. L. Rev.
Haw. L. Rev. 379 (1991)..................................................................... 40
379 (1991) 40

Stanley
Stanley K.
K. Laughlin, Jr. U.S.
Laughlin, Jr. U.S. Territories
Territories and Affiliated Jurisdictions:
and Affiliated Jurisdictions:
Colonialism or Reasonable
Colonialism or Reasonable Choice
Choice for
for Small
Small Societies?,
Societies?,
37
37 Ohio
Ohio N.U.
N.U. L. Rev. 429
L. Rev. (2011) ................................................................. 45
429 (2011) 45

Tatiana Darie, As
Tatiana Darie, As Puerto
Puerto Rico
Rico Moves
Moves On, Another U.S.
On, Another U.S. Territory
Territory Crisis Arises,
Crisis Arises,
Bloomberg Markets (Dec.
Bloomberg Markets (Dec. 21,
21, 2016)
2016) ............................................................ 41
41

Territorial
Territorial Federalism, 130 Harv.
Federalism, 130 Harv. L. Rev. 1632
L. Rev. 1632 (2017)
(2017) .................................. 39,
39, 42
42

United
United States
States Census
Census (2010)
(2010) ................................................................................. 40
40

Welcoming America’s Newest
Welcoming America's Newest Commonwealth:
Commonwealth: The The Second
Second Interim
Interim ReportReport
of the
of the Northern
Northern Mariana
Mariana Islands
Islands Commission
Commission on on Federal
Federal laws laws to to the
the
Congress of the
Congress of the United States (1985).....................................................
United States (1985) 19, 20
19, 20

x
x
Case: 16-4240 Document: 27 RESTRICTED Filed: 04/12/2017 Pages: 146

Statement Concerning
Statement Oral Argument
Concerning Oral Argument

This
This appeal
appeal presents
presents questions
questions acknowledged by the
acknowledged by the district court to
district court to

involve issues
involve of first
issues of first impression concerning the
impression concerning constitutional rights
the constitutional of
rights of

former state citizens
former state citizens residing
residing in
in U.S.
U.S. Territories
Territories to vote under
to vote under federal
federal and
and

state laws
state laws that
that extend
extend absentee voting rights
absentee voting rights to
to former state citizens
former state citizens residing
residing

anywhere overseas except
anywhere overseas in certain
except in certain Territories. Pursuant to
Territories. Pursuant to Rule
Rule 34(a),
34(a),

plaintiffs
plaintiffs respectfully submit that
respectfully submit oral argument
that oral should be
argument should be permitted and
permitted and

would
would aid the decisional
aid the decisional process in light
process in of the
light of the novelty and complexity
novelty and complexity of
of the
the

issues presented.
issues presented.

xi
xi
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Jurisdictional
Jurisdictional Statement
Statement

The
The district court had
district court subject-matter jurisdiction
had subject-matter jurisdiction under
under 28
28 U.S.C. § 1331
U.S.C. § 1331

because plaintiffs’
because causes of
plaintiffs' causes of action
action arise
arise under
under the U.S. Constitution.
the U.S. It also
Constitution. It also

had subject-matter jurisdiction
had subject-matter jurisdiction under
under 28
28 U.S.C. § 1343(a)(3)
U.S.C. § 1343(a)(3) because
because this
this is
is

an action to
an action “redress the
to "redress the deprivation,
deprivation, under
under color
color of
of any
any State” statute of
State" statute of

rights “secured by
rights "secured by the
the Constitution of the
Constitution of the United
United States.”
States."

This
This Court
Court has appellate jurisdiction
has appellate jurisdiction under
under 28 U.S.C. §
28 U.S.C. § 1291.
1291. The
The district
district

court entered
court a final
entered a final order
order disposing of all
disposing of of plaintiffs’
all of claims against
plaintiffs' claims against all
all

defendants on October
defendants on October 28,
28, 2016
2016 (as
(as further
further detailed
detailed in section IV
in section of the
IV of the

Argument section
Argument section below
below pursuant
pursuant to this Court’s
to this orders of
Court's orders March 6,
of March 6, 2017,
2017,

and
and December
December 28,
28, 2016).
2016). (Short App. at
(Short App. 63.)1
at 63.)1

Plaintiffs
Plaintiffs timely
timely noticed an appeal
noticed an on December
appeal on December 27,
27, 2016, within the
2016, within the 60-
60-

day
day period applicable to
period applicable to this case under
this case under Fed.
Fed. R. App. P.
R. App. P. 4(a)(1)(B) because the
4(a)(1)(B) because the

United
United States
States and
and its
its agencies
agencies and officers are
and officers are parties.
parties.

Introduction
Introduction

The
The federal
federal Uniformed and Overseas
Uniformed and Overseas Citizens Absentee Voting
Citizens Absentee Voting Act
Act

(“UOCAVA”)
("UOCAVA") and
and Illinois Military and
Illinois Military and Overseas Voter Empowerment
Overseas Voter Act
Empowerment Act

(“MOVE”)
("MOVE") extend
extend absentee
absentee voting
voting rights
rights to former state
to former state citizens
citizens who
who move
move

almost
almost anywhere outside the
anywhere outside the fifty states and
fifty states and the District of
the District of Columbia –
Columbia —

including any
including any foreign country, non-sovereign
foreign country, non-sovereign areas
areas like Antarctica or
like Antarctica or outer
outer

space, and
space, and the
the U.S.
U.S. Territories of the
Territories of the Northern Mariana Islands
Northern Mariana Islands (“NMI”)
("NMI") and
and

11 The
The required
required short
short appendix is cited
appendix is cited herein as "Short
herein as “Short App."
App.”
Case: 16-4240 Document: 27 RESTRICTED Filed: 04/12/2017 Pages: 146

American Samoa.
American Samoa. But
But former state citizens
former state citizens who
who move
move to other Territories
to other Territories like
like

Guam,
Guam, Puerto
Puerto Rico, or the
Rico, or the U.S. Virgin Islands
U.S. Virgin Islands (“USVI”)
("USW") are
are excluded
excluded from
from

this otherwise global
this otherwise global extension of voting
extension of voting rights.
rights.

These
These exclusionary
exclusionary provisions
provisions deprive
deprive plaintiffs of the
plaintiffs of ability to
the ability continue
to continue

voting for
voting for President and voting
President and voting representation in Congress.
representation in Congress. Under
Under any
any

standard of
standard of review,
review, UOCAVA
UOCAVA and MOVE are
and MOVE are unconstitutional
unconstitutional to
to the
the extent
extent

that
that they
they treat
treat plaintiffs
plaintiffs differently
differently from other former
from other state residents
former state residents who
who

have
have moved
moved outside
outside the fifty states.
the fifty states. No legislative justification
No legislative justification has
has ever been
ever been

provided for the
provided for the laws’
laws' exclusion;
exclusion; the laws simply
the laws simply discriminate among former
discriminate among former

state residents
state residents for
for no
no plausible
plausible reason
reason and
and are
are therefore
therefore arbitrary
arbitrary and
and

irrational. Even
irrational. if the
Even if classifications could
the classifications could survive
survive rational-basis
rational-basis review –
review —

and
and they cannot —
they cannot – they
they indisputably
indisputably fail
fail to
to satisfy
satisfy heightened scrutiny, which
heightened scrutiny, which

should apply
should apply because
because the
the discriminatory classifications selectively
discriminatory classifications selectively distribute
distribute

voting rights
voting among similarly
rights among similarly situated
situated persons
persons and
and disadvantage
disadvantage a
a politically
politically

powerless suspect class.
powerless suspect class.

The
The district court’s contrary
district court's contrary ruling
ruling was
was erroneous. In rejecting
erroneous. In rejecting heightened
heightened

review of the
review of the laws,
laws, the
the district court rested
district court on an
rested on an unprecedented
unprecedented expansion of
expansion of

the
the Insular Cases –
Insular Cases — relics of the
relics of the Plessy
Plessy era – to
era — to conclude
conclude that
that the
the right
right to vote
to vote

is not
is not a “fundamental right”
a "fundamental for citizens
right" for citizens residing
residing in
in the
the Territories. And
Territories. And

despite
despite the
the fact
fact that
that the
the federal
federal and
and state
state governments
governments have
have taken
taken it
it upon
upon

themselves to expand
themselves to voting rights
expand voting rights to certain territorial
to certain territorial residents,
residents, the
the district
district

court suggested
court suggested that
that these
these rights should not
rights should be deemed
not be deemed fundamental in the
fundamental in the

2
2
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absence of directly
absence of controlling precedent
directly controlling – reasoning
precedent — reasoning that
that presumably would
presumably would

preclude
preclude the
the judicial
judicial recognition of fundamental
recognition of fundamental individual
individual rights in most
rights in most

circumstances.
circumstances.

Defaulting
Defaulting to
to rational-basis
rational-basis review,
review, the
the district court upheld
district court upheld UOCAVA’s
UOCAVA's

and MOVE’s disparate
and MOVE's disparate treatment of citizens
treatment of citizens outside
outside the fifty states
the fifty states on
on the
the

basis of
basis of illusory
illusory justifications
justifications proffered by the
proffered by the defendants below. But
defendants below. But

defendants’
defendants' justifications were all
justifications were all tantamount
tantamount to
to an
an argument
argument that
that federal
federal

and state governments
and state governments can
can treat
treat Territories
Territories differently because they
differently because they are
are

different – an
different — an argument that would
argument that would treat
treat discrimination as an
discrimination as an end
end in itself,
in itself,

contrary to
contrary to the very notion
the very of equal
notion of equal protection
protection under
under the
the law. Moreover, the
law. Moreover, the

exclusionary
exclusionary lines
lines drawn by UOCAVA
drawn by UOCAVA and
and MOVE
MOVE do
do not
not rationally advance
rationally advance

any of the
any of interests identified
the interests by defendants
identified by below because
defendants below because they bear no
they bear no

relationship
relationship to
to the
the qualities
qualities that
that defendants
defendants highlighted
highlighted as
as important
important

features
features of
of the
the Territories’ ostensibly unique
Territories' ostensibly status.
unique status.

This
This Court should reverse
Court should reverse the
the judgment of the
judgment of the district court and
district court and make
make

clear that
clear that the
the Constitution
Constitution does
does not
not permit
permit the
the division of voters
division of voters into
into favored
favored

and
and disfavored
disfavored groups
groups when
when there
there is
is no
no justification for such
justification for such disparate
disparate

treatment.
treatment.

Issues
Issues Presented
Presented

1. Whether
1. Whether the
the district court erred
district court when it
erred when it held that UOCAVA’s
held that UOCAVA's and
and

MOVE’s discriminatory
MOVE's discriminatory classifications between similarly
classifications between similarly situated voters in
situated voters in

the
the Territories
Territories advance
advance an identifiable government
an identifiable interest.
government interest.

3
3
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2. Whether the
2. Whether the district court erred
district court when it
erred when it relied on and
relied on and extended the
extended the

holdings of the
holdings of the Insular
Insular Cases to conclude
Cases to conclude that
that UOCAVA’s
UOCAVA's and MOVE’s
and MOVE's

discriminatory classifications between
discriminatory classifications between similarly
similarly situated
situated voters
voters in
in the
the

Territories
Territories are subject to
are subject to rational-basis
rational-basis review.
review.

3. Whether the
3. Whether the district court erred
district court when it
erred when it rejected
rejected plaintiffs’
plaintiffs' right-to-
right-to-

travel claim, which
travel claim, is predicated
which is on the
predicated on the fact
fact that
that UOCAVA and MOVE
UOCAVA and MOVE

penalize
penalize and
and deter interstate travel
deter interstate travel to certain disfavored
to certain disfavored Territories.
Territories.

4. Whether this
4. Whether this Court
Court has
has jurisdiction
jurisdiction where
where the
the district court resolved
district court resolved

all
all claims
claims and
and closed
closed the case.
the case.

Statement of
Statement the Case
of the Case

A.
A. The plaintiffs
The plaintiffs

Plaintiffs
Plaintiffs are six former
are six former residents of Illinois
residents of Illinois and
and two organizational
two organizational

plaintiffs with members
plaintiffs with members adversely
adversely affected by the
affected by laws at
the laws at issue.
issue. As
As the
the

district
district court
court recognized, “[t]he individual
recognized, "[t]he individual plaintiffs
plaintiffs all
all have
have distinguished
distinguished

careers serving
careers serving the
the United
United States
States in
in the
the armed forces and/or
armed forces and/or as
as public
public

servants.” (Short
servants." App. at
(Short App. at 4.).
4.).

Plaintiff
Plaintiff Luis
Luis Segovia
Segovia was born in
was born in Chicago in 1978
Chicago in 1978 and
and resided
resided there
there until
until

2010,
2010, when
when he became a
he became a resident of Guam.
resident of Guam. (R. Dkt. 49-2,
(R. Dkt. 49-2, ¶
¶ 1.)
1.) He
He is a
is a

decorated veteran with
decorated veteran with eighteen
eighteen months of service
months of service in Iraq and
in Iraq and two
two tours in
tours in

Afghanistan comprising
Afghanistan comprising twenty-two
twenty-two months of service,
months of service, including
including as
as a
a member
member

of the
of the Guam
Guam National
National Guard.
Guard. (R.
(R. Dkt.
Dkt. 49-2,
49-2, ¶¶
Ifif 2-5.) Mr. Segovia
2-5.) Mr. currently
Segovia currently

serves as
serves as a civilian police
a civilian officer for
police officer for the
the Navy in Guam.
Navy in Guam. (R. Dkt. 49-2,
(R. Dkt. 49-2, ¶
¶ 7.)
7.)

4
4
Case: 16-4240 Document: 27 RESTRICTED Filed: 04/12/2017 Pages: 146

Plaintiff Jose Antonio
Plaintiff Jose Antonio Torres
Torres resided in Chicago
resided in from 1982
Chicago from 1982 to 1993 when
to 1993 when

he
he returned
returned to
to his birthplace of
his birthplace of Puerto
Puerto Rico.
Rico. He is a
He is Vietnam-era veteran
a Vietnam-era veteran who
who

sustained injuries
sustained injuries during service and
during service and is
is a
a retired U.S. Postal
retired U.S. Postal Service
Service

employee.
employee. (R.
(R. Dkt.
Dkt. 49-3,
49-3, ¶¶ 1-3.)
Ifif 1-3.)

Plaintiff
Plaintiff Pamela
Pamela Lynn
Lynn Colon was born
Colon was born in
in Chicago
Chicago in 1959 and
in 1959 and resided
resided

there
there until she moved
until she to the
moved to the USVI
USVI in 1992, where
in 1992, she currently
where she currently resides
resides and
and

practices
practices as
as a
a private
private criminal
criminal defense
defense attorney
attorney after
after years of service
years of service as
as a
a

Federal
Federal Public Defender. (R.
Public Defender. (R. Dkt.
Dkt. 49-4,
49-4, ¶¶ 1-2.)
Ifif 1-2.)

Plaintiff
Plaintiff Tomas Ares resided
Tomas Ares in Chicago
resided in from 1967
Chicago from 1967 to
to 2007 and then
2007 and then

returned
returned to
to his birthplace of
his birthplace of Puerto
Puerto Rico.
Rico. He is a
He is a Vietnam-era
Vietnam-era veteran
veteran and
and

son of
son of a
a U.S. Army Infantry
U.S. Army Infantry member.
member. (R. Dkt. 49-5,
(R. Dkt. 49-5, ¶¶ 1-2.)
Ifif 1-2.)

Plaintiff Anthony Bunten
Plaintiff Anthony was born
Bunten was born in Moline, Illinois
in Moline, Illinois in 1976 and
in 1976 and resided
resided

there
there until 1997, when
until 1997, when he
he moved to Guam.
moved to Guam. He is a
He is a Navy veteran. (R.
Navy veteran. Dkt. 49-
(R. Dkt. 49-

6,
6, ¶¶ 1-2.)
Ifif 1-2.)

Plaintiff
Plaintiff Lavonne Wise resided
Lavonne Wise in Chicago
resided in from 2003
Chicago from 2003 to
to 2009 and now
2009 and now

resides in the
resides in the USVI.
USVI. (R. Dkt. 49-7,
(R. Dkt. 49-7, ¶¶
Ifif 1-2.)
1-2.)

All individual
All individual plaintiffs would prefer
plaintiffs would prefer to vote for
to vote President and
for President and have
have full
full

voting representation
voting in their
representation in their current
current place of residence,
place of but until
residence, but until that is
that is

possible
possible they
they desire
desire to vote by
to vote by absentee ballot in
absentee ballot in federal
federal elections
elections in
in Illinois,
Illinois,

their former state
their former state of
of residence.
residence. (R. Dkt. 49,
(R. Dkt. 49, ¶¶
Ifif 24-25,
24-25, 30-31,
30-31, 37,
37, 41-42,
41-42, 45-46,
45-46,

49-50;
49-50; R.
R. Dkt.
Dkt. 49-2,
49-2, ¶¶
Ifif 8-9;
8-9; R. Dkt. 49-3,
R. Dkt. 49-3, ¶¶
Ifif 4-5;
4-5; R. Dkt. 49-4,
R. Dkt. 49-4, ¶¶
Ifif 5-6;
5-6; R.
R. Dkt.
Dkt.

49-5,
49-5, ¶¶
Ifif 3-4;
3-4; R.
R. Dkt.
Dkt. 49-6,
49-6, ¶¶
Ifif 2-3;
2-3; R. Dkt. 49-7,
R. Dkt. 49-7, ¶¶
Ifif 2-3.) Despite distinguished
2-3.) Despite distinguished

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careers in
careers service to
in service to the
the United
United States
States and status as
and status as U.S. citizens, each
U.S. citizens, each

individual plaintiff
individual is deprived
plaintiff is of the
deprived of the right
right to vote for
to vote for President
President and voting
and voting

representation
representation in
in Congress by a
Congress by a classification
classification federal
federal and state law
and state law makes
makes

between former
between former residents of states
residents of states now living outside
now living outside the
the 50 states in
50 states in the
the

NMI, American Samoa,
NMI, American or a
Samoa, or foreign country,
a foreign country, who
who remain
remain able
able to vote by
to vote by

absentee ballot in
absentee ballot in Illinois,
Illinois, and
and those
those living
living in
in Puerto
Puerto Rico,
Rico, Guam, and the
Guam, and the

USVI, who are
USVI, who are denied any voting
denied any voting representation in the
representation in the federal
federal government.
government.

Plaintiffs
Plaintiffs Iraq Afghanistan and
Iraq Afghanistan and Persian
Persian Gulf Veterans of
Gulf Veterans of the
the Pacific
Pacific

(“IAPGVP”)
("IAPGVP") and
and League of Women
League of Women Voters
Voters of
of the Virgin Islands
the Virgin Islands (“LWV-VI”)
("LWV-W")

are organizations that
are organizations count among
that count among their
their members
members residents of Guam
residents of Guam and
and

the
the USVI who formerly
USVI who formerly resided in Illinois.
resided in Illinois. (R.
(R. Dkt.
Dkt. 49,
49, ¶¶
Ifif 8,
8, 52,
52, 58;
58; R.
R. Dkt.
Dkt.

49-9,
49-9, ¶ 1; R.
¶ 1; R. Dkt.
Dkt. 49-8,
49-8, ¶ 1.) IAPGVP
¶ 1.) works to
IAPGVP works improve the
to improve the quality of life
quality of life for
for

Persian
Persian Gulf, Iraq, and
Gulf, Iraq, and Afghanistan
Afghanistan veterans
veterans residing in Guam
residing in and other
Guam and other

Pacific islands. (R.
Pacific islands. (R. Dkt.
Dkt. 49-9,
49-9, ¶
¶ 2.)
2.) LWV-VI seeks to
LWV-VI seeks to promote
promote the
the political
political

empowerment of USVI
empowerment of USVI residents
residents to
to address
address hardships
hardships ranging from economic
ranging from economic

development to healthcare
development to healthcare to
to the
the environment in the
environment in the territory.
territory. (R.
(R. Dkt.
Dkt. 49-8,
49-8,


If 2.)
2.)

Both organizations believe
Both organizations believe that if former
that if former state
state residents
residents residing in Guam
residing in Guam

and
and the
the USVI
USVI enjoyed the same
enjoyed the same rights
rights as other former
as other former state
state residents
residents now
now

living overseas to
living overseas vote absentee
to vote absentee in
in federal
federal elections
elections in
in their
their former state of
former state of

residence,
residence, it would provide
it would provide new opportunities for
new opportunities for political
political engagement on the
engagement on the

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issues and
issues and causes
causes that these organizations
that these organizations promote in Guam
promote in Guam and the USVI.
and the USVI.

(R. Dkt. 49,
(R. Dkt. 49, ¶¶
Ifif 55,
55, 59-60;
59-60; R.
R. Dkt.
Dkt. 49-9,
49-9, ¶
¶ 4;
4; R.
R. Dkt.
Dkt. 49-8,
49-8, ¶
¶ 3.)
3.)

B.
B. Overseas
Overseas voting laws
voting laws

1.
1. The
The Uniformed
Uniformed and
and Overseas
Overseas Citizens Absentee Voting
Citizens Absentee Voting
Act
Act

Congress
Congress enacted
enacted UOCAVA
UOCAVA in 1986 to
in 1986 to reaffirm
reaffirm and
and further
further protect
protect the
the

right
right to vote for
to vote for U.S.
U.S. citizens living outside
citizens living outside the
the 50
50 states.
states. UOCAVA
UOCAVA extended
extended

absentee-voting
absentee-voting rights to U.S.
rights to U.S. citizens living overseas
citizens living overseas who
who would otherwise
would otherwise

be denied
be denied the
the right
right to vote for
to vote for President
President or
or to
to have voting representation
have voting representation in
in

Congress.
Congress. H.R.
H.R. Rep.
Rep. No.
No. 99-765, at 6-7
99-765, at 6-7 (1986),
(1986), reprinted
reprinted in 1986 U.S.C.C.A.N.
in 1986 U.S.C.C.A.N.

2009,
2009, 2010-11.
2010-11. In
In doing so, UOCAVA
doing so, built on
UOCAVA built on its
its predecessor statute, the
predecessor statute, the

Overseas
Overseas Citizens Voting Rights
Citizens Voting Rights Act
Act of
of 1975
1975 (“OCVRA”), which Congress
("OCVRA"), which Congress

enacted to remediate
enacted to remediate the “highly discriminatory”
the "highly discriminatory" practice in the
practice in the states
states that
that

protected
protected the
the right of military
right of military personnel
personnel and
and federal
federal employees
employees residing
residing

overseas to
overseas vote but
to vote but failed
failed to
to provide comparable protections
provide comparable to similarly
protections to similarly

situated "private
situated “private citizen[s].” See H.R.
citizen[s]." See H.R. Rep.
Rep. No.
No. 94-649,
94-649, pt. 1, at
pt. 1, 1, 3
at 1, 3 (1975),
(1975),

reprinted
reprinted in 1975 U.S.C.C.A.N.
in 1975 2358, 2359-60;
U.S.C.C.A.N. 2358, 2359-60; see
see also
also id. at 3,
id. at 1975
3, 1975

U.S.C.C.A.N.
U.S.C.C.A.N. at
at 2360
2360 (noting
(noting that the differential
that the differential treatment of private
treatment of private

citizens was
citizens was suspect
suspect under
under the
the equal
equal protection
protection clause).
clause).

UOCAVA
UOCAVA provides, in pertinent
provides, in pertinent part,
part, that “[e]ach State
that "[e]ach shall permit
State shall permit …
...

overseas voters
overseas voters to
to use
use absentee
absentee registration
registration procedures
procedures and
and to vote by
to vote by

absentee ballot in
absentee ballot in general, special, primary,
general, special, primary, and
and runoff
runoff elections
elections for
for Federal
Federal

office.” 52
office." 52 U.S.C. § 20302(a)(1).
U.S.C. § An "overseas
20302(a)(1). An “overseas voter"
voter” is
is defined
defined to
to include,
include, as
as

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relevant
relevant here, “a person
here, "a person who
who resides outside the
resides outside United States
the United States and
and (but
(but for
for

such residence)
such residence) would be qualified
would be qualified to vote in
to vote in the
the last
last place in which
place in which the
the

person was domiciled
person was before leaving
domiciled before leaving the
the United
United States.”
States." 52
52 U.S.C. §
U.S.C. §

20310(5)(C). The term
20310(5)(C). The “‘United States,’
term 'United where used
States,' where in the
used in territorial sense,
the territorial sense,

means
means the several States,
the several States, the District of
the District of Columbia,
Columbia, the
the Commonwealth
Commonwealth of
of

Puerto Rico, Guam,
Puerto Rico, Guam, the Virgin Islands,
the Virgin Islands, and American Samoa”
and American – but
Samoa" — but not the
not the

NMI. See 52
NMI. See U.S.C. §
52 U.S.C. § 20310(8). The effect
20310(8). The of this
effect of this language
language is
is to
to require states
require states

to
to provide for absentee
provide for voting by
absentee voting by former
former residents who move
residents who move to
to the
the NMI or to
NMI or to

another country —
another country – but
but it
it does
does not
not require states to
require states to provide similar rights
provide similar rights to
to

former
former residents
residents who
who move
move to
to Guam,
Guam, Puerto
Puerto Rico,
Rico, the
the USVI, or American
USVI, or American

Samoa.
Samoa.22

Congress
Congress never offered a
never offered a justification for UOCAVA’s
justification for UOCAVA's disparate
disparate treatment
treatment

of former
of former state
state citizens
citizens residing outside the
residing outside the 50 states.
50 states.

2.
2. The Military and
The Military and Overseas Voter Empowerment
Overseas Voter Act
Empowerment Act

In
In Illinois,
Illinois, UOCAVA’s
UOCAVA's requirements
requirements are implemented through
are implemented MOVE,
through MOVE,

which
which provides
provides that
that former
former Illinois citizens residing
Illinois citizens residing indefinitely “outside the
indefinitely "outside the

2
2 UOCAVA
UOCAVA vestsvests primary
primary responsibility
responsibility for
for enforcement
enforcement of of its
its
requirements
requirements in in a
a "Presidential
“Presidential designee.”
designee." 5252 U.S.C.
U.S.C. §§ 20301(a). The current
20301(a). The current
designee
designee is the Secretary of Defense, defendant James N. Mattis, see Exec.
is the Secretary of Defense, defendant James N. Mattis, see Exec.
Order
Order No. 12,642, 53
No. 12,642, 53 Fed. Reg. 21,975,
Fed. Reg. 21,975, 21,975
21,975 (June
(June 8, 1988), and
8, 1988), and the
the
Secretary’s
Secretary's authority
authority has been delegated
has been delegated toto defendant
defendant Federal Voting
Federal Voting
Assistance Program,
Assistance Program, ofof which
which defendant Matt Boehmer
defendant Matt Boehmer was was the
the director
director at
at
the
the time
time the
the action was commenced
action was commenced below
below and,
and, in
in that
that role,
role, had
had the
the authority
authority
to administer FVAP
to administer FVAP and
and carry
carry out
out its statutorily assigned
its statutorily assigned functions and
functions and
responsibilities. See Department
responsibilities. See Department of of Defense
Defense Instruction 1000.04 &
Instruction 1000.04 & Encl.
End. 3
3
(Sept. 13, 2012).
(Sept. 13, David Beirne
2012). David is now
Beirne is now the
the director of FVAP
director of FVAP butbut has
has not been
not been
substituted as
substituted as a
a party.
party.

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territorial limits of
territorial limits of the
the United
United States” can vote
States" can vote in federal elections
in federal in Illinois.
elections in Illinois.

10 Ill.
10 Ill. Comp.
Comp. Stat.
Stat. 5/20-2
5/20-2 to
to -2.2.
-2.2. The
The law
law defines
defines the “territorial limits
the "territorial of the
limits of the

United
United States”
States" as
as a state, the
a state, the District of Columbia,
District of Columbia, Puerto
Puerto Rico,
Rico, Guam,
Guam, and
and

the
the USVI.
USVI. 10
10 Ill.
Ill. Comp.
Comp. Stat.
Stat. 5/20-1(1). Accordingly, former
5/20-1(1). Accordingly, former Illinois
Illinois residents
residents

who
who presently
presently reside in the
reside in the NMI, American Samoa,
NMI, American or a
Samoa, or foreign country
a foreign country are
are

eligible for a
eligible for federal absentee
a federal absentee ballot
ballot in
in Illinois,
Illinois, while former Illinois
while former Illinois residents
residents

who
who presently
presently reside in Guam,
reside in Guam, Puerto
Puerto Rico, or the
Rico, or USVI are
the USVI are not.
not. Thus,
Thus,

MOVE is
MOVE is more
more expansive than UOCAVA
expansive than UOCAVA because
because it
it also allows former
also allows state
former state

residents living in
residents living in American
American Samoa
Samoa to
to vote
vote for
for President
President and voting
and voting

representation
representation in
in Congress, in addition
Congress, in addition to those living
to those in the
living in the NMI or a
NMI or a foreign
foreign

country.3
country.3

The
The Illinois
Illinois legislature offered no
legislature offered no justification
justification for its classification
for its classification in
in favor
favor

of former
of former Illinois
Illinois residents living in
residents living in American
American Samoa,
Samoa, the
the NMI, or a
NMI, or foreign
a foreign

country.
country.

The
The result of these
result of these federal
federal and state statutory
and state statutory provisions is that
provisions is former
that former

state residents
state residents living
living almost anywhere outside
almost anywhere outside the
the 50 states —
50 states – including
including

Territories like American
Territories like American Samoa
Samoa and
and the
the NMI – continue
NMI — continue to fully enjoy
to fully enjoy their
their

right
right to vote for
to vote for President
President and voting representation
and voting in Congress,
representation in while
Congress, while

3
3 Illinois
Illinois law charges state
law charges state "election
“election authorit[ies]” with the
authorit[ies]" with the
administration
administration of of MOVE.
MOVE. 10 10 Ill.
Ill. Comp.
Comp. Stat.
Stat. 5/20-2.2.
5/20-2.2. The
The non-federal
non-federal
defendants
defendants here
here are
are the
the Board
Board of of Election
Election Commissioners
Commissioners for for the
the City of
City of
Chicago, which is
Chicago, which is the
the election authority for
election authority for Chicago,
Chicago, and
and its
its Chairwoman,
Chairwoman,
Marisel A.
Marisel A. Hernandez;
Hernandez; and and Karen
Karen Kinney, who, in
Kinney, who, in her capacity as
her capacity as County
County
Clerk for Rock
Clerk for Rock Island
Island County,
County, is is the
the election
election authority
authority for
for that county. See
that county. 10
See 10
Ill
Ill Comp.
Comp. Stat.
Stat. 5/1-3(8),
5/1-3(8), 5/5-4,
5/5-4, 5/6-21,
5/6-21, 5/6-24.
5/6-24.

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former
former Illinois
Illinois residents
residents like
like plaintiffs – who
plaintiffs — who live
live in
in Guam,
Guam, Puerto
Puerto Rico,
Rico, and
and

the
the USVI – are
USVI — are denied this basic
denied this basic democratic
democratic participation.
participation.

C.
C. The proceedings
The below
proceedings below

Plaintiffs brought suit
Plaintiffs brought suit in the district
in the court to
district court to challenge
challenge the
the arbitrary
arbitrary

discrimination created by
discrimination created by UOCAVA
UOCAVA and MOVE, which
and MOVE, which bars
bars them from being
them from being

able to vote
able to vote for
for President or to
President or to have voting representation
have voting representation in
in Congress based
Congress based

on where
on where they
they live.
live. Plaintiffs
Plaintiffs asked
asked the
the court
court to
to require
require the
the defendants
defendants to
to

permit
permit them
them to vote absentee
to vote in future
absentee in future federal
federal elections in Illinois
elections in in
Illinois in

accordance with the
accordance with the equal-protection
equal-protection and
and due-process
due-process guarantees of the
guarantees of the Fifth
Fifth

and
and Fourteenth Amendments to
Fourteenth Amendments to the
the U.S.
U.S. Constitution.
Constitution.

1.
1. The August 23,
The August 23, 2016 summary-judgment order
2016 summary-judgment order

Plaintiffs
Plaintiffs and
and the
the federal
federal defendants
defendants filed cross-motions for
filed cross-motions for summary
summary

judgment and dismissal.
judgment and Although plaintiffs’
dismissal. Although plaintiffs' motion
motion was
was aimed
aimed at
at all
all

defendants, only the
defendants, only the federal
federal defendants
defendants responded.
responded. (R. Dkt. 42;
(R. Dkt. R. Dkt.
42; R. Dkt. 47;
47; R.
R.

Dkt.
Dkt. 50.)
50.) Seeking
Seeking to
to defend UOCAVA against
defend UOCAVA against plaintiffs’
plaintiffs' equal-protection
equal-protection

challenge, the
challenge, the federal
federal defendants speculated that
defendants speculated that there “appear to
there "appear be
to be

reasonable
reasonable grounds
grounds upon which Congress
upon which Congress could
could have
have decided
decided to
to treat
treat NMI
NMI

differently.”
differently." (R. Dkt. 51,
(R. Dkt. 51, at 10.) Nevertheless,
at 10.) Nevertheless, the federal defendants
the federal defendants

conceded that
conceded “the legislative
that "the legislative history is silent"
history is silent” on
on the
the reason for the
reason for the

challenged classification
challenged classification —
– and
and that
that the
the NMI’s
NMI's distinct status might
distinct status might not
not have
have

been a
been a deliberate choice at
deliberate choice at all.
all. (See
(See R.
R. Dkt.
Dkt. 51,
51, at
at 10.)
10.)

The
The district court granted
district court summary judgment
granted summary in favor
judgment in of the
favor of the federal
federal

defendants on plaintiffs’
defendants on plaintiffs' equal-protection claim. (Short
equal-protection claim. App. at
(Short App. at 42-43.)
42-43.) It
It held
held

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that
that the
the proper standard of
proper standard of review
review for
for plaintiff’s
plaintiffs equal-protection claim was
equal-protection claim was

rational basis rather
rational basis rather than
than heightened scrutiny. (Short
heightened scrutiny. App. at
(Short App. at 32,
32, 40.)
40.)

Relying on the
Relying on the Insular Cases, the
Insular Cases, court held
the court that citizens
held that citizens residing in the
residing in the

Territories
Territories do
do not
not have
have a fundamental right
a fundamental right to vote and
to vote and therefore
therefore the
the

classifications are
classifications are subject
subject to
to rational-basis
rational-basis review.
review. (Short App. at
(Short App. at 25-26.)
25-26.)

Applying that
Applying that standard,
standard, the
the court
court determined
determined that “NMI’s historical
that "NMI's historical

relationship
relationship with
with the
the United
United States”
States" and “unique political
and "unique status” as
political status" as a
a former
former

“Trust Territory”
"Trust Territory" provided
provided a
a rational basis for
rational basis for the classification. (Short
the classification. App.
(Short App.

at
at 32,
32, 40.)
40.) In
In particular,
particular, the court offered
the court offered that
that the
the NMI “was not
NMI "was yet a
not yet a United
United

States Territory” but
States Territory" but rather “more analogous
rather "more analogous to
to a
a foreign country” at
foreign country" the time
at the time

UOCAVA was enacted
UOCAVA was enacted (Short App. at
(Short App. at 35,
35, 38); the NMI
38); the NMI did
did not “receive[] a
not "receivel] a

non-voting
non-voting delegate
delegate in
in the
the House of Representatives"
House of Representatives” until
until 2008
2008 (Short App.
(Short App.

at
at 40);
40); and
and the
the NMI “retained nearly
NMI "retained nearly exclusive control over
exclusive control over immigration
immigration to
to

the
the Territory”
Territory" until
until 2008
2008 (Short App. at
(Short App. at 40).
40).

The
The district court, however,
district court, however, declined to address
declined to address plaintiffs’
plaintiffs' due-process
due-process

claim against
claim against the
the federal
federal defendants or any
defendants or any of
of plaintiffs’ claims against
plaintiffs' claims against the
the

non-federal
non-federal defendants.
defendants. (Short App. at
(Short App. at 42-43.)
42-43.)

2.
2. The
The October
October 28,
28, 2016 summary-judgment order
2016 summary-judgment order

Plaintiffs
Plaintiffs responded to the
responded to court’s August
the court's August 23,
23, 2016 order by
2016 order by moving
moving for
for

summary judgment
summary on each
judgment on of their
each of their remaining claims —
remaining claims – on
on their
their due-process
due-process

claim against
claim against the
the federal
federal and
and non-federal
non-federal defendants, based on
defendants, based on their
their right
right to
to

interstate travel,
interstate travel, and on their
and on their equal-protection claim against
equal-protection claim against the
the non-federal
non-federal

defendants.
defendants. (R. Dkt. 70.)
(R. Dkt. 70.)

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This
This time,
time, all
all defendants opposed summary
defendants opposed summary judgment, with the
judgment, with the federal
federal

defendants
defendants also cross-moving for
also cross-moving for summary
summary judgment.
judgment. (R.
(R. Dkt.
Dkt. 77.)
77.) The
The non-
non-

federal
federal defendants
defendants acknowledged that they
acknowledged that they were
were not aware whether
not aware whether the
the

Illinois
Illinois legislature offered a
legislature offered a justification for MOVE's
justification for MOVE’s distinct
distinct treatment of
treatment of

territorial
territorial residents but posited
residents but posited that
that the classification was
the classification was an
an attempt to
attempt to

track
track the
the OCVRA.
OCVRA. (See, R. Dkt.
e.g., R.
(See, e.g., Dkt. 74,
74, at
at 12.)
12.)

The
The district court granted
district court granted the
the federal
federal defendants’ cross-motion for
defendants' cross-motion for

summary judgment.
summary judgment. (Short App. at
(Short App. at 62.) It determined
62.) It determined that
that (1)
(1) the
the relevant
relevant

MOVE provisions
MOVE provisions must
must only
only pass
pass rational basis and
rational basis and (2) the classification
(2) the classification was
was

rationally
rationally related
related to
to the
the legitimate state interest
legitimate state interest of
of "synchronization
“synchronization of
of

Illinois MOVE with
Illinois MOVE with applicable federal overseas
applicable federal overseas and
and absentee voting laws,"
absentee voting laws,”

including the
including long-repealed OCVRA.
the long-repealed OCVRA. (Short App. at
(Short App. at 46,
46, 58.)
58.)

The court also
The court also rejected
rejected plaintiffs’ interstate-travel claim
plaintiffs' interstate-travel based on
claim based on its view
its view

that
that plaintiffs’
plaintiffs' inability
inability to vote was
to vote was caused by the
caused by “constitutional status
the "constitutional status of
of

Puerto Rico, Guam,
Puerto Rico, Guam, and
and the USVI,” rather
the USVI," than UOCAVA
rather than or MOVE,
UOCAVA or MOVE, without
without

reference
reference to
to the
the application of these
application of laws in
these laws in the
the NMI or American
NMI or American Samoa.
Samoa.

(Short App. at
(Short App. at 46,
46, 62.)
62.)

The
The district court entered
district court entered a
a final
final judgment
judgment in favor of
in favor of all
all defendants
defendants and
and

against
against plaintiffs and closed
plaintiffs and closed the case, evincing
the case, a belief
evincing a belief that
that the
the proceedings
proceedings

were completely resolved
were completely resolved against
against plaintiffs
plaintiffs and
and thus
thus providing
providing jurisdiction for
jurisdiction for

this
this appeal.
appeal. (Short App. at
(Short App. 63.)
at 63.)

This
This appeal
appeal follows.
follows.

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Summary
Summary of the Argument
of the Argument

This case presents
This case a question
presents a of first
question of first impression
impression that implicates bedrock
that implicates bedrock

constitutional guarantees:
constitutional guarantees: whether
whether the
the government
government may
may extend
extend absentee-
absentee-

voting rights
voting rights to
to former state residents
former state residents living overseas in
living overseas in certain Territories
certain Territories

while
while denying
denying those
those rights
rights to former state
to former state residents
residents living
living in other
in other

Territories.
Territories. UOCAVA
UOCAVA and MOVE have
and MOVE have the
the effect
effect of
of allowing
allowing former
former Illinois
Illinois

residents living in
residents living in the
the NMI or American
NMI or American Samoa
Samoa (or
(or a foreign country)
a foreign country) to
to

continue voting
continue voting for
for President
President and voting representation
and voting representation in
in Congress by
Congress by

absentee ballot, while
absentee ballot, while depriving former Illinois
depriving former Illinois residents
residents living
living in
in Guam,
Guam,

Puerto Rico, or
Puerto Rico, or the
the USVI
USVI from
from doing
doing the same. This
the same. This arbitrary
arbitrary allocation
allocation of
of

absentee-voting
absentee-voting rights violates equal
rights violates equal protection
protection under
under any level of
any level of scrutiny,
scrutiny,

even
even under
under rational-basis
rational-basis review.
review.

In
In addition
addition to
to erroneously concluding that
erroneously concluding the discriminatory
that the discriminatory

classifications in
classifications in UOCAVA
UOCAVA and MOVE satisfy
and MOVE satisfy rational-basis
rational-basis review,
review, the
the

district
district court
court also
also erred by concluding
erred by concluding that
that the
the relevant
relevant provisions
provisions are
are not
not

subject to
subject to heightened scrutiny. Improperly
heightened scrutiny. Improperly relying on the
relying on controversial
the controversial

Insular Cases –
Insular Cases which, as
— which, as the
the district
district court
court recognized,
recognized, are Plessy-era
are Plessy-era

decisions
decisions infused
infused with
with racial
racial prejudice that have
prejudice that been maligned
have been since they
maligned since they

were
were decided – the
decided — the district court concluded
district court concluded that
that for
for the
the 4
4 million
million citizens
citizens

living in the
living in the Territories,
Territories, the
the right to vote
right to vote is
is not “fundamental.” But
not "fundamental." But the
the

Insular Cases themselves
Insular Cases themselves never went as
never went as far.
far. Nor
Nor has
has any court previously
any court previously

applied
applied the
the Insular
Insular Cases to hold
Cases to hold that
that the
the right
right to vote is
to vote is never
never a
a

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“fundamental right”
"fundamental in the
right" in the Territories.
Territories. This
This Court should expressly
Court should expressly reject
reject the
the

district
district court’s
court's unwarranted
unwarranted extension of the
extension of the Insular
Insular Cases in this
Cases in case.
this case.

Viewing the
Viewing the classifications
classifications through
through the
the proper lens, the
proper lens, the Court should
Court should

apply
apply heightened scrutiny to
heightened scrutiny to the challenged provisions
the challenged provisions in UOCAVA and
in UOCAVA and

MOVE. Because
MOVE. UOCAVA and
Because UOCAVA and MOVE
MOVE extend
extend absentee-voting
absentee-voting rights
rights to
to

former
former Illinois
Illinois residents
residents living in some
living in some Territories
Territories (and
(and foreign countries)
foreign countries)

while
while denying such rights
denying such rights to
to former
former Illinois
Illinois residents living in
residents living in other
other

Territories,
Territories, the statutes selectively
the statutes selectively distribute
distribute the franchise to
the franchise similarly
to similarly

situated individuals
situated individuals and
and must survive heightened
must survive scrutiny. The
heightened scrutiny. The district
district

court’s conclusion
court's conclusion to the contrary
to the contrary —
– that
that heightened scrutiny never
heightened scrutiny never applies
applies to
to

the statutory extension
the statutory of voting
extension of voting rights
rights to
to new
new groups of individuals
groups of individuals who
who are
are

not constitutionally secured
not constitutionally secured such
such rights – is
rights — is a
a misapplication of equal-
misapplication of equal-

protection
protection jurisprudence. When Congress
jurisprudence. When or the
Congress or states extend
the states voting rights
extend voting rights

beyond the
beyond scope mandated
the scope by the
mandated by the Constitution
Constitution (as is the
(as is case here),
the case here), that
that

extension
extension must satisfy heightened
must satisfy scrutiny when
heightened scrutiny when it
it excludes some citizens
excludes some citizens

from voting, regardless
from voting, of whether
regardless of whether those voters would
those voters would have
have a
a constitutional
constitutional

right
right to vote absent
to vote absent that legislative action.
that legislative action.

Furthermore,
Furthermore, the
the classifications created by
classifications created by UOCAVA
UOCAVA and MOVE must
and MOVE must

satisfy heightened
satisfy scrutiny for
heightened scrutiny for the additional reason
the additional reason that they target
that they a
target a

suspect class
suspect class —
– residents of the
residents of the Territories who are
Territories who are uniquely
uniquely excluded
excluded and
and

isolated from
isolated from the
the political
political process. In rejecting
process. In rejecting this
this argument,
argument, the
the district
district

court improperly
court improperly found
found that
that the
the Territory
Territory Clause
Clause effectively
effectively gives
gives Congress
Congress

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carte blanche
carte blanche to violate the
to violate the Equal
Equal Protection
Protection Clause
Clause and
and that
that the states may
the states may

follow
follow Congress’s
Congress's lead. This conclusion
lead. This conclusion is
is not supported by
not supported by precedent.
precedent.

Finally,
Finally, the classifications created
the classifications created by
by UOCAVA
UOCAVA and MOVE fail
and MOVE fail for
for the
the

independent reason
independent reason that
that they violate plaintiffs’
they violate plaintiffs' right
right to
to travel by denying
travel by denying

them the right
them the right to vote absentee
to vote absentee in
in federal
federal elections in Illinois
elections in – with
Illinois — with the
the effect
effect

of penalizing
of penalizing and
and deterring
deterring interstate
interstate travel
travel to
to Guam,
Guam, Puerto
Puerto Rico,
Rico, and
and the
the

USVI.
USVI. The
The district
district court
court erred
erred in
in rejecting
rejecting this claim because
this claim because it
it failed
failed to
to

recognize that the
recognize that the right
right to
to travel
travel embraces
embraces the freedom to
the freedom travel from
to travel from a state
a state

(rather than merely
(rather than to a
merely to state) and
a state) and did
did not
not appreciate
appreciate that
that granting
granting plaintiffs
plaintiffs

relief would not
relief would not produce
produce inequalities in voting
inequalities in voting rights
rights among
among residents of the
residents of the

Territories
Territories that
that did
did not
not already
already exist.
exist. Because
Because the
the classifications
classifications in
in UOCAVA
UOCAVA

and MOVE cannot
and MOVE cannot come
come close
close to satisfying strict
to satisfying strict scrutiny,
scrutiny, they
they must be
must be

struck down
struck on this
down on this ground
ground as
as well.
well.

Standard of
Standard of Review
Review

This
This Court “review[s] a
Court "review[s] a district court’s grant
district court's of summary
grant of summary judgment
judgment de
de

novo, construing all
novo, construing all facts and reasonable
facts and inferences in
reasonable inferences in the light most
the light most

favorable
favorable to
to the
the non-moving
non-moving party.”
party." Ellis
Ellis v.
v. DHL
DHL Express
Express Inc. 633
(USA), 633
Inc. (USA),

F.3d
F.3d 522,
522, 525
525 (7th
(7th Cir.
Cir. 2011).
2011). The
The Court
Court decides for itself
decides for itself whether
whether it
it has
has

jurisdiction over the
jurisdiction over the appeal.
appeal. In
In re Chapman, 328
re Chapman, 328 F.3d
F.3d 903, 904 (7th
903, 904 (7th Cir.
Cir.

2003).
2003).

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Argument
Argument

I.
I. The District
The District Court Erred In
Court Erred In Holding That UOCAVA
Holding That And
UOCAVA And
MOVE’s Arbitrary Treatment
MOVE's Arbitrary Treatment Of
Of Former
Former State
State Residents
Residents
Survives Any Level
Survives Any Level of
of Scrutiny.
Scrutiny.

Regardless of the
Regardless of level of
the level scrutiny, UOCAVA
of scrutiny, UOCAVA and MOVE must
and MOVE must be
be

invalidated on
invalidated on equal-protection
equal-protection grounds because there
grounds because there is
is no
no identifiable
identifiable

governmental interest that
governmental interest is advanced
that is by the
advanced by the discriminatory
discriminatory treatment
treatment that
that

their
their terms impose. The
terms impose. The challenged
challenged distinctions
distinctions are wholly arbitrary
are wholly arbitrary and
and

inconsistent with
inconsistent with even
even the
the most
most deferential standard of
deferential standard of equal-protection
equal-protection

review.
review.

A statute
A statute satisfies
satisfies rational-basis
rational-basis review only if
review only if "a
“a rational
rational relationship
relationship

exists between the
exists between the disparity
disparity of
of treatment
treatment and some legitimate
and some legitimate governmental
governmental

purpose.”
purpose." Heller
Heller v. Doe, 509
v. Doe, 509 U.S.
U.S. 312,
312, 320
320 (1993). Although the
(1993). Although standard is
the standard is

deferential,
deferential, it “is not
it "is ‘toothless.’” Peoples
not 'toothless."' Peoples Rights
Rights Org.,
Org., Inc.
Inc. v.
v. City of
City of

Columbus, 152 F.3d
Columbus, 152 F.3d 522,
522, 532
532 (6th
(6th Cir. 1998) (quoting
Cir. 1998) (quoting Mathews
Mathews v. Lucas, 427
v. Lucas, 427

U.S.
U.S. 495,
495, 510
510 (1976)); see also
(1976)); see also Schweiker
Schweiker v. Wilson, 450
v. Wilson, 450 U.S.
U.S. 221,
221, 234
234 (1981).
(1981).

The
The Supreme
Supreme Court
Court has
has applied
applied rational-basis
rational-basis review
review to invalidate
to invalidate

statutes lacking
statutes lacking a
a plausible
plausible rational
rational explanation.
explanation. See, e.g., Romer
See, e.g., Romer v.
v. Evans,
Evans,

517 U.S. 620,
517 U.S. 620, 632
632 (1996)
(1996) (holding that statute
(holding that statute that
that barred
barred government action
government action

to
to protect
protect gays
gays and
and lesbians “lack[ed] a
lesbians "lack[ed] a rational
rational relationship
relationship to
to legitimate
legitimate

state interests");
state interests”); City
City of
of Cleburne,
Cleburne, Tex.
Tex. v.
v. Cleburne
Cleburne Living Ctr., 473
Living Ctr., U.S. 432,
473 U.S. 432,

448
448 (1985)
(1985) (striking
(striking down ordinance as
down ordinance as applied
applied to
to denial of a
denial of a special-use
special-use

permit
permit for
for the operation of
the operation of a
a group
group home for the
home for the intellectually
intellectually disabled where
disabled where

there
there was
was no “rational basis
no "rational basis for believing that
for believing that the
the [group
[group home]
home] would
would pose
pose

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any special threat
any special threat to
to the city’s legitimate
the city's interests”); U.S.
legitimate interests"); Dep’t of
U.S. Dep't of Agriculture
Agriculture

v. Moreno, 413
v. Moreno, 413 U.S.
U.S. 528,
528, 529,
529, 538
538 (1973)
(1973) (invalidating statute that
(invalidating statute that excluded
excluded

any
any household containing an
household containing an individual who was
individual who was unrelated
unrelated to
to any other
any other

household
household member
member from
from participating
participating in
in the
the food-stamp
food-stamp program and
program and

explaining
explaining that “the classification
that "the classification here
here …
... is
is not only 'imprecise,'
not only ‘imprecise,’ it is wholly
it is wholly

without
without any
any rational basis”). It
rational basis"). It is
is equally well established
equally well established that
that a statutory
a statutory

classification that
classification that has
has no
no justification is arbitrary,
justification is arbitrary, which
which violates
violates equal
equal

protection
protection under
under rational-basis
rational-basis scrutiny.
scrutiny. E.g.,
E.g., Frontiero
Frontiero v. Richardson, 411
v. Richardson, 411

U.S.
U.S. 677,
677, 683
683 (1973)
(1973) (acknowledging that "legislative
(acknowledging that “legislative classification[s]”
classification[s]" that
that

are “‘patently arbitrary’”
are "'patently cannot survive
arbitrary"' cannot survive even
even rational-basis
rational-basis review
review (citation
(citation

omitted)).
omitted)).

It was undisputed
It was below that
undisputed below that no
no justification
justification for
for the
the discrimination
discrimination

imposed by
imposed by UOCAVA
UOCAVA and MOVE has
and MOVE been provided
ever been
has ever by the
provided by the legislatures
legislatures

that
that enacted
enacted these
these laws.
laws. Nevertheless,
Nevertheless, the
the district
district court
court posited several
posited several

possible
possible explanations for the
explanations for the lines
lines drawn by these
drawn by laws between
these laws between overseas
overseas

voters. But
voters. But none of these
none of these explanations identifies any
explanations identifies any legitimate
legitimate government
government

interest that
interest is meaningfully
that is by the
advanced by
meaningfully advanced the discrimination at issue.
discrimination at issue.

A.
A. UOCAVA’s
UOCAVA's discriminatory
discriminatory provisions
provisions do
do not
not in
in any
any way
way
advance the federal
advance the federal government’s “unique” relationship
government's "unique" relationship
with the NMI.
with the NMI.

The
The district court concluded
district court concluded that several hypothetical
that several hypothetical rational bases
rational bases

supported UOCAVA’s
supported UOCAVA's different treatment of
different treatment of NMI
NMI residents,
residents, based on what
based on what

the
the district
district court
court characterized
characterized as
as the “unique relationship”
the "unique between the
relationship" between the NMI
NMI

and
and the
the federal
federal government.
government. (Short App. at
(Short App. at 35.)
35.) Specifically, the district
Specifically, the district court
court

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noted that (1)
noted that (1) the
the NMI “was not
NMI "was not yet
yet a
a United
United States
States Territory” and was
Territory" and was thus
thus

“more analogous
"more analogous to
to a foreign country"
a foreign country” at
at the
the time
time OCVRA
OCVRA and
and UOCAVA were
UOCAVA were

enacted
enacted (Short App. at
(Short App. at 35,
35, 38);
38); (2)
(2) the
the NMI
NMI did
did not “receive[] a
not "receivel] a non-voting
non-voting

delegate
delegate in
in the
the House of Representatives”
House of Representatives" until
until 2008
2008 (Short App. at
(Short App. at 40);
40); (3)
(3)

the
the NMI “retained nearly
NMI "retained nearly exclusive control over
exclusive control over immigration
immigration to
to the
the Territory”
Territory"

until
until 2008
2008 (Short App. at
(Short App. at 40);
40); and
and (4)
(4) placing
placing other
other former state citizens
former state citizens

residing in the
residing in the Territories
Territories on
on equal
equal footing
footing with similarly situated
with similarly situated

individuals in
individuals in the
the NMI would result
NMI would in a
result in a "'distinction
“‘distinction of
of questionable
questionable

fairness’” between territorial
fairness"' between territorial citizens
citizens in
in American
American Samoa,
Samoa, Guam,
Guam, Puerto
Puerto

Rico,
Rico, and
and the
the USVI
USVI who
who have
have previously
previously resided in a
resided in state and
a state and those
those who
who

have
have not
not (Short App. at
(Short App. at 41.).
41.). None of these
None of these justifications
justifications passes
passes muster.
muster.

As a
As a threshold
threshold matter,
matter, the
the general
general maintenance of "unique"
maintenance of “unique” treatment
treatment of
of

the
the NMI cannot, by
NMI cannot, by itself,
itself, constitute
constitute a
a legitimate
legitimate government interest.
government interest.

Otherwise,
Otherwise, the
the government could claim
government could claim an
an interest
interest in
in treating
treating a
a group of
group of

citizens differently
citizens differently as
as an end in
an end itself, thereby
in itself, thereby eviscerating
eviscerating equal-protection
equal-protection

principles, which demand
principles, which an extrinsic
demand an extrinsic justification
justification for
for discriminatory
discriminatory

treatment.
treatment. Cf. Frontiero, 411
Cf. Frontiero, 411 U.S.
U.S. at
at 683.
683. On
On this
this ground
ground alone, the
alone, the

justifications offered by
justifications offered by the
the federal
federal defendants
defendants and
and accepted by the
accepted by the district
district

court fail
court to identify
fail to any legitimate
identify any legitimate government
government interest.
interest.

Even if it
Even if it were
were otherwise,
otherwise, the
the list of possible
list of possible explanations
explanations embraced by
embraced by

the
the district
district court
court would still fail
would still fail rational-basis
rational-basis review
review because
because none of these
none of these

ostensible interests
ostensible is plausibly
interests is plausibly advanced by extending
advanced by extending absentee voting rights
absentee voting rights

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to former state
to former state citizens
citizens residing
residing in
in the
the NMI
NMI while
while withholding
withholding it
it from
from

similarly situated
similarly situated individuals
individuals residing in other
residing in other Territories.
Territories. See, e.g., Moreno,
See, e.g., Moreno,

413 U.S. at
413 U.S. at 537
537 (striking
(striking down statute under
down statute under rational-basis
rational-basis review where
review where

challenged classification
challenged classification "simply
“simply [did]
[did] not operate so
not operate so as
as rationally
rationally to
to further”
further"

an asserted government
an asserted interest). Indeed,
government interest). Indeed, neither
neither the
the federal
federal defendants
defendants nor
nor

the
the district
district court
court provided
provided any
any explanation of how
explanation of how these interests would
these interests be
would be

advanced, and
advanced, and none is apparent.
none is apparent.

First,
First, UOCAVA’s
UOCAVA's discriminatory
discriminatory provision
provision does
does not advance the
not advance the NMI’s
NMI's

purported status as
purported status as a
a non-Territory
non-Territory (and
(and never
never did).
did). The
The NMI is a
NMI is Territory
a Territory

and
and has been for
has been over thirty
for over thirty years. To the
years. To the extent
extent UOCAVA’s
UOCAVA's provisions were
provisions were

once in
once in alignment with the
alignment with the NMI’s
NMI's formal status, they
formal status, they are
are no longer and
no longer and have
have

not been for
not been for decades.
decades.

In
In truth,
truth, UOCAVA’s
UOCAVA's provisions
provisions were
were not
not in
in alignment with the
alignment with the NMI’s
NMI's

status even
status even at
at the
the time of their
time of their enactment
enactment in August 1986.
in August 1986. By
By that
that time,
time, the
the

NMI was at
NMI was at the
the very
very end of its
end of its ten-year
ten-year transition
transition to
to territorial status, which
territorial status, which

was
was a
a fait
fait accompli. A commission
accompli. A commission comprising officials from
comprising officials from the
the NMI and the
NMI and the

federal
federal government
government negotiated
negotiated the
the Covenant
Covenant to
to Establish a Commonwealth
Establish a of
Commonwealth of

the
the Northern Mariana Islands
Northern Mariana in Political
Islands in Political Union
Union with
with the
the United
United States of
States of

America (“Covenant”)
America – which
("Covenant") — which would
would become the basis
become the basis for
for the Territory’s
the Territory's

government
government and
and relationship with the
relationship with the United
United States – from
States — April 1972
from April 1972 to
to

February 1975. Welcoming
February 1975. America’s Newest
Welcoming America's Newest Commonwealth:
Commonwealth: The
The Second
Second

Interim
Interim Report of the
Report of the Northern
Northern Mariana
Mariana Islands
Islands Commission on Federal
Commission on Federal laws
laws

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to
to the
the Congress of the
Congress of the United States, at
United States, at 11-12
11-12 (1985)
(1985) (“Commission
("Commission Report”).
Report").

That
That Covenant was approved
Covenant was approved by
by a
a joint
joint resolution of Congress
resolution of and signed
Congress and signed by
by

President
President Ford
Ford in March 1976.
in March 1976. Id. at 12.
Id. at 12. The 1976 enactment
The 1976 enactment gave force to
gave force to

substantial portions
substantial of the
portions of the Covenant,
Covenant, and
and a subsequent presidential
a subsequent presidential

proclamation in 1978
proclamation in 1978 gave
gave effect
effect to
to additional
additional provisions of the
provisions of the Covenant.
Covenant. Id.
Id.

at
at 12.
12.

Although full
Although formal effect
full formal effect was
was not
not given
given to
to the
the Covenant
Covenant until
until its
its final
final

implementation in
implementation in 1986,
1986, just
just a few months
a few after UOCAVA's
months after UOCAVA’s enactment,
enactment, that
that

final step was
final step simply the
was simply capstone to
the capstone a decade-long
to a decade-long transition
transition period
period to
to

territorial status. See
territorial status. See id.;
id.; United
United States ex rel.
States ex rel. Richards
Richards v. De Leon
v. De Leon Guerrero,
Guerrero,

4
4 F.3d
F.3d 749,
749, 751
751 (9th
(9th Cir.
Cir. 1993).
1993). Indeed,
Indeed, persons born in
persons born in the
the NMI
NMI have been
have been

U.S.
U.S. citizens
citizens at birth since
at birth 1978. Sabangan
since 1978. Sabangan v. Powell, 375
v. Powell, 375 F.3d
F.3d 818,
818, 819
819 (9th
(9th

Cir.
Cir. 2004).
2004). Given
Given the
the NMI’s status in
NMI's status in 1986,
1986, it
it does
does not
not make sense to
make sense to infer
infer an
an

intention in
intention UOCAVA to
in UOCAVA to perpetuate
perpetuate the
the treatment of the
treatment of the NMI as something
NMI as something

akin
akin to a foreign
to a country at
foreign country at the same time
the same time the
the NMI was completing
NMI was completing its
its final
final

transition
transition to
to full
full territorial status.
territorial status.

Second, UOCAVA’s discriminatory
Second, UOCAVA's discriminatory provision
provision does
does not
not advance
advance the
the

purported
purported government
government interest in declining
interest in declining to
to give
give the
the NMI
NMI a
a non-voting
non-voting

congressional delegate
congressional delegate until
until 2008. Indeed, if
2008. Indeed, if these two issues
these two were related,
issues were related,

the
the expectation would be
expectation would be that
that Congress
Congress would
would have
have amended
amended UOCAVA
UOCAVA at
at

the
the time
time the
the non-voting
non-voting delegate was assigned
delegate was in 2008
assigned in 2008 to
to eliminate overseas
eliminate overseas

voting rights
voting for former
rights for former state
state citizens
citizens residing in the
residing in the NMI, but Congress
NMI, but Congress

20
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chose not
chose not to
to do so. And
do so. And that choice appears
that choice appears to
to have been deliberate;
have been deliberate; Congress
Congress

has
has expressly considered —
expressly considered – but
but repeatedly
repeatedly declined
declined to
to enact – legislation
enact — legislation that
that

would
would have
have amended
amended UOCAVA in precisely
UOCAVA in precisely this
this fashion. See H.R.
fashion. See H.R. 3576,
3576,

113th Cong.
113th § 105
Cong. § 105 (2013);
(2013); H.R.
H.R. 5799, 112th Cong.
5799, 112th § 906
Cong. § 906 (2012).
(2012). Today, former
Today, former

state residents
state residents living in the
living in the NMI
NMI have
have the
the right
right to vote for
to vote for a
a non-voting
non-voting

delegate
delegate in
in the
the NMI
NMI and
and to vote absentee
to vote absentee for
for President
President and voting
and voting

representation
representation in
in Congress in their
Congress in their former state of
former state of residence.
residence.

Third, for similar
Third, for similar reasons, UOCAVA’s discriminatory
reasons, UOCAVA's discriminatory provision
provision also
also does
does

not
not advance
advance the
the purported
purported government
government interest in vesting
interest in vesting nearly
nearly exclusive
exclusive

control of
control of immigration
immigration in
in the
the NMI
NMI until
until 2008. This posited
2008. This posited interest
interest bears
bears no
no

apparent
apparent relationship
relationship to
to voting
voting rights,
rights, and
and history
history again
again negates
negates any
any

suggested relationship
suggested because immigration
relationship because immigration reform
reform was
was not
not accompanied by
accompanied by

any amendment of
any amendment of UOCAVA.
UOCAVA. Conceivably,
Conceivably, the
the provision of voting
provision of voting rights
rights to
to

former state citizens
former state citizens moving
moving to
to the
the NMI
NMI might promote migration
might promote migration to
to the
the

Territory, but this
Territory, but this result
result would
would (if
(if anything)
anything) undermine
undermine rather
rather than
than enhance
enhance

the
the NMI’s ability to
NMI's ability to regulate
regulate its own borders.
its own borders.

Fourth,
Fourth, the
the purported interest in
purported interest in avoiding a "distinction
avoiding a “distinction of
of questionable
questionable

fairness” between territorial
fairness" between territorial residents
residents who once resided
who once in a
resided in state and
a state and

territorial
territorial residents who have
residents who have not is unquestionably
not is unquestionably undermined by
undermined by

UOCAVA’s
UOCAVA's discriminatory
discriminatory provision,
provision, which
which expressly
expressly creates
creates that
that very
very

distinction among NMI
distinction among citizens. The
NMI citizens. fact that
The fact that Congress was willing
Congress was willing to
to create
create

and
and maintain such a
maintain such a distinction in the
distinction in the NMI in the
NMI in the first
first place conclusively
place conclusively

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refutes the notion
refutes the notion that this posited
that this posited legislative interest was
legislative interest implicated at
was implicated at all
all

by UOCAVA,
by UOCAVA, much
much less
less that it was
that it was advanced by the
advanced by the law’s
law's discriminatory
discriminatory

provisions.
provisions.

In short, UOCAVA’s
In short, UOCAVA's favored
favored treatment of former
treatment of state citizens
former state citizens living
living in
in

the
the NMI is arbitrary,
NMI is or, to
arbitrary, or, to the
the extent
extent it was intended
it was intended to serve some
to serve some

government
government interest, bears no
interest, bears no rational
rational relationship
relationship to
to advancing that
advancing that

interest. It
interest. It thus
thus fails
fails rational-basis
rational-basis review,
review, and
and the
the district court’s contrary
district court's contrary

holding was erroneous.
holding was erroneous.

B.
B. MOVE’s
MOVE's favored treatment of
favored treatment of former
former Illinois
Illinois citizens
citizens
residing
residing in American Samoa
in American Samoa and the NMI
and the NMI does
does not
not
advance
advance any legitimate state
any legitimate state interest.
interest.

The
The district court’s grounds
district court's grounds for
for upholding MOVE’s distinct
upholding MOVE's treatment of
distinct treatment of

former state citizens
former state citizens residing
residing in American Samoa
in American Samoa and
and the
the NMI
NMI are
are equally
equally

unavailing. The court
unavailing. The court held
held that MOVE advanced
that MOVE advanced a “legitimate state
a "legitimate state interest
interest

in staying
in staying abreast of federal
abreast of voting rights”
federal voting rights" in
in that it was
that it was modeled on the
modeled on the

OCVRA
OCVRA (Short App. at
(Short App. at 55),
55), and
and that
that Illinois “had a
Illinois "had a legitimate state interest
legitimate state interest

in treating
in American Samoa
treating American Samoa differently” because of
differently" because its unique
of its unique history
history and
and

status as
status as something “more like
something "more like a
a foreign country” (Short
foreign country" App. at
(Short App. at 56-57).
56-57).

Again, neither
Again, neither justification identifies a
justification identifies legitimate government
a legitimate interest that
government interest that is
is

advanced by the
advanced by the law’s
law's discriminatory
discriminatory provisions.
provisions.

First,
First, modeling
modeling a
a discriminatory
discriminatory federal law does
federal law does not
not advance
advance a legitimate
a legitimate

state interest
state interest because
because the
the federal
federal government cannot "authorizel]
government cannot “authorize[] the
the States
States

to violate the
to violate the Equal
Equal Protection
Protection Clause.”
Clause." Shapiro
Shapiro v. Thompson, 394
v. Thompson, 394 U.S.
U.S. 618,
618,

641
641 (1969), overruled on
(1969), overruled on other
other grounds,
grounds, Edelman
Edelman v. Jordan, 415
v. Jordan, 415 U.S.
U.S. 651,
651,

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670-71
670-71 (1974).
(1974). Because UOCAVA does
Because UOCAVA does not survive equal-protection
not survive scrutiny
equal-protection scrutiny

for the reasons
for the set forth
reasons set forth above,
above, neither
neither can MOVE survive
can MOVE survive on
on the
the theory
theory that
that

it merely
it merely intended
intended to
to model federal law.
model federal law.

In
In any
any event, MOVE does
event, MOVE not model
does not current federal
model current federal law. Indeed, MOVE
law. Indeed, MOVE

has been out
has been out of
of keeping
keeping with federal law
with federal since 1986
law since – when
1986 — UOCAVA
when UOCAVA

replaced
replaced the
the OCVRA
OCVRA provisions on which
provisions on MOVE was
which MOVE ostensibly modeled.
was ostensibly As
modeled. As

such, this
such, this proffered state interest
proffered state interest is
is actually undermined rather
actually undermined rather than
than

advanced by MOVE's
advanced by MOVE’s provisions.
provisions.

Second, American Samoa’s
Second, American Samoa's purportedly
purportedly unique status as
unique status something "more
as something “more

like a foreign
like a country” (Short
foreign country" App. at
(Short App. at 57)
57) also
also does
does not sustain MOVE's
not sustain MOVE’s

provisions. As with
provisions. As with the
the district court’s emphasis
district court's on the
emphasis on the NMI’s “unique
NMI's "unique

status,” this
status," this justification
justification amounts
amounts to
to little
little more than an
more than observation that
an observation the
that the

government
government desires
desires to
to treat American Samoa
treat American Samoa differently, which cannot
differently, which by
cannot by

itself justify
itself justify discriminatory
discriminatory treatment for the
treatment for the reasons set forth
reasons set forth above.
above.

Indeed,
Indeed, here the justification
here the justification has
has even
even less
less force
force because
because the federal
the federal

government
government no longer treats
no longer American Samoa
treats American Samoa differently from Guam,
differently from Guam, Puerto
Puerto

Rico,
Rico, and
and the
the USVI
USVI under
under UOCAVA,
UOCAVA, and
and no one has
no one suggested that
has suggested Illinois
that Illinois

has some state-specific
has some state-specific reason of its
reason of own to
its own to accord
accord unique
unique status. To the
status. To the

contrary, under
contrary, under the
the district court’s reasoning,
district court's reasoning, the
the federal
federal government’s
government's

authority
authority to treat Territories
to treat Territories differently
differently emanates
emanates from
from the
the Territory
Territory Clause,
Clause,

which vests no
which vests no power in the
power in the states to maintain
states to maintain discriminations
discriminations that
that the
the

federal
federal government
government has long abandoned.
has long abandoned.

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The
The district court nevertheless
district court nevertheless reasoned
reasoned that
that Illinois should be
Illinois should be permitted
permitted

to
to extend
extend the vote to
the vote American Samoa
to American Samoa (but
(but not
not the other Territories)
the other because
Territories) because

UOCAVA only sets
UOCAVA only sets a floor on
a floor on which
which the states are
the states are free
free to build in
to build in extending
extending

voting rights
voting rights to
to former state citizens
former state citizens residing
residing in other Territories.
in other Territories. (Short App.
(Short App.

at
at 57-58.)
57-58.) But
But this
this justification
justification presumes
presumes that states are
that states are free
free to
to arbitrarily
arbitrarily

build on
build on UOCAVA’s
UOCAVA's floor.
floor. For
For the
the reasons set forth
reasons set in this
forth in section, such
this section, such

arbitrary
arbitrary distinctions
distinctions do
do not
not accord with equal-protection
accord with equal-protection principles.
principles.

** * *

Because the discriminatory
Because the discriminatory classifications
classifications created by UOCAVA
created by UOCAVA and
and

MOVE cannot
MOVE cannot survive
survive even
even rational-basis
rational-basis review,
review, the
the Court should hold
Court should hold that
that

the statutes violate
the statutes violate equal
equal protection. The Court
protection. The should remedy
Court should remedy the
the equal-
equal-

protection violation by
protection violation by extending
extending the
the right
right to vote absentee
to vote absentee for
for President
President and
and

voting representation
voting in Congress
representation in Congress to former Illinois
to former Illinois residents living in
residents living in Guam,
Guam,

Puerto Rico, and
Puerto Rico, and the
the USVI
USVI (in
(in addition
addition to
to those
those residing in the
residing in the NMI,
NMI,

American Samoa,
American Samoa, and
and foreign
foreign countries).
countries).

The
The federal
federal defendants
defendants disputed
disputed the court’s authority
the court's authority to
to grant a remedy
grant a remedy

that
that would
would expand voting rights
expand voting rights rather
rather than
than strike
strike down
down the
the provision
provision

authorizing
authorizing former state citizens
former state citizens residing in the
residing in the NMI
NMI to vote, but
to vote, but this
this

argument
argument lacks support because
lacks support because a
a court's
court’s broad
broad powers
powers to fashion injunctive
to fashion injunctive

relief affords the
relief affords the authority
authority to
to do
do either.
either. See, e.g., Heckler
See, e.g., Heckler v. Mathews, 465
v. Mathews, 465

U.S.
U.S. 728,
728, 738
738 (1984)
(1984) (noting
(noting that
that a court "may
a court “may either
either declare
declare [the statute] a
[the statute] a

nullity
nullity and order that
and order its benefits
that its benefits not
not extend
extend to
to the class that
the class that the legislature
the legislature

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intended to
intended to benefit,
benefit, or
or it
it may
may extend
extend the coverage of
the coverage of the statute to
the statute to include
include

those who are
those who are aggrieved
aggrieved by
by the
the exclusion”)
exclusion") (quoting
(quoting Welsh
Welsh v.
v. United
United States,
States,

398 U.S. 333,
398 U.S. 333, 361
361 (1970)
(1970) (Harlan, J., concurring
(Harlan, J., concurring in
in result)). And "ordinarily
result)). And “ordinarily

‘extension,
`extension, rather than nullification,
rather than is the
nullification, is the proper course.’” Heckler,
proper course."' Heckler, 465
465 U.S.
U.S.

at
at 739
739 n.5
n.5 (citation omitted). That
(citation omitted). That is so here,
is so here, where
where Congress’s
Congress's stated
stated purpose
purpose

of expanding
of overseas voting
expanding overseas voting rights
rights to
to remedy what it
remedy what it saw
saw as
as an
an equal-
equal-

protection violation would
protection violation would be
be better
better advanced by an
advanced by an expansion
expansion rather
rather than
than

curtailment of
curtailment of those
those rights.
rights.

II.
II. The District
The District Court Erred By
Court Erred By Failing To Apply
Failing To Apply Heightened
Heightened
Scrutiny To The
Scrutiny To The Discriminatory
Discriminatory Classifications Drawn By
Classifications Drawn By
UOCAVA And MOVE.
UOCAVA And MOVE.

Even assuming that
Even assuming the classifications
that the classifications in
in UOCAVA
UOCAVA and MOVE are
and MOVE are

supported by
supported by a
a rational
rational basis – which
basis — they are
which they are not – the
not — inquiry should
the inquiry should not
not

end
end there.
there. The
The Court should conclude
Court should conclude that
that the statutes must
the statutes satisfy
must satisfy

heightened scrutiny to
heightened scrutiny survive an
to survive an equal-protection
equal-protection challenge.
challenge. Because
Because none of
none of

the
the defendants
defendants have claimed that
have claimed that UOCAVA
UOCAVA and MOVE satisfy
and MOVE satisfy heightened
heightened

scrutiny, the
scrutiny, the discriminatory
discriminatory classifications
classifications in both statutes
in both statutes should
should be
be struck
struck

down
down to the extent
to the extent that
that they
they prevent
prevent plaintiffs from voting
plaintiffs from voting by
by absentee ballot
absentee ballot

in Illinois.
in Illinois. The
The district court erred
district court in reaching
erred in contrary conclusions
reaching contrary conclusions on
on these
these

issues, and
issues, and its
its judgment should be
judgment should be reversed.
reversed.

A.
A. The district
The district court
court improperly
improperly expanded the Insular
expanded the Insular Cases
Cases
to hold that the right to vote is not “fundamental”
to hold that the right to vote is not "fundamental" for
for
citizens
citizens of the Territories.
of the Territories.

Until the August
Until the August 23
23 ruling below, no
ruling below, no court
court had
had ever
ever held
held that
that the
the Insular
Insular

Cases compel the
Cases compel conclusion that
the conclusion the right
that the right to vote is
to vote is not
not a “fundamental
a "fundamental

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right”
right" for
for the over 4
the over 4 million citizens living
million citizens in the
living in the Territories.
Territories. The
The district
district

court’s unprecedented
court's holding is
unprecedented holding is based
based on
on a
a misinterpretation of the
misinterpretation of the Insular
Insular

Cases, “a series
Cases, "a series of
of much-maligned cases handed
much-maligned cases handed down
down at
at the very beginning
the very beginning

of the
of the twentieth century.” Note,
twentieth century." Note, Guam
Guam and
and the
the Case
Case for
for Federal Deference,
Federal Deference,

Harv.
Harv. L.
L. Rev. 1704, 1704
Rev. 1704, 1704 (2017).
(2017). Despite its profound
Despite its profound misgivings
misgivings about
about the
the

Insular Cases, the
Insular Cases, court looked
the court looked to
to those
those discredited
discredited cases
cases with
with the
the mistaken
mistaken

view that
view that they offer "principles
they offer “principles that
that are
are generally
generally applicable
applicable to
to constitutional
constitutional

challenges involving
challenges involving territories.”
territories." (Short App. at
(Short App. at 30.)
30.) From
From this flawed
this flawed

premise, it concluded
premise, it concluded that
that the
the Insular Cases and
Insular Cases and their
their progeny
progeny imply
imply that
that

citizens residing
citizens in the
residing in the Territories cannot claim
Territories cannot claim protection
protection in
in the
the Supreme
Supreme

Court’s voting-rights cases
Court's voting-rights cases because
because they
they do
do not
not have a fundamental
have a fundamental right
right to
to

vote. (See,
vote. e.g., Short
(See, e.g., App. at
Short App. at 25-26
25-26 (citing
(citing Balzac
Balzac v. Rico, 258
Porto Rico,
v. Porto U.S. 298
258 U.S. 298

(1922));
(1922)); Short App. at
Short App. at 30-31
30-31 (applying framework of
(applying framework of Insular Cases for
Insular Cases for

determining
determining Congress’s
Congress's authority
authority to
to restrict
restrict rights
rights in
in the
the U.S.
U.S. Territories).)
Territories).)

This
This Court should reject
Court should reject this
this kind of far-reaching
kind of far-reaching application of the
application of the Insular
Insular

Cases to
Cases to withhold
withhold recognition of fundamental
recognition of fundamental rights in the
rights in the Territories,
Territories, as
as the
the

First
First Circuit
Circuit recently
recently did in another
did in context. See
another context. See In
In re
re Conde
Conde Vidal, 818 F.3d
Vidal, 818 F.3d

765,
765, 766-67
766-67 (1st
(1st Cir.
Cir. 2016)
2016) (granting
(granting petition for writ
petition for writ of
of mandamus
mandamus and
and

rejecting
rejecting district
district court’s
court's holding
holding that,
that, under the Insular
under the Insular Cases, the
Cases, the

fundamental
fundamental right
right to
to marry
marry established in Obergefell
established in Obergefell v. Hodges, 135
v. Hodges, 135 S.
S. Ct.
Ct.

2584
2584 (2015),
(2015), does
does not
not apply
apply to
to Puerto
Puerto Rico).
Rico).

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The
The district court’s reliance
district court's reliance on
on the
the Insular Cases was
Insular Cases was misplaced
misplaced for
for

several reasons.
several As an
reasons. As an initial
initial matter,
matter, the
the only
only reference
reference in
in the
the Insular
Insular Cases
Cases

to the exercise
to the of voting
exercise of voting rights
rights in
in the
the Territories was Justice
Territories was Justice Brown’s
Brown's

individual opinion
individual opinion in
in Downes
Downes v. Bidwell, in
v. Bidwell, which he
in which he posited
posited that suffrage is
that suffrage is

an “artificial or
an "artificial or remedial
remedial right[ ],” as
right[ ]," opposed to
as opposed one of
to one of the
the more
more fundamental
fundamental

“rights enforced
"rights enforced in
in the
the Constitution by prohibitions
Constitution by against interference
prohibitions against interference with
with

them.” 182 U.S.
them." 182 U.S. 244,
244, 282-83
282-83 (1901).
(1901). But Justice Brown’s
But Justice opinion failed
Brown's opinion failed to
to

attract
attract any other Justice’s
any other Justice's support.
support. See, L.S. Rowe,
e.g., L.S.
See, e.g., Rowe, The
The Supreme
Supreme Court
Court

and
and the
the Insular
Insular Cases, 18 Annals
Cases, 18 Annals Am.
Am. Acad.
Acad. Pol.
Pol. &
& Soc.
Soc. Sci.
Sci. 38,
38, 47
47 (1901)
(1901)

(“Mr. Justice Brown
("Mr. Justice Brown stands alone, the
stands alone, other eight
the other Justices being
eight Justices being equally
equally

divided.”). As a
divided."). As a result, Justice Brown’s
result, Justice view lacks
Brown's view any "controlling
lacks any “controlling force.”
force." See
See

King v.
King Palmer, 950
v. Palmer, 950 F.2d
F.2d 771,
771, 782
782 (D.C.
(D.C. Cir. 1991) (en
Cir. 1991) banc).
(en banc).

At a
At a more basic level,
more basic level, modern
modern jurisprudence
jurisprudence rejects Justice Brown’s
rejects Justice Brown's

premise.
premise. The
The Supreme
Supreme Court
Court has since recognized
has since recognized that “the right
that "the of suffrage
right of suffrage

is a
is a fundamental
fundamental matter in a
matter in a free and democratic
free and society” and
democratic society" “preservative
and "preservative

of other
of other basic
basic civil
civil and
and political
political rights.”
rights." Reynolds
Reynolds v. Sims, 377
v. Sims, 377 U.S.
U.S. 533,
533, 561-
561-

62
62 (1964). “No right
(1964). "No right is
is more
more precious in a
precious in a free
free country
country than
than that of having
that of having a
a

voice in
voice in the
the election of those
election of who make
those who the laws
make the laws under which, as
under which, as good
good

citizens, we
citizens, we must live. Other
must live. Other rights,
rights, even
even the
the most basic, are
most basic, are illusory if the
illusory if the

right
right to vote is
to vote is undermined.”
undermined." Wesberry
Wesberry v. Sanders, 376
v. Sanders, 376 U.S.
U.S. 1,
1, 17
17 (1964).
(1964). In
In

short, whatever
short, Justice Brown’s
whatever Justice views in
Brown's views 1901 were,
in 1901 were, the
the right
right to vote is
to vote is

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indisputably fundamental
indisputably fundamental now – both
now — both for
for citizens
citizens residing in the
residing in states and
the states and

those
those residing
residing in
in the
the Territories.
Territories.

The
The district court nevertheless
district court felt constrained
nevertheless felt constrained by
by the
the Insular
Insular Cases to
Cases to

conclude that
conclude that citizens
citizens in
in the Territories do
the Territories do not
not have
have a fundamental right
a fundamental right to
to

vote. It
vote. should not
It should not have. The Supreme
have. The Supreme Court’s
Court's most
most recent
recent guidance counsels
guidance counsels

a
a more
more restrained
restrained application of the
application of the Insular
Insular Cases.
Cases. See Boumediene v.
See Boumediene v. Bush,
Bush,

553 U.S. 723,
553 U.S. 723, 758
758 (2008)
(2008) (citing
(citing approvingly Justice Brennan’s
approvingly Justice concurring
Brennan's concurring

opinion in
opinion in Torres
Torres v. Rico, 442
Puerto Rico,
v. Puerto 442 U.S.
U.S. 465,
465, 475-76
475-76 (1979) that “‘[w]hatever
(1979) that lw]hatever

the validity of
the validity of the
the [Insular
[Insular Cases] in the
Cases] in the particular
particular historical context in
historical context in which
which

they
they were
were decided, those cases
decided, those cases are clearly not
are clearly not authority
authority for
for questioning
questioning the
the

application of the
application of the Fourth Amendment —
Fourth Amendment – or
or any other provision
any other of the
provision of the Bill of
Bill of

Rights – to
Rights — the Commonwealth
to the of Puerto
Commonwealth of Puerto Rico in the
Rico in the 1970’s’”);
1970's"'); see
see also
also Reid
Reid v.
v.

Covert, 354
Covert, U.S. 1,
354 U.S. 1, 14
14 (1957)
(1957) (plurality)
(plurality) (“[N]either
("[N]either the
the [Insular
[Insular C]ases
C]ases nor
nor

their
their reasoning should be
reasoning should be given
given any further expansion.”).
any further expansion.").

Such caution is
Such caution is particularly
particularly apt because the
apt because the Insular Cases are
Insular Cases inextricably
are inextricably

linked to the
linked to the racial
racial assumptions
assumptions that
that animated
animated the
the long-discredited
long-discredited decision
decision

in Plessy
in Plessy v. Ferguson and
v. Ferguson and the
the era of Manifest
era of Manifest Destiny – and
Destiny — and should
should not be
not be

extended
extended even
even an inch beyond
an inch beyond the
the decisions’ core holdings.
decisions' core holdings. See, Juan R.
e.g., Juan
See, e.g., R.

Torruella,
Torruella, The
The Insular
Insular Cases: A Declaration
Cases: A Declaration of
of Their
Their Bankruptcy
Bankruptcy and
and My
My

Harvard in Reconsidering
Pronouncement, in
Harvard Pronouncement, Reconsidering the
the Insular Cases, 62
Insular Cases, 62 (Gerald
(Gerald L.
L.

Neuman
Neuman &
& Tomiko
Tomiko Brown-Nagin
Brown-Nagin eds.,
eds., 2015)
2015) (“[T]he
("[T]he Insular Cases represent
Insular Cases represent

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classic Plessy
classic Plessy v.
v. Ferguson legal doctrine
Ferguson legal doctrine …
... that should be
that should be totally
totally eradicated
eradicated

from
from present
present day constitutional reasoning.”).
day constitutional reasoning.").

Indeed,
Indeed, as
as the
the district
district court
court noted,
noted, the
the Insular Cases were
Insular Cases were motivated
motivated by
by

the view that
the view “the United
that "the United States’
States' possessions
possessions are ‘inhabited by
are 'inhabited by alien
alien races,
races,

differing
differing from
from us in religion,
us in customs, laws,
religion, customs, laws, methods
methods of
of taxation,
taxation, and
and modes
modes

of thought."'
of thought.’” (Short App. at
(Short App. at 20
20 (quoting
(quoting Downes
Downes v.
v. Bidwell, 182 U.S.
Bidwell, 182 U.S. 244,
244, 287
287

(1901)).)
(1901)).) In
In this
this sense,
sense, the
the Insular
Insular Cases “establish[ed] a
Cases "establish[ed] a race-based
race-based doctrine
doctrine

of 'separate
of ‘separate and
and unequal’ status for
unequal' status for residents of overseas
residents of overseas United
United States
States

Territories.”
Territories." (Short App. at
(Short App. at 20.) As the
20.) As the district
district court summed it
court summed it up,
up, the
the

“current voting
"current voting situation
situation in
in Puerto
Puerto Rico,
Rico, Guam,
Guam, and
and the
the U.S. Virgin Islands
U.S. Virgin Islands is
is

at
at least
least in
in part
part grounded on the
grounded on the Insular
Insular Cases,” which, in
Cases," which, in turn, are anchored
turn, are anchored

in "explicitly
in “explicitly racist views which
racist views ‘in today’s
which 'in world seem
today's world seem bizarre.’”
bizarre."' (Short App.
(Short App.

at
at 20-21
20-21 (citation omitted).)
(citation omitted).)

For all these
For all these reasons,
reasons, this
this Court
Court should
should reject the expansive
reject the expansive reading
reading

bestowed on
bestowed on the
the Insular
Insular Cases below to
Cases below to guide
guide resolution of the
resolution of issue raised
the issue raised

here. The Insular
here. The Cases do
Insular Cases do not
not answer and should
answer and should not
not even inform the
even inform the

questions
questions raised
raised in
in this case. The
this case. The right
right to vote is
to vote is a “fundamental right”
a "fundamental for all
right" for all

U.S.
U.S. citizens,
citizens, even those living
even those in the
living in the Territories.
Territories.

B.
B. The classifications
The classifications drawn by UOCAVA
drawn by UOCAVA andand MOVE
MOVE
selectively
selectively extend
extend absentee voting rights
absentee voting to similarly
rights to similarly
situated
situated citizens.
citizens.

When viewed
When viewed without
without the
the warped
warped lenses of the
lenses of the Insular Cases, it
Insular Cases, it is clear
is clear

that
that the
the classifications created by
classifications created by UOCAVA
UOCAVA and MOVE must
and MOVE be subject
must be subject to
to

heightened scrutiny because
heightened scrutiny because the statutes selectively
the statutes selectively distribute absentee-
distribute absentee-

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voting rights
voting rights to some former
to some state residents
former state residents living overseas while
living overseas while excluding
excluding

other similarly
other similarly situated
situated citizens.
citizens. The
The result is that
result is that the
the right to vote
right to vote for
for

President
President and voting representation
and voting in Congress
representation in Congress is
is protected for most
protected for most former
former

state residents
state residents living overseas, but
living overseas, but is
is selectively
selectively denied
denied to
to those
those few living in
few living in

certain disfavored
certain disfavored locations.
locations.

“[O]nce the
"[O]nce franchise is
the franchise is granted to the
granted to the electorate,
electorate, lines
lines may
may not
not be
be drawn
drawn

which
which are
are inconsistent
inconsistent with
with the
the Equal
Equal Protection
Protection Clause of the
Clause of the Fourteenth
Fourteenth

Amendment.” Harper
Amendment." Harper v.
v. Va.
Va. State
State Bd. Elections, 383
of Elections,
Bd. of U.S. 663,
383 U.S. 663, 665
665 (1966);
(1966);

see
see also
also McDonald
McDonald v. Bd. of
v. Bd. of Election
Election Comm’rs Chi., 394
of Chi.,
Comm'rs of 394 U.S.
U.S. 802,
802, 807
807

(1969)
(1969) (“[O]nce the States
("[O]nce the States grant
grant the
the franchise, they must
franchise, they must not
not do so in
do so in a
a

discriminatory
discriminatory manner.”);
manner."); Dunn
Dunn v. Blumstein, 405
v. Blumstein, 405 U.S.
U.S. 330,
330, 336
336 (1972)
(1972) (“In
("In

decision
decision after
after decision,
decision, this
this Court
Court has
has made clear that
made clear that a citizen has
a citizen has a
a

constitutionally protected
constitutionally protected right
right to
to participate
participate in
in elections on an
elections on an equal basis
equal basis

with other citizens
with other citizens in
in the
the jurisdiction.”).
jurisdiction."). When
When a statute "grants
a statute “grants the
the right
right to
to

vote to
vote some citizens
to some citizens and
and denies
denies the franchise to
the franchise to others,”
others," the
the government
government

must
must establish
establish that
that the “‘exclusions are
the 'exclusions are necessary
necessary to
to promote
promote a compelling
a compelling

interest.’” Dunn,
interest."' Dunn, 405 U.S. at
405 U.S. at 337.
337. In
In the line-drawing context,
the line-drawing context, the
the Supreme
Supreme

Court
Court has closely scrutinized
has closely scrutinized laws
laws that
that favor voters in
favor voters in one
one geographical
geographical area
area

over others,
over others, concluding
concluding that “neither homesite
that "neither homesite nor occupation 'affords
nor occupation ‘affords a
a

permissible basis for
permissible basis for distinguishing between qualified
distinguishing between voters within
qualified voters within the
the

State.’” Harper, 383
State."' Harper, 383 U.S. at 667
U.S. at 667 (citation omitted); see
(citation omitted); see also
also Evans
Evans v.
v.

Cornman, 398
Cornman, 398 U.S.
U.S. 419,
419, 426
426 (1970)
(1970) (holding that a
(holding that a "total
“total exclusion
exclusion from
from the
the

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franchise” of residents
franchise" of of a
residents of a federal
federal enclave
enclave in Maryland was
in Maryland was not
not justified
justified

where “residents of
where "residents of the
the [enclave]
[enclave] are
are just
just as interested in
as interested in and connected with
and connected with

electoral
electoral decisions
decisions …
... as
as are
are their
their neighbors who live
neighbors who off the
live off the enclave”).
enclave").

Notably,
Notably, these
these principles
principles apply
apply even in contexts
even in contexts involving
involving the
the

establishment of voting
establishment of voting rights
rights not contemplated by
not contemplated by the
the Constitution’s
Constitution's text.
text.

For
For example,
example, as
as the
the district
district court observed, the
court observed, the Constitution
Constitution does
does not
not

guarantee a personal
guarantee a personal right
right to vote for
to vote for President or Vice
President or Vice President,
President, instead
instead

committing this
committing this right
right to “‘Electors’ appointed
to "'Electors' by le]ach
appointed by ‘[e]ach State.’”
State."' (Short App. at
(Short App. at

14 (quoting
14 U.S. Const.
(quoting U.S. art. II,
Const. art. § 2,
II, § 2, and
and id. amend XII).)
id. amend XII).) Nevertheless,
Nevertheless,

“[w]hen the
"[w]hen state legislature
the state legislature vests
vests the
the right
right to vote for
to vote for President in its
President in its people,
people,

the
the right
right to
to vote
vote as
as the legislature has
the legislature has prescribed is fundamental."
prescribed is fundamental.” Bush
Bush v.
v.

Gore, 531
Gore, U.S. 98,
531 U.S. 104 (2000);
98, 104 (2000); see
see also, e.g., Lubin
also, e.g., Lubin v. Panish, 415
v. Panish, U.S. 709,
415 U.S. 709,

713
713 (1974)
(1974) (“[T]he
("[T]he Equal
Equal Protection
Protection Clause confers the
Clause confers substantive right
the substantive right to
to

participate on an
participate on an equal basis with
equal basis other qualified
with other voters whenever
qualified voters whenever the
the State
State

has adopted an
has adopted an electoral
electoral process
process for
for determining
determining who
who will
will represent
represent any
any

segment of
segment of the
the State’s
State's population.”). In other
population."). In other words,
words, equal
equal protection
protection applies
applies

to “‘more than
to "'more than the
the initial of the
allocation of
initial allocation the franchise’”; it also
franchise"; it also applies “‘to the
applies "to the

manner of its
manner of its exercise."'
exercise.’” Mich.
Mich. State A. Philip
State A. Philip Randolph
Randolph Inst.
Inst. v. Johnson, 833
v. Johnson, 833

F.3d
F.3d 656,
656, 662
662 (6th
(6th Cir.
Cir. 2016)
2016) (quoting
(quoting League of Women
League of Women Voters
Voters v.
v. Brunner,
Brunner,

548
548 F.3d
F.3d 463,
463, 477
477 (6th
(6th Cir.
Cir. 2008))
2008)) (emphases added). "'Having
(emphases added). “‘Having once
once granted
granted

the
the right
right to
to vote on equal
vote on equal terms,
terms, the
the State
State may
may not, by later
not, by later arbitrary and
arbitrary and

disparate
disparate treatment, value one
treatment, value one person’s
person's vote over that
vote over of another.’”
that of another."' Wright
Wright v.
v.

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North Carolina, 787
North Carolina, 787 F.3d
F.3d 256,
256, 259
259 (4th
(4th Cir.
Cir. 2015)
2015) (quoting Bush, 531
(quoting Bush, 531 U.S.
U.S. at
at

104-05); see
104-05); see also,
also, e.g.,
e.g., Davis
Davis v. Bandemer, 478
v. Bandemer, 478 U.S. 109, 124
U.S. 109, 124 (1986)
(1986)

(“[E]veryone
("[E]veryone ha[s]
ha[s] the
the right to vote
right to vote and
and to
to have
have his vote counted.").
his vote counted.”).

These
These precedents
precedents dictate
dictate the
the application of heightened
application of scrutiny to
heightened scrutiny the
to the

discriminatory
discriminatory provisions of UOCAVA
provisions of UOCAVA and MOVE. Once
and MOVE. Illinois and
Once Illinois and the
the

federal
federal government
government extended
extended the
the right
right to
to vote
vote to former state
to former state residents
residents living
living

outside the
outside the 50 states, they
50 states, they were
were barred from drawing
barred from lines "inconsistent
drawing lines “inconsistent with
with

the
the Equal
Equal Protection
Protection Clause.” Harper, 383
Clause." Harper, 383 U.S.
U.S. at
at 665.
665. But
But the
the classifications
classifications

in UOCAVA
in UOCAVA and MOVE take
and MOVE take just
just this step, extending
this step, extending the
the right
right to vote to
to vote to

former
former Illinois
Illinois citizens
citizens residing in foreign
residing in foreign countries
countries and
and certain Territories
certain Territories

(NMI
(NMI and,
and, under MOVE, American
under MOVE, American Samoa),
Samoa), while
while denying the same
denying the same right to
right to

former
former Illinois
Illinois citizens
citizens residing in other
residing in Territories (Guam,
other Territories (Guam, Puerto
Puerto Rico,
Rico, the
the

USVI
USVI and,
and, under UOCAVA, American
under UOCAVA, American Samoa).
Samoa). Because
Because UOCAVA
UOCAVA and
and

MOVE thus
MOVE “grant[] the
thus "grantl] the right
right to vote to
to vote to some
some citizens
citizens and
and den[y]
den[y] the
the

franchise to others,"
franchise to others,” this
this court “‘must determine
court 'must whether the
determine whether the exclusions
exclusions are
are

necessary to promote
necessary to promote a compelling state
a compelling state interest.’” Dunn, 405
interest."' Dunn, 405 U.S.
U.S. at
at 337
337

(citation omitted).
(citation omitted).

The
The district court’s contrary
district court's conclusion that
contrary conclusion that rational-basis
rational-basis review
review applies
applies

was
was erroneous.
erroneous. It began with
It began a basic
with a basic premise that is
premise that is not in dispute:
not in dispute: that the
that the

Constitution vests the
Constitution vests the right
right to vote for
to vote for President
President and Vice President
and Vice in state-
President in state-

appointed
appointed Electors
Electors and
and that
that the “‘People of
the 'People of the
the Several
Several States’” are to
States"' are choose
to choose

Senators and Representatives.
Senators and Representatives. (Short App. at
(Short App. 14-15, 24-35.)
at 14-15, 24-35.) From
From this
this

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premise it concluded
premise it concluded that, “to the
that, "to the extent
extent the
the Constitution implicitly confers
Constitution implicitly confers a
a

right
right to vote on
to vote on individuals,
individuals, as opposed to
as opposed to giving
giving the states the
the states ‘broad
the 'broad

authority
authority to
to regulate the conduct
regulate the conduct of
of elections, including federal
elections, including ones,’ …
federal ones,' ... that
that

right is conferred
right is conferred on citizens of
on citizens of a state.” (Short
a state." App. at
(Short App. at 24
24 (quoting
(quoting Griffin
Griffin v.
v.

Rouxts, 385
Roupas, 385 F.3d 1128, 1130
F.3d 1128, 1130 (7th
(7th Cir.
Cir. 2004)).)
2004)).)

But
But the court went
the court went astray when it
astray when it drew on these
drew on these principles
principles to conclude
to conclude

that
that the
the Constitution
Constitution implicitly
implicitly grants
grants the
the right
right to vote only
to vote only on
on citizens
citizens of
of

states and
states and that
that citizens
citizens residing
residing in
in the
the Territories never have
Territories never a fundamental
have a fundamental

right
right to vote. (Short
to vote. App. at
(Short App. at 25.)
25.) This conclusion does
This conclusion does not
not account
account for
for the
the fact
fact

that states can
that states can and
and do voting rights
expand voting
do expand beyond the
rights beyond the scope contemplated
scope contemplated

by the
by the Constitution’s text —
Constitution's text – and
and that
that equal-protection
equal-protection principles
principles apply
apply equally
equally

to those expanded
to those expanded rights.
rights. To
To take one example,
take one example, the
the district court’s logic
district court's logic would
would

allow
allow Congress
Congress to
to extend
extend the
the right to vote
right to vote to
to all former state
all former state residents
residents living
living

in a
in a foreign country with
foreign country with the
the exception of a
exception of single country
a single country targeted
targeted for
for

exclusion
exclusion (say,
(say, France), so long
France), so long as
as that
that exclusion
exclusion had a rational
had a basis for
rational basis for

disfavoring
disfavoring France,
France, even if that
even if that reason
reason had
had nothing to do
nothing to with absentee
do with absentee

voting rights
voting rights (say, because Congress
(say, because sought to
Congress sought to penalize
penalize France for its
France for its

inadequate spending
inadequate spending on
on defense).
defense). This
This analytical
analytical framework conflicts with
framework conflicts with

the
the express
express reasoning of the
reasoning of the Supreme
Supreme Court’s voting-rights jurisprudence,
Court's voting-rights jurisprudence, as
as

noted above.
noted above.

The
The district court thought
district court thought that
that more leniency is
more leniency is in
in order
order for
for laws
laws that
that

extend “‘the right
extend 'the right to vote to
to vote some non-residents.’”
to some non-residents."' (Short App. at
(Short App. at 26-27
26-27 (citing
(citing

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Snead
Snead v.
v. City Albuquerque, 663
of Albuquerque,
City of 663 F.
F. Supp. 1084, 1087
Supp. 1084, 1087 (D.N.M.
(D.N.M. 1987)).)
1987)).) But
But

Snead is unpersuasive.
Snead is As an
unpersuasive. As an initial
initial matter,
matter, that
that case involved the
case involved the extension
extension

of the
of the right
right to vote in
to vote in municipal
municipal elections
elections to
to non-residents
non-residents without
without regard to
regard to

whether
whether they
they had
had ever
ever previously
previously resided
resided in
in the
the municipality.
municipality. Here, by
Here, by

contrast, the
contrast, the laws
laws preserve
preserve the voting rights
the voting of bona
rights of bona fide
fide residents who move
residents who move

outside the
outside the 50 states —
50 states – unless
unless they
they move
move to
to disfavored
disfavored Territories. More
Territories. More

fundamentally,
fundamentally, Snead was wrongly
Snead was wrongly decided because the
decided because court anchored
the court its
anchored its

discussion in the
discussion in the faulty
faulty premise
premise that
that extending
extending the franchise to
the franchise to nonresidents
nonresidents

never implicates a
never implicates a constitutionally
constitutionally protected
protected right
right to vote. See
to vote. See Snead, 663 F.
Snead, 663 F.

Supp.
Supp. at 1087-88. But
at 1087-88. But the
the authority it cited
authority it cited for
for this
this proposition – the
proposition — the

Supreme
Supreme Court’s
Court's ruling in Holt
ruling in Holt Civic
Civic Club
Club v.
v. City Tuscaloosa, 439
of Tuscaloosa,
City of 439 U.S.
U.S. 60
60

(1978) – addressed
(1978) — addressed the
the altogether
altogether different
different question whether nonresidents
question whether nonresidents

can insist
can insist on
on a
a right
right to vote on
to vote on laws
laws in
in another
another municipality on the
municipality on the ground
ground

that
that the
the laws will have
laws will some impact
have some on them.
impact on them. The context here
The context – where
here — where the
the

government
government has
has already
already decided
decided to
to extend voting rights
extend voting but does
rights but so in
does so in an
an

arbitrary
arbitrary manner – is
manner — is much
much more
more akin
akin to
to the
the laws
laws that
that the
the Supreme
Supreme Court
Court

has struck down
has struck down in the voting-rights
in the voting-rights cases
cases cited above.
cited above.

The
The district court also
district court also offered
offered a slate of
a slate of additional
additional reasons in support
reasons in of its
support of its

conclusion, but
conclusion, but none is persuasive.
none is persuasive. First,
First, it sought to
it sought to distinguish
distinguish plaintiffs’
plaintiffs'

authorities
authorities as involving "residents
as involving “residents of
of a state.” (Short
a state." App. at
(Short App. at 27-28.)
27-28.) But
But the
the

Supreme
Supreme Court
Court nowhere
nowhere has signaled that
has signaled its reasoning
that its in cases
reasoning in cases like
like Dunn
Dunn

and Harper is
and Harper is limited only to
limited only to lines
lines drawn among voters
drawn among voters residing in states.
residing in states. If
If

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anything,
anything, the
the Supreme
Supreme Court’s formulation of
Court's formulation of the
the governing
governing rule is
rule is

categorical: "[O]nce
categorical: “[O]nce the
the franchise is granted
franchise is granted to the electorate,
to the lines may
electorate, lines may not
not

be drawn
be drawn which
which are inconsistent with
are inconsistent with the
the Equal
Equal Protection
Protection Clause of the
Clause of the

Fourteenth Amendment.” Harper,
Fourteenth Amendment." Harper, 383
383 U.S.
U.S. at
at 665;
665; accord
accord Obama
Obama for Am. v.
for Am. v.

Husted, 697
Husted, 697 F.3d
F.3d 423,
423, 428
428 (6th
(6th Cir.
Cir. 2012).
2012). This
This Court should apply
Court should apply that
that

generally
generally applicable
applicable rule
rule here
here and
and find
find that
that the classifications drawn
the classifications by
drawn by

UOCAVA
UOCAVA and MOVE are
and MOVE subject to
are subject to heightened scrutiny.
heightened scrutiny.

Second,
Second, the
the district court concluded
district court that rational
concluded that basis review
rational basis review was
was

appropriate
appropriate here in light
here in light of
of the
the rulings in a
rulings in a trilogy of First
trilogy of First Circuit cases
Circuit cases

(Igartúa)
(Igartaa) and
and another case in
another case in the
the Second
Second Circuit
Circuit (Romeu
(Romeu v. Cohen, 265
v. Cohen, 265 F.3d
F.3d

118 (2d
118 (2d Cir. 2001)) brought
Cir. 2001)) brought by
by pro se plaintiffs.
pro se plaintiffs. (Short App. at
(Short App. at 31.) As a
31.) As a

threshold
threshold matter,
matter, plaintiffs submit that
plaintiffs submit that the cases were
the cases were wrongly
wrongly decided for
decided for

the
the reasons set forth
reasons set in this
forth in brief. In
this brief. In particular,
particular, the
the decisions improperly
decisions improperly

concluded that
concluded that Congress’s
Congress's power
power under
under the Territory Clause
the Territory Clause and
and the lack of
the lack of

an
an express constitutional allocation
express constitutional of representation
allocation of representation to
to the Territories in
the Territories in the
the

Constitution
Constitution were
were dispositive.
dispositive. See
See Igartúa De La
Igartaa De La Rosa
Rosa v.
v. United States, 32
United States, 32

F.3d
F.3d 8,
8, 10
10 (1st
(1st Cir. 1994) (per
Cir. 1994) (per curiam); Romeu, 265
curiam); Romeu, 265 F.3d at 124-26.
F.3d at 124-26. In
In any
any

event,
event, Romeu, for its
Romeu, for its part,
part, left open the
left open the possibility
possibility that
that heightened
heightened scrutiny
scrutiny

should apply
should apply to
to UOCAVA’s classification (although
UOCAVA's classification (although it
it rejected
rejected the
the use of strict
use of strict

scrutiny). 265
scrutiny). 265 F.3d at 124.
F.3d at 124.

The claims in
The claims Igartaa and
in Igartúa Romeu, moreover,
and Romeu, moreover, involved
involved a
a different
different

distinction.
distinction. The
The plaintiffs in those
plaintiffs in those cases
cases challenged
challenged classifications between
classifications between

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former state residents
former state residents living in the
living in Territories, on
the Territories, on the one hand,
the one hand, and former
and former

state residents
state residents living in a
living in a foreign
foreign country, on the
country, on other. See
the other. Igartua, 32
See Igartúa, 32 F.3d
F.3d

at
at 10;
10; Igartúa De La
Igartua De La Rosa
Rosa v.
v. United States, 229
United States, 229 F.3d
F.3d 80,
80, 83
83 (1st
(1st Cir.
Cir. 2000);
2000);

Igartúa De La
Igartua De La Rosa
Rosa v.
v. United States, 417
United States, 417 F.3d 145, 148
F.3d 145, 148 (1st
(1st Cir.
Cir. 2005);
2005);

Romeu, 265
Romeu, 265 F.3d
F.3d at 124. Plaintiffs
at 124. Plaintiffs here
here focus on the
focus on line drawn
the line by UOCAVA
drawn by UOCAVA

and MOVE within
and MOVE the Territories
within the Territories themselves – i.e.,
themselves — i.e., between
between former
former Illinois
Illinois

residents living in
residents living in NMI and, under
NMI and, MOVE, American
under MOVE, American Samoa
Samoa (who continue to
(who continue to

be able
be able to
to vote
vote for
for President
President and
and voting
voting representation in Congress);
representation in and
Congress); and

former
former Illinois
Illinois residents
residents living in Guam,
living in Guam, Puerto
Puerto Rico,
Rico, the USVI, and,
the USVI, and, under
under

UOCAVA, American Samoa
UOCAVA, American Samoa (who
(who are
are denied
denied this
this democratic
democratic participation).
participation).

Consequently,
Consequently, the courts in
the courts in Igartúa and Romeu
Igartua and Romeu did
did not consider the
not consider the issues
issues

raised
raised here.
here.

Third,
Third, relying on Katzenbach
relying on Katzenbach v. Morgan, 384
v. Morgan, U.S. 641
384 U.S. 641 (1966),
(1966), the
the district
district

court concluded
court concluded that
that absentee-voting
absentee-voting rights
rights need
need not be extended
not be “across the
extended "across the

board to
board to all
all territories” simply because
territories" simply because they
they were
were extended
extended to
to former state
former state

residents in the
residents in the NMI
NMI and
and foreign
foreign countries.
countries. (Short App. at
(Short App. at 31-32.)
31-32.) But
But this
this

case is
case is essentially the opposite
essentially the opposite of
of the situation in
the situation in Katzenbach. There, the
Katzenbach. There, the

Supreme
Supreme Court considered a
Court considered challenge to
a challenge to a statute that
a statute that prohibited
prohibited denying
denying

the
the right
right to
to vote on the
vote on the ground of inability
ground of inability to
to read or write
read or write English when the
English when the

voter attended
voter attended an American-flag school
an American-flag school in
in Puerto
Puerto Rico.
Rico. 384 U.S. at
384 U.S. at 643.
643. The
The

plaintiffs argued that
plaintiffs argued the statute
that the statute violated
violated equal
equal protection because it
protection because it did
did not
not

extend
extend to cover voters
to cover voters "educated
“educated in
in schools
schools beyond
beyond the
the territorial
territorial limits of the
limits of the

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United
United States.” Id. at
States." Id. at 656.
656. The
The Court
Court rejected
rejected this
this argument.
argument. Noting
Noting that “a
that "a

‘statute is not
`statute is invalid under
not invalid under the
the Constitution because it
Constitution because it might
might have
have gone
gone

farther
farther than it did,’”
than it did,"' the
the Supreme
Supreme Court
Court emphasized
emphasized that several
that several

considerations could
considerations could have
have justified
justified the
the limited
limited extension of the
extension of statute to
the statute to

voters educated
voters educated in American-flag schools
in American-flag schools in Puerto Rico,
in Puerto including "the
Rico, including “the

unique
unique historic
historic relationship between the
relationship between the Congress
Congress and
and the
the Commonwealth of
Commonwealth of

Puerto Rico” and
Puerto Rico" “an awareness
and "an awareness of
of the
the Federal
Federal Government’s acceptance of
Government's acceptance of

the
the desirability
desirability of
of the
the use of Spanish
use of Spanish as
as the
the language of instruction
language of instruction in
in

Commonwealth
Commonwealth schools.” Id. at
schools." Id. at 657-58.
657-58.

In sharp contrast
In sharp contrast to
to the
the limited of voting
expansion of
limited expansion voting rights
rights in Katzenbach,
in Katzenbach,

UOCAVA
UOCAVA and MOVE operate
and MOVE operate as
as limited of a
exclusions of
limited exclusions a narrow
narrow group of
group of

disfavored citizens from
disfavored citizens from the
the right
right to vote. The
to vote. statutes effected
The statutes effected near-
near-

universal
universal expansion of absentee
expansion of absentee voting
voting rights to former
rights to state residents
former state residents living
living

outside the
outside the 50 states and
50 states and the District of
the District of Columbia – covering
Columbia — covering 99.99% of the
99.99% of the

land
land area outside the
area outside the 50 states and
50 states and the District of
the District of Columbia
Columbia (even outer
(even outer

space)4 —
space)4 – while
while singling
singling out
out for
for exclusion only those
exclusion only those disfavored citizens who
disfavored citizens who

live in Guam,
live in Puerto Rico,
Guam, Puerto the USVI,
Rico, the USVI, and,
and, under
under UOCAVA, American Samoa.
UOCAVA, American Samoa.

Not
Not only is this
only is this case
case far
far afield
afield from
from the
the narrow
narrow expansion of rights
expansion of in
rights in

Katzenbach, neither
Katzenbach, neither Congress
Congress nor Illinois can
nor Illinois can justify
justify the
the exclusion on account
exclusion on account

4
4 See R.
See Dkt. 58,
R. Dkt. 58, at 12 n.5.
at 12 n.5.

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of factors
of factors akin
akin to
to those
those that supported enactment
that supported of the
enactment of the measure
measure in
in

See 384
Katzenbach. See
Katzenbach. U.S. at
384 U.S. at 656-57.
656-57.55

For all these
For all these reasons,
reasons, the
the Court should conclude
Court should conclude that
that the
the discriminatory
discriminatory

classifications in
classifications in UOCAVA
UOCAVA and MOVE must
and MOVE be struck
must be struck down
down unless they can
unless they can

satisfy heightened
satisfy scrutiny.
heightened scrutiny.

C.
C. The classifications
The classifications in
in UOCAVA
UOCAVA andand MOVE
MOVE discriminate
discriminate
against
against aa suspect
suspect class
class that
that is
is uniquely
uniquely vulnerable
vulnerable to the
to the
political
political process.
process.

Heightened scrutiny also
Heightened scrutiny also applies because UOCAVA
applies because UOCAVA and MOVE disfavor
and MOVE disfavor

territorial
territorial residents who are
residents who are excluded
excluded from
from the
the political
political process
process and
and therefore
therefore

constitute a
constitute a suspect
suspect class.
class. The
The district
district court
court held otherwise, noting
held otherwise, noting that
that no
no

other court
other court had concluded that
had concluded that territorial
territorial residents constitute a
residents constitute suspect class
a suspect class

and concluding that
and concluding federal and
that federal state powers
and state powers under
under the
the Constitution
Constitution militate
militate

against
against recognition of suspect
recognition of suspect status.
status. This was error.
This was error.

The
The Supreme
Supreme Court
Court has
has long
long recognized that legislative
recognized that legislative action
action disfavoring
disfavoring

a
a politically
politically powerless class should
powerless class should be
be subject
subject to
to a “more searching
a "more searching judicial
judicial

inquiry.” United
inquiry." United States
States v.
v. Carolene
Carolene Prods. Co., 304
Prods. Co., U.S. 144,
304 U.S. 144, 152
152 n.4
n.4 (1938).
(1938).

“[L]egislation
"[L] which restricts
egislation which restricts those
those political
political processes
processes which
which can ordinarily be
can ordinarily be

expected
expected to bring about
to bring about repeal of undesirable
repeal of legislation,” including
undesirable legislation," including

5
5 McDonald
McDonald v. v. Board
Board of of Election
Election Commissioners
Commissioners of Chicago, 384
of Chicago, 384 U.S.
U.S. 641
641
(1966), cited by
(1966), cited by the
the federal
federal defendants below, is
defendants below, is inapposite
inapposite for
for the same
the same
reason because it
reason because it too
too involved
involved the
the expansion
expansion of of absentee
absentee ballot
ballot access for only
access for only
a
a limited class of
limited class of voter
voter who
who had
had difficulty
difficulty reaching the polls.
reaching the polls. The other case
The other case
cited by
cited by the
the district
district court
court inin support
support ofof this
this conclusion is inapposite
conclusion is inapposite because
because it
it
involved a
involved a challenge
challenge to to economic
economic regulation,
regulation, not
not the
the fundamental
fundamental right
right to
to
vote. See
vote. See Lamers
Lamers Dairy
Dairy Inc.
Inc. v.
v. U.S.
U.S. Dep’t
Dep't of Agriculture, 379
of Agriculture, 379 F.3d
F.3d 466,
466, 475
475
(7th
(7th Cir.
Cir. 2004)
2004) (cited
(cited inin Short App. at
Short App. at 32).
32).

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“restrictions upon
"restrictions the right
upon the right to vote,” is
to vote," suspect, as
is suspect, as is
is legislation
legislation manifesting
manifesting

“prejudice against
"prejudice against discrete and insular
discrete and insular minorities
minorities … which tends
... which seriously to
tends seriously to

curtail the
curtail operation of
the operation of those
those political
political processes ordinarily to
processes ordinarily be relied
to be relied upon
upon

to
to protect
protect minorities.”
minorities." Id.
Id.

Following
Following Carolene Products, the
Carolene Products, the Supreme
Supreme Court
Court has
has repeatedly
repeatedly treated
treated

classifications as
classifications as suspect
suspect where
where they burden groups
they burden groups that
that have “historically
have "historically

been 'relegated
been ‘relegated to such a
to such a position
position of
of political
political powerlessness
powerlessness as
as to command
to command

extraordinary
extraordinary protection from the
protection from the majoritarian
majoritarian political
political process.’”
process."' Plyler
Plyler v.
v.

Doe, 457
Doe, U.S. 202,
457 U.S. 216 n.14
202, 216 n.14 (1982)
(1982) (citation
(citation omitted).
omitted). Indeed, being relegated
Indeed, being relegated

to such a
to such a position is among
position is among "the
“the traditional
traditional indicia
indicia of
of suspectness."
suspectness.” San
San

Antonio Indep.
Antonio Indep. Sch. Dist. v.
Sch. Dist. Rodriguez, 411
v. Rodriguez, 411 U.S. 1, 28
U.S. 1, 28 (1973);
(1973); see, e.g.,
see, e.g.,

Frontiero, 411
Frontiero, 411 U.S.
U.S. at
at 686
686 n.17
n.17 (1973)
(1973) (plurality opinion) (noting
(plurality opinion) (noting that
that a
a group
group

that
that is
is numerically
numerically a
a majority
majority may be a
may be suspect class
a suspect class where
where past
past

discrimination
discrimination has
has effectively
effectively excluded it from
excluded it from democratic
democratic decisionmaking);
decisionmaking);

Graham
Graham v. Richardson, 403
v. Richardson, 403 U.S.
U.S. 365,
365, 372
372 (1971)
(1971) (“Aliens
("Aliens as a class
as a class are
are a
a

prime
prime example of a
example of ‘discrete and
a 'discrete insular’ minority….”).
and insular' minority....").

The challenged provisions
The challenged of UOCAVA
provisions of UOCAVA and
and MOVE
MOVE are
are classic
classic examples of
examples of

legislative
legislative action
action disfavoring
disfavoring politically
politically powerless
powerless groups
groups that
that have been
have been

subject to
subject to historical
historical discrimination. “Territories are
discrimination. "Territories are …
... uniquely
uniquely excluded
excluded

from
from the
the halls of federal
halls of federal power, with no
power, with no direct
direct representation
representation to their names.”
to their names."

Note,
Note, Territorial
Territorial Federalism, 130 Harv.
Federalism, 130 Harv. L.
L. Rev. 1632, 1644
Rev. 1632, 1644 n.90
n.90 (2017).
(2017). Like
Like

other U.S.
other U.S. citizens,
citizens, plaintiffs
plaintiffs and other residents
and other of these
residents of these Territories
Territories pay
pay

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most
most federal
federal taxes,
taxes, serve in the
serve in the military,
military, and
and are
are subject
subject to federal law.
to federal law. Yet
Yet

they
they have
have no voting representation
no voting in the
representation in the Congress
Congress that sets tax
that sets tax policy,
policy, nor
nor

any
any right to participate
right to in the
participate in the election of the
election of the President,
President, and by extension
and by extension no
no

power to influence
power to influence the
the appointment
appointment and
and confirmation of the
confirmation of the judges who
judges who

interpret federal
interpret federal law.
law. This circumstance has
This circumstance has led
led more
more than one commentator
than one commentator

to conclude that
to conclude it is
that it is at
at least
least arguable
arguable that “a more
that "a fitting example”
more fitting of the
example" of the

sort of
sort of "discrete
“discrete and
and insular
insular minority”
minority" discussed in Carolene
discussed in Carolene Products “other
Products "other

than U.S. territorial
than U.S. territorial residents
residents cannot be found."
cannot be found.” Arnold
Arnold J.
J. Janicker,
Janicker,

Extending
Extending the
the Federal
Federal Franchise
Franchise to
to the
the Commonwealth of Puerto
Commonwealth of Puerto Rico:
Rico:

Igartúa
Igartua de
de la
la Rosa
Rosa v.
v. United
United States,
States, 75
75 St. John’s L.
St. John's L. Rev.
Rev. 509,
509, 544
544 n.173
n.173

(2001);
(2001); Stanley
Stanley K.
K. Laughlin, Jr., The
Laughlin, Jr., The Constitutional
Constitutional Structure of the
Structure of the Courts
Courts of
of

the
the United
United States
States Territories:
Territories: the
the Case of American
Case of American Samoa, 13 U.
Samoa, 13 U. Haw. L.
Haw. L.

Rev.
Rev. 379,
379, 382
382 n.8
n.8 (1991)
(1991) (“Territorial
("Territorial residents
residents are
are discrete
discrete and insular
and insular

minorities
minorities in
in the
the most
most literal sense of
literal sense of the
the term.”).
term.").

This ongoing disenfranchisement
This ongoing of territorial
disenfranchisement of territorial residents
residents has
has enabled
enabled and
and

perpetuated long-standing discrimination
perpetuated long-standing discrimination that
that persists
persists to
to this
this day. As noted
day. As noted

above,
above, discriminatory
discriminatory treatment of territorial
treatment of territorial residents was historically
residents was historically

justified on expressly
justified on expressly racist
racist principles
principles as
as reflected in the
reflected in the Insular
Insular Cases.
Cases.

Today
Today more
more than
than 97
97 percent
percent of
of the
the residents of the
residents of the Territories
Territories are
are racial or
racial or

ethnic
ethnic minorities. See 2010
minorities. See U.S. Census,
2010 U.S. at https://www.census.gov/
available at
Census, available https://www.census.gov/

2010census/news/press-kits/island-areas/island-areas.html and
2010census/news/press-kits/island-areas/island-areas.html and

https://www.census.gov/quickfacts/table/PST045216/72. While legislation
https://www.census.gov/quickfacts/table/PST045216/72. While legislation

40
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affecting
affecting the
the Territories
Territories no
no longer
longer is
is justified in expressly
justified in expressly prejudicial
prejudicial terms,
terms,

the
the Insular Cases framework
Insular Cases continues to
framework continues to provide the bedrock
provide the bedrock for
for the
the

continued unequal
continued unequal treatment of territorial
treatment of territorial residents and their
residents and their exclusion from
exclusion from

the
the political
political process.
process.

This
This disenfranchisement, combined with
disenfranchisement, combined with the
the Insular Cases and
Insular Cases their
and their

progeny, “have contributed
progeny, "have contributed to a damaging
to a state of
damaging state of affairs
affairs in
in the
the territories.”
territories."

Note, Developments in
Note, Developments in the
the Law:
Law: U.S. Territories, Harv.
U.S. Territories, L. Rev.
Harv. L. 1617, 1621
Rev. 1617, 1621

(2017). Among many
(2017). Among current examples
many current include appallingly
examples include inadequate
appallingly inadequate

Department of Veterans
Department of Veterans Affairs
Affairs medical funding in
medical funding in Guam;
Guam;66 issues
issues regarding
regarding

public
public debt in Puerto
debt in Puerto Rico
Rico and
and the
the USVI; unfavorable treatment
USVI;77 unfavorable treatment of
of these
these

three
three Territories vis-a-vis states
Territories vis-a-vis states in
in health care legislation;
health care legislation;88 and the decades-
and the decades-

long controversy over
long controversy over military
military testing on the
testing on island of
the island of Vieques.9
Vieques.9

6
6 See Josh Hicks,
See Josh Hicks, Guam: A High
Guam: A High Concentration of Veterans,
Concentration of Veterans, but
but Rock-
Rock-
Bottom
Bottom VA
VA Funding, Wash. Post,
Funding, Wash. Post, Oct.
Oct. 29,
29, 2014.
2014.
7
7 See James Surowiecki,
See James Surowiecki, On Puerto Rico,
On Puerto Rico, Congress
Congress Once Again Fails
Once Again Fails to
to
Do the Obvious, New Yorker, May 2, 2016; Tatiana Darie, As Puerto
Do the Obvious, New Yorker, May 2, 2016; Tatiana Darie, As Puerto Rico Rico
Moves
Moves On, Another U.S.
On, Another U.S. Territory
Territory Crisis Arises, Bloomberg
Crisis Arises, Markets (Dec.
Bloomberg Markets (Dec. 21,
21,
2016,
2016, 2:25
2:25 PM),
PM), http://bloom.bg/2igvrnf.
http://bloom.bg/2igvrnf.
8
8 See Jessica Pupillo,
See Jessica Pupillo, Guam, Puerto Rico
Guam, Puerto Rico and
and Virgin
Virgin Islands
Islands Chapters
Chapters
Face
Face Unique
Unique Challenges, AAFP (July
Challenges, AAFP (July 31,
31, 2014,
2014, 4:16
4:16 PM),
PM),
http://bit.ly/2nkLkix.
http://bit.ly/2nkLkix.
9
9 See Adriel I.
See Adriel I. Cepeda Derieux, Note,
Cepeda Derieux, A Most
Note, A Most Insular
Insular Minority:
Minority:
Reconsidering
Reconsidering Judicial
Judicial Deference
Deference toto Unequal
Unequal Treatment
Treatment inin Light of Puerto
Light of Puerto
Rico's Political Process
Rico's Political Failure, 110
Process Failure, 110 Colum.
Colum. L.
L. Rev.
Rev. 797,
797, 836-37
836-37 (2010)
(2010) (noting
(noting
that
that Washington
Washington took little notice
took little of the
notice of Vieques controversy
the Vieques controversy until
until a
a highly
highly
publicized incident involving
publicized incident involving the
the accidental
accidental death of a
death of civilian, whereas
a civilian, whereas
“similar controversies
"similar controversies over
over the
the U.S.
U.S. Navy’s
Navy's use of practice
use of practice grounds
grounds inin the
the
Hawaiian
Hawaiian island of Kaho’olawe,
island of Kaho'olawe, werewere immediately
immediately — – and
and efficiently
efficiently —–
channeled through
channeled through political
political processes”).
processes").

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Reacting
Reacting to
to these
these conditions,
conditions, jurists
jurists and
and commentators
commentators have concluded
have concluded

that
that judicial
judicial action is needed
action is needed to
to protect
protect territorial
territorial residents
residents from
from the
the excesses
excesses

of the
of the laws
laws over
over which
which they
they have
have no say. See,
no say. e.g., Igartúa
See, e.g., Igartaa v.
v. United
United States,
States,

626
626 F.3d
F.3d 592, 614 (1st
592, 614 (1st Cir.
Cir. 2010)
2010) (Torruella, J., concurring
(Torruella, J., concurring in
in part and
part and

dissenting
dissenting in
in part)
part) (“It is this
("It is this lack
lack of
of any
any political
political power by these
power by these

disenfranchised
disenfranchised U.S. citizens, and
U.S. citizens, and the cat and
the cat and mouse
mouse games that have
games that been
have been

played with them
played with by the
them by the United
United States
States government, including its
government, including its courts,
courts, that
that

have
have resulted in their
resulted in their interminable
interminable unequal condition.”); id.
unequal condition."); id. at
at 639
639 (“[T]his
("[T]his

court must
court take the
must take the action,
action, long overdue here,
long overdue here, that
that was
was provided
provided in
in Carolene
Carolene

Products: a
Products: ‘more searching
a 'more searching judicial
judicial inquiry.’”
inquiry."' (citation omitted)); Territorial
(citation omitted)); Territorial

Federalism, 130 Harv.
Federalism, 130 Harv. L. Rev. at
L. Rev. 1653 (calling
at 1653 (calling for “the application
for "the of a
application of a robust
robust

form of judicial
form of judicial review”
review" given “the vulnerability
given "the vulnerability of
of unincorporated
unincorporated territories
territories

to
to politics
politics in
in which they lack
which they lack voting
voting representation and to
representation and which they
to which they may
may

continue to
continue be subject
to be subject indefinitely”);
indefinitely"); Lisa M. Kömives,
Lisa M. Komives, Enfranchising a
Enfranchising a

Discrete and Insular
Discrete and Insular Minority:
Minority: Extending
Extending Federal
Federal Voting
Voting Rights
Rights to American
to American

Citizens
Citizens Living
Living in
in United
United States Territories, 36
States Territories, 36 U. Miami Inter-Am.
U. Miami Inter-Am. L.
L. Rev.
Rev.

115, 136
115, 136 (2004)
(2004) (similar).
(similar).

UOCAVA
UOCAVA and MOVE only
and MOVE only further
further isolate
isolate plaintiffs
plaintiffs and
and the other
the other

residents of Guam,
residents of Guam, Puerto
Puerto Rico,
Rico, and
and the
the USVI from the
USVI from the political
political process by
process by

extending
extending absentee voting rights
absentee voting rights to
to former state citizens
former state citizens residing
residing everywhere
everywhere

else outside the
else outside the 50 states except
50 states except these
these three
three places
places (and,
(and, under
under UOCAVA,
UOCAVA,

American Samoa).
American Samoa). Because
Because these
these laws
laws not only discriminate
not only discriminate against
against a
a

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suspect class
suspect class but
but do so in
do so in a way that
a way that furthers
furthers the
the exclusion of that
exclusion of class from
that class from

the
the political
political process,
process, heightened scrutiny should
heightened scrutiny should apply.
apply.

The
The district court below
district court below rejected
rejected this conclusion below
this conclusion on three
below on three grounds:
grounds:

(1)
(1) no other court
no other court has
has held
held that
that territorial
territorial residents constitute a
residents constitute suspect
a suspect

class; (2)
class; (2) Congress
Congress has
has the
the right
right to treat the
to treat the Territories
Territories differently
differently under the
under the

Territory
Territory Clause;
Clause; and
and (3)
(3) the states can
the states can also
also treat
treat the
the Territories
Territories differently
differently

under the Tenth
under the Tenth Amendment.
Amendment. None of these
None of these grounds is persuasive.
grounds is persuasive.

First,
First, the
the lack of prior
lack of prior authority
authority (Short App. at
(Short App. at 51-52)
51-52) is only a
is only a reason
reason to
to

decide
decide plaintiffs’ suspect-class argument
plaintiffs' suspect-class based on
argument based on first
first principles,
principles, not
not to
to

reject it out
reject it out of
of hand.
hand. See, e.g., Moses
See, e.g., Moses H.
H. Cone
Cone Mem’l
Mem'l Hosp.
Hosp. v.
v. Mercury
Mercury Constr.
Constr.

Corp., 460
Corp., U.S. 1,
460 U.S. 1, 14
14 (1983)
(1983) (emphasizing “the duty
(emphasizing "the of a
duty of a District
District Court to
Court to

adjudicate
adjudicate a controversy properly
a controversy before it").
properly before it”). As
As the
the district court previously
district court previously

recognized,
recognized, plaintiffs’ claims of
plaintiffs' claims of discrimination
discrimination generally
generally raise “an issue
raise "an of
issue of

first impression” (Short
first impression" App. at
(Short App. at 30),
30), and
and the same is
the same is true of their
true of suspect-
their suspect-

class argument
class specifically. See
argument specifically. also Cepeda
See also Derieux, 110
Cepeda Derieux, 110 Colum. L. Rev.
Colum. L. at
Rev. at

801
801 (stating
(stating that
that courts
courts have “fail[ed] to
have "fail[ed] to notice”
notice" the
the political-process status of
political-process status of

territorial
territorial residents in equal-protection
residents in cases). Were
equal-protection cases). Were a court justified
a court in
justified in

rejecting
rejecting a claim simply
a claim simply because
because it
it presented
presented an issue of
an issue of first
first impression,
impression,

courts would
courts would never clarify the
never clarify scope of
the scope of civil
civil rights in a
rights in a manner
manner that
that expands
expands

those
those rights – imperiling
rights — cornerstone notions
imperiling cornerstone of fairness
notions of fairness and
and justice.
justice.

Second,
Second, the
the district court also
district court also rejected
rejected this
this argument based on
argument based on Congress’s
Congress's

authority
authority under the Territory
under the Territory Clause of the
Clause of the Constitution, concluding that
Constitution, concluding that this
this

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grant of power
grant of power differentiated
differentiated this case from
this case from the cases on
the cases on which
which plaintiffs
plaintiffs

relied involving alienage.
relied involving alienage. (Short App. at
(Short App. at 52
52 (citing
(citing Quiban
Quiban v.
v. Veterans
Veterans

Administration, 928
Administration, 928 F.2d 1154, 1160
F.2d 1154, 1160 (D.C.
(D.C. Cir. 1991)).)10 That
Cir. 1991)).)10 That Congress
Congress has
has

authority
authority under the Territory
under the Territory Clause
Clause does
does not, of course,
not, of course, immunize its actions
immunize its actions

under that clause
under that clause from
from the
the requirements of the
requirements of the Equal
Equal Protection
Protection Clause
Clause (and
(and

has
has no bearing at
no bearing at all on the
all on the legislative
legislative acts
acts of
of a
a state,
state, which
which does
does not share
not share

Congress’s
Congress's power
power under the Territory
under the Territory Clause).
Clause). Even if the
Even if the Territory
Territory Clause
Clause

vests Congress
vests Congress with broad powers
with broad powers to
to acquire
acquire and legislate for
and legislate for Territories, it
Territories, it

does
does not follow that
not follow that Congress
Congress may
may discriminate
discriminate against
against the
the politically
politically

powerless American citizens
powerless American citizens who
who reside
reside there
there notwithstanding the Equal
notwithstanding the Equal

Protection
Protection Clause.
Clause. See, Boumediene, 553
e.g., Boumediene,
See, e.g., 553 U.S.
U.S. at
at 765
765 (“The
("The Constitution
Constitution

grants
grants Congress and the
Congress and the President
President the
the power
power to acquire, dispose
to acquire, of, and
dispose of, and

govern
govern territory,
territory, not the power
not the to decide
power to decide when
when and
and where its terms
where its terms apply.”);
apply.");

Examining
Examining Bd. of Engineers,
Bd. of Architects &
Engineers, Architects & Surveyors
Surveyors v.
v. Flores
Flores de Otero, 426
de Otero, 426

U.S.
U.S. 572,
572, 600
600 (1976)
(1976) (recognizing application of
(recognizing application of equal-protection
equal-protection and
and due-
due-

process
process principles to residents
principles to of Puerto
residents of Puerto Rico).
Rico).

The
The authority on which
authority on which the
the district
district court
court relied
relied does
does not
not counsel
counsel

otherwise. The
otherwise. court relied
The court relied particularly
particularly on
on the D.C. Circuit’s
the D.C. Circuit's decision in
decision in

10 Plaintiffs
Plaintiffs did
did not
not advance
advance a a suspect-class
suspect-class argument
argument against
against the
the federal
federal
defendants below. But
defendants below. because the
But because the district
district court
court decided
decided thethe issue of
issue of
Congress's power
Congress’s power to
to enact
enact laws
laws that
that discriminate against territorial
discriminate against territorial residents
residents
under
under aa suspect-class
suspect-class theory,
theory, the
the Court should decide
Court should decide the
the question against all
question against all
defendants
defendants onon appeal.
appeal. See, e.g., Cmty.
See, e.g., Cmty. House,
House, Inc.
Inc. v.
v. City Boise, 490
of Boise,
City of 490 F.3d
F.3d
1041, 1054
1041, 1054 (9th
(9th Cir.
Cir. 2007)
2007) (“[E]ven
("[E]ven ifif a
a party
party fails
fails to
to raise
raise an
an issue
issue in
in the
the
district
district court,
court, we
we generally
generally will
will not
not deem
deem thethe issue waived if
issue waived if the
the district court
district court
actually considered it.”).
actually considered it.").

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Quiban, but that
Quiban, but that case – unlike
case — unlike this one —
this one – involved
involved "a
“a constitutional
constitutional attack
attack

upon a law
upon a law providing
providing for
for governmental
governmental payments of monetary
payments of benefits,” a
monetary benefits," a

type of law
type of law that
that (as
(as the
the district court previously
district court previously recognized) “is entitled
recognized) "is entitled to
to a
a

strong presumption
strong of constitutionality."
presumption of constitutionality.” (Short App. at
(Short App. at 29-30
29-30 (internal
(internal

quotation
quotation marks omitted).) By
marks omitted).) contrast, the
By contrast, the claim
claim here
here is
is that
that a
a law is subject
law is subject

to
to heightened scrutiny when
heightened scrutiny when it
it picks
picks and chooses between
and chooses between residents
residents living
living

outside the
outside the 50 states —
50 states – including
including those
those in
in different
different Territories – with
Territories — with respect
respect

to
to how
how they
they may
may exercise absentee-voting rights.
exercise absentee-voting This claim
rights. This squarely invokes
claim squarely invokes

the concerns of
the concerns of Carolene Products and
Carolene Products and is
is qualitatively
qualitatively different from other
different from other

cases involving
cases Territories because,
involving Territories because, as
as the
the Supreme
Supreme Court
Court has
has recognized,
recognized,

voting is
voting is preservative of all
preservative of other rights.
all other rights. See, Reynolds, 377
e.g., Reynolds,
See, e.g., 377 U.S.
U.S. at
at 562;
562;

Wesberry, 376
Wesberry, U.S. at
376 U.S. at 17.
17. Of course, "[t]
Of course, “[t]hose who complain
hose who complain that
that they
they are
are

excluded from the
excluded from the political
political process
process (e.g.,
(e.g., denied the right
denied the to vote)
right to vote) can
can hardly
hardly

be told
be told to
to use
use the
the political
political process
process for
for relief.”
relief." Stanley
Stanley K.
K. Laughlin, Jr., U.S.
Laughlin, Jr., U.S.

Territories
Territories and Affiliated Jurisdictions:
and Affiliated Jurisdictions: Colonialism or Reasonable
Colonialism or Reasonable Choice
Choice for
for

Small Societies?, 37
Small Societies?, 37 Ohio
Ohio N.U. L. Rev.
N.U. L. Rev. 429,
429, 444
444 (2011).
(2011). For such suspect
For such suspect

classes, the
classes, the practical
practical reality
reality is
is that
that their
their relief
relief must come through
must come through the courts
the courts

or not
or not at all.
at all.

Third, the district
Third, the court’s conclusion
district court's conclusion that states enjoy
that states enjoy as
as much
much power as
power as

Congress to discriminate
Congress to discriminate against
against territorial
territorial residents
residents under
under the Tenth
the Tenth

Amendment (Short
Amendment App. at
(Short App. at 53)
53) likewise
likewise fails to shield
fails to shield UOCAVA or MOVE
UOCAVA or MOVE

from scrutiny. By
from scrutiny. its terms,
By its terms, the
the Tenth Amendment reserves
Tenth Amendment reserves to
to the states only
the states only

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those
those powers that are
powers that “not delegated
are "not delegated to
to the
the United
United States by the
States by the

Constitution.” The powers
Constitution." The powers under
under the
the Territory
Territory Clause belong to
Clause belong the federal
to the federal

government
government exclusively, and "[i]f
exclusively, and “[i]f a
a power
power is
is delegated
delegated to
to Congress in the
Congress in the

Constitution,
Constitution, the
the Tenth Amendment expressly
Tenth Amendment expressly disclaims
disclaims any
any reservation of
reservation of

that
that power
power to
to the
the States.”
States." New
New York
York v.
v. United States, 505
United States, 505 U.S.
U.S. 144, 156
144, 156

(1992). Thus, at
(1992). Thus, at a
a minimum, state law
minimum, state law that
that discriminates against territorial
discriminates against territorial

residents – especially
residents — where, as
especially where, as here,
here, the
the discrimination
discrimination is
is along
along different
different

lines than the
lines than ones drawn
the ones by the
drawn by the federal
federal government – should
government — should be
be subject
subject to
to

heightened scrutiny. In
heightened scrutiny. In any
any event, of course,
event, of course, states
states (just like the
(just like federal
the federal

government)
government) may
may not violate equal
not violate equal protection,
protection, regardless
regardless of
of the scope of
the scope of their
their

Tenth Amendment powers.
Tenth Amendment powers.

* * *

Properly
Properly applying
applying heightened scrutiny to
heightened scrutiny to the
the discriminatory
discriminatory

classifications in
classifications in UOCAVA
UOCAVA and MOVE, the
and MOVE, the Court
Court should invalidate the
should invalidate the

challenged provisions
challenged provisions to the extent
to the extent that
that they
they deny
deny absentee-voting
absentee-voting rights
rights to
to

plaintiffs.
plaintiffs. No
No defendant
defendant maintains
maintains that
that the
the discriminatory
discriminatory provisions in
provisions in

UOCAVA
UOCAVA and MOVE satisfy
and MOVE satisfy heightened scrutiny. Nor
heightened scrutiny. could they.
Nor could they. Neither
Neither

Congress
Congress nor
nor the
the Illinois legislature offered
Illinois legislature offered a
a justification for the
justification for the disparate
disparate

treatment of former
treatment of state residents
former state living in
residents living in the
the Territories,
Territories, which is fatal
which is fatal for
for

purposes of heightened
purposes of scrutiny. See,
heightened scrutiny. e.g., United
See, e.g., United States
States v. Virginia, 518
v. Virginia, 518 U.S.
U.S.

515,
515, 535-36
535-36 (1996)
(1996) (noting that an
(noting that an adequate
adequate justification for purposes
justification for of
purposes of

heightened scrutiny "must
heightened scrutiny “must describe
describe actual state purposes,
actual state purposes, not
not

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rationalizations
rationalizations for actions in
for actions in fact
fact differently
differently grounded”). Accordingly, the
grounded"). Accordingly, the

Court should extend
Court should extend the
the right
right to
to vote
vote absentee for President
absentee for President and voting
and voting

representation
representation in
in Congress
Congress to
to former
former Illinois
Illinois residents
residents living
living in
in Guam,
Guam,

Puerto Rico, and
Puerto Rico, and the
the USVI consistent with
USVI consistent with the
the way
way they would be
they would be treated
treated in
in

the
the NMI, American Samoa,
NMI, American Samoa, and
and foreign
foreign countries.
countries.

III.
III. The District
The District Court Also Erred
Court Also Erred In
In Holding That UOCAVA
Holding That And
UOCAVA And
MOVE
MOVE Do Not Violate
Do Not Violate Plaintiffs’
Plaintiffs' Right To Travel.
Right To Travel.

The
The district court also
district court also erred in concluding
erred in concluding that
that UOCAVA
UOCAVA and MOVE are
and MOVE are

consistent with
consistent with plaintiffs’
plaintiffs' constitutional
constitutional right
right to
to interstate
interstate travel. These laws
travel. These laws

violate that
violate that right by punishing
right by and deterring
punishing and deterring travel
travel to
to specific
specific disfavored
disfavored

Territories. The court
Territories. The court rejected
rejected this conclusion, largely
this conclusion, on the
largely on the ground
ground that
that

there
there are only "three
are only “three different
different components”
components" to
to the
the right
right to interstate travel,
to interstate travel,

none of which
none of which is
is implicated
implicated by
by leaving
leaving a state to
a state to travel
travel to a Territory.
to a Territory. (Short
(Short

App. at
App. at 60-62.)
60-62.) This
This narrow construction of
narrow construction of the
the right
right is irreconcilable with
is irreconcilable with

Supreme
Supreme Court
Court precedent
precedent and should be
and should be rejected on appeal.
rejected on appeal.

The
The “‘[f]reedom
If]reedom toto travel
travel throughout
throughout the
the United
United States
States has
has long been
long been

recognized
recognized as
as a basic right
a basic right under
under the
the Constitution.’” Dunn, 405
Constitution."' Dunn, 405 U.S.
U.S. at
at 338
338

(quoting
(quoting United
United States
States v. Guest, 383
v. Guest, U.S. 745,
383 U.S. 745, 758
758 (1966)).
(1966)). The
The right to travel
right to travel

applies
applies against both federal
against both federal and state government
and state government action. Bethesda Lutheran
action. Bethesda Lutheran

Homes
Homes &
& Servs.,
Servs., Inc.
Inc. v.
v. Leean, 122 F.3d
Leean, 122 F.3d 443,
443, 448
448 (7th
(7th Cir. 1997). The
Cir. 1997). The

Supreme
Supreme Court
Court has said that
has said that the “constitutional right
the "constitutional of interstate
right of interstate travel,”
travel,"

unlike
unlike the “right of
the "right of international
international travel,”
travel," is “virtually unqualified.”
is "virtually unqualified." Califano
Califano

v.
v. Gautier Torres, 435
Gautier Torres, U.S. 1,
435 U.S. 1, 4
4 n.6
n.6 (1978).
(1978). The
The Supreme
Supreme Court
Court has
has also
also

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assumed
assumed without
without deciding
deciding that this "virtually
that this “virtually unqualified constitutional
unqualified constitutional

right”
right" of interstate travel
of interstate travel applies “to travel
applies "to between Puerto
travel between Puerto Rico
Rico and
and any of
any of

the
the 50
50 States of the
States of the Union."
Union.” Id.
Id. Other courts have
Other courts have also
also applied
applied the
the right
right to
to

travel
travel to
to Territories.
Territories. See, e.g., Sampayans
See, e.g., Sampayans v. Mathews, 417
v. Mathews, 417 F.
F. Supp.
Supp. 60,
60, 63
63 (D.
(D.

Guam 1976) (stating
Guam 1976) (stating without
without discussion
discussion that
that the fundamental right
the fundamental right to
to travel
travel

discussed in Shapiro
discussed in included the
Shapiro included “right to
the "right to travel
travel [to] and reside
[to] and in the
reside in the

Territory of Guam”).
Territory of Guam").

The
The Supreme
Supreme Court
Court formulated
formulated in
in Saenz
Saenz v.
v. Roe that the
Roe that the right
right to travel
to travel

“embraces at
"embraces least three
at least three different components”: "the
different components": “the right of a
right of a citizen
citizen of
of one
one

State
State to
to enter
enter and
and to
to leave
leave another
another State,
State, the
the right
right to be treated
to be treated as
as a
a welcome
welcome

visitor rather
visitor rather than
than an
an unfriendly alien when
unfriendly alien when temporarily
temporarily present
present in the
in the

second State,
second and, for
State, and, for those
those travelers
travelers who
who elect
elect to become permanent
to become permanent

residents,
residents, the
the right to be
right to be treated
treated like other citizens
like other of that
citizens of that State.”
State." 526 U.S.
526 U.S.

489,
489, 500
500 (1999)
(1999) (emphasis added).
(emphasis added).

But
But just
just as
as the
the right
right to
to travel
travel limits interference with
limits interference with travel to a
travel to state as
a state as

detailed
detailed in
in Saenz, so too
Saenz, so too does it limit
does it limit interference
interference with
with travel from a
travel from state.
a state.

Indeed,
Indeed, the
the Supreme
Supreme Court
Court has
has expressly
expressly recognized
recognized the bidirectional nature
the bidirectional nature

of the
of the right
right in
in prior cases. See,
prior cases. e.g., Aptheker
See, e.g., Aptheker v.
v. Sec’y State, 378
of State,
Sec'y of U.S. 500,
378 U.S. 500,

505
505 (1964)
(1964) (expressly
(expressly recognizing
recognizing that
that the
the right of international
right of international travel
travel

embraces
embraces the
the right to "[t]ravel
right to “[t]ravel abroad” – i.e.,
abroad" — i.e., from
from the United States
the United to
States to

another country); Zemel
another country); Zemel v. Rusk, 381
v. Rusk, 381 U.S. 1, 13-14
U.S. 1, 13-14 (1965)
(1965) (assuming
(assuming that
that a
a

policy of refusing
policy of to validate
refusing to validate a
a passport
passport for
for travel
travel to
to Cuba would "act
Cuba would “act[]
I] as
as a
a

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deterrent
deterrent to
to travel
travel to that area,”
to that which restricted
area," which restricted the
the right
right to international
to international

travel but not
travel but not to
to an
an unconstitutional
unconstitutional degree)
degree) (emphasis added); Haig
(emphasis added); Haig v. Agee,
v. Agee,

453 U.S. 280,
453 U.S. 280, 306-07
306-07 (1981)
(1981) (upholding
(upholding the
the revocation of a
revocation of a passport
passport that left
that left

an American citizen
an American citizen stranded
stranded in West Germany
in West but acknowledging
Germany but acknowledging that
that the
the

revocation “undeniably curtails"
revocation "undeniably curtails” the
the freedom
freedom to
to travel abroad). It
travel abroad). It follows
follows that
that

the state and
the state and federal
federal governments should have
governments should have no
no greater
greater power to restrict
power to or
restrict or

interfere with
interfere with emigration from a
emigration from state than
a state immigration to
than immigration to a state, especially
a state, especially

in light
in light of
of the
the fundamental character of
fundamental character of the
the right of interstate
right of interstate travel.
travel.

Because the right
Because the right to
to interstate
interstate travel
travel is
is fundamental, “’any classification
fundamental, "'any classification

which serves to
which serves to penalize
penalize [or
[or deter]
deter] the
the exercise of that
exercise of that right,
right, unless shown to
unless shown to

be necessary
be necessary to
to promote
promote a
a compelling
compelling governmental
governmental interest,
interest, is
is

unconstitutional.’” Dunn, 405
unconstitutional."' Dunn, 405 U.S.
U.S. at
at 339
339 (quoting Shapiro, 394
(quoting Shapiro, 394 U.S.
U.S. at
at 634).
634).

In
In determining
determining whether a law
whether a law implicates
implicates the
the right
right to
to travel,
travel, Supreme
Supreme Court
Court

cases have
cases focused on
have focused on the “extent to
the "extent which [the
to which [the law] serve[s] to
law] serve[s] to penalize
penalize the
the

exercise of the
exercise of the right to travel"
right to travel” or
or whether
whether the law at
the law at issue is "apt
issue is “apt to
to deter
deter

migration.”
migration." Mem’l
Mem'l Hosp.
Hosp. v.
v. Maricopa Cty., 415
Maricopa Cty., 415 U.S.
U.S. 250,
250, 257
257 (1974).
(1974). Laws
Laws

that
that disadvantage
disadvantage new state residents
new state in the
residents in the exercise of fundamental
exercise of fundamental rights
rights

like voting violate
like voting violate the
the right
right to
to travel
travel and
and must
must pass
pass heightened scrutiny. See,
heightened scrutiny. See,

Dunn, 405
e.g., Dunn,
e.g., U.S. at
405 U.S. at 339.
339. But
But the
the right
right implicated
implicated need
need not be
not be

“fundamental” in
"fundamental" in the sense that
the sense it is
that it is constitutionally
constitutionally guaranteed.
guaranteed. See, e.g.,
See, e.g.,

Mem’l Hosp., 415
Mem'l Hosp., U.S. at
415 U.S. at 257-58
257-58 (deeming
(deeming right
right to free health
to free care
health care

fundamental for right-to-travel
fundamental for right-to-travel purposes); Shapiro, 394
purposes); Shapiro, U.S. at
394 U.S. at 631
631 (same
(same as
as

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to welfare benefits).
to welfare benefits). A
A law
law sufficiently
sufficiently implicates
implicates the
the right
right to
to travel
travel and
and

requires
requires heightened scrutiny where
heightened scrutiny where it burdens fundamental
it burdens fundamental rights or
rights or

“created rights”
"created of sufficient
rights" of sufficient weight
weight that interstate travel
that interstate can be
travel can be said
said to be
to be

penalized or deterred.
penalized or deterred. Sklar
Sklar v. Byrne, 727
v. Byrne, 727 F.2d
F.2d 633, 638 (7th
633, 638 (7th Cir. 1984).
Cir. 1984).

Under
Under these
these principles,
principles, UOCAVA
UOCAVA and MOVE violate
and MOVE violate plaintiffs’
plaintiffs'

fundamental
fundamental right
right to
to travel by denying
travel by denying them
them access
access to
to the
the right
right to
to vote
vote

absentee in federal
absentee in federal elections in Illinois
elections in – thereby
Illinois — thereby penalizing
penalizing and
and deterring
deterring

interstate travel
interstate travel to
to Guam,
Guam, Puerto
Puerto Rico, and the
Rico, and the USVI. Absentee voting
USVI. Absentee voting rights
rights

are important —
are important – regardless of whether
regardless of whether they
they are
are "fundamental"
“fundamental” or
or "created."
“created.”

See, e.g., Zessar
See, e.g., Zessar v. Helander, No.
v. Helander, No. 05
05 C 1917, 2006
C 1917, WL 642646,
2006 WL 642646, at *6 (N.D.
at *6 (N.D. Ill.
Ill.

Mar. 13,
Mar. 13, 2006) (acknowledging that
2006) (acknowledging that there is no
there is constitutional right
no constitutional right to
to

absentee voting but,
absentee voting but, once
once the state establishes
the state establishes the
the right,
right, it
it is subject to
is subject to

constitutional requirements
constitutional because absent
requirements because constitutional protections
absent constitutional protections the
the

absentee “voters risk
absentee "voters the deprivation
risk the of their
deprivation of vote, a
their vote, a liberty interest”). Here,
liberty interest"). Here,

the
the denial of absentee
denial of voting rights
absentee voting rights to
to Illinois citizens moving
Illinois citizens moving to certain
to certain

Territories but not
Territories but others serves
not others serves as
as a
a deterrent
deterrent to
to moving
moving to
to the
the disfavored
disfavored

Territories
Territories and
and penalizes
penalizes those
those who
who nevertheless
nevertheless choose
choose to
to move
move there by
there by

denying the benefits
denying the benefits of
of the “created right”
the "created afforded to
right" afforded to Illinois
Illinois residents who
residents who

move to American
move to American Samoa or the
Samoa or the NMI.
NMI.

The
The district court dismissed
district court dismissed plaintiffs’
plaintiffs' right-to-travel
right-to-travel claim
claim based on its
based on its

reading of Saenz
reading of Saenz as setting forth
as setting forth a
a definitive
definitive rather
rather than
than merely
merely illustrative
illustrative

list of freedoms
list of freedoms enshrined in the
enshrined in the right
right to interstate travel.
to interstate travel. It further
It further

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concluded that
concluded “plaintiffs are
that "plaintiffs are free to come
free to come and
and go
go as
as they
they please,
please, although
although

their
their decisions
decisions to
to relocate
relocate to
to Puerto
Puerto Rico,
Rico, Guam,
Guam, or
or the
the USVI
USVI have come at
have come at a
a

cost” inherent
cost" inherent in our constitutional
in our constitutional system,
system, and
and that
that plaintiffs were seeking
plaintiffs were seeking

“special treatment”
"special compared to
treatment" compared to citizens of Puerto
citizens of Puerto Rico,
Rico, Guam, and the
Guam, and the USVI
USVI

that
that did
did not implicate the
not implicate the right
right to travel. (Short
to travel. App. at
(Short App. at 60-61.)
60-61.)

These
These conclusions were erroneous.
conclusions were erroneous. The court first
The court first erred in treating
erred in treating

Saenz's enumeration
Saenz’s of certain
enumeration of certain components
components of
of the
the right to travel
right to travel as
as the
the full
full

extent
extent of
of the
the right.
right. By
By that
that case’s own terms,
case's own terms, the
the right
right embraces “at least”
embraces "at least" the
the

three components set
three components set forth,
forth, and
and as
as the
the discussion
discussion above
above demonstrates,
demonstrates,

Supreme
Supreme Court
Court precedents
precedents also
also make clear that
make clear that the
the right
right protects individuals
protects individuals

against burdens intended
against burdens intended to
to deter or penalize
deter or penalize travel from a
travel from a state.
state.

The
The district court’s other
district court's other justifications
justifications also
also are
are unavailing.
unavailing. Contrary to
Contrary to

the
the district
district court’s suggestion, the
court's suggestion, “cost” of
the "cost" of traveling to the
traveling to Territories is
the Territories is not
not

inherent in
inherent the constitutional
in the constitutional scheme.
scheme. Rather, as discussed
Rather, as discussed above,
above, the state
the state

and
and federal
federal governments can extend
governments can – and
extend — and in
in this case have
this case have extended –
extended —

absentee-voting
absentee-voting rights to individuals
rights to individuals who
who leave
leave their states behind.
their states behind. And
And

under UOCAVA and
under UOCAVA and MOVE,
MOVE, the “cost” of
the "cost" of travel
travel depends on the
depends on the destination.
destination.

Travel to American
Travel to American Samoa or the
Samoa or the NMI from Illinois
NMI from Illinois costs
costs nothing
nothing in
in terms of
terms of

maintaining the right
maintaining the right to
to vote
vote for
for President
President and
and voting
voting representation in
representation in

Congress, but it
Congress, but it costs
costs everything
everything to
to travel instead to
travel instead to Guam,
Guam, Puerto
Puerto Rico or
Rico or

the
the USVI.
USVI. It
It is
is this
this arrangement – not
arrangement — not remotely
remotely required by the
required by the

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constitutional provisions
constitutional provisions relating
relating to voting or
to voting or territorial
territorial governance – that
governance — that

penalizes
penalizes and
and deters certain exercises
deters certain of the
exercises of the right
right to
to interstate
interstate travel.
travel.

The
The district court’s order
district court's order also
also mischaracterizes
mischaracterizes the
the right
right that
that plaintiffs
plaintiffs

claim: the
claim: the remedy
remedy that
that plaintiffs seek is
plaintiffs seek is not
not to
to enjoy benefits superior
enjoy benefits superior to those
to those

of other
of other territorial
territorial residents but to
residents but to enjoy
enjoy the
the same benefits that
same benefits that Illinois
Illinois

accords
accords its
its former citizens now
former citizens now living in other
living in Territories. Furthermore,
other Territories. Furthermore, any
any

effect of providing
effect of providing former
former Illinois
Illinois citizens
citizens living
living in certain Territories
in certain Territories with
with

greater
greater rights
rights than others in
than others in those
those Territories is already
Territories is already inherent
inherent in
in the
the

arrangement implemented by
arrangement implemented by UOCAVA
UOCAVA and Illinois MOVE.
and Illinois MOVE. The current
The current

effect of the
effect of statutes is
the statutes is that
that former
former Illinois
Illinois residents living in
residents living in American
American

Samoa
Samoa and
and the
the NMI
NMI are
are permitted
permitted to vote absentee
to vote absentee in Illinois even
in Illinois while
even while

other American
other American Samoa
Samoa and
and NMI
NMI residents
residents cannot.
cannot. These implications thus
These implications thus

currently exist
currently exist and
and will continue to
will continue to exist
exist regardless of the
regardless of outcome of
the outcome of this
this

case.
case.

In
In these
these respects,
respects, the
the challenge
challenge here
here differs from the
differs from the right
right to
to travel claims
travel claims

rejected
rejected in
in Califano
Califano v.
v. Gautier Torres and
Gautier Torres and Romeu, two cases
Romeu, two cases relied on by
relied on by the
the

district
district court.
court. The
The plaintiffs
plaintiffs in
in Gautier
Gautier Torres alleged a
Torres alleged violation of
a violation of their
their

right
right to
to travel
travel premised on lost
premised on lost eligibility
eligibility for
for Social
Social Security
Security Supplemental
Supplemental

Security Income (“SSI”)
Security Income benefits when
("SSI") benefits when moving
moving from
from the states to
the states to Puerto
Puerto Rico.
Rico.

Gautier Torres, 435
Gautier Torres, 435 U.S.
U.S. at
at 3.
3. The
The Court
Court rejected
rejected the
the challenge because the
challenge because the

plaintiffs sought monetary
plaintiffs sought benefits, the
monetary benefits, the payment of which
payment of which is “entitled to
is "entitled to a
a

strong presumption
strong of constitutionality,"
presumption of constitutionality,” and because a
and because contrary conclusion
a contrary conclusion

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might create an
might create an unequal
unequal disbursement
disbursement of benefits to
of benefits to residents in Puerto
residents in Puerto Rico.
Rico.

Id. at
Id. at 5
5 (citation omitted). In
(citation omitted). In this case, in
this case, in sharp
sharp contrast,
contrast, democratic
democratic

participation
participation rather
rather than a mere
than a mere economic benefit is
economic benefit is implicated. Moreover,
implicated. Moreover,

unlike
unlike the statute in
the statute in Gautier Torres, UOCAVA
Gautier Torres, and MOVE
UOCAVA and MOVE already
already entitle
entitle

former state residents
former state residents in
in the
the NMI and American
NMI and American Samoa
Samoa to
to rights
rights not
not enjoyed
enjoyed

by other
by other residents of these
residents of these Territories.
Territories.

The
The district court’s reliance
district court's reliance on Romeu was
on Romeu likewise misplaced.
was likewise misplaced. The
The

plaintiff’s constitutional grievance
plaintiffs constitutional grievance in
in Romeu was that
Romeu was that UOCAVA
UOCAVA and
and the state
the state

statute allowed
statute former state
allowed former state residents
residents living
living in foreign countries
in foreign countries to vote but
to vote but

not
not former state residents
former state living in
residents living in the
the Territories. Romeu, 265
Territories. Romeu, 265 F.3d
F.3d at 124.
at 124.

Here,
Here, by contrast, plaintiffs’
by contrast, plaintiffs' right-to-travel
right-to-travel claim
claim is
is premised on the
premised on the different
different

treatment accorded former
treatment accorded former Illinois
Illinois residents based on
residents based on the
the Territory
Territory in
in which
which

they
they reside.
reside. The
The Romeu court did
Romeu court did not consider this
not consider this within-Territories
within-Territories

distinction.
distinction.

For all these
For all these reasons,
reasons, UOCAVA
UOCAVA and MOVE infringe
and MOVE infringe the
the right
right to
to travel
travel

and so cannot
and so cannot be
be upheld
upheld unless
unless they are narrowly
they are narrowly tailored
tailored to serve a
to serve a

compelling government
compelling interest. Dunn,
government interest. Dunn, 405
405 U.S.
U.S. at
at 339.
339. None
None of
of the
the

defendants
defendants have
have proffered
proffered even
even a
a plausible
plausible argument
argument that
that UOCAVA or
UOCAVA or

Illinois MOVE’s disparate
Illinois MOVE's disparate treatment of the
treatment of the Territories serves a
Territories serves a compelling
compelling

government
government interest,
interest, nor could they.
nor could Instead, the
they. Instead, the federal
federal defendants simply
defendants simply

repeated
repeated that
that the compelling interest
the compelling interest underlying
underlying UOCAVA is to
UOCAVA is to prevent
prevent the
the

“distinction of
"distinction of questionable fairness” of
questionable fairness" of providing some territorial
providing some territorial residents
residents

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with
with the
the right
right to vote while
to vote while denying
denying that
that right to others.
right to others. This
This argument is
argument is

faulty
faulty for
for the
the reasons
reasons set forth above.
set forth Accordingly, neither
above. Accordingly, neither law can survive
law can survive

heightened
heightened review.
review. The
The Court
Court therefore should extend
therefore should extend the
the right
right to vote
to vote

absentee
absentee for
for President and voting
President and voting representation in Congress
representation in Congress to
to former
former

Illinois
Illinois residents
residents living in Guam,
living in Guam, Puerto
Puerto Rico,
Rico, and
and the
the USVI, bringing their
USVI, bringing their

treatment in line
treatment in line with
with those
those residing
residing in
in the
the NMI, American Samoa,
NMI, American Samoa, and
and

foreign countries.
foreign countries.

IV.
IV. This Court
This Court Has
Has Jurisdiction Over This
Jurisdiction Over This Appeal.
Appeal.

Finally,
Finally, the
the district
district court’s
court's October
October 28,
28, 2016
2016 memorandum opinion and
memorandum opinion and

order disposed
order of all
disposed of of plaintiffs’
all of plaintiffs' pending claims against
pending claims against all
all defendants,
defendants,

thereby constituting a
thereby constituting a "final
“final decision[]” for purposes
decisionlr for of 28
purposes of 28 U.S.C. § 1291
U.S.C. § 1291 and
and

providing this Court
providing this with jurisdiction
Court with jurisdiction to
to decide this appeal
decide this appeal —
–a conclusion
a conclusion

with which all
with which all parties to this
parties to this appeal
appeal agree.
agree.

Section 1291 confers
Section 1291 confers jurisdiction on this
jurisdiction on this Court to hear
Court to “appeals from
hear "appeals from all
all

final
final decisions of the
decisions of the district
district courts
courts of
of the
the United
United States.”
States." 28 U.S.C. §
28 U.S.C. § 1291.
1291.

As this
As this Court
Court has
has explained, “[a] final
explained, "[a] final judgment, for purposes
judgment, for of section
purposes of section 1291,
1291,

is one
is one that
that 'ends
‘ends the
the litigation on the
litigation on the merits
merits and
and leaves
leaves nothing for the
nothing for court
the court

to
to do but execute
do but execute the
the judgment.’”
judgment."' McMillian
McMillian v.
v. Sheraton
Sheraton Chi.
Chi. Hotel & Towers,
Hotel & Towers,

567
567 F.3d 839, 842
F.3d 839, 842 (7th
(7th Cir.
Cir. 2009)
2009) (quoting
(quoting Coopers
Coopers &
& Lybrand
Lybrand v. Livesay, 437
v. Livesay, 437

U.S.
U.S. 463,
463, 467
467 (1978)). A judgment
(1978)). A judgment thus is final
thus is – and
final — and appealable
appealable —
– where “the
where "the

record
record makes clear” that
makes clear" that the
the district
district court’s
court's decision “anticipated no
decision "anticipated no further
further

proceedings
proceedings and
and put an end
put an end to all matters
to all before the
matters before the court.” Id. at
court." Id. at 843.
843.

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Such is the
Such is the case
case here. As described
here. As in the
described in statement of
the statement of the case, the
the case, the

district
district court’s
court's two
two orders
orders resolved
resolved all of plaintiffs’
all of claims against
plaintiffs' claims against all
all

defendants
defendants in
in defendants’ favor. And
defendants' favor. And although
although the
the non-federal
non-federal defendants
defendants

never formally moved
never formally moved for summary judgment,
for summary judgment, they
they affirmatively
affirmatively requested
requested

that
that the
the district court enter
district court enter judgment
judgment in
in their
their favor in their
favor in their responses
responses to
to

plaintiffs’ second motion
plaintiffs' second motion for summary judgment.
for summary judgment. (R. Dkt. 73,
(R. Dkt. 73, at 1-2
at 1-2

(requesting
(requesting that court grant
that court summary judgment
grant summary judgment in
in her
her favor);
favor); R. Dkt. 74,
R. Dkt. 74, at
at

14-15 (requesting
14-15 (requesting that court enter
that court enter judgment in their
judgment in their favor).)
favor).) In
In its second
its second

order, the
order, the district court expressly
district court expressly granted
granted the federal defendants’
the federal cross-
defendants' cross-

motion for summary
motion for summary judgment.
judgment. (Short App. at
(Short App. at 47,
47, 62.) And as
62.) And as to
to the
the non-
non-

federal
federal defendants,
defendants, the court denied
the court denied plaintiffs’ claims as
plaintiffs' claims as a
a matter of law.
matter of law.

(Short App. at
(Short App. at 46
46 (“[T]he court concludes
("[T]he court that Illinois
concludes that MOVE does
Illinois MOVE does not violate
not violate

the
the plaintiffs’
plaintiffs' equal
equal protection
protection rights….”).)
rights....").) The court then
The court then entered
entered judgment
judgment

in favor
in favor of
of the
the defendants and against
defendants and against plaintiffs.
plaintiffs. (Short App. at
(Short App. at 63.) Were
63.) Were

there
there any
any doubt
doubt as
as to whether the
to whether the district court viewed
district court viewed the
the proceedings
proceedings as
as

finally concluded as
finally concluded as against
against all
all defendants,
defendants, it closed the
it closed case on
the case on October
October 28,
28,

2016,
2016, the
the same
same day
day that it entered
that it entered judgment.
judgment.

The
The district court’s actions
district court's on October
actions on October 28,
28, 2016 – issuing
2016 — issuing a
a memorandum
memorandum

opinion and
opinion and order
order rejecting
rejecting all
all of
of plaintiffs’
plaintiffs' remaining claims as
remaining claims as a
a matter of
matter of

law,
law, entering
entering judgment in favor
judgment in of the
favor of the defendants,
defendants, and
and closing
closing the case —
the case –

“make[] clear”
"makel] clear" that
that it “anticipated no
it "anticipated no further
further proceedings.”
proceedings." See
See McMillian,
McMillian,

567
567 F.3d at 843.
F.3d at 843. Notably,
Notably, all
all of
of the
the parties
parties in
in this
this case,
case, including
including the
the federal
federal

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and state defendants,
and state defendants, have
have read
read the
the district court’s ruling
district court's in the
ruling in same way.
the same way.

Consequently,
Consequently, the order and
the order and judgment
judgment constituted
constituted a
a final
final decision
decision for
for

purposes of section
purposes of section 1291,
1291, as
as they
they “‘end[ed]
`"end[ed] the litigation on
the litigation on the
the merits
merits and
and

le[ft]
le[ft] nothing for the
nothing for the court
court to
to do but execute
do but execute the
the judgment,’” id. at
judgment,' id. at 842
842

(quoting
(quoting Coopers Lybrand, 437
& Lybrand,
Coopers & U.S. at
437 U.S. at 467).
467).

For all these
For all these reasons,
reasons, the
the Court should conclude
Court should conclude that it has
that it has jurisdiction
jurisdiction

and
and proceed
proceed to consider this
to consider this appeal.
appeal.

Conclusion
Conclusion
For the foregoing
For the foregoing reasons,
reasons, the
the Court should reverse
Court should reverse the
the judgment below.
judgment below.

Respectfully submitted,
Respectfully submitted,

/s/
/s/ Charles
Charles F.
F. Smith
Smith
Neil
Neil C. Weare
C. Weare Charles
Charles F.
F. Smith
Smith
We the
We the People
People Project
Project Counsel of Record
Counsel of Record
1666 Connecticut
1666 Avenue, N.W.
Connecticut Avenue, N.W. Lara A.
Lara A. Flath
Flath
Suite
Suite 500
500 John J.
John J. Schoettle
Schoettle
Washington, D.C.
Washington, D.C. 20009
20009 155 N.
155 Wacker Dr.
N. Wacker Dr.
(202) 304-1202
(202) 304-1202 Chicago, Illinois 60606
Chicago, Illinois 60606
nweare@equalrightsnow.org
nweare@equalrightsnow.org (312)
(312) 407-0700
407-0700
charles.smith@probonolaw.com
charles.smith@probonolaw.com
Leevin
Leevin T.
T. Camacho
Camacho
The
The Law
Law Office of Leevin
Office of Leevin T.
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Company Street
Street
Christiansted,
Christiansted, St.
St. Croix, Virgin
Croix, Virgin
Islands
Islands 00820
00820
(340)
(340) 773-7284
773-7284
semaj.johnson@rameslaw.com
semaj.johnson@rameslaw.com
Counsel
Counsel for Plaintiffs-Appellants
for Plaintiffs-Appellants

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