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No. No. 16-4240 16-4240

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IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LUIS SEGOVIA, et al.,

LUIS SEGOVIA, et al.,

Plaintiffs-Appellants, Plaintiffs-Appellants,

v. v.

UNITED STATES OF AMERICA, et al.,

UNITED STATES OF AMERICA, et al.,

Defendants-Appellees. Defendants-Appellees.

Appeal Appeal from from an an Order Order of of the the United United States States District District Court Court

for for the the Northern Northern District District of of Illinois Illinois

The The Hon. Hon. Joan Joan B. B. Gottschall, Gottschall, District District Judge Judge

District District No. No. 1:15-cv-10196 1:15-cv-10196

BRIEF OF APPELLANTS

BRIEF OF APPELLANTS

Neil Neil C. C. Weare Weare

We We the the People People Project Project

1666 1666 Connecticut Connecticut Avenue, Avenue, N.W. N.W.

Suite Suite 500 500

Washington, Washington, D.C. D.C. 20009 20009

(202) (202) 304-1202 304-1202

nweare@equalrightsnow.org nweare@equalrightsnow.org

Leevin Leevin T. T. Camacho Camacho

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

194 194 Hernan Hernan Cortez Cortez Avenue Avenue

Suite Suite 216 216

Hagåtña, Hagattia, Guam Guam 96910 96910

(617) (617) 477-8894 477-8894

leevin@guahanlaw.com leevin@guahanlaw.com

Charles Charles F. F. Smith Smith

Counsel Counsel of of Record Record

Lara Lara A. A. Flath Flath

John John J. J. Schoettle Schoettle

155 155 N. N. Wacker Wacker Dr. Dr.

Chicago, Chicago, Illinois Illinois 60606 60606

(312) (312) 407-0700 407-0700

charles.smith@probonolaw.com charles.smith@probonolaw.com

Geoffrey Geoffrey M. M. Wyatt Wyatt

Michael Michael A. A. McIntosh McIntosh

Marisa Marisa B. B. Van Van Saanen Saanen

Brendan Brendan B. B. Gants Gants

1440 1440 New New York York Avenue, Avenue, N.W. N.W.

Washington, Washington, D.C. D.C. 20005 20005

(202) (202) 371-7000 371-7000

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Semaj Semaj Johnson Johnson

Law Law Offices Offices of of K.A. K.A. Rames Rames PC PC

Suite Suite 3, 3, 2111 2111 Company Company Street Street

Christiansted, Christiansted, St. St. Croix, Croix, Virgin Virgin

Islands Islands 00820 00820

(340) (340) 773-7284 773-7284

semaj.johnson@rameslaw.com semaj.johnson@rameslaw.com

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Counsel Counsel for for Plaintiffs-Appellants Plaintiffs-Appellants

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Table Of Contents

Table Of Contents

Filed: 04/12/2017

Table Of Authorities

Table Of Authorities

Statement Concerning

Statement Concerning Oral Argument

Oral Argument

Jurisdictional Statement

Jurisdictional Statement

Introduction

Introduction

Issues Presented

Issues Presented

Statement of the Case

Statement of the Case

A.

A.

B.

B.

The plaintiffs

The plaintiffs

Overseas voting laws

Overseas voting laws

1. 1.

The Uniformed and Overseas Citizens Absentee

The Uniformed and Overseas Citizens Absentee

Voting Act

Voting Act

2. 2.

The Military and Overseas Voter Empowerment

The Military and Overseas Voter Empowerment

Act

Act

C.

C.

The proceedings below

The proceedings below

1.

1.

2.

2.

The August 23, 2016 summary-judgment order

The August 23, 2016 summary-judgment order

The October 28, 2016 summary-judgment order

The October 28, 2016 summary-judgment order

Summary of the Argument

Summary of the Argument

Standard of Review

Standard of Review

Argument

Argument

I. I.

The District Court Erred In Holding That UOCAVA And

The District Court Erred In Holding That UOCAVA And

MOVE’s Arbitrary Treatment Of Former State Residents

MOVE's Arbitrary Treatment Of Former State Residents

Survives Any Level of Scrutiny

Survives Any Level of Scrutiny.

A. A.

UOCAVA’s discriminatory provisions do not in any way

UOCAVA's discriminatory provisions do not in any way

advance the federal government’s “unique” relationship

advance the federal government's "unique" relationship

with the NMI

with the NMI

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II. II.

B. B.

MOVE's MOVE’s favored favored treatment treatment of of former former Illinois Illinois citizens citizens

residing residing in in American American Samoa Samoa and and the the NMI NMI does does not not

advance any legitimate state interest

advance any legitimate state

22

interest. 22

The The District District Court Court Erred Erred By By Failing Failing To To Apply Apply Heightened Heightened

Scrutiny Scrutiny To To The The Discriminatory Discriminatory Classifications Classifications Drawn Drawn By By

UOCAVA UOCAVA And And MOVE.

25

25

A. A.

The The district district court court improperly improperly expanded expanded the the Insular Insular Cases Cases

to to hold hold that that the the right right to to vote vote is is not not "fundamental" “fundamental” for for

citizens citizens of of the the Territories Territories

25

25

B. B.

The The classifications classifications drawn drawn by by UOCAVA UOCAVA and and MOVE MOVE

selectively selectively extend extend absentee absentee voting voting rights rights to to similarly similarly

 

situated situated citizens.

29 29

C.

C.

The The classifications classifications in in UOCAVA UOCAVA and and MOVE MOVE discriminate discriminate

against against a a suspect suspect class class that that is is uniquely uniquely vulnerable vulnerable to to the the

political political process.

38 38

III. III.

IV.

IV.

The The District District Court Court Also Also Erred Erred In In Holding Holding That That UOCAVA UOCAVA And And

MOVE MOVE Do Do Not Not Violate Violate Plaintiffs’ Plaintiffs' Right Right To To Travel.

This This Court Court Has Has Jurisdiction Jurisdiction Over Over This This Appeal

Conclusion Conclusion

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

Certificate of Compliance with Circuit Rule 30(d)

Circuit Rule 30(d)

Certificate of Compliance with

Certificate Certificate of of Service Service

Rule Rule 30(a) 30(a) Short Short Appendix Appendix

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Table Table Of Of Authorities Authorities

CASES

CASES

Aptheker v. Secretary of State,

Aptheker v. Secretary of State,

378 U.S 500 (1964)

378 U.S 500

(1964)

Balzac v. Porto Rico,

Balzac v. Porto Rico,

258 U.S. 298 (1922)

258 U.S. 298 (1922)

Bethesda Lutheran Homes & Services, Inc. v. Leean,

Bethesda Lutheran Homes & Services, Inc. v. Leean,

F.3d

122 F.3d 443 (7th Cir. 1997)

122

443 (7th

Cir. 1997)

Boumediene v. Bush,

Boumediene v. Bush,

553 U.S. 723 (2008)

553 U.S. 723 (2008)

Bush v. Gore,

Bush v. Gore,

531 U.S. 98 (2000)

531 U.S. 98 (2000)

Califano v. Gautier Torres,

Califano v. Gautier Torres,

435 U.S. 1 (1978)

435 U.S. 1 (1978)

City of Cleburne, Texas v. Cleburne Living Center,

City of Cleburne, Texas v. Cleburne Living Center,

473 U.S. 432 (1985)

473 U.S. 432 (1985)

In re Chapman,

In re Chapman,

328 F.3d 903 (7th Cir. 2003)

328 F.3d 903 (7th Cir. 2003)

Community House, Inc. v. City of Boise,

Community House, Inc. v. City of Boise,

490 F.3d 1041 (9th Cir. 2007)

490 F.3d 1041 (9th Cir. 2007)

In re Conde Vidal,

In re Conde Vidal,

818 F.3d 765 (1st Cir. 2016)

818 F.3d

765 (1st Cir. 2016)

Coopers & Lybrand v. Livesay,

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978)

437 U.S. 463 (1978)

Davis v. Bandemer,

Davis v. Bandemer,

478 U.S. 109 (1986)

478 U.S. 109

(1986)

Downes v. Bidwell,

Downes v. Bidwell,

182 U.S. 244 (1901)

182 U.S. 244 (1901)

Dunn v. Blumstein,

Dunn v. Blumstein,

405 U.S. 330 (1972)

405 U.S. 330

(1972)

iiiiii

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48

48

26

26

47

47

28, 44

28, 44

31, 32

31, 32

47, 48, 52, 53

47, 48, 52, 53

16

16

15

15

44

44

26

26

54, 56

54, 56

32

32

27, 28

27, 28

passim

passim

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Edelman v. Jordan,

Edelman v. Jordan,

415 U.S. 651 (1974)

415 U.S. 651 (1974)

Ellis v. DHL Express Inc. (USA),

Ellis v. DHL Express Inc.

(USA),

633 F.3d 522 (7th Cir. 2011)

633 F.3d 522 (7th Cir. 2011)

Evans v. Cornman,

Evans v. Cornman,

398 U.S. 419 (1970)

398 U.S. 419 (1970)

Examining Board of Engineers, Architects & Surveyors v. Flores de Otero,

Examining Board of Engineers, Architects & Surveyors v. Flores de Otero,

426 U.S. 572 (1976)

426 U.S. 572 (1976)

22

22

15

15

30

30

44

44

Frontiero v. Richardson,

Frontiero v. Richardson,

411 U.S. 677 (1973)

411 U.S. 677 (1973)

Graham v. Richardson,

Graham v. Richardson,

403 U.S. 365 (1971)

403 U.S. 365 (1971)

Griffin v. Roupas,

Griffin v. Roupas,

385 F.3d 1128 (7th Cir. 2004)

385 F.3d 1128 (7th Cir. 2004)

17, 18, 39

17,

18, 39

39

39

33

33

Haig v. Agee,

Haig v. Agee,

453 U.S. 280 (1981)

453 U.S. 280 (1981)

Harper v. Virginia State Board of Elections,

Harper v. Virginia State Board of Elections,

383 U.S. 663 (1966)

383 U.S. 663 (1966)

Heckler v. Mathews,

Heckler v. Mathews,

465 U.S. 728 (1984)

465 U.S. 728 (1984)

Heller v. Doe,

Heller v. Doe,

509 U.S. 312 (1993)

509 U.S. 312 (1993)

Holt Civic Club v. City of Tuscaloosa,

Holt Civic Club v. City of Tuscaloosa,

439 U.S. 60 (1978)

439 U.S. 60 (1978)

Igartúa De La Rosa v. United States,

Igartua De La Rosa v. United States,

32 F.3d 8 (1st Cir. 1994)

32 F.3d 8 (1st Cir. 1994)

Igartúa De La Rosa v. United States,

Igartua De La Rosa v. United States,

229 F.3d 80 (1st Cir. 2000)

229 F.3d 80 (1st Cir. 2000)

Igartúa De La Rosa v. United States,

Igartua De La Rosa v. United States,

417 F.3d 145 (1st Cir. 2005)

417 F.3d 145 (1st Cir. 2005)

48

48

30, 32, 34, 35

30, 32, 34, 35

24, 25

24, 25

16

16

34

34

35, 36

35, 36

36

36

36

36

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Igartúa v. United States,

Igartua v. United States,

626 F.3d 592 (1st Cir. 2010)

626 F.3d 592 (1st Cir. 2010)

Katzenbach v. Morgan,

Katzenbach v. Morgan,

384 U.S. 641 (1966)

384 U.S. 641 (1966)

King v. Palmer,

King v. Palmer,

950 F.2d 771 (D.C. Cir. 1991)

950 F.2d 771 (D.C. Cir.

1991)

Lamers Dairy Inc. v. U.S. Department of Agriculture,

Lamers Dairy Inc. v. U.S. Department of Agriculture,

379 F.3d 466 (7th Cir. 2004)

379 F.3d 466 (7th Cir. 2004)

League of Women Voters v. Brunner,

League of Women Voters v. Brunner,

548 F.3d 463 (6th Cir. 2008)

548 F.3d 463 (6th Cir. 2008)

Lubin v. Panish,

Lubin v. Panish,

415 U.S. 709 (1974)

415 U.S. 709 (1974)

Mathews v. Lucas,

Mathews v. Lucas,

427 U.S. 495 (1976)

427 U.S. 495 (1976)

McDonald v. Board of Election Commissioners of Chicago,

McDonald v. Board of Election Commissioners of Chicago,

384 U.S. 641 (1966)

384 U.S. 641 (1966)

McDonald v. Board of Election Commissioners of Chicago,

McDonald v. Board of Election Commissioners of Chicago,

394 U.S. 802 (1969)

394 U.S. 802

(1969)

McMillian v. Sheraton Chicago Hotel & Towers,

McMillian v. Sheraton Chicago Hotel & Towers,

567 F.3d 839 (7th Cir. 2009)

567 F.3d 839 (7th Cir. 2009)

Memorial Hospital v. Maricopa County,

Memorial Hospital v. Maricopa County,

415 U.S. 250 (1974)

415 U.S. 250 (1974)

Michigan State A. Philip Randolph Institute v. Johnson,

Michigan State A. Philip Randolph Institute v. Johnson,

833 F.3d 656 (6th Cir. 2016)

833 F.3d 656 (6th Cir. 2016)

Moses H. Cone Memorial Hospital v. Mercury Construction Corp.,

Moses H. Cone Memorial Hospital v. Mercury Construction Corp.,

460 U.S. 1 (1983)

460 U.S. 1 (1983)

New York v. United States,

New York v. United States,

505 U.S. 144 (1992)

505 U.S. 144 (1992)

Obama for America v. Husted,

Obama for America v. Husted,

697 F.3d 423 (6th Cir. 2012)

697 F.3d 423 (6th Cir. 2012)

vv

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42

42

36, 37, 38

36, 37, 38

27

27

38

38

31

31

31

31

16

16

38

38

30

30

54, 55, 56

54, 55, 56

49

49

31

31

43

43

46

46

35

35

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Obergefell v. Hodges,

Obergefell v. Hodges,

135 S. Ct. 2584 (2015)

135 S. Ct. 2584 (2015)

Peoples Rights Organization, Inc. v. City of Columbus,

Peoples Rights Organization, Inc. v. City of Columbus,

152 F.3d 522 (6th Cir. 1998)

152

F.3d

522

(6th

Cir. 1998)

Plyler v. Doe,

Plyler v. Doe,

457 U.S. 202 (1982)

457 U.S. 202

(1982)

Quiban v. Veterans Administration,

Quiban v. Veterans Administration,

928 F.2d 1154 (D.C. Cir. 1991)

928 F.2d 1154 (D.C. Cir. 1991)

Reid v. Covert,

Reid v. Covert,

354 U.S. 1 (1957)

354 U.S. 1 (1957)

Reynolds v. Sims,

Reynolds v. Sims,

377 U.S. 533 (1964)

377 U.S. 533 (1964)

Romer v. Evans,

Romer v. Evans,

517 U.S. 620 (1996)

517 U.S. 620 (1996)

Romeu v. Cohen,

Romeu v. Cohen,

265 F.3d 118 (2d Cir. 2001)

265 F.3d 118 (2d

Cir. 2001)

Sabangan v. Powell,

Sabangan v. Powell,

375 F.3d 818 (9th Cir. 2004)

375 F.3d 818 (9th Cir. 2004)

Saenz v. Roe,

Saenz v. Roe,

526 U.S. 489 (1999)

526 U.S. 489 (1999)

Sampayans v. Mathews,

Sampayans v. Mathews,

417 F. Supp. 60 (D. Guam 1976)

417 F. Supp. 60 (D. Guam 1976)

San Antonio Independent School District v. Rodriguez,

San Antonio Independent School District v. Rodriguez,

411 U.S. 1 (1973)

411

U.S.

1 (1973)

Schweiker v. Wilson,

Schweiker v. Wilson,

450 U.S. 221 (1981)

450 U.S. 221 (1981)

Shapiro v. Thompson,

Shapiro v. Thompson,

394 U.S. 618 (1969)

394 U.S. 618 (1969)

Sklar v. Byrne,

Sklar v. Byrne,

727 F.2d 633 (7th Cir. 1984)

727 F.2d 633 (7th

Cir. 1984)

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26

26

16

16

39

39

44

44

28

28

27, 45

27, 45

16

16

35, 36, 52, 53

35, 36, 52, 53

20

20

48

48

48

48

39

39

16

16

22, 49

22, 49

50

50

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Snead v. City of Albuquerque,

Snead v. City of Albuquerque,

663 F. Supp. 1084 (D.N.M. 1987)

663 F. Supp. 1084 (D.N.M.

1987)

Torres v. Puerto Rico,

Torres v. Puerto Rico,

442 U.S. 465 (1979)

442 U.S. 465 (1979)

U.S. Department of Agriculture v. Moreno,

U.S. Department of Agriculture v. Moreno,

413 U.S. 528 (1973)

413 U.S. 528 (1973)

United States v. Carolene Products Co.,

United States v. Carolene Products Co.,

304 U.S. 144 (1938)

304 U.S. 144 (1938)

United States v. Guest,

United States v. Guest,

383 U.S. 745 (1966)

383 U.S. 745 (1966)

United States v. Virginia,

United States v. Virginia,

518 U.S. 515 (1996)

518 U.S. 515 (1996)

United States ex rel. Richards v. De Leon Guerrero,

United States ex rel. Richards v. De Leon Guerrero,

4 F.3d 749 (9th Cir. 1993)

4 F.3d 749 (9th Cir. 1993)

Welsh v. United States,

Welsh v. United States,

398 U.S. 333 (1970)

398 U.S. 333 (1970)

Wesberry v. Sanders,

Wesberry v. Sanders,

376 U.S. 1 (1964)

376 U.S. 1 (1964)

Wright v. North Carolina,

Wright v. North Carolina,

787 F.3d 256 (4th Cir. 2015)

787 F.3d 256 (4th Cir. 2015)

Zemel v. Rusk,

Zemel v. Rusk,

381 U.S. 1 (1965)

381 U.S. 1 (1965)

Zessar v. Helander,

Zessar v. Helander,

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

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

STATUTES

STATUTES

10

10

10

10

10

10

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

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

Ill. Comp. Stat. 5/5-4

Ill. Comp. Stat. 5/5-4

Ill. Comp. Stat. 5/6-21

Ill. Comp. Stat. 5/6-21

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34

34

28

28

17, 19

17,

19

38, 39, 40, 42

38, 39, 40, 42

47

47

46

46

20 20

25

25

27, 45

27, 45

31

31

48

48

50 50

9

9

9

9

9

9

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10

10

Ill. Ill. Comp. Comp. Stat. Stat. 5/6-24 5/6-24

9 9

10

10

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

9 9

10

10

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

9 9

10 10

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

9 9

10 10

Ill. Comp. Stat. 5/20-2.2

Ill. Comp. Stat. 5/20-2.2

9 9

28 28

U.S.C. U.S.C. § § 1291 1291

1, 1, 54, 54, 56 56

28 28

U.S.C. U.S.C. § § 1331 1331

1 1

28 28

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

1 1

52 52

U.S.C. U.S.C. § § 20301(a) 20301(a)

8 8

52

52

52

52

52

52

U.S.C. § 20302(a)(1)

U.S.C. § 20302(a)(1)

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

U.S.C. U.S.C. § § 20310(8) 20310(8)

Illinois Military and Overseas Voter Empowerment Act

Illinois Military

and Overseas Voter Empowerment Act

Overseas Citizens Voting Rights Act of 1975

Overseas

of 1975

Citizens Voting Rights Act

Uniformed and Overseas Citizens Absentee Voting Act

Uniformed

Citizens Absentee Voting Act

and

Overseas

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

United United States States Constitution, Constitution, amendment amendment XII XII

RULES RULES

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

OTHER OTHER AUTHORITIES AUTHORITIES

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

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

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7

7

8

8

8

8

passim passim

passim passim

passim passim

31 31

31 31

1 1

8

8

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Adriel I. Cepeda Derieux, A Most Insular Minority: Reconsidering

Adriel I. Cepeda Derieux, A Most Insular Minority: Reconsidering

Judicial Deference to Unequal Treatment in Light of Puerto Rico's

Judicial Deference to Unequal Treatment in Light of Puerto Rico's

Political Process Failure,

Political Process Failure,

110 Colum. L. Rev. 797 (2010)

110 Colum. L. Rev. 797 (2010)

41, 43

41, 43

Arnold J. Janicker, Extending the Federal Franchise to the Commonwealth of

Arnold J. Janicker, Extending the Federal Franchise to the Commonwealth of

Puerto Rico: Igartúa de la Rosa v. United States,

Puerto Rico: Igartaa de la Rosa v. United States,

75 St. John’s L. Rev. 509 (2001)

75 St. John's L. Rev. 509

(2001)

Covenant to Establish a Commonwealth of the Northern Mariana

Covenant to Establish a Commonwealth of the Northern Mariana

Islands in Political Union with the United States of America

Islands in Political Union with the United States of America

40

40

19

19

Department of Defense Instruction 1000.04 & Encl. 3 (Sept. 13, 2012)

Department of Defense Instruction 1000.04 & End. 3 (Sept. 13, 2012)

Developments in the Law: U.S. Territories,

Developments in the Law: U.S. Territories,

Harv. L. Rev. 1617 (2017)

Harv. L. Rev.

1617 (2017)

Guam and the Case for Federal Deference,

Guam and the Case for Federal Deference,

Harv. L. Rev. 1704 (2017)

Harv. L. Rev.

1704 (2017)

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

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

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

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

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

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

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

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

James Surowiecki, On Puerto Rico, Congress Once Again Fails

James Surowiecki, On Puerto Rico, Congress Once Again Fails

to Do the Obvious, New Yorker, May 2, 2016

to Do the Obvious, New Yorker, May 2, 2016

Jessica Pupillo, Guam, Puerto Rico and Virgin Islands Chapters Face

Jessica Pupillo, Guam, Puerto Rico and Virgin Islands Chapters Face

Unique Challenges, AAFP (July 31, 2014)

Unique Challenges, AAFP

(July 31, 2014)

Josh Hicks, Guam: A High Concentration of Veterans,

Josh Hicks, Guam: A High Concentration of Veterans,

but Rock-Bottom VA Funding, Wash. Post, Oct. 29, 2014

but Rock-Bottom

VA Funding, Wash. Post, Oct. 29, 2014

Juan R. Torruella, The Insular Cases: A Declaration of Their Bankruptcy

Juan R. Torruella, The Insular Cases: A Declaration of Their Bankruptcy

and My Harvard Pronouncement, in Reconsidering the Insular Cases

and My Harvard Pronouncement, in Reconsidering the Insular Cases

(Gerald L. Neuman & Tomiko Brown-Nagin eds., 2015)

(Gerald L. Neuman & Tomiko Brown-Nagin eds., 2015)

L.S. Rowe, The Supreme Court and the Insular Cases,

L.S. Rowe, The Supreme Court and the Insular Cases,

18 Annals Am. Acad. Pol. & Soc. Sci. 38 (1901)

18 Annals Am. Acad. Pol.

&

Soc. Sci. 38 (1901)

8

8

41

41

26

26

21

21

21

21

7

7

7

7

41

41

41

41

41

41

28 28

27

27

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Lisa M. Kömives, Enfranchising a Discrete and Insular Minority:

Lisa M. Komives, Enfranchising a Discrete and Insular Minority:

Extending Federal Voting Rights to American Citizens

Extending Federal Voting Rights to American Citizens

Living in United States Territories,

Living in United States Territories,

36 U. Miami Inter-Am. L. Rev. 115 (2004)

36 U. Miami Inter-Am. L. Rev. 115 (2004)

42

42

Stanley K. Laughlin, Jr., The Constitutional Structure of the Courts of

Stanley K. Laughlin, Jr., The Constitutional Structure of the Courts of

the United States Territories: the Case of American Samoa,

the United States Territories: the Case of American Samoa,

13 U. Haw. L. Rev. 379 (1991)

13 U. Haw. L. Rev. 379 (1991)

Stanley K. Laughlin, Jr. U.S. Territories and Affiliated Jurisdictions:

Stanley K. Laughlin, Jr. U.S. Territories and Affiliated Jurisdictions:

Colonialism or Reasonable Choice for Small Societies?,

Colonialism or Reasonable Choice for Small Societies?,

37 Ohio N.U. L. Rev. 429 (2011)

37 Ohio N.U. L. Rev. 429 (2011)

40

40

45

45

Tatiana Darie, As Puerto Rico Moves On, Another U.S. Territory Crisis Arises,

Tatiana Darie, As Puerto Rico Moves On, Another U.S. Territory Crisis Arises,

Bloomberg Markets (Dec. 21, 2016)

Bloomberg Markets (Dec. 21, 2016)

41 41

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

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

39, 42

39, 42

United States Census (2010)

United States Census (2010)

Welcoming America’s Newest Commonwealth: The Second Interim Report

Welcoming America's Newest Commonwealth: The Second Interim Report

of the Northern Mariana Islands Commission on Federal laws to the

of the Northern Mariana Islands Commission on Federal laws to the

Congress of the United States (1985)

Congress of the United States (1985)

40

40

19, 20

19, 20

xx

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Statement Concerning Oral Argument

Statement Concerning Oral Argument

This appeal presents questions acknowledged by the district court to

This appeal presents questions acknowledged by the district court to

involve issues of first impression concerning the constitutional rights of

involve issues of first impression concerning the constitutional rights of

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

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

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

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

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

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

plaintiffs respectfully submit that oral argument should be permitted and

plaintiffs respectfully submit that oral argument should be permitted and

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

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

issues presented.

issues presented.

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Jurisdictional Statement

Jurisdictional Statement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1

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

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

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

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

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

United States and its agencies and officers are parties.

United States and its agencies and officers are parties.

Introduction

Introduction

The federal Uniformed and Overseas Citizens Absentee Voting Act

The federal Uniformed and Overseas Citizens Absentee Voting Act

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

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

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

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

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

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

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

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

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

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

The required short appendix is cited herein as “Short App.”

1

1 The required short appendix is cited herein as "Short App."

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

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

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

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

this otherwise global extension of voting rights.

this otherwise global extension of voting rights.

These exclusionary provisions deprive plaintiffs of the ability to continue

These exclusionary provisions deprive plaintiffs of the ability to continue

voting for President and voting representation in Congress. Under any

voting for President and voting representation in Congress. Under any

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

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

that they treat plaintiffs differently from other former state residents who

that they treat plaintiffs differently from other former state residents who

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

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

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

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

state residents for no plausible reason and are therefore arbitrary and

state residents for no plausible reason and are therefore arbitrary and

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

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

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

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

should apply because the discriminatory classifications selectively distribute

should apply because the discriminatory classifications selectively distribute

voting rights among similarly situated persons and disadvantage a politically

voting rights among similarly situated persons and disadvantage a politically

powerless suspect class.

powerless suspect class.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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absence of directly controlling precedent – reasoning that presumably would

absence of directly controlling precedent —reasoning that presumably would

preclude the judicial recognition of fundamental individual rights in most

preclude the judicial recognition of fundamental individual rights in most

circumstances.

circumstances.

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

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

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

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

basis of illusory justifications proffered by the defendants below. But

basis of illusory justifications proffered by the defendants below. But

defendants’ justifications were all tantamount to an argument that federal

defendants' justifications were all tantamount to an argument that federal

and state governments can treat Territories differently because they are

and state governments can treat Territories differently because they are

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

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

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

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

exclusionary lines drawn by UOCAVA and MOVE do not rationally advance

exclusionary lines drawn by UOCAVA and MOVE do not rationally advance

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

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

relationship to the qualities that defendants highlighted as important

relationship to the qualities that defendants highlighted as important

features of the Territories’ ostensibly unique status.

features of the Territories' ostensibly unique status.

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

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

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

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

and disfavored groups when there is no justification for such disparate

and disfavored groups when there is no justification for such disparate

treatment.

treatment.

1. 1.

Issues Presented

Issues Presented

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

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

MOVE’s discriminatory classifications between similarly situated voters in

MOVE's discriminatory classifications between similarly situated voters in

the Territories advance an identifiable government interest.

the Territories advance an identifiable government interest.

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2. 2.

Whether the district court erred when it relied on and extended the

Whether the district court erred when it relied on and extended the

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

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

discriminatory classifications between similarly situated voters in the

discriminatory classifications between similarly situated voters in the

Territories are subject to rational-basis review.

Territories are subject to rational-basis review.

3. 3.

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

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

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

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

penalize and deter interstate travel to certain disfavored Territories.

penalize and deter interstate travel to certain disfavored Territories.

4. 4.

Whether this Court has jurisdiction where the district court resolved

Whether this Court has jurisdiction where the district court resolved

all claims and closed the case.

all claims and closed the case.

Statement of the Case

Statement of the Case

A. A.

The plaintiffs

The plaintiffs

Plaintiffs are six former residents of Illinois and two organizational

Plaintiffs are six former residents of Illinois and two organizational

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

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

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

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

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

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

servants.” (Short App. at 4.).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6, 6, ¶¶ Ifif 1-2.) 1-2.)

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

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

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

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

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

their their former former state state of of residence. residence. (R. (R. Dkt. Dkt. 49, 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. R. Dkt. Dkt. 49-3, 49-3, ¶¶ Ifif 4-5; 4-5; R. R. Dkt. Dkt. 49-4, 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. R. Dkt. Dkt. 49-7, 49-7, ¶¶ Ifif 2-3.) 2-3.) Despite Despite distinguished distinguished

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

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

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

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

representation in Congress by a classification federal and state law makes

representation in Congress by a classification federal and state law makes

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

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

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

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

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

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

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

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

Plaintiffs Iraq Afghanistan and Persian Gulf Veterans of the Pacific

Plaintiffs Iraq Afghanistan and Persian Gulf Veterans of the Pacific

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

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

are organizations that count among their members residents of Guam and

are organizations that count among their members residents of Guam and

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

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

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

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

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

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

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

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

empowerment of USVI residents to address hardships ranging from economic

empowerment of USVI residents to address hardships ranging from economic

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

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

¶ 2.)

If 2.)

Both organizations believe that if former state residents residing in Guam

Both organizations believe that if former state residents residing in Guam

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

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

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

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

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

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

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

(R. (R. Dkt. Dkt. 49, 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 voting laws laws

1. 1.

The The Uniformed Uniformed and and Overseas Overseas Citizens Citizens Absentee Absentee Voting Voting

Act Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Samoa.

2

Samoa.2

Congress never offered a justification for UOCAVA’s disparate treatment

Congress never offered a justification for UOCAVA's disparate treatment

of former state citizens residing outside the 50 states.

of former state citizens residing outside the 50 states.

2. 2.

The Military and Overseas Voter Empowerment Act

The Military and Overseas Voter Empowerment Act

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

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

which provides that former Illinois citizens residing indefinitely “outside the

which provides that former Illinois citizens residing indefinitely "outside the

2 2

UOCAVA vests primary responsibility for enforcement of its

UOCAVA vests primary responsibility for enforcement of its

requirements in a “Presidential designee.” 52 U.S.C. § 20301(a). The current

requirements in a "Presidential designee." 52 U.S.C. § 20301(a). The current

designee is the Secretary of Defense, defendant James N. Mattis, see Exec.

designee is the Secretary of Defense, defendant James N. Mattis, see Exec.

Order No. 12,642, 53 Fed. Reg. 21,975, 21,975 (June 8, 1988), and the

Order No.

12,642, 53 Fed. Reg. 21,975, 21,975 (June 8, 1988), and the

Secretary’s authority has been delegated to defendant Federal Voting

Secretary's authority has been delegated to defendant Federal Voting

Assistance Program, of which defendant Matt Boehmer was the director at

Assistance Program, of which defendant Matt Boehmer was the director at

the time the action was commenced below and, in that role, had the authority

the time the action was commenced below and, in that role, had the authority

to administer FVAP and carry out its statutorily assigned functions and

to administer FVAP and carry out its statutorily assigned functions and

responsibilities. See Department of Defense Instruction 1000.04 & Encl. 3

responsibilities. See Department of Defense Instruction 1000.04 & End. 3

(Sept. 13, 2012). David Beirne is now the director of FVAP but has not been

(Sept. 13, 2012). David Beirne is now the director of FVAP but has not been

substituted as a party.

substituted as a party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

residents living in American Samoa to vote for President and voting

residents living in American Samoa to vote for President and voting

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

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

3

country.3

country.

The Illinois legislature offered no justification for its classification in favor

The Illinois legislature offered no justification for its classification in favor

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

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

country.

country.

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

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

state residents living almost anywhere outside the 50 states – including

state residents living almost anywhere outside the 50 states —including

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

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

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

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

3 3

Illinois law charges state “election authorit[ies]” with the

Illinois law charges state "election authorit[ies]" with the

administration of MOVE. 10 Ill. Comp. Stat. 5/20-2.2. The non-federal

administration of MOVE. 10 Ill. Comp. Stat. 5/20-2.2. The non-federal

defendants here are the Board of Election Commissioners for the City of

defendants here are the Board of Election Commissioners for the City of

Chicago, which is the election authority for Chicago, and its Chairwoman,

Chicago, which is the election authority for Chicago, and its Chairwoman,

Marisel A. Hernandez; and Karen Kinney, who, in her capacity as County

Marisel A. Hernandez; and Karen Kinney, who, in her capacity as County

Clerk for Rock Island County, is the election authority for that county. See 10

Clerk for Rock Island County, is the election authority for that county. See 10

Ill Comp. Stat. 5/1-3(8), 5/5-4, 5/6-21, 5/6-24.

Ill Comp. Stat. 5/1-3(8), 5/5-4, 5/6-21, 5/6-24.

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

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

the USVI – are denied this basic democratic participation.

the USVI —are denied this basic democratic participation.

C. C.

The proceedings below

The proceedings below

Plaintiffs brought suit in the district court to challenge the arbitrary

Plaintiffs brought suit in the district court to challenge the arbitrary

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

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

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

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

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

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

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

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

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

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

and Fourteenth Amendments to the U.S. Constitution.

and Fourteenth Amendments to the U.S. Constitution.

1. 1.

The August 23, 2016 summary-judgment order

The August 23, 2016 summary-judgment order

Plaintiffs and the federal defendants filed cross-motions for summary

Plaintiffs and the federal defendants filed cross-motions for summary

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

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

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

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

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

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

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

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

reasonable grounds upon which Congress could have decided to treat NMI

reasonable grounds upon which Congress could have decided to treat NMI

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

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

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

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

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

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

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

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

The district court granted summary judgment in favor of the federal

The district court granted summary judgment in favor of the federal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. 2.

The October 28, 2016 summary-judgment order

The October 28, 2016 summary-judgment order

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

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

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

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

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

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

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

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

defendants. (R. Dkt. 70.)

defendants. (R. Dkt. 70.)

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

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

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

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

federal defendants acknowledged that they were not aware whether the

federal defendants acknowledged that they were not aware whether the

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

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

territorial residents but posited that the classification was an attempt to

territorial residents but posited that the classification was an attempt to

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

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

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

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

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

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

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

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

rationally related to the legitimate state interest of “synchronization of

rationally related to the legitimate state interest of "synchronization of

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

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

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

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

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

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

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

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

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

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

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

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

(Short App. at 46, 62.)

(Short App. at 46, 62.)

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

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

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

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

were completely resolved against plaintiffs and thus providing jurisdiction for

were completely resolved against plaintiffs and thus providing jurisdiction for

this appeal. (Short App. at 63.)

this appeal. (Short App. at 63.)

This appeal follows.

This appeal follows.

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Summary of the Argument

Summary of the Argument

This case presents a question of first impression that implicates bedrock

This case presents a question of first impression that implicates bedrock

constitutional guarantees: whether the government may extend absentee-

constitutional guarantees: whether the government may extend absentee-

voting rights to former state residents living overseas in certain Territories

voting rights to former state residents living overseas in certain Territories

while denying those rights to former state residents living in other

while denying those rights to former state residents living in other

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

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

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

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

continue voting for President and voting representation in Congress by

continue voting for President and voting representation in Congress by

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

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

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

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

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

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

even under rational-basis review.

even under rational-basis review.

In addition to erroneously concluding that the discriminatory

In addition to erroneously concluding that the discriminatory

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

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

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

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

subject to heightened scrutiny. Improperly relying on the controversial

subject to heightened scrutiny. Improperly relying on the controversial

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

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

decisions infused with racial prejudice that have been maligned since they

decisions infused with racial prejudice that have been maligned since they

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

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

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

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

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

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

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

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

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

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

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

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

Viewing the classifications through the proper lens, the Court should

Viewing the classifications through the proper lens, the Court should

apply heightened scrutiny to the challenged provisions in UOCAVA and

apply heightened scrutiny to the challenged provisions in UOCAVA and

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

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

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

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

while denying such rights to former Illinois residents living in other

while denying such rights to former Illinois residents living in other

Territories, the statutes selectively distribute the franchise to similarly

Territories, the statutes selectively distribute the franchise to similarly

situated individuals and must survive heightened scrutiny. The district

situated individuals and must survive heightened scrutiny. The district

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

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

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

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

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

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

protection jurisprudence. When Congress or the states extend voting rights

protection jurisprudence. When Congress or the states extend voting rights

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

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

extension must satisfy heightened scrutiny when it excludes some citizens

extension must satisfy heightened scrutiny when it excludes some citizens

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

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

right to vote absent that legislative action.

right to vote absent that legislative action.

Furthermore, the classifications created by UOCAVA and MOVE must

Furthermore, the classifications created by UOCAVA and MOVE must

satisfy heightened scrutiny for the additional reason that they target a

satisfy heightened scrutiny for the additional reason that they target a

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

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

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

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

court improperly found that the Territory Clause effectively gives Congress

court improperly found that the Territory Clause effectively gives Congress

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

struck down on this ground as well.

struck down on this ground as well.

Standard of Review

Standard of Review

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

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

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

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

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

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

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

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

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

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

2003).

2003).

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I. I.

Argument

Argument

The District Court Erred In Holding That UOCAVA And

The District Court Erred In Holding That UOCAVA And

MOVE’s Arbitrary Treatment Of Former State Residents

MOVE's Arbitrary Treatment Of Former State Residents

Survives Any Level of Scrutiny.</