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Case: 16-4240 Document: 42 RESTRICTED Filed: 06/09/2017 Pages: 53

No. 16-4240

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

LUIS SEGOVIA, et al.,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA, et al.,

Defendants-Appellees.

Appeal from the United States District Court
For the Northern District of Illinois, Eastern Division
Case No. 15-cv-10196
The Honorable Joan B. Gottschall, District Judge

JOINT BRIEF OF DEFENDANTS-APPELLEES BOARD OF ELECTION
COMMISSIONERS FOR THE CITY OF CHICAGO, MARISEL HERNANDEZ,
AND KAREN KINNEY, IN HER OFFICIAL CAPACITY AS ROCK ISLAND
COUNTY CLERK

James M. Scanlon Patricia Castro
James M. Scanlon & Assistant State’s Attorney
Associates, P.C. Rock Island State’s Attorney
27 North Wacker Drive #502 1504 3rd Avenue, 2nd Floor
Chicago, IL 60606 Rock Island, IL 61201
(312) 782-8163 (309) 558-3202
Email: Email: castrop@co.rock-
james.scanlon@jmsalaw.com island.il.us

Attorneys for Defendants-Appellees
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APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
16-4240
Appellate Court No:

Short Caption: Luis Segovia, et al v. USA, et al

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Board of Election Commissioners for the City of Chicago; Marisel A. Hernandez, Chairman of the Board

of Election Commissioners for the City of Chicago

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
James M. Scanlon & Associates, P.C.

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and
N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
N/A

Attorney's Signature:
s/ James M. Scanlon Date:
1/25/17
James M. Scanlon
Attorney's Printed Name:

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

27 N. Wacker Drive #502
Address:
Chicago Illinois 60606

312-782-8163
Phone Number: Fax Number: 312-264-4571

james.scanlon@jmsalaw.com
E-Mail Address:

rev. 01/15 GA
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TABLE OF CONTENTS

JURISDICTIONAL STATEMENT ....................................................................... 1

STATEMENT OF ISSUES.................................................................................... 1

STATEMENT OF THE CASE .............................................................................. 2

SUMMARY OF ARGUMENT ............................................................................... 7

STANDARD OF REVIEW................................................................................... 10

ARGUMENT ........................................................................................................ 10

I. Illinois Statute Excluding Former Illinois Residents Now Living in Guam,
Puerto Rico and U.S. Virgin Islands from Casting an Absentee Ballot in
Illinois for Federal Elections is not a Denial of Equal Protection ................. 10
A. Illinois’ Law is Rationally Related to a Legitimate State Interest and
Passes Scrutiny Under the Rational Basis Test ......................................... 10
1. The Illinois Statute was Intended to Mirror Federal Law ................. 12

2. Illinois’ Failure to Keep Up with Changes in Federal Law Does Not
Render the Statute Irrational .................................................................. 17

3. Illinois Has a Legitimate State Interest in Restricting the Ballot to
Bona Fide Residents ................................................................................. 20

4. Plaintiffs’ Requested Relief Would Discriminate in Favor of U.S.
Citizens Residing in Certain U.S. Territories Who Formerly Resided in a
State and Against U.S. Citizens in Those Territories Who Did Not ...... 22

II. The District Court Did Not Err in Rejecting Plaintiffs’ Request to Apply
Heightened Scrutiny ........................................................................................ 23
A. UOCAVA and the Illinois Statute Do Not Interfere with the Exercise
of a Fundamental Right Requiring Strict or Heightened Scrutiny ........... 24
B. There is No Suspect Class ..................................................................... 31

III. Illinois Statute Excluding Former Illinois Residents Now Living in
Guam, Puerto Rico And U.S. Virgin Islands from Casting an Absentee Ballot
in Illinois for Federal Elections Does Not Infringe the Right to Travel ....... 37

CONCLUSION .................................................................................................... 41

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(g)(1)
.............................................................................................................................. 43

CERTIFICATE OF SERVICE............................................................................. 44

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TABLE OF AUTHORITIES

Cases

Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955
(2001) ................................................................................................................ 26

Broyles v. Texas, 618 F. Supp. 2d 661, 685–86 (S.D. Tex. 2009), aff'd, 381 Fed.
Appx. 370 (5th Cir. 2010)................................................................................. 31

Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059 (1992) ......................... 27

Califano v. Gautier Torres, 435 U.S. 1, 98 S.Ct. 906 (1978) .............................. 43

City of Herriman v. Bell, 590 F.3d 1176, 1185–86 (10th Cir. 2010).................. 31

Clements v. Fashing, 457 U.S. 957, 962–63, 102 S.Ct. 2836 (1982).................. 26

Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610
(2008) ................................................................................................................ 23

Dunn v. Blumstein, 405 U.S. 330, 336-337 (1972) ............................................. 31

FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096 (1993)
............................................................................................................... 17, 25, 34

Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) .................................................. 23

Frontiero v. Richardson, 411 U.S. 677, 682 (1973) ............................................ 35

Graham v. Richardson, 403 U.S. 365 (1971) ...................................................... 37

Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004) ..................................... 24

Harris v. Rosario, 446 U.S. 651, 651 (1980) ....................................................... 40

Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637 (1993) .............................. 16, 26

Hill v. Stone, 421 U.S. 289, 297, 95 S.Ct. 1637 (1975)....................................... 31

Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 68–69, 99 S.Ct. 383 (1978)
..................................................................................................................... 29, 30

Igartua de La Rosa v. United States, 32 F.3d 8 (1st Cir. 1994) ............. 27, 32, 34

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Igartua v. U.S., 86 F.Supp.3d 50, 55-56 (D. Puerto Rico 2015)......................... 39

Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) .............................................. 19

McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 89
S.Ct. 1404 (1969) .............................................................................................. 19

McGowan v. Maryland, 366 U.S. 420, 425 (1961)........................................ 25, 28

McPherson v. Blacker, 146 U.S. 1, 35, 13 S.Ct. 3 (1892) ................................... 29

Nordlinger v. Hahn, 505 U.S. 1, 27, 112 S.Ct. 2326 (1992) ............................... 26

One Wisconsin Inst., Inc. v. Thomsen, 198 F.Supp.3d 896, 961, (W.D. Wis.
2016) ................................................................................................................. 16

Plyler v. Doe, 457 U.S. 202 (1982) ....................................................................... 37

Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) .................................................. 27

Romeu v. Cohen, 121 F.Supp.2d 264 (S.D. N.Y. 2000) ................................ 22, 40

Romeu v. Cohen, 265 F.3d 118, 125 (2d Cir. 2001) .................... 23, 32, 34, 39, 44

San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973)............... 37

Snead v. City of Albuquerque, 663 F.Supp. 1084, 1088 (D.N.M.1987) . 28, 30, 31

Srail v. Village of Lisle, Ill., 588 F. 3d 940, 946-47 (7th Cir. 2009) ................... 17

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359, 117 S.Ct. 1364
(1997) ................................................................................................................ 27

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 841–842, 115 S.Ct. 1842
(1995) ................................................................................................................ 28

United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938) ................. 36, 37

Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040 (1976) ................................. 41
Statutes

10 Ill. Comp. Stat. § 5/20-1 .................................................................................... 2

10 Ill. Comp. Stat. § 5/21-1(1) ............................................................................... 4

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10 Ill. Comp. Stat. 5/20-1(4) ................................................................................ 14

52 U.S.C § 20302(a)(1) ........................................................................................... 3

52 U.S.C. § 20302................................................................................................. 33

52 U.S.C. § 20310........................................................................................... 19, 33

52 U.S.C. § 20310(5)(C) ......................................................................................... 3

52 U.S.C. § 20310(8) .............................................................................................. 3

89 Stat. 1142 § 2 .................................................................................................. 13

89 Stat. 1142 § 3(2) .............................................................................................. 13

Overseas Citizens Voting Rights Act (“OCVRA”), 89 Stat. 1142 ............... passim

Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20310
.................................................................................................................... passim
Other Authorities

H. R. Rep. No. 99-765, at 19, 1986 WL 31901, at *19 ........................................ 21

H.R. Rep. No. 94-649, *3, at 2 (1975).................................................................. 12

Pub. L. 99-410, title I, §107, Aug. 28, 29186, 100 Stat. 927 .............................. 15

Public Act 81-953 (SB 1146), effective 9/22/1979 ............................................... 14

Treatises

Adriel I. Cepeda Derieux, Note, A Most Insular Minority: Reconsidering
Judicial Deference to Unequal Treatment in Light of Puerto Rico’s Political
Process Failure, 110 Colum. L. Rev. 797, 828 (2010) ..................................... 34

Constitutional Provisions

Ill. Const. 1970, Art. III, § 1 .......................................................................... 22, 29

U.S. Const. Art. I, § 4, cl. 1 .................................................................................. 29

U.S. Const. Art. II, § 1, cl. 2 ................................................................................ 28

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U.S. Const., Amend XIV, § 1 ............................................................................... 25

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JURISDICTIONAL STATEMENT

Appellees Board of Election Commissioners for the City of Chicago, Marisel

Hernandez, Chairwoman, and Karen Kinney, Rock Island County Clerk, agree

that the jurisdictional statement in Appellants’ re-submitted Brief is complete

and correct. These Appellees also agree with the Appellants’ statements in

their Brief, at 54-56, that the district court’s October 28, 2016 Memorandum

Opinion and Order disposed of all of Plaintiffs’ claims against all defendants,

thereby constituting a “final decision” for purposes of 28 U.S.C. § 1291 and

providing this Court with jurisdiction to decide this appeal.

STATEMENT OF ISSUES

I.

Whether the district court was correct in holding that certain federal and

Illinois laws extending the right to vote by absentee ballot to former Illinois

residents who move overseas, but not to certain territories considered by

Congress to be part of the United States, are rationally related to legitimate

government interests and are thus not a denial of equal protection.

II.

Whether the district court was correct in holding that former Illinois

residents who move to certain territories considered by Congress to be part of

the United States are not denied a fundamental right to vote in Illinois

elections for federal office nor are they members of a suspect class subjected to

invidious discrimination.

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III.

Whether the district court was correct in holding that certain federal and

Illinois laws not extending the right to vote by absentee ballot to former

Illinois residents who move to certain territories considered by Congress to be

part of the United States do not infringe on the their right to travel.

STATEMENT OF THE CASE

The individual Plaintiffs are former residents of Chicago, Illinois, and Rock

Island County, Illinois, now living in Guam, Puerto Rico and the U.S. Virgin

Islands. (R. Dkt # 49, ¶¶ 5-6) Plaintiffs contend that certain provisions of

federal law – the Uniformed and Overseas Citizens Absentee Voting Act, 52

U.S.C. § 20310 (“UOCAVA”) – and Illinois law – 10 Ill. Comp. Stat. § 5/20-1

(referred to by Plaintiffs as the “MOVE” Act1) – prevent them from voting in

federal elections in Illinois. Brief, at 1-3.

Plaintiffs Iraq Afghanistan and Persian Gulf Veterans of the Pacific

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

1 In October 2009, Congress enacted, and the President signed, the Military and
Overseas Voter Empowerment Act (the “MOVE Act”). This act amended the federal
Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”) to require that
States and local election jurisdictions provide procedures that would allow military
and overseas voters to receive and transmit voter registration and absentee ballot
application materials by “electronic means.” In response to the federal MOVE Act,
Illinois adopted Public Act 96,1004, effective Jan. 1, 2011, that amended Article 20 of
the Illinois Election Code regarding voting by military and overseas citizens to bring
Illinois law into compliance with Federal law by requiring each election authority to
establish procedures that allow individuals who are entitled to vote absentee under
Article 20 to request voter registration applications and absentee ballot applications
by mail or electronically for each election. Although Plaintiffs’ reference to the Illinois
statutes applicable to voting by military and overseas civilians as the Illinois “MOVE”
Act is not technically accurate, this brief may refer to “MOVE” for sake of simplicity
and consistency in the briefs.

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organizations that count residents of Guam and the U.S. Virgin Islands who

formerly resided in Illinois among their members. (R. Dkt # 49, ¶ 8)

UOCAVA provides in part, “[E]ach State shall permit *** overseas voters to

use absentee registration procedures and to vote by absentee ballot in general,

special, primary, and runoff elections for Federal office.” 52 U.S.C §

20302(a)(1). The Act defines an “overseas voter” in part as a “person who

resides outside the United States and (but for such residents) would be

qualified to vote in the last place in which the person was domiciled before

leaving the United States.” 52 U.S.C. § 20310(5)(C). The Act further defines

the “United States” to mean, “where used in the territorial sense,” “the several

States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the

Virgin Islands, and American Samoa.” 52 U.S.C. § 20310(8). Thus, persons

who reside in Puerto Rico, Guam, the Virgin Islands and American Samoa are

deemed to be residents of the United States and not “overseas voters” for

purposes of UOCAVA.

The Secretary of Defense, the Federal Voting Assistance Program, and its

Director (the “Federal Defendants”) are charged with administration of the

federal duties under UOCAVA. (R. Dkt # 49, ¶¶ 12-14) They are sued in their

official capacities. (Id.)

Illinois law provides that civilian citizens and former Illinois residents who

now reside outside the “territorial limits of the United States” may vote in

Federal elections by absentee ballot. 10 Ill. Comp. Stat. § 5/20-2.2. Illinois law

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defines the “[T]erritorial limits of the United States” as meaning “each of the

several States of the United States and includes the District of Columbia, the

Commonwealth of Puerto Rico, Guam and the Virgin Islands, but does not

include American Samoa, the Canal Zone, the Trust Territory of the Pacific

Islands or any other territory or possession of the United States.” 10 Ill. Comp.

Stat. § 5/21-1(1). Thus, persons who reside in Puerto Rico, Guam and the U.S.

Virgin Islands (but not including American Samoa) are deemed to be residents

within the territorial limits of the United States and not “overseas” voters;

therefore, such persons are not eligible to vote by absentee ballot under Illinois

law.

The Board of Election Commissioners for the City of Chicago (the “Board”)

is the “election authority” charged with administering elections in the City of

Chicago, where some of the Plaintiffs formerly resided. (R. Dkt. # 49, ¶ 9) The

Board’s Chairwoman, Marisel Hernandez, has been sued in her official

capacity. (R. Dkt. # 49, ¶ 10) Karen Kinney is the County Clerk for Rock Island

County, where Plaintiff Anthony Bunten formerly resided, and is the “election

authority” for Rock Island County responsible for conducting elections there.

(R. Dkt # 49, ¶ 11). Kinney is sued in her official capacity. (Id.) The Board,

Hernandez and Kinney are referred throughout this brief as the “Illinois

Defendants.”

Plaintiffs contend that the challenged federal and Illinois statutes violate

Plaintiffs’ right to equal protection under the 14th Amendment of the United

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States Constitution because Plaintiffs are denied the right to vote in federal

elections in Illinois, a right that is afforded to all other former Illinois

residents residing “overseas.” (R. Dkt. # 1, ¶¶ 2-3, 48-54) Although not raised

in their complaint, Plaintiffs first contended in their second motion for

summary judgment (and now on appeal) that they are being denied due

process on the grounds that both federal and Illinois statutes violate Plaintiffs’

fundamental right to interstate travel.

Plaintiffs and the Federal Defendants filed cross motions for summary

judgment. (R. Dkt # 42; R. Dkt # 47; R. Dkt # 50) On August 23, 2016, the

district court granted summary judgment for the Federal Defendants and

denied Plaintiffs’ summary judgment motion. (Short Appendix, at 1-42) After

finding that the Court had jurisdiction and that the individual Plaintiffs had

standing to sue, the district court found that the Plaintiffs “do not have a

fundamental right to vote via Illinois absentee ballot in federal elections, and

the plaintiffs have not alleged that the UOCAVA discriminates due to their

membership in a suspect class.” (Short Appendix, at 31) The district court also

found that Plaintiffs’ equal protection claims do not trigger strict scrutiny and

that such claims would be reviewed under the less rigorous rational basis

standard of analysis. (Short Appendix, at 32) The district court concluded that

the UOCAVA’s challenged provisions survive rational basis review. (Short

Appendix, at 42) However, the district court noted that the Plaintiffs’ due

process claim was not briefed and survived the court’s rulings on the equal

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protection claims. (Short Appendix, at 42-43) The district court also noted that

the parties’ briefs did not resolve Plaintiffs’ claims regarding the Illinois

statute. Therefore, both these issues remained unresolved, according to the

district court. (Id.)

In response, Plaintiffs filed a second motion for summary judgment on their

equal protection claims against the Illinois Defendants and on their new due

process claims against both the Federal and Illinois Defendants on the theory

that both the federal and Illinois statutes violated Plaintiffs’ right to interstate

travel. (R. Dkt. # 70). On October 28, 2016, the district court denied Plaintiffs’

second summary judgment motion and granted the Federal Defendants’ cross-

motion for summary judgment. (Short Appendix, at 44-63) The district court

accepted the Illinois Defendants’ explanation that Illinois attempted in 1979 to

mirror the original federal statute requiring that states permit overseas voters

to vote by absentee ballot – the Overseas Citizens Voting Rights Act

(“OCVRA”), 89 Stat. 1142 – and that this language simple remained in place

even after the OCVRA was repealed and replaced by UOCAVA in 1986. (Short

Appendix, at 55) The district court found that Illinois had a legitimate state

interest in staying abreast of federal voting rights laws and the adoption of

language into the Illinois statute that mirrored federal statutes such as

OCVRA legitimately achieved this purpose. (Id.) The district court also found

that Illinois had, at least until 1986, a legitimate state interest in treating

American Samoa differently from Puerto Rico, Guam, and the U.S. Virgin

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Islands. (Short Appendix, at 56) The fact that the Illinois statute was

predicated on the historical context of the 1970’s and does not reflect the

current treatment of American Samoa under UOCAVA was not, in the district

court’s view, fatal as the practical effect of the statute’s “outdatedness” is that

it provides more generous voting rights to former Illinois residents than would

exist if Illinois had updated its laws to mirror the more recent (1986) UOCAVA.

(Short Appendix, at 57) The district court found no unconstitutionality with

the Illinois statute on equal protection grounds. (Short Appendix, at 58) The

district court also rejected Plaintiffs’ argument that both UOCAVA and the

Illinois statute violated Plaintiffs’ fundamental right to interstate travel.

(Short Appendix, at 61-62) The court found that the Plaintiffs’ inability to vote

by absentee ballot in their respective territories stems not from a violation of

their right to travel, but rather from the constitutional status of Puerto Rico,

Guam and the U.S. Virgin Islands. (Id.)

On October 28, 2016, the district court entered judgment in favor of all

defendants and against the Plaintiffs. (Short Appendix, at 63)

Plaintiffs filed their notice of appeal.

SUMMARY OF ARGUMENT

The United States Constitution reserved to the States the right to vote for

electors for the President of the United States and States have certain powers

over the time, places and manner of federal elections.

The State of Illinois limits the right to vote in Illinois to permanent

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residents of the State. However, Illinois amended its laws after Congress

enacted the Overseas Citizens Voting Rights Act (“OCVRA”) in 1975 to

conform to OCVRA’s requirement that each State allow any former resident of

that State who moved “overseas” to vote by absentee ballot in federal elections.

Puerto Rico, Guam and the U.S. Virgin Islands were considered to be within

the territorial limits of the United States. As a result, Illinois, like other States

was not required by OCVRA to extend absentee voting privileges to former

residents who moved to those territories. At the time, American Samoa was

not considered a part of the territorial limits of the United States. Later, when

Congress enacted the Uniformed and Overseas Civilian Absentee Voting Act

(“UOCAVA”) in 1986, American Samoa was included within the definition of

the territorial limits of the United States. Thus, States were no longer

required to permit their former residents who moved to American Samoa to

vote by absentee ballot. Illinois has never amended its law to reflect the

change Congress made in 1986. However, a statute is not invalid under the

Constitution because it did not go as far as it could have as a legislature need

not strike at every conceivable evil or problem that could have been addressed.

Illinois’ change in its laws in 1979 was in recognition that, under the

Constitution of the United States, Congress has plenary authority to create

and define the relationship between the United States and its territories and

possessions.

Former residents of the State of Illinois do not, however, have a

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fundamental right under the Constitution to take their voting rights and

privileges with them no matter where they go when they move away from

Illinois. Former Illinois residents cannot, for example, take their Illinois voting

rights and privileges with them when they move to another State like

Wisconsin or Indiana. Rather, they inherit only those voting rights and

privileges conferred upon them by their new State. Similarly, former Illinois

residents who move to U.S. territories like Puerto Rico, Guam and the U.S.

Virgin Islands – which are considered by UOCAVA and Illinois law to be part

of the United States – do not take with them their right to participate in

Illinois elections. Instead, they possess only those voting rights as enjoyed by

other residents of their new home State and are presumably treated like any

other resident of their new community.

Residents of Illinois who move out of the State do not suddenly become

members of a “suspect class” who become targets and victims of invidious

discrimination simply because of where they move. Their alleged

“mistreatment” surely does not trigger strict or heightened scrutiny requiring

that the government demonstrate a compelling interest justifying any

difference in treatment.

Finally, former residents of Illinois are free to travel wherever they wish.

But their choices have consequences. If they choose to move to another State

like Wisconsin or Indiana or even to Puerto Rico, Guam or the U.S. Virgin

Islands, they surrender their right to vote in Illinois and inherit the same right

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to vote as enjoyed by their new neighbors in their new home. The right to

travel guarantees only that they will be free of invidious discrimination in

their new home; it does not guarantee that they will be able to take the right

to vote they enjoyed in their former home with them when they move to a new

home.

STANDARD OF REVIEW

Appellees Board of Election Commissioners for the City of Chicago, Marisel

Hernandez, Chairwoman, and Karen Kinney, Rock Island County Clerk, agree

with Appellants that the appropriate standard of review of a grant of summary

judgment is de novo.

ARGUMENT

I. Illinois Statute Excluding Former Illinois Residents Now Living
in Guam, Puerto Rico and U.S. Virgin Islands from Casting an
Absentee Ballot in Illinois for Federal Elections is not a Denial of
Equal Protection

A. Illinois’ Law is Rationally Related to a Legitimate State Interest and
Passes Scrutiny Under the Rational Basis Test

Plaintiffs argue that regardless of the level of scrutiny to be employed in

this case, both the federal law and the Illinois statute must be invalidated on

equal protection grounds because there is no identifiable government interest

that is advanced by the alleged discriminatory treatment imposed by the

statutes. Brief, at 16.

Plaintiffs first attack UOCAVA, arguing that its provisions do not in any

way advance the federal government’s “unique” relationship with the Northern

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Mariana Islands (“NMI”). Brief, 17-18. Pursuant to this Court’s March 6, 2017

Order (Doc. #17) encouraging counsel for appellees to avoid unnecessary

duplication by filing a joint brief or by adopting parts of co-appellees’ brief, the

Illinois Defendants adopt that part of the brief of co-appellees Federal

Defendants addressing this issue and the issue generally of Congress’ power

over all of the territories and UOCAVA’s role in those relationships.

Regarding the Illinois statute, Plaintiffs contend that the district court’s

grounds for upholding Illinois’ interests in treating former Illinois residents

now residing in American Samoa differently than former Illinois residents in

NMI are “unavailing” because Illinois’ justifications do not identify a

legitimate government interest that is “advanced” by the law’s provisions.

Brief, at 22.

Plaintiffs contend that the Illinois legislature has offered “no justification

for its classification in favor of former Illinois residents living in American

Samoa, the NMI, or a foreign country.” Brief, at 9.

Plaintiffs then attack the Illinois statute on two grounds. First, they

contend that modeling a discriminatory federal law does not advance a

legitimate state interest because the federal government cannot authorize

States to violate the Equal Protection Clause. Brief, at 23. Of course, as a

proposition of law, they are right. However, the federal law, as argued by the

Federal Defendants and as held by the district court, is not discriminatory.

Alternatively, Plaintiffs contend that the Illinois statute no longer models the

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federal law because of the 1986 changes in the federal law, which, Plaintiffs

argue, undermines the State’s legitimate interests. Id.

Second, Plaintiffs argue that because the federal government no longer

treats American Samoa differently than Guam, Puerto Rico and the U.S.

Virgin Islands under UOCAVA, Illinois has no state-specific reason of its own

to accord American Samoa “unique” status. Brief, at 23-24.

None of these arguments have merit.

1. The Illinois Statute was Intended to Mirror Federal Law

In 1975, Congress adopted the Overseas Citizens Voting Rights Act of 1975,

89 Stat. 1142 (“OCVRA”). In enacting the OCVRA, Congress recognized that

“[V]irtually all States have statutes expressly allowing military personnel, and

often other U.S. Government employees, and their dependents, to register and

vote absentee from outside the country.” See, H.R. Rep. No. 94-649, *3, at 2

(1975), reprinted in 1975 U.S.C.C.A.N 2358, 2360. The primary purpose of the

OCVRA was “to assure the right of otherwise qualified private U.S. citizens

residing outside the United States to vote in Federal elections.” Id., at *1, at 1.

One of the conditions of voting under OCVRA was that the voter “does not

maintain a domicile, is not registered to vote, and is not voting in any other

State or election district of a State or territory or in any territory or possession

of the United States.” 89 Stat. 1142 § 3(2).

According to the OCVRA, the “United States” “includes the several States,

the District of Columbia, the Commonwealth of Puerto Rico, Guam and the

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Virgin Islands, but not include American Samoa, the Canal Zone, the Trust

Territory of the Pacific Islands, or any other territory or possession of the

United States.” 89 Stat. 1142 § 2. OCVRA also defined “State” to mean “each

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

Rico, Guam, and the Virgin Islands.” Id.

The State of Illinois amended its laws in 1979 to provide that any “non-

resident civilian citizen,” otherwise qualified to vote, may make application to

the election authority having jurisdiction over his precinct of former residence

for an absentee ballot containing the Federal offices only not less than 10 days

before a Federal election. See, 10 Ill. Comp. Stat. § 5/20-2.2, as amended by

Public Act 81-953 (SB 1146), effective 9/22/1979. “Non-resident civilian citizen”

was defined as a civilian citizen of the United States who (i) resided “outside

the territorial limits of the United States,” (ii) had maintained a precinct

residence in a county in Illinois immediately prior to their departure from the

United States, (iii) did not maintain a residence and is not registered to vote in

any other State, and (iv) whose intent to return to Illinois may be uncertain.

See, 10 Ill. Comp. Stat. 5/20-1(4).

The 1979 Illinois law defined the “territorial limits of the United States” to

mean “each of the several States of the United States and includes the District

of Columbia, the Commonwealth of Puerto Rico, Guam and the Virgin Islands;

but does not include American Samoa, the Canal Zone, the Trust Territory of

the Pacific Islands or any other territory or possession of the United States.”

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See, 10 Ill. Comp. Stat. § 5/20-1, as amended by Public Act 81-953 (SB 1146),

effective 9/22/1979.

Thus, Illinois adopted legislation that tracked exactly the language of the

OCVRA when it came to defining what constituted the “United States” and the

territory it encompassed. As the district court properly noted, the OCVRA

“differentiated between (1) the District of Columbia, Puerto Rico, Guam, and

the U.S. Virgin Islands, (2) the Canal Zone ***, American Samoa ***, and the

now-former Trust Territory of the Pacific Islands (which included the NMI);

and (3) other United States Trust Territories or possessions.” (Short Appendix,

at 37) Illinois simply followed suit.

When Congress enacted UOCAVA in 1986, American Samoa became

included (instead of being excluded, as was previously the case) in the

definition of “State” and “United States,” joining the District of Columbia,

Puerto Rico, Guam and the Virgin Islands as territories within the “territorial

sense” of the United States where States were not required to extend absentee

voting privileges. See Pub. L. 99-410, title I, §107, Aug. 28, 29186, 100 Stat.

927.

Illinois, however, never subsequently amended its statutory definition of

“territorial limits of the United States.” Now, nearly forty years later, its

definition remains the same as originally enacted in 1979. Thus, American

Samoa (along with the Canal Zone, the Trust Territory of the Pacific Islands

(including NMI) and any other territory or possession of the United States)

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continue to remain, by definition, outside the “territorial limits” of the United

States. As a result, former Illinois residents taking up residence in American

Samoa (or in the Canal Zone, the Trust Territory of the Pacific Islands, or any

other territory or possession of the United States) are eligible to receive an

absentee ballot from Illinois.

It is evident just from the face of both the OCVRA and the Illinois statute

that the State of Illinois sought merely to comply with the federal law, but the

State failed to keep up with the federal law when, in 1986, UOCAVA added

American Samoa to the list of territories considered to be within the territory

of the United States.

“[A] classification neither involving fundamental rights nor proceeding

along suspect lines is accorded a strong presumption of validity.” Heller v. Doe,

509 U.S. 312, 319, 113 S.Ct. 2637 (1993). As the district court observed, “[T]o

support the rationality of a challenged statute, a defendant is not ‘limited to

the justifications that the legislature had in mind at the time that it passed

the challenged provisions – any rational justification for the laws will

overcome an equal protection challenge’,” citing One Wisconsin Inst., Inc. v.

Thomsen, 198 F.Supp.3d 896, 961, (W.D. Wis. 2016), appeal pending. (Short

Appendix, at 35)

This Court has held that a legislature “need not actually articulate the

legitimate purpose or rationale that supports the classification at issue.

Instead, a statute ‘must be upheld against equal protection challenge if there

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is any reasonable conceivable state of facts that could provide a rational basis

for the classification’.” City of Chicago v. Shalala, 189 F.3d 598, 605 (7th Cir.

1999), quoting Heller v. Doe by Doe, 509 U.S. 312, 320, 113 S.Ct. 2637 (1993),

in turn quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113

S.Ct. 2096 (1993). “A classification does not fail rational-basis review because

it is not made with mathematical nicety or because in practice it results in

some inequality.” Id.

In Srail v. Village of Lisle, Ill., 588 F. 3d 940, 946-47 (7th Cir. 2009), this

Court, quoting Shalala, supra, held that even as regards to a state statute, “if

there is a rational relationship between the disparity of treatment and some

legitimate government purpose,” the statute survives rational basis scrutiny.

In denying Plaintiffs’ second motion for summary judgment, the district

court correctly concluded that the Illinois statute does not violate the Plaintiffs’

equal protection rights because “the statute’s different treatment of former

Illinois residents living in various U.S. territories is rationally related to

legitimate state interests,” which interests “include the synchronization of

Illinois MOVE with applicable federal overseas and absentee voting laws such

as the UOCAVA’s predecessor statute, the Overseas Citizens Voting Rights

Act (“OCVRA”).” (Short Appendix, at 46)

The district court accepted the Illinois Defendants’ explanation that in 1979

the State of Illinois amended its election laws to define the territorial limits of

the United States in such a way as to track precisely the language and

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provisions of the earlier OCVRA as a way of staying abreast of federal law,

even though the State of Illinois did not similarly amend its election laws

following the OCVRA’s repeal and the UOCAVA’s enactment. (Short Appendix,

at 55) The district court found that Illinois had (and has) a legitimate state

interest in staying abreast of federal voting rights laws and that the adoption

of language into Illinois statute that mirrored federal statutes such as the

OCVRA legitimately achieved this purpose. (Id.)

2. Illinois’ Failure to Keep Up with Changes in Federal Law Does Not Render
the Statute Irrational

Plaintiffs criticize Illinois, arguing that even if it attempted to track the

1975 OCVRA while it was in effect, Illinois cannot provide a plausible rational

explanation for the statute’s classification three decades after the 1975 Act’s

repeal. Brief, at 23.

Illinois is not alone, however, when it comes to keeping up with world

events and falling prey to “historical timing.” It should be noted that at the

time of UOCAVA’s enactment in 1986, the Northern Mariana Islands (“NMI”),

the treatment of which Plaintiffs’ have spent considerable time arguing, was

not yet a United States’ “Territory” because the covenant creating this

framework did not become fully effective until three months after Congress

passed UOCAVA. (Short Appendix, at 34) Indeed, Congress, three decades

later, has never amended UOCAVA to reflect the new post-1986 relationship

with NMI and NMI is still not considered a part of the United States “where

used in the territorial sense.” See, 52 U.S.C. § 20310.

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The failure to amend the Illinois statute is, much like Congress’ failure to

include the NMI within the definition of territory of the United States when it

adopted UOCAVA in 1986, a “product of historical timing.” (Short Appendix, at

35) This does not mean, however, that Illinois’ statute lacked a rational basis

when enacted or that the statute is irrational today.

“[A] statute is not invalid under the Constitution because it might have

gone farther than it did” as “a legislature need not strike at all evils at the

same time.” Katzenbach v. Morgan, 384 U.S. 641, 657 (1966). “[A] legislature

need not run the risk of losing an entire remedial scheme simply because it

failed, through inadvertence or otherwise, to cover every evil that might

conceivably have been attacked. McDonald v. Board of Election Commissioners

of Chicago, 394 U.S. 802, 89 S.Ct. 1404 (1969). Reform may be taken “one step

at a time” without creating an equal protection violation, even if those steps

are taken slowly over the course of decades as has occurred here with both

Congress and the Illinois legislature. Congress, three decades later, still has

not amended UOCAVA to reflect NMI’s relationship to the United States.

Accordingly, the different treatment of American Samoa and NMI versus

Puerto Rico, Guam and the Virgin Islands, under the Illinois statute is not

irrational simply because Illinois has not gone as far as it might have (or

quickly enough) in denying absentee voting rights to former Illinois residents

who now reside in American Samoa.

The district court also observed that a basic understanding of the history of

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American Samoa—which illustrates that American Samoa has not followed

the same path as Puerto Rico, Guam, and the USVI as concerns incorporation,

citizenship, and cultural practices—lead the court to conclude that a rational

basis supported Illinois’ decision to track the language of the OCVRA and to

exclude American Samoa from its definition of “[T]erritorial limits of the

United States.” (Short Appendix, at 57) The district court noted that at the

time of the OCVRA’s enactment, the federal government viewed American

Samoa more like a foreign country than as part of the United States’ territorial

limits. (Id.)

Regarding Plaintiffs’ point that Illinois has neglected to update its statute

to reflect the federal law changes in 1986, the district court noted that while it

is true that the Illinois statute remains predicated on the 1975 federal

statute’s approach to American Samoa that was informed by the historical

context of the 1970s and does not reflect the current treatment of American

Samoa under the 1986 UOCAVA, the practical effect of the Illinois statute’s

“outdatedness” is that it provides more generous voting rights to former

Illinois residents than would exist had the State updated its laws to mirror the

UOCAVA. (Short Appendix, at 57) The district court observed that, “critically,

this state-based electoral generousness is clearly permitted under the

UOCAVA. (Id.) An examination of the legislative history of the UOCAVA

indicates a clear intention to preserve the ability of states to extend voting

rights to individuals disenfranchised by the UOCAVA,” citing H. R. Rep. No.

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99-765, at 19, 1986 WL 31901, at *19 (deeming unnecessary for inclusion in

the UOCAVA any language contained in the OCVRA stating that “this Act will

not be deemed to require registration in any State in which registration is not

required as a precondition to voting in a Federal election nor will it prevent

any State from adopting any voting practice which is less restrictive than the

practices prescribed by this Act” because the UOCAVA would not impinge on

either activity) (emphasis added). (Short Appendix, at 57-58)

The UOCAVA, as explained by the district court, provides the “voting

practices floor” upon which Illinois must stand, while at the same time

granting States the right to expand upon these practices. (Short Appendix, at

58) In the words of the district court, “The UOCAVA essentially provides a

built-in rational basis explanation for states that failed to implement any

narrowing of voting rights engendered by the UOCAVA.” (Id.)

3. Illinois Has a Legitimate State Interest in Restricting the Ballot to Bona
Fide Residents

Next, Illinois, just like any other State, “has a legitimate interest in

restricting the ballot to bona fide residents and ensuring that someone who

wishes to vote” in the State does not maintain a place of abode or domicile, is

not registered to vote and is not voting in any other election district, state,

territory or possession of the United States.” Romeu v. Cohen, 121 F.Supp.2d

264, 284. (S.D. N.Y. 2000). The State of Illinois Constitution requires that to

have the right to vote in the State, a person must be a “permanent resident” of

the State. Ill. Const. 1970, Art. III, § 1. When a citizen decides to abandon his

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or her Illinois residence and move to another State, he or she loses the right to

vote in Illinois. But, such a citizen inherits such voting rights as the citizen’s

new State allows. However, subject to the United States Constitution, the

Supremacy Clause and UOCAVA, Illinois, like every State, is obligated to

extend absentee voting privileges to former residents living outside the

territory of the United States. Illinois did so, as reflected in the 1979

amendments to its election laws, adopting a definition of territorial limits of

the United States that paralleled the OCVRA. It so happens, however, that

these Plaintiffs decided to take up new residence in certain U.S. territories

that are considered part of the United States under the OCVRA and UOCAVA.

Much like former Illinois residents who move to States like Indiana and

Wisconsin (both of which, it should be noted, require voter ID when voting –

see, Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), cert. denied, ––– U.S. ––––,

135 S.Ct. 1551 (2015), and Crawford v. Marion County Election Board, 553 U.S.

181, 128 S.Ct. 1610 (2008) – while Illinois does not), Plaintiffs surrendered

their right to vote in Illinois and now must vote according to the laws of their

new home State or territory. Former Illinois residents who move outside

Illinois have no Constitutional right to bring with them their Illinois voting

rights and privileges, except as may be required by Congress under the

Supremacy Clause.

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4. Plaintiffs’ Requested Relief Would Discriminate in Favor of U.S. Citizens
Residing in Certain U.S. Territories Who Formerly Resided in a State and
Against U.S. Citizens in Those Territories Who Did Not

Finally, the district court noted that if Plaintiffs were granted the

opportunity to vote in federal elections using an Illinois absentee ballot, “it

would not result in a universally applicable rule that permits all United States

citizens in Puerto Rico, Guam, and the U.S. Virgin Islands to vote in federal

elections,” citing Romeu v. Cohen, 265 F.3d 118, 125 (2d Cir. 2001). (Short

Appendix, at 41) Instead, the court would be creating a “distinction of

questionable fairness” by permitting former Illinois residents now living in

Puerto Rico, Guam and the U.S. Virgin Islands to vote for President, while

residents of those territories who have not previously resided in Illinois will

not enjoy that right. (Id.) This is exactly the concern the district court sought

to avoid when ruling on Plaintiffs’ first summary judgment motion when the

court found that, with respect to UOCAVA, “[I]t is rational *** to enact a law

that does not differentiate between residents living in a particular United

States Territory based on whether they could previously vote in a federal

election administered by a state.” (Short Appendix, at 42) The same rationale

applies to the Illinois statute.

As this Court observed in rejecting a claim by a class comprised of working

women seeking the right to vote by absentee ballot in Illinois, “[T]he

Constitution does not in so many words confer a right to vote, though it has

been held to do so implicitly.” Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir.

2004). “Rather, it confers on the states broad authority to regulate the conduct

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of elections, including federal ones.” Id. This Court noted, “[B]ecause of this

grant of authority and because balancing the competing interests involved in

the regulation of elections is difficult and an unregulated election system

would be chaos,” state legislatures may impose “extensive restrictions on

voting” that may exclude some people from voting. “[T]he constitutional

question is,” this Court continued, “whether the restriction and resulting

exclusion are reasonable given the interest the restriction serves.” Id. “No

greater precision in the articulation of the governing standard seems possible.”

Id.

A statute “must be upheld against equal protection challenge if there is any

reasonably conceivable state of facts that could provide a rational basis for the

classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113

S.Ct. 2096 (1993).

Here, there is a rational justification for the Illinois statute’s treatment of

former Illinois residents who later take up residency in other States or

territories that are considered a part of the United States, versus those who

later become residents in other countries and territories outside the United

States. The district court’s finding that the Illinois statute provides such a

rational justification must be affirmed.

II. The District Court Did Not Err in Rejecting Plaintiffs’
Request to Apply Heightened Scrutiny

The Equal Protection Clause of the Fourteenth Amendment prohibits a

state from discriminating among different classes of persons arbitrarily.

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Specifically, the Fourteenth Amendment to the U.S. Constitution states: “No

State shall ... deny to any person within its jurisdiction the equal protection of

the laws.” U.S. Const., Amend XIV, § 1. (Italics added) The Fourteenth

Amendment permits the States a wide scope of discretion in enacting laws that

affect some groups of citizens differently than others. See McGowan v.

Maryland, 366 U.S. 420, 425 (1961). A state law is not presumed to be

unconstitutional solely because it results in some inequality among groups of

citizens. See Clements v. Fashing, 457 U.S. 957, 962–63, 102 S.Ct. 2836 (1982).

If a classification does not impermissibly interfere with the exercise of a

fundamental right or involve a suspect class, then “judicial scrutiny under the

Equal Protection Clause demands only a conceivable rational basis for the

challenged state distinction.” Nordlinger v. Hahn, 505 U.S. 1, 27, 112 S.Ct.

2326 (1992). If this rational basis standard applies, then “the burden is upon

the challenging party to negative any reasonably conceivable state of facts that

could provide a rational basis for the classification.” Bd. of Trustees of Univ. of

Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955 (2001), citing Heller v. Doe,

509 U.S. 312, 320, 113 S.Ct. 2637 (1993)).

A. UOCAVA and the Illinois Statute Do Not Interfere with the Exercise of
a Fundamental Right Requiring Strict or Heightened Scrutiny

Plaintiffs argue that because the voting franchise is implicated, UOCAVA

and the Illinois statute are subject to “heightened scrutiny.” Brief, at 25-38.

They contend that a legislative classification is subject to strict scrutiny if it

impermissibly interferes with the exercise of a “fundamental right” and that

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the right of suffrage is a fundamental matter in a free and democratic society,”

citing Reynolds v. Sims, 377 U.S. 533, 561-62 (1964). Brief, at 27. But the mere

fact that a statute concerns voting does not establish that the statute infringes

on a fundamental right. See Igartua de la Rosa v. United States, 32 F.3d 8, 10

& n. 2 (1st Cir.1994) (per curiam).

“When deciding whether a state election law violates ... Fourteenth

Amendment ... rights, the Court must weigh the character and magnitude of

the burden the State's rule imposes on those rights against the interests the

State contends justify that burden, and consider the extent to which the

State's concerns make the burden necessary.” Timmons v. Twin Cities Area

New Party, 520 U.S. 351, 359, 117 S.Ct. 1364 (1997), citing Burdick v.

Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059 (1992). If a regulation imposes

“severe burdens on plaintiffs' rights[, it] must be narrowly tailored and

advance a compelling state interest.” Timmons, 520 U.S. at 359. The lesser the

burden, the less strict review. Id. “Under the minimum level of scrutiny, equal

protection is offended only if the statute's classification ‘rests on grounds

wholly irrelevant to the achievement of the State's objective.’” Snead v. City of

Albuquerque, 663 F.Supp. 1084, 1088 (D.N.M.1987), citing McGowan v.

Maryland, 366 U.S. at 425–26. “[T]o implicate the higher standard of review

on the basis of a “fundamental right” requires that the right be guaranteed by

the Constitution.” Snead, 663 F.Supp. at 1087.

Plaintiffs have no right to vote for President or for members of Congress

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that is guaranteed by the Constitution just because they were at one time

residents of Illinois.

“The Constitution … grants States certain powers over the times, places,

and manner of federal elections (subject to congressional revision), Art. I, § 4,

cl. 1 ..., and allows States to appoint electors for the President, Art. II, § 1, cl.

2.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 841–842, 115 S.Ct. 1842

(1995). The Constitution assigns to the States the primary responsibility for

determining the manner of selecting the Presidential electors. See U.S. Const.

Art. II, § 1, cl. 2. Individual citizens have no federal constitutional right to vote

for electors for the President of the United States unless and until the State

legislature chooses a statewide election as the means to implement its power

to appoint members of the electoral college. McPherson v. Blacker, 146 U.S. 1,

35, 13 S.Ct. 3 (1892) (the state legislature's power to select the manner for

appointing electors is plenary; it may, if it so chooses, select the electors itself,

which indeed was the manner used by state legislatures in several States for

many years after the framing of our Constitution. McPherson, 146 U.S. at 28–

33.

The Constitution also gave States the power to prescribe the “Times, Places

and Manner of holding Elections for Senators and Representatives.” U.S.

Const. Art. I, § 4, cl. 1.

As noted previously herein at pages 20-21, the Illinois Constitution

requires permanent residency in Illinois in order to vote in the State. Ill. Const.

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1970, Art. III, § 1. It is well established that “a government unit may

legitimately restrict the right to participate in its political processes to those

who reside within its borders” and that such a restriction does not violate the

Equal Protection Clause. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60,

68–69, 99 S.Ct. 383 (1978). In Holt, the Supreme Court considered an equal

protection claim brought against a city by nonresidents who were not allowed

to vote in the city's elections but were subject to some of the city's regulations

and fees. The Court determined that only rational basis scrutiny was required

because the statute did not “den[y] the franchise to individuals who were

physically resident within the geographic boundaries of the governmental

entity.” The Court observed:

From [our earlier] voting qualifications cases a common
characteristic emerges: The challenged statute in each case
denied the franchise to individuals who were physically
resident within the geographic boundaries of the
governmental entity concerned. No decision of this Court
has extended the “one man, one vote” principle to
individuals residing beyond the geographic confines of the
governmental entity concerned, be it the State or its
political subdivisions. On the contrary, our cases have
uniformly recognized that a government unit may
legitimately restrict the right to participate in its political
processes to those who reside within its borders.
Id. at 68–69, 99 S.Ct. at 388–89.
The Supreme Court in Holt Civic Club held that the affected non-residents

were not denied equal protection where they were not permitted to vote in the

city's municipal election because one who resides outside of the governmental

unit has no “fundamental right” to vote in its election Accordingly, the Court

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rejected the plaintiffs' contention there that the denial of the franchise to them

could be justified only by a compelling state interest. See Snead v. City of

Albuquerque, 663 F. Supp. 1084, 1087 (D.N.M. 1987), aff'd, 841 F.2d 1131

(10th Cir. 1987).

Plaintiffs, however, attack the district court’s reliance on Snead and Holt

Civic Club (Brief, at 33-34) and argue instead that when a statute “grants the

right to vote to some citizens and denies the franchise to others,” the

government must establish that the “exclusions are necessary to promote a

compelling interests,” citing Dunn v. Blumstein, 405 U.S. 330, 336-337 (1972).

But other courts have noted that Holt was consistent with earlier cases

holding that states and municipalities “have the power to require that voters

be bona fide residents of the relevant political subdivision.” See Broyles v.

Texas, 618 F. Supp. 2d 661, 685–86 (S.D. Tex. 2009), aff'd, 381 Fed. Appx. 370

(5th Cir. 2010), citing, among other cases, Dunn v. Blumstein, 405 U.S. 330,

343, 92 S.Ct. 995 (1972), the very case relied upon by Plaintiffs.

Because the Plaintiffs in this case, former residents of Illinois, have no

constitutionally protected “fundamental right” to vote in Illinois’ elections, the

mere fact that Illinois law extends the right to vote to some non-residents to

comply with UOCAVA does not implicate strict scrutiny by this Court. See

Snead v. City of Albuquerque, 663 F. Supp. 1084, 1087 (D.N.M. 1987), aff'd,

841 F.2d 1131 (10th Cir. 1987). Classifications on the basis of residency are

exempt from strict scrutiny. See Hill v. Stone, 421 U.S. 289, 297, 95 S.Ct. 1637

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(1975); City of Herriman v. Bell, 590 F.3d 1176, 1185–86 (10th Cir. 2010).

In ruling on Plaintiffs’ first motion for summary judgment, the district

court held that while an Illinois citizen who is qualified to vote in a federal

election has a fundamental right to vote, “United States citizens living in

territories do not have the same fundamental right to vote as United States

citizens residing in Illinois who are qualified to vote in federal elections.”

(Short Appendix, at 27) Plaintiffs focused below on UOCAVA’s distinction

between former residents of States now living in the Northern Mariana

Islands (“NMI”) – which is a trust territory that is not included within

UOCAVA’s definition of “State” or “United States” and whose residents are

permitted to vote in federal elections – and residents of Guam, Puerto Rico and

the U.S. Virgin Islands, which are included within the UOCAVA’s definition of

“States” or “United States.” (Short Appendix, at 31) The district court found

that neither this distinction, nor the distinction drawn in Igartua de La Rosa v.

United States, 32 F.3d 8 (1st Cir. 1994) (“Igartua I”), and Romeu v. Cohen, 265

F. 265 F.3d 118 (2nd Cir. 2001) (“distinction between those who reside overseas

and those who take up residence in Puerto Rico [and, as relevant here, Guam

and the U.S. Virgin Islands], but between those who reside overseas and those

who move anywhere with in the United States”), infringes upon a fundamental

right. (Id.) Accordingly, the district court held, “the UOCAVA’s differing

treatment of the NMI versus Puerto Rico, Guam, and the U.S. Virgin Islands

does not trigger strict scrutiny.” (Short Appendix, at 32) Instead, the district

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court correctly analyzed Plaintiffs’ claims under the rational basis test.

Without a constitutional right, there can be no fundamental right. (Short

Appendix, at 25)

UOCAVA provides that United States citizens (including, e.g., residents of

Puerto Rico, see 52 U.S.C. § 20310), who reside outside the United States

retain the right to vote via absentee ballot in their last place of residence in

the United States, as long as these citizens otherwise qualify to vote under

laws of the jurisdiction in which they last resided. See, 52 U.S.C. § 20302. It

does not apply, however, to citizens who move from one jurisdiction to another

within the United States. See 52 U.S.C. § 20310(5) (defining “overseas voter” as

a person “who resides outside the United States”).

Plaintiffs claim that the UOCAVA and the Illinois statute illegally

discriminate against citizens who have taken up residence in certain

territories (Puerto Rico, Guam, the U.S. Virgin Islands and American Samoa)

rather than in foreign countries and certain territories outside the United

States, because the former are not entitled by the Act to vote in their prior

state of residence. Brief, at 32. This claim is identical to the claim made – and

rejected – in Igartua De La Rosa v. United States, 32 F.3d 8, 10–11 (1st Cir.

1994) (“Iguarta I”). In Iguarta I, the court held that UOCAVA “does not

distinguish between those who reside overseas and those who take up

residence in Puerto Rico, but between those who reside overseas and those who

move anywhere within the United States.” (Italics added) The court held

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further that because such a distinction “neither affects a suspect class nor

infringes a fundamental right,” it need only have a rational basis to pass

constitutional muster, citing FCC v. Beach Communications, Inc., 508 U.S.

307, 113 S.Ct. 2096, 2101 (1993) (equal protection). Id. The court reasoned

that:

“Without the Act, voters who move overseas could lose
their right to vote in all federal elections. However, voters
who move to a new residence within the United States are
eligible to vote in a federal election in their new place of
residence. Hence, Congress had a rational basis for seeking
to protect the absentee voting rights only of the former.
While the Act does not guarantee that a citizen moving to
Puerto Rico will be eligible to vote in a presidential
election, this limitation is not a consequence of the Act but
of the constitutional requirements discussed above.”
Igartua, 32 F.3d at 10–11 (1st Cir. 1994).

In Romeu v. Cohen, 265 F.3d 118, 124 (2d Cir. 2001), the Second Circuit

held that "the UOCAVA's distinction between former residents of States now

living outside the United States and former residents of States now living in

the U.S. territories is not subject to strict scrutiny.”

Nothing establishes the existence of a “fundamental right” of former Illinois

residents to vote in territories that are considered part of the United States,

and Plaintiffs have failed to show that UOCAVA and the Illinois statute

infringes on a “fundament right.” Therefore, nothing justifies the application of

strict or heightened scrutiny.

B. There is No Suspect Class

Plaintiffs contend that the Illinois law should be subject to the heightened

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strict scrutiny because historical experience has shown that Territorial

residents have been effectively locked out of the political process and thus

should be treated as a “suspect class.” Brief, at 38-47. Plaintiffs’ complaint in

this case never alleged that Plaintiffs are members of a “suspect class”; it was

an argument raised for the first time in Plaintiffs’ second motion for summary

judgment.

As the district court noted, classifications based on sex, race alienage, and

nationality are inherently suspect, citing Frontiero v. Richardson, 411 U.S. 677,

682 (1973). (Short Appendix, at 51) None of those conditions are present here.

The “suspect class” that Plaintiffs refer to consists of “territorial residents”

who, Plaintiffs claim, are “excluded from the political process and therefore a

suspect class.” Brief, at 38. It is not clear, however, whether Plaintiffs are

referring to all residents of the affected territories (Puerto Rico, Guam, U.S.

Virgin Islands, American Samoa), or just those who move to the affected

territories from other States (including Illinois). In other words, did the

Plaintiffs become members of the suspect class only after they moved from

Illinois to the territories in question? There is absolutely no legal authority

supporting the proposition that former residents of Illinois or any State who

move to certain territories considered part of the United States are members of

a “suspect class.” Plaintiffs acknowledge this lack of authority, but argue it is

only a reason to decide Plaintiffs’ suspect class argument “based on first

principles, not to reject it out of hand.” Brief, at 43.

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Plaintiffs cite several cases where the United States Supreme Court has

found that in the disbursement of public, health and education services or

benefits, different treatment of aliens within a state may run afoul of the

Equal Protection Clause. For example, Plaintiffs cite United States v. Carolene

Prods. Co., 304 U.S. 144, 152 (1938) for the proposition that heightened

scrutiny applies to “legislation which restricts those political processes which

can ordinarily be expected to bring about repeal of undesirable legislation” and

statutes rooted in “prejudice against discrete and insular minorities” that

“tend seriously to curtail the operation of those political processes ordinarily to

be relied upon to protect minorities.” Brief, at 38-39. In Carolene Products, the

question for decision was whether the ‘Filled Milk Act’ of Congress of March 4,

1923, which prohibited the shipment in interstate commerce of skimmed milk

compounded with any fat or oil other than milk fat, so as to resemble milk or

cream, transcended the power of Congress to regulate interstate commerce or

infringes the Fifth Amendment.

Plaintiffs also cite, among other cases, Plyler v. Doe, 457 U.S. 202 (1982),

which considered a Texas law barring children who were not U.S. citizens or

“legally admitted aliens” from state educational fund eligibility; San Antonio

Independent Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), which was a class

action was brought on behalf of school children, who were said to be members

of poor families residing in school districts having low property tax base,

challenging reliance by Texas school-financing system on local property

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taxation; and Graham v. Richardson, 403 U.S. 365 (1971), which considered

the constitutionality of state statutes that disqualified resident aliens from

participating in state-run welfare programs. Brief, at 39. These last three

cases, citing Carolene Products, noted that certain racial and ethnic groups

have frequently been recognized as ‘discrete and insular minorities' who are

relatively powerless to protect their interests in the political process. See

Graham, 403 U.S., at 372. But none of these cases are even remotely

analogous to the present case.

If Plaintiffs were arguing that Puerto Rico, Guam and the U.S. Virgin

Islands were discriminating against former Illinois residents who moved there

(their version of “aliens”) by not allowing them to vote in the same manner as

other citizens of those territories, perhaps these cases would be of assistance.

But Plaintiffs have not cited any authority suggesting that they are “aliens” in

Illinois seeking benefits. Rather, Plaintiffs are seemingly entitled to all the

same benefits of citizenship and residency of their new homes (including the

right to vote) exercised by the citizens of those territories.

Plaintiffs also cite several law review articles commenting generally on the

perceived poor treatment received by U.S. territories and possessions and their

residents. One of those articles is that of Adriel I. Cepeda Derieux, Note, A

Most Insular Minority: Reconsidering Judicial Deference to Unequal Treatment

in Light of Puerto Rico’s Political Process Failure, 110 Colum. L. Rev. 797, 828

(2010). Brief, at 41, n. 9. The article advances the proposition that modern

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equal protection doctrine – particularly its underlying concern for politically

powerless actors – justifies heightened scrutiny of differential treatment

toward U.S. citizens residing in Puerto Rico. But this article “argues that

federal courts have followed a misguided approach regarding challenges to

unequal congressional treatment of Puerto Rican residents” (110 Colum. L.

Rev. at 801) and that “[a] judicial approach towards equal protection

challenges brought by Puerto Rican U.S. citizens modeled on alienage cases

such as Plyler would reclaim a role for the courts in the U.S.-Puerto Rico

dynamic.” 110 Colum. L. Rev. at 834. In other words, the article’s authors

acknowledge that, thus far, federal courts have been “misguided” and have not

adopted the Plyler “alienage” case model.2

As the district court observed, Congress, and the States when

implementing federal law, may treat residents of the territories differently

than residents of the 50 states, citing Igartua v. U.S., 86 F.Supp.3d 50, 55-56

(D. Puerto Rico 2015) (U.S. territories cannot be defined as “States” for

purposes of Articles I and II of the Constitution); and Romeu v. Cohen, 265

F.3d 118, 123 (2d Cir. 2001) (citizens living in territories possess more limited

voter rights than citizens living in a State). (Short Appendix, at 52) Congress

2 In its conclusion, the article states, “This Note has argued that courts have
misguidedly relied on the judicially created territorial incorporation doctrine to limit
the ability of Puerto Rican residents to redress harms cause by unequal congressional
treatment.” *** In light of the political insularity of U.S. citizens residing in Puerto
Rico, this Note contends greater judicial scrutiny of federal legislation discriminating
against Puerto Rico is both appropriated and normatively desirable.” 110 Colum. L.
Rev. at 839.
3 Even then, the individual inherits only those voting rights enjoyed by the citizens
of the new State. For example, if a resident of Illinois who may be an ex-felon moves

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has the right “to treat U.S. territories differently, including the manner in

which residents of the territories are, or are not, enfranchised with the right to

vote in federal elections,” citing U.S. Const. Art. IV, § 3, cl. 2 (the “Territory

Clause”). (Id.)

Moreover, Congress’ power to make laws regarding the territories is subject

to rational basis review. See Harris v. Rosario, 446 U.S. 651, 651 (1980). (Short

Appendix, at 52)

As noted earlier, Plaintiffs have not cited a single case in support of their

argument that former residents of a State who become residents in one of the

U.S. territories deemed to be within the territory of the United State are

members of a “suspect class” worthy of a strict or heightened scrutiny analysis.

But one case has already rejected such a claim under facts very similar to the

instant case. In Romeu v. Cohen, 121 F.Supp.2d 264 (S.D. N.Y. 2000), affirmed,

265 F.3d 118 (2nd Cir. 2001), Romeu, a U.S. citizen who lived and voted in New

York from 1994 through 1999, became a resident of Puerto Rico in May 1999

and registered to vote there. Because he was unable to vote for President and

Vice President, Romeu requested an absentee ballot from New York. Having

been denied a New York absentee ballot, he sued, arguing, among other things,

that both UOCAVA and the New York statutes were subject to strict scrutiny

because they denied absentee ballots to residents of Puerto Rico on the basis of

their race, ethnicity, alienage or origin. Romeu argued that residents of Puerto

Rico are members of a “suspect class.” The district court, however, rejected the

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notion that Puerto Ricans are a suspect class under the Equal Protection

Clause. 121 F.Supp.2d 264 at 282. But even assuming that Puerto Ricans are

a suspect class, the court observed, Romeu “failed to proffer facts sufficient for

this Court to ascribe an invidious discriminatory purpose to either UOCAVA

or NYEL,” citing Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040 (1976). Id.

The Romeu district court determined that “there is no basis for concluding that

either UOCAVA or NYEL invidiously discriminates against Puerto Ricans on

the basis of race, alienage or national origin.” Romeu, 121 F.Supp.2d at 283.

Romeu clearly puts to rest any notion that Plaintiffs here are members of

any protected or suspect class that is the victim of invidious discrimination

under either UOCAVA or Illinois law.

Because plaintiffs here cannot demonstrate the deprivation of any

“fundamental right” or the existence of any invidious discrimination toward a

suspect class, strict scrutiny is not triggered.

This Court should, therefore, affirm the district court’s evaluation of

Plaintiffs’ claims using the rational basis test.

III. Illinois Statute Excluding Former Illinois Residents Now Living
in Guam, Puerto Rico And U.S. Virgin Islands from Casting an
Absentee Ballot in Illinois for Federal Elections Does Not Infringe the
Right to Travel

Plaintiffs argue that both UOCAVA and the Illinois statute infringe on

their substantive due process right to interstate travel by deterring and

punishing travel to specific “disfavored” territories.” Brief, at 47.

The district court noted that the right to travel embraces “at least three

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different components”: “the right of a citizen of one State to enter and leave

another State, the right to be treated as a welcome visitor rather than an

unfriendly alien when temporarily present in the second State, and, for those

travelers who elect to become permanent residents, the right to be treated like

other citizens of that State,” citing Saenz v. Roe, 526 U.S. 489, 500, (1999).

(Short Appendix, at 60)

But as the district court concluded, neither UOCAVA nor the Illinois

statute prevents Plaintiffs from leaving Illinois and traveling to a U.S.

territory. (Id.) “They are free to come and go as they please, although their

decisions to relocate to Puerto Rico, Guam, or the USVI come at a cost.” (Id.)

The district court also noted that neither UOCAVA nor the Illinois statute

“infringe upon the plaintiffs’ right to be treated as welcome visitors in their

respective territories or infringe upon their right to be treated like other

citizens of their respective territories.” (Short Appendix, at 61) “Indeed,” the

district court ironically noted, “it is the very fact that the plaintiffs are treated

the same as the other citizens of Puerto Rico, Guam, and the USVI that the

plaintiffs find so unappealing.” (Id.) The district court nailed it on the head

when it observed, “In truth, it is the denial of special treatment – the ability to

vote by absentee ballot in federal elections (because of their former nexus to

Illinois) despite the fact that citizens of Puerto Rico, Guam, and the USVI do

not have the right to vote in federal elections – that the plaintiffs now try to

convert into a due process violation based upon their right to travel.” (Id.)

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In Califano v. Gautier Torres, 435 U.S. 1, 98 S.Ct. 906 (1978), the Court

addressed the receipt of Supplemental Security Income by individuals who had

resided in Connecticut, Massachusetts, and New Jersey but who lost those

benefits when they moved to Puerto Rico. The plaintiffs argued that they

should retain the same benefits they enjoyed in their former place of residence

even if those benefits were superior to the benefits enjoyed by the citizens of

Puerto Rico. While noting that laws prohibiting newly arrived resident in a

State from receiving the same benefits as other residents of the State

“unconstitutionally burdened the right of interstate travel,” the Court refused

to extend the doctrine to require that a person who travels to Puerto Rico must

be given benefits superior to the other residents of Puerto Rico even if the

newcomer enjoyed those benefits in the State from which he came. Califano,

435 U.S. at 4. As the Court went on to explain, “[s]uch a doctrine would apply

with equal force to any benefits a State might provide for its residents, and

would require a State to continue to pay those benefits indefinitely to any

person who had once resided there.” Id. The Court noted that the broader

implications resulting from such a doctrine are that the States independent

ability to pass laws applicable to all of its residents would be destroyed. Id. at

5.

Romeu v. Cohen, 265 F.3d 118, 126 (2d Cir. 2001) should put Plaintiffs’

right to travel argument to rest in short order. In Romeu, the Second Circuit

held that the right to travel was not violated by either UOCAVA or the New

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York statute in question. Romeu expressly rejected the argument that Saenz

compelled a finding that the right to travel is violated, stating “[E]ven

assuming for purposes of this opinion that Saenz’s references to States were

intended to encompass also territories and that the reference to the right to

enter and leave a State included also the right to change one’s residence from

one political subdivision of the United States to another, we find no violation of

any of the components of the right to travel listed in Saenz.” 265 F.3d at 126.

The Romeu court observed that New York had not impaired the plaintiff’s

right to travel to Puerto Rico, although the New York statute “placed a cost on

his becoming a permanent resident of Puerto Rico”, i.e., the loss of the right to

vote for President. Id. Had Romeu moved to another State, he could have voted

as a citizen of that State.3

His move to a U.S. territory, in contrast, required that he
give up voting for the office of President. However, neither
the NYEL nor the UOCAVA caused that loss. His loss of
the right to vote for President is the consequence of his
decision to become a citizen of a territory in a
constitutional scheme that allocates the right to appoint
electors to States but not to territories.
Id. Romeu concluded, “[S]uch consequences of the citizen’s choice do not

constitute an unconstitutional interference with the right to travel.” 265 F.3d

3 Even then, the individual inherits only those voting rights enjoyed by the citizens
of the new State. For example, if a resident of Illinois who may be an ex-felon moves
from Illinois, where he or she is allowed to vote, to another state that prohibits ex-
felons from voting (e.g., Florida (see Fla. Const. art. VI, § 4; Fla. Stat. § 944.292(1);
Virginia (see Va. Const. art. II, § 1); Iowa (see Iowa Const. art. II, § 5; Iowa Code §
48A.30(d)); and Kentucky (see Ky. Const. § 145(1)), such former Illinois resident may
not be permitted to vote in his or her new state, thus suffering a loss of rights. A
former Illinois resident cannot take his Illinois voting rights and privileges with him.

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at 127.

This Court should follow Romeu’s teachings and reject Plaintiffs’ contention

here that the UOCAVA and the Illinois statute violate due process and the

right to travel.

CONCLUSION

For the foregoing reasons, this Court should affirm the judgment of the

district court that the UOCAVA and the Illinois statute challenged here do not

impermissibly interfere with the exercise of a fundamental right or involve a

suspect class, that such statutes are properly reviewed under the rational

basis test, that such statutes are rationally related to legitimate government

interests, and that they are not unconstitutional. Further, this Court should

affirm the judgment of the district court that the challenged statutes do not

infringe on the right to travel.

Respectfully submitted,

By: s/James M. Scanlon
One of the Attorneys for
Defendants-Appellees Board of
Election Commissioners for the
City of Chicago, Marisel
Hernandez, and Karen Kinney,
Rock Island County Clerk

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

Patricia Castro
Assistant State’s Attorney

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Rock Island State’s Attorney
1504 3rd Avenue, 2nd Floor
Rock Island, IL 61201
(309) 558-3202

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(g)(1)

The undersigned hereby certifies that this brief complies with the type-

volume limitation of Rule 32(a)(7)(B) of the Federal Rules of Appellate

Procedure and Circuit Rule 32 in that, excluding the parts of the document

exempted by Fed. R. App. P. 32(f), it contains no more than 14,000 words.

According to the word count of the word processing program used to prepare

the brief (Microsoft Word for Mac 2011), the brief contains 10,631 words,

including footnotes.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5), as modified by Circuit Rule 32(b), and the type-style requirements of

Fed. R. App. P. 32(a)(6) because this document has been prepared in a

proportionally spaced typeface using Microsoft Word for Mac 2011 in 12-point

Century Schoolbook, with 11-point footnotes.

s/ James M. Scanlon
James M. Scanlon
One of the Attorneys for Defendants-Appellees Board of
Election Commissioners for the City of Chicago, Marisel
Hernandez, and Karen Kinney, Rock Island County
Clerk
Case: 16-4240 Document: 42 RESTRICTED Filed: 06/09/2017 Pages: 53

CERTIFICATE OF SERVICE

I hereby certify that on June 9, 2017, I electronically filed the foregoing

Joint Appellee’s Brief with the Clerk of the Court for the United States Court

of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that

all participants in the case are registered CM/ECF users and that service will

be accomplished by the CM/ECF system.

s/ James M. Scanlon