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Case: 16-4240 Document: 55 RESTRICTED Filed: 06/30/2017 Pages: 36

No. 16-4240

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

REPLY BRIEF OF APPELLANTS
____________________________________

Neil C. Weare Charles F. Smith
We the People Project Counsel of Record
1666 Connecticut Avenue, N.W. Lara A. Flath
Suite 500 John J. Schoettle
Washington, D.C. 20009 155 N. Wacker Dr.
(202) 304-1202 Chicago, Illinois 60606
nweare@equalrightsnow.org (312) 407-0700
charles.smith@probonolaw.com
Leevin T. Camacho
The Law Office of Leevin T. Camacho Geoffrey M. Wyatt
194 Hernan Cortez Avenue Michael A. McIntosh
Suite 216 Marisa B. Van Saanen
Hagåtña, Guam 96910 Brendan B. Gants
(617) 477-8894 1440 New York Avenue, N.W.
leevin@guahanlaw.com Washington, D.C. 20005
(202) 371-7000
Case: 16-4240 Document: 55 RESTRICTED Filed: 06/30/2017 Pages: 36

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

Counsel for Plaintiffs-Appellants
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Table Of Contents

Page

Table Of Authorities ............................................................................................ ii

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

Argument ............................................................................................................. 3

I. Defendants Fail To Justify UOCAVA Or MOVE’s Arbitrary
Treatment Of Former State Residents, Which Fails Under Any
Level of Scrutiny. ...................................................................................... 3

A. Federal defendants fail to identify a legitimate
government interest that is rationally advanced by
UOCAVA’s discriminatory provisions. .......................................... 4

B. State defendants fail to identify any legitimate interest
that is rationally advanced by MOVE’s favored treatment
of former Illinois citizens residing in American Samoa and
the NMI. ......................................................................................... 9

II. Defendants’ Arguments Against Heightened Scrutiny Fail. ................ 12

A. The district court improperly anchored its holding in an
unwarranted extension of the Insular Cases. ............................. 13

B. The classifications in UOCAVA and MOVE discriminate
among similarly situated citizens by selectively extending
absentee voting rights.................................................................. 14

C. The classifications in UOCAVA and MOVE discriminate
against a suspect class. ................................................................ 19

III. UOCAVA And MOVE Infringe Appellants’ Right To Interstate
Travel, And Defendants’ Arguments Do Not Show Otherwise............. 23

IV. This Court Has Jurisdiction Over This Appeal And Appellants
Have Standing. ....................................................................................... 26

Conclusion.......................................................................................................... 28

Certificate of Compliance Pursuant to Fed. R. App. P. 32(g)(1) ...................... 29

Certificate of Service ......................................................................................... 30
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Table Of Authorities

CASES

Boumediene v. Bush,
553 U.S. 723 (2008)............................................................................. 5, 19

Broyles v. Texas,
618 F. Supp. 2d 661 (S.D. Tex. 2009) ..................................................... 17

Califano v. Gautier Torres,
435 U.S. 1 (1978)............................................................................... 24, 26

Community House, Inc. v. City of Boise,
490 F.3d 1041 (9th Cir. 2007)................................................................. 20

Davis v. Commonwealth Election Commission,
844 F.3d 1087 (9th Cir. 2016)................................................................. 13

Davis v. Guam,
No. 11-00035, 2017 WL 930825 (D. Guam Mar. 8, 2017) ..................... 14

Dunn v. Blumstein,
405 U.S. 330 (1972)........................................................................... 16, 25

Examining Board of Engineers, Architects & Surveyors v. Flores
de Otero,
426 U.S. 572 (1976)................................................................................. 19

Harper v. Virginia State Board of Elections,
383 U.S. 663 (1966)................................................................................. 15

Holt Civic Club v. City of Tuscaloosa,
439 U.S. 60 (1978)............................................................................. 16, 17

Igartúa De La Rosa v. United States,
626 F.3d 592 (1st Cir. 2010) ................................................................... 21

Katzenbach v. Morgan,
384 U.S. 641 (1966)........................................................................... 10, 19

Lubin v. Panish,
415 U.S. 709 (1974)................................................................................. 15

Matsuo v. United States,
586 F.3d 1180 (9th Cir. 2009)................................................................. 25

McDonald v. Board of Election Commioners of Chicago,
394 U.S. 802 (1969)................................................................................. 15

Michigan State A. Philip Randolph Institute v. Johnson,
833 F.3d 656 (6th Cir. 2016)................................................................... 16

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Obergefell v. Hodges,
135 S. Ct. 2584 (2015)............................................................................. 21

Plyler v. Doe,
457 U.S. 202 (1982)................................................................................. 19

Printz v. United States,
521 U.S. 898 (1997)................................................................................. 27

Romeu v. Cohen,
121 F. Supp. 2d 264 (S.D.N.Y. 2000) ............................................... 21, 27

Saenz v. Roe,
526 U.S. 489 (1999)........................................................................... 23, 24

Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017)............................................................................. 10

Shelby County v. Holder,
133 S. Ct. 2612 (2013)............................................................................. 10

Snead v. City of Albuquerque,
663 F. Supp. 1084 (D.N.M. 1987) ........................................................... 17

St. John’s United Church of Christ v. City of Chicago,
502 F.3d 616 (7th Cir. 2007)................................................................... 23

Tuaua v. United States,
788 F.3d 300 (D.C. Cir. 2015) ................................................................... 5

United States v. Carolene Prods. Co.,
304 U.S. 144 (1938)................................................................................. 20

STATUTES

10 Ill. Comp. Stat. 5/16-5.01 ............................................................................. 11

10 Ill. Comp. Stat. 5/20-1 .................................................................................. 11

10 Ill. Comp. Stat. 5/20-2.1 ............................................................................... 11

10 Ill. Comp. Stat. 5/20-2.2 ............................................................................... 11

10 Ill. Comp. Stat. 5/20-2.3 ............................................................................... 11

10 Ill. Comp. Stat 5/20-4 ................................................................................... 11

10 Ill. Comp. Stat. 5/20-5 .................................................................................. 11

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10 Ill. Comp. Stat. 5/20-25 ................................................................................ 11

28 U.S.C. § 1291 ................................................................................................ 26

52 U.S.C. § 20301 .............................................................................................. 27

52 U.S.C. § 20303 .............................................................................................. 11

52 U.S.C. § 20304 ........................................................................................ 11, 27

52 U.S.C. § 20306 .............................................................................................. 27

52 U.S.C. § 20307 .............................................................................................. 27

OTHER AUTHORITIES

96th Illinois General Assembly, Senate Proceedings, April 29,
2010 ......................................................................................................... 11

Covenant to Establish a Commonwealth of the Northern
Mariana Islands in Political Union with the United States
of America ......................................................................................... 6, 7, 8

Territorial Federalism,
130 Harv. L. Rev. 1632 (2017) ................................................................ 21

Welcoming America's Newest Commonwealth: The Second
Interim Report of the Northern Mariana Islands
Commission on Federal laws to the Congress of the United
States (1985).............................................................................................. 7

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Introduction

Federal and state laws extend the right to vote absentee for President and

voting representation in Congress to former Illinois citizens residing nearly

everywhere outside the 50 states, including any foreign country and eleven of

fourteen U.S. Territories. But under the Uniformed and Overseas Citizens

Absentee Voting Act (“UOCAVA”) and the Illinois Military and Overseas

Voter Empowerment Act (“MOVE”), former Illinois citizens who move to

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

this otherwise global expansion of the franchise. Defendants’ justifications for

this discriminatory line-drawing are insufficient to withstand equal-

protection scrutiny under any level of review.

First, and most simply, defendants offer no plausible interest that this

discriminatory treatment was intended to serve – or how UOCAVA’s or

MOVE’s provisions could advance any such interest. Federal defendants’

position boils down to a posited congressional desire to treat the Northern

Mariana Islands (“NMI”) as “more akin to a foreign country.” But this

argument ignores the terms of the Covenant with the NMI, which

demonstrate an intent to treat it as part of the country for most purposes.

State defendants contend that MOVE was intended to mirror federal law,

but ignore that it has not done so for thirty years and that laws must be

justified in light of current circumstances. They alternatively contend that

MOVE furthers Illinois’s interests in enforcing a bona fide residency

requirement, but the very premise of MOVE is entirely contrary to that
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interest. In short, none of these post hoc rationalizations are persuasive. The

distinctions imposed by UOCAVA and MOVE are arbitrary and thus violate

equal-protection rights under any standard.

Second, and in any event, UOCAVA and MOVE should be subject to

heightened scrutiny because they allocate the fundamental right to vote in a

discriminatory fashion and do so in a way that disadvantages residents in the

Territories, who are routinely excluded from the political process and should

be considered a suspect class. Defendants deny that the fundamental right to

vote is implicated because the Constitution does not guarantee the right to

representation in the Territories, but this is a red herring. Plaintiffs’ claim is

more limited: when the government expands voting rights, it cannot do so

without sufficient justification. Defendants also deny that a suspect class is

at issue, relying largely on the fact that no prior case has recognized such a

class. But these arguments fail to refute the facts showing that territorial

residents have all the characteristics of a suspect class, and the lack of

precedent should not be a barrier to deciding this question correctly in the

first instance.

Third, UOCAVA and MOVE violate plaintiffs’ right to travel. Defendants’

contrary arguments rest on an unduly narrow construction of the right that

contravenes Supreme Court precedent.

Finally, a common thread running through defendants’ briefs is that

plaintiffs are seeking favorable treatment relative to other territorial

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residents. Not so. Plaintiffs seek equal treatment with other former Illinois

citizens living around the world, including in the NMI and American Samoa,

who enjoy the right to vote absentee for President and voting representation

in Congress. Having created two classes of territorial residents – some who

can vote in federal elections in former states of residence, and some who

cannot – defendants should not shift blame for this state of affairs on

plaintiffs. Nor should plaintiffs be penalized for the political failure to resolve

the continuing structural disenfranchisement in U.S. Territories. Indeed,

their continued exclusion from the political process by UOCAVA and MOVE

realistically precludes them from attaining a political resolution of these

longstanding injustices.

Argument

I. Defendants Fail To Justify UOCAVA Or MOVE’s Arbitrary
Treatment Of Former State Residents, Which Fails Under Any
Level of Scrutiny.

UOCAVA and MOVE fail equal-protection requirements under any level

of scrutiny because their distinctions between territorial residents are

arbitrary and, even assuming the governmental interests posited by

defendants in support of these laws are legitimate, the statutory distinctions

do not advance those interests. (AOB 16-25.) 1 Defendants do not dispute that

rational-basis review is not “toothless,” and that it demands an identifiable

1 Citations to plaintiffs’ opening brief, federal defendants’ brief, and
state defendants’ brief are “AOB,” “FDB,” and “SDB,” respectively. The
required short appendix to plaintiffs’ opening brief is cited as “Short App.”

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government interest that is advanced by the discriminatory law. (AOB 16-17.)

Instead, they attempt to offer various justifications for the different lines

drawn by UOCAVA and MOVE between former state citizens residing in the

Territories. These arguments fail.

A. Federal defendants fail to identify a legitimate
government interest that is rationally advanced by
UOCAVA’s discriminatory provisions.

Federal defendants attempt to justify UOCAVA’s different treatment of

NMI residents on the same grounds adopted by the district court – stressing

the “unique relationship” between the NMI and the federal government.

(FDB 20, 32-39.) But these justifications do not identify a legitimate

government interest that is rationally advanced by UOCAVA’s distinction.

(AOB 17-22.)

Tellingly, federal defendants do not dispute the legal proposition that the

general maintenance of “unique” treatment of the NMI cannot, by itself,

constitute a legitimate government interest because the government cannot

pursue differential treatment of a group of citizens as an end in itself. (AOB

18.) Nevertheless, federal defendants presume the legitimacy of such an

interest, repeatedly appealing to the “unique” relationship between the NMI

and the United States. (FDB 20, 32-39.) Because federal defendants fail to

defend the advancement of this “unique” relationship for its own sake as a

valid government interest, these arguments are fundamentally infirm.

Perhaps intending to address this problem indirectly, federal defendants

note that “[f]ederal law has long distinguished between and among

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Territories in myriad ways, in matters small and large” (FDB 35) – as if to

suggest that these other distinctions would be subject to challenge if

plaintiffs prevail here. But federal defendants do not take the additional step

of showing that each (or any) of the examples they identify lacks any purpose

other than to perpetuate unique and disparate treatment for its own sake.

Indeed, the only judicial decision they cite, Tuaua v. United States, 788 F.3d

300 (D.C. Cir. 2015) (FDB 35-36), did not address an equal-protection

challenge at all and had no occasion to opine on the legitimacy of distinct

treatment for its own sake.

At bottom, federal defendants’ argument has no limiting principle; it

reduces to a rule that Congress can discriminate between and among the

Territories for any reason or no reason at all – that the Territories are an

equal-protection-free zone. But “[t]he Constitution grants Congress and the

President the power to acquire, dispose of, and govern territory, not the

power to decide when and where its terms apply.” Boumediene v. Bush, 553

U.S. 723, 765 (2008).

In any event, federal defendants fail to explain how UOCAVA advances

the purported interest in treating the NMI as “unique” or “more akin to a

foreign country.” They defend the four grounds identified by the district court

(FDB 32-39), but their arguments cannot sustain the result reached below.

First, the notion that UOCAVA advanced an interest in treating the NMI

like a foreign country is unsupported by the historical circumstances. As

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plaintiffs explained in their opening brief, the NMI was near the end of a

decade-long journey to becoming a Territory when UOCAVA was enacted,

making it implausible that UOCAVA’s distinct treatment of the NMI was

intended to preserve its status as something akin to a foreign country. (AOB

19-20.)

In response, federal defendants claim that the issue is not “whether CNMI

‘is a Territory,’” but that “Congress has historically treated CNMI as more

akin to a sovereign country” and that UOCAVA’s distinct treatment of the

NMI was consistent with this “hands-off” approach. (FDB 37-39.) This

argument fails to account for the fact that the decade-long trend at the time

of UOCAVA’s enactment was toward further integration between the NMI

and the United States. (AOB 19-20.)

More fundamentally, however, federal defendants’ argument that,

regardless of the NMI’s formal status as a Territory, Congress has in practice

treated the NMI as “more akin to a sovereign country” overgeneralizes and

contradicts the relevant terms of the same Covenant between the NMI and

the United States on which federal defendants extensively rely. Section 105 –

a provision that took effect “on approval of th[e] Covenant” in 1976, well in

advance of UOCAVA’s enactment – expressly provides for general application

of federal law to the Territory except as specifically otherwise provided by

other Covenant provisions. Covenant to Establish a Commonwealth of the

Northern Mariana Islands in Political Union with the United States of

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America (“Covenant”) §§ 105, 1003; see also Welcoming America's Newest

Commonwealth: The Second Interim Report of the Northern Mariana Islands

Commission on Federal Laws to the Congress of the United States, at 31-32

(1985). In other words, distinct treatment of the Territory was to be the

exception rather than the rule. Covenant § 105. And notably, the referenced

exceptions to the general rule in Articles I, III, and III and sections 501 and

805 of the Covenant are silent with respect to absentee voting rights.

Second, federal defendants point out that the NMI did not obtain a non-

voting delegate in Congress until 2008 (FDB 38), but fail to explain how

UOCAVA’s provision for absentee voting rights for former state citizens

residing in the NMI advanced any interest in denying such representation or

indeed how these matters have anything to do with one another. UOCAVA

was not amended after the appointment of such a delegate – indeed,

Congress expressly considered but repeatedly chose not to enact such

legislation, demonstrating that Congress itself does not view these issues as

inextricably linked. (AOB 20-21.)2

Third, federal defendants’ primary example of Congress’s treatment of the

NMI as a sovereign country is its “essentially full control over its immigration

2 Federal defendants speculate that, by treating the NMI differently
under UOCAVA, Congress “avoided imposing requirements on CNMI’s
electoral process” by not compelling it “to accept absentee ballots from former
residents” in federal elections. (FDB 38-39.) But as federal defendants
themselves explain, the NMI sent no one to Congress when UOCAVA was
enacted (FDB 8-9) and hence had no federal elections to administer, nor
would it for more than two decades.

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laws until 2008,” which they contend stemmed from “Congress’s intent to

ensure that the indigenous populations maintained local control.” (FDB 37.)

But this explanation is self-defeating because it identifies a concrete federal

interest – local control by indigenous populations – that was expressly

enshrined in the Covenant with the NMI in provisions that (unlike absentee-

voting measures) fell within the exceptions to section 105 noted above.

Section 805, for example, ensured local control of property by individuals “of

Northern Mariana Islands descent” for a period of twenty-five years and

expressly underscores the “importance of the ownership of land for the

culture and traditions of the people of the Northern Mariana Islands.”

Covenant § 805. Vesting local control over immigration arguably furthers this

interest; defining the absentee voting rights of former state citizens does not.

Fourth, defendants reiterate the district court’s conclusion that the laws

rationally advance the government interest of avoiding a “distinction of

questionable fairness” within the Territories (FDB 32-34, SDB 22-23), but

both UOCAVA and MOVE already establish such a distinction in the NMI

and (in the case of MOVE) American Samoa (AOB 21-22). Only federal

defendants even attempt to respond to this fact, essentially arguing that

Congress could have concluded that it was more important to avoid such

distinctions in more populous Territories. (FDB 33-34.) But this attempted

rationalization still offers no reason why Congress would conclude that the

NMI should be treated differently – why, if it was important to avoid creating

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such distinctions, one would nevertheless be tolerated there. Defendants

must show how the purported government interest is advanced by the law’s

discriminatory provisions (AOB 22), and no defendant has done that here.

Thus, UOCAVA’s favored treatment of former state citizens living in the

NMI is arbitrary and bears no rational relationship to advancing any

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

contrary holding was erroneous.

B. State defendants fail to identify any legitimate interest
that is rationally advanced by MOVE’s favored treatment
of former Illinois citizens residing in American Samoa
and the NMI.

MOVE likewise fails rational-basis review because it was intended to

mirror a federal statute that itself violates equal protection. In any event,

MOVE does not mirror the federal statute because it also extends absentee

voting rights to former state citizens residing in American Samoa despite the

lack of any identifiable interest in advantaging these former state residents

over those residing in Guam, Puerto Rico, or the USVI. Although state

defendants notably concede that if UOCAVA is held unconstitutional, MOVE

must be held unconstitutional as well (SDB 11), state defendants argue that

MOVE’s distinct treatment of American Samoa survives rational basis review

for two reasons: (1) MOVE was intended to model federal law and the fact

that the Illinois legislature failed to keep up with federal law does not render

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it irrational; and (2) MOVE advances Illinois’s interest in restricting the

ballot to bona fide residents.3 These arguments lack merit.

First, state defendants’ argument that MOVE was intended to mirror

federal law is unavailing because it no longer mirrors federal law – and has

not for three decades. State defendants argue that legislatures have no

obligation to update their laws to keep up with changing circumstances,

citing Katzenbach v. Morgan, 384 U.S. 641 (1966) (SDB 18), but as discussed

below, Katzenbach addresses the obligations imposed on a legislature when it

chooses to act, not when it fails to act altogether. Under equal-protection

principles, a law that continues in effect must be justified under present facts

and circumstances; the fact that it might have been justified when it was

enacted (which is not conceded here) does not suffice. E.g., Sessions v.

Morales-Santana, 137 S. Ct. 1678, 1690 (2017) (explaining that the relevant

inquiry is whether a classification serves a “governmental interest today”

rather than when the law was enacted); Shelby County v. Holder, 133 S. Ct.

2612, 2631 (2013) (holding that Congress’s failure to update the Voting

Rights Act to conform to “current conditions” rendered it unconstitutional).

Furthermore, the Illinois Legislature has enacted new laws to conform

with other provisions of UOCAVA in recent years. Specifically, in 2011, the

Illinois legislature amended the state statute to conform to UOCAVA’s

3 As noted in Section I.A, state defendants also argue that MOVE avoids
the establishment of a “distinction of questionable fairness,” but this
argument fails for the reasons set forth above.

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provisions by allowing for special write-in ballots at primary elections, ballots

to be transmitted by fax or electronic transmission, and the Board of

Elections or a Governor to enact or impose extraordinary procedures

regarding voting requirements. See 10 Ill. Comp. Stat. 5/16-5.01, 20-1, 20-2.1,

20-2.2, 20-2.3, 20-4, 20-5, 20-25; 52 U.S.C. §§ 20303, 20304; 96th Ill. Gen.

Assem., Senate Proceedings, Apr. 29, 2010, at 100 (statement of Senator

Link) (“These changes are a request of the Federal Voting Absentee . . .

(Assistance) Program, within the Department of Defense, and coordinated

with the election laws and provisions of recently enacted Military and

Overseas Voter Empowerment Act.”).

State defendants alternatively contend that the Illinois Legislature’s

failure to update MOVE upon UOCAVA’s enactment is defensible because it

resulted in “more generous [absentee] voting rights” than federal law

requires. (SDB 19-20.) But the special treatment of former Illinois citizens

residing in American Samoa must itself be justified – a state is not free to

arbitrarily build on UOCAVA’s floor by, for example, simply neglecting to

legislate, as is the case here. (AOB 24.)

Second, state defendants’ argument that MOVE’s provisions advance a

state interest in “restricting the ballot to bona fide residents” (SDB 20) is

unpersuasive and was not adopted by the district court. MOVE does not serve

that interest because it permits voting by former Illinois residents who now

live in any of nearly 200 foreign countries or in American Samoa or the NMI.

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State defendants argue that this arrangement is forced on Illinois by

UOCAVA, but federal law does not require Illinois to extend the vote to

former state citizens residing in American Samoa. State defendants do not

even attempt to explain how absentee voting from Guam, Puerto Rico, or the

USVI would threaten Illinois’s putative interest in maintaining bona fide

residency requirements in a way that allowing such voting from American

Samoa does not.

Accordingly, state defendants have failed to identify a legitimate state

interest that is advanced by disparate treatment of former state citizens

residing in the Territories, and MOVE therefore violates the Equal Protection

Clause even under rational-basis review.

* * *

Finally, no defendant disputes that the proper remedy in this case is to

extend the right to vote absentee for President and voting representation in

Congress to former Illinois residents living in Guam, Puerto Rico, and the

USVI to place them on like footing with those who reside in the NMI,

American Samoa, and foreign countries. (See AOB 24-25.) Nor does any

defendant dispute that this remedy is proper because the stated purpose of

UOCAVA is to expand rather than contract absentee voting rights. (See id.)

Accordingly, the Court should fashion such relief here.

II. Defendants’ Arguments Against Heightened Scrutiny Fail.

As plaintiffs established in their opening brief, this Court should apply

heightened scrutiny to the discriminatory classifications drawn by UOCAVA

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and MOVE. (AOB 25-47.) Defendants seek to salvage the district court’s

flawed conclusion to the contrary, but their arguments fail.

A. The district court improperly anchored its holding in an
unwarranted extension of the Insular Cases.

Defendants make no attempt to defend the Insular Cases on appeal,

asserting that those Plessy-era relics have “no connection to the merits of the

[district] court’s conclusion.” (FDB 27-28 (conceding that their position “does

not require an extension, or even an application, of the so-called Insular

Cases”).) But the district court’s opinion makes clear that it relied on and felt

bound by the Insular Cases in ruling against plaintiffs. The district court

noted at the threshold that the “current voting situation” in the Territories

“is at least in part grounded on the Insular Cases.” (Short App. at 21.) It then

looked to the Insular Cases to derive “principles that are generally applicable

to constitutional challenges involving territories.” (Short App. at 30-31.)

Critically, the district court applied these “principles” from the Insular Cases

to conclude that “United States citizens living in territories do not have the

same fundamental right to vote as United States citizens residing in Illinois.”

(Short App. at 27.)

But this latter determination – which helped drive the district court’s

decision, but which defendants do not defend – misstates the import of the

Insular Cases,. (AOB 26-29.) Other courts have repeatedly rejected efforts to

deny the fundamental nature of voting rights in the Territories in the name

of the Insular Cases. See, e.g., Davis v. Commonwealth Election Comm’n, 844

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F.3d 1087, 1089, 1095 (9th Cir. 2016), petition for cert. filed, (U.S. May 30,

2017) (No. 16-1437) (holding that NMI’s restriction of voting in “certain

elections to individuals of ‘Northern Marianas descent’” violates the Fifteenth

Amendment and concluding that “the Insular Cases doctrine does not apply”

because the Fifteenth Amendment is “fully applicable in the

Commonwealth”); Davis v. Guam, No. 11-00035, 2017 WL 930825, at *14 (D.

Guam Mar. 8, 2017) (rejecting argument, based on the Insular Cases, that

Guam resident’s right to vote in a local election is not a “fundamental right”

because “the right to vote does not necessarily mean the same thing in an

unincorporated territory as it does in a state” (quotations omitted)). This

Court should do the same.

B. The classifications in UOCAVA and MOVE discriminate
among similarly situated citizens by selectively
extending absentee voting rights.

UOCAVA and MOVE confer the right to vote for President and voting

representation in Congress on nearly every former state resident living

outside the 50 states, excluding only an exceedingly narrow subset: those who

live in three of the fourteen Territories (Guam, Puerto Rico, and the USVI).

The statutes’ selective distribution of absentee voting rights must be

invalidated unless it can satisfy heightened scrutiny. (AOB 29-38.)

Defendants respond with four principal arguments, none of which is

persuasive.

First, defendants attack an argument plaintiffs are not making – that

citizens have “a constitutionally protected right to vote in a State in which

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they do not reside.” (FDB 25; see also SDB 25-26.) Plaintiffs’ claim instead is

that constitutional principles of equal protection bar legislative expansion of

absentee voting rights in a discriminatory manner, even absent an

underlying constitutional right. For example, there is no enumerated right to

vote for President while living in France; but having extended absentee

voting rights to the rest of the world under UOCAVA, Congress could not

craft an exception that selectively denies such rights to expatriates residing

in France without substantial justification.

The Supreme Court has expressly agreed with plaintiffs’ position that

discriminatory expansion of the franchise is inherently suspect. See, e.g.,

McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807 (1969)

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

discriminatory manner.”); Harper v. Va. State Bd. of Elections, 383 U.S. 663,

665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not

be drawn which are inconsistent with the Equal Protection Clause . . . .”).

Indeed, the Court has emphasized that equal protection “confers the

substantive right to participate on an equal basis with other qualified voters

whenever the State has adopted an electoral process for determining who will

represent any segment of the State’s population.” Lubin v. Panish, 415 U.S.

709, 713 (1974). And where, as here, a “challenged statute grants the right to

vote to some citizens and denies the franchise to others,” that statutory

classification will be struck down unless it is “‘necessary to promote a

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compelling state interest.’” Dunn v. Blumstein, 405 U.S. 330, 337 (1972)

(citation omitted).

These principles apply with full force here, even if plaintiffs would have no

claim to absentee voting rights had the federal government and Illinois not

enacted UOCAVA and MOVE. Although plaintiffs might have “no federal

constitutional right” to vote for President or voting representation in

Congress absent legislation, the “fundamental” quality of the right to vote

follows its expansion. E.g., Mich. State A. Philip Randolph Inst. v. Johnson,

833 F.3d 656, 662 (6th Cir. 2016) (explaining that equal-protection principles

apply both to the allocation and exercise of the right to vote). Because

UOCAVA and MOVE expand the franchise to former state citizens living

almost anywhere outside the 50 states but single out three of the fourteen

Territories for exclusion, the statutes should be subject to heightened

scrutiny.

Second, defendants liken the classifications drawn by UOCAVA and

MOVE to garden-variety voting residency requirements (FDB 26; SDB 27-

28), relying principally on the Supreme Court’s decision in Holt Civic Club v.

City of Tuscaloosa, 439 U.S. 60 (1978). But Holt is inapposite. In Holt, the

plaintiffs were residents of an unincorporated community (Holt) on the

outskirts of Tuscaloosa. Id. at 61-62. Because Holt was located within three

miles of Tuscaloosa, its residents were subject to the city’s exercise of police

powers. Id. The plaintiffs argued that state statutes authorizing the city’s use

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of police power over them but failing to give them a right to vote equal to

those living within the city violated equal protection and due process. Id. at

62-63. The Supreme Court rejected the claims, observing that no prior

Supreme Court decision “has extended the ‘one man, one vote’ principle to

individuals residing beyond the geographic confines of the governmental

entity concerned” and emphasizing that its precedent had “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.

Holt is irrelevant here because neither UOCAVA nor MOVE seeks to

“restrict the right to participate in [Illinois’] political processes to those who

reside within [Illinois] borders.” See id. To the contrary, both statutes effect a

marked expansion of the right to participate in federal elections in Illinois far

beyond Illinois borders – to places as far flung as Antarctica and outer space.

Thus, neither statute resembles a traditional residency requirement, and

neither can be defended through cases upholding such requirements.4

4 State defendants also rely on two district-court cases, Broyles v. Texas,
618 F. Supp. 2d 661 (S.D. Tex. 2009), and Snead v. City of Albuquerque, 663
F. Supp. 1084 (D.N.M. 1987), but neither is persuasive. In Broyles, the court
relied on Holt and rejected the plaintiffs’ argument that “equal protection
requires that nonresident property owners be given the right to vote.” 618 F.
Supp. 2d at 687. Here, of course, plaintiffs make the altogether different
argument that, once the government extends absentee voting rights outside
its borders, the selective distribution of those rights must satisfy heightened
scrutiny. Snead, for its part, is both distinguishable and wrongly decided for
the reasons set forth in plaintiffs’ opening brief (AOB 33-34), to which state
defendants offer no meaningful response.

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Third, federal defendants maintain that the rule set forth in Katzenbach

v. Morgan compels the application of rational-basis review (FDB 29-30), but

this too is wrong, as plaintiffs previously explained. (AOB 36-38.) Unlike the

statute at issue in Katzenbach, which effected a limited expansion of voting

rights by waiving English-proficiency requirements for those citizens who

completed sixth grade in certain Puerto Rican schools, UOCAVA and MOVE

effect a near-total expansion of absentee voting rights to citizens living

outside the 50 states – an expansion that covers citizens who live in 99.99

percent of the land area outside the 50 states and those who live in eleven out

of fourteen Territories. By targeting such a narrow group of former state

residents for disfavored treatment, UOCAVA and MOVE raise constitutional

concerns not present in Katzenbach and should be subjected to heightened

scrutiny.

Federal defendants assert that UOCAVA does not create a “limited

exclusion[ ]” of the right to vote because “[i]t treats all individuals who move

within the United States – including between and among States, the listed

Territories, and the District of Columbia – identically.” (FDB 29-30.) But this

description does little more than use the phrase “listed Territories” to mask

the fact that the effect of UOCAVA and MOVE is to extend absentee voting

rights broadly to state citizens who leave the states and move overseas or to

most Territories, while narrowly excluding those state residents who move to

Guam, Puerto Rico, and the USVI from this broad extension. Because this

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case involves not an incremental expansion of rights but rather a broad

expansion that singles out particular groups for exclusion, Katzenbach is

inapposite, and heightened scrutiny should apply.5

Fourth, federal defendants suggest that the discriminatory classification

in UOCAVA need only be supported by a rational basis because “Congress’s

legislative discretion . . . is especially broad when it legislates pursuant to the

Territor[y] Clause.” (FDB 24.) But Congress’s purportedly broad power over

the Territories does not disarm equal-protection constraints, as even one of

federal defendants’ own authorities acknowledges. See Examining Bd. of

Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 600

(1976); see also, e.g., Boumediene, 553 U.S. at 765. Nor does the Territory

Clause apply in any manner to MOVE, which was enacted by a state, not the

federal government.

C. The classifications in UOCAVA and MOVE discriminate
against a suspect class.

Territorial residents are a prime example of a group that has “historically

been ‘relegated to such a position of political powerlessness as to command

extraordinary protection from the majoritarian political process,’” Plyler v.

Doe, 457 U.S. 202, 216 n.14 (1982) (citation omitted), and should therefore be

5 Katzenbach is inapposite for the additional reason that no special
circumstances justify Congress’s and Illinois’ unique treatment of NMI (and
American Samoa). Cf. 384 U.S. at 657-58.

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considered a suspect class. (AOB 38-46.)6 No defendant disputes that this is

an issue of first impression. (See Short App. at 30.) Defendants likewise do

not deny that territorial residents are a politically powerless class. Instead,

defendants (1) claim that suspect status for Territorial residents lacks

precedent and is in tension with Supreme Court decisions; (2) argue that the

Constitution ordains disfavored status for Territorial residents; and (3)

essentially blame plaintiffs for bringing this status upon themselves by

moving to the Territories. These arguments lack merit.

First, state defendants argue at length that recognized suspect classes are

limited to “sex, race, alienage, and nationality” and that no court has

recognized Territorial residents as a suspect class. (SDB 31-37.) But this

argument merely confirms that the issue is one of first impression. As such,

the Court should apply first principles to ascertain whether territorial

residents are “discrete and insular minorities” who are excluded from the

“political processes ordinarily to be relied upon to protect minorities.” United

States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). No defendant

disputes that territorial residents are uniquely isolated and disempowered

6 Federal defendants’ brief includes one sentence claiming that this
argument is waived, though the footnote cited in the brief makes clear the
issue was addressed and decided by the district court. (FDB 30 (citing Short
App. at 50 n.3).) Because the district court decided the issue of Congress’s
power to discriminate against territorial residents under a suspect-class
theory, the Court should decide the question against all defendants on
appeal. See, e.g., Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th
Cir. 2007) (“[E]ven if a party fails to raise an issue in the district court, we
generally will not deem the issue waived if the district court actually
considered it.”).

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from the majoritarian political process or offers any other cogent argument

against suspect status.

The fact that no court has previously decided this issue does not weigh

against this conclusion. The Supreme Court has cautioned that “new insights

and societal understandings can reveal unjustified inequality within our most

fundamental institutions that once passed unnoticed and unchallenged.”

Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015). And in recent years,

judges and commentators have noticed that territorial residents are citizens

“uniquely excluded from the halls of federal power,” Territorial Federalism,

130 Harv. L. Rev. 1632, 1644 n.90 (2017); have been subject to discrimination

historically; and are left today in an “interminable unequal condition,”

Igartúa v. United States, 626 F.3d 592, 614 (1st Cir. 2010) (Torruella, J.,

concurring in part and dissenting in part).

Federal defendants’ related argument that Supreme Court decisions have

applied rational-basis review in cases involving the Territories (FDB 31-32) is

off point. These cases involved government-paid monetary benefits,7 and laws

providing for such payments are “entitled to a strong presumption of

7 State defendants also emphasize the district court’s decision in Romeu
v. Cohen, 121 F. Supp. 2d 264 (S.D.N.Y. 2000), aff’d, 265 F.3d 118 (2d Cir.
2001) (SDB 36-37), which ruled that even if heightened scrutiny applied, the
plaintiff in that case had failed to show a discriminatory purpose. See Romeu,
121 F. Supp. 2d at 282. But this conclusion erroneously placed the burden on
the plaintiff to identify the justification of the discriminatory law; where
heightened scrutiny applies, the burden is on the government to show a
sufficiently important interest to which the law is narrowly tailored, which
has not even been attempted here. (AOB 46-47.)

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constitutionality” (Short App. at 29-30), and none of these cases purported to

resolve the question whether Territorial residents constitute a suspect class.

Second, the Constitution does not compel unfavorable treatment of the

Territories under the laws at issue. As its decision to extend absentee voting

rights to foreign countries and the NMI makes clear, Congress had the

authority to extend the same rights to residents of Guam, Puerto Rico, and

the USVI but simply chose not to do so. So too under MOVE, as illustrated by

its further extension of absentee voting rights to American Samoa. Thus, the

disempowerment that plaintiffs seek to address in this lawsuit is not

compelled by any constitutional principle but results from discriminatory

legislative choices.

Third, federal defendants suggest that the suspect status of Territorial

residents is not at issue because plaintiffs’ injuries result from their status as

former state citizens who have moved to the Territories, rather than a

general animus toward the Territories. (FDB 31; see also SDB 32.) This

argument is formalistic and unpersuasive. Plaintiffs’ contention is that the

disfavored treatment of Guam, Puerto Rico, and the USVI under UOCAVA

and MOVE continues a pattern of historical and ongoing political neglect and

abuse of the Territories. The fact that plaintiffs did not sustain injury until

moving to the Territories highlights rather than undercuts the suspect status

of territorial residents. And as the law recognizes in other contexts,

discrimination against a suspect class does not escape heightened scrutiny

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because the plaintiffs acquired membership in the class through some action

on their part; for example, legislation against a particular religion is not

saved from heightened scrutiny because a plaintiff may be a convert. Cf., e.g.,

St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th

Cir. 2007) (noting that a suspect class need not be defined by an immutable

characteristic where the class is “subjected to such a history of purposeful

unequal treatment, or relegated to such a position of political powerlessness

as to command extraordinary protection from the majoritarian political

process,” and “religion may fit the bill”).

For all these reasons, defendants’ arguments against suspect status fail,

and heightened scrutiny should apply on this ground as well.

III. UOCAVA And MOVE Infringe Appellants’ Right To Interstate
Travel, And Defendants’ Arguments Do Not Show Otherwise.

UOCAVA and MOVE also violate plaintiffs’ right to interstate travel by

penalizing and deterring travel to the three disfavored Territories in which

they now reside. (AOB 47-54.) In response, defendants (1) argue for an

unduly narrow fundamental right to travel limited to the three categories

mentioned in Saenz v. Roe, 526 U.S. 489, 500 (1999) (FDB 40; SDB 38); (2)

assert that plaintiffs seek treatment that is superior to other territorial

residents (FDB 40-41; SDB 38); and (3) contend that plaintiffs’ travel claim

merely restates their equal-protection claim (FDB 42). These responses are

not persuasive.

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First, the right to interstate travel is not limited to the three categories

elucidated in Saenz. As Saenz itself made clear, the right embraces “at least”

those three. 526 U.S. at 500. Other Supreme Court precedent strongly

supports the conclusion that travel from a state to another location in the

United States is also protected, and that laws that punish or deter such

travel are unconstitutional. (AOB 48-49.) Defendants do not address this

precedent but simply assume without justification (and contrary to its

express language) that Saenz’s taxonomy of the right to travel was

comprehensive. It was not, and the fact that the right asserted by plaintiffs

here does not fit neatly within it is therefore irrelevant.

Defendants contend that the Supreme Court’s decision in Califano v.

Gautier Torres, 435 U.S. 1 (1978) forecloses plaintiffs’ argument here (FDB

41; SDB 39). Not so. Consistent with its other travel cases, the Supreme

Court placed significant weight on the fact that Gautier Torres involved

claims to monetary benefits, which the Court noted was “entitled to a strong

presumption of constitutionality.” Id. at 5. Federal defendants contend that

the Supreme Court’s concern was that any recognition that rights to benefits

travel with the citizen who leave a state “would require a State to continue to

pay those benefits indefinitely to any persons who once had resided there”

and that the same concern applies to absentee voting rights. (FDB 41.) This

argument overlooks the fact that Illinois already has this obligation with

respect to absentee voting rights for citizens who remain overseas or in the

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NMI or American Samoa. The travel right asserted here is only that it is

unconstitutional to undertake that global obligation while selectively

disfavoring travel to three of fourteen Territories – an entirely different

circumstance from Gautier Torres.

Second, plaintiffs’ plea is not for superior treatment to other territorial

residents but rather for equal treatment with fellow former Illinois citizens

who now reside in any of the other eleven Territories, all of whom enjoy the

right to vote absentee. Defendants’ contrary argument reiterates their claim

that the rights plaintiffs seek would create a “distinction of questionable

fairness”; but as outlined above, UOCAVA and MOVE are the source of this

distinction by virtue of their treatment of the NMI and American Samoa.

Third, plaintiffs’ right to travel is separate from their right to equal

protection, even if those rights are overlapping in scope in this case. Notably,

disparate treatment has been the central component of right-to-travel claims

in many Supreme Court cases, some of which also involved equal-protection

claims. For example, in Dunn v. Blumstein, the Court determined that both

equal-protection rights and the right to travel were violated when the State

of Tennessee applied its bona fide residency requirement in a disparate

fashion. 405 U.S. at 338. Thus, although sometimes overlapping, these claims

are conceptually distinct and are treated as such by the courts. E.g., Matsuo

v. United States, 586 F.3d 1180, 1185 n. 8 (9th Cir. 2009) (“A claim based on

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the right to travel is distinct from an equal protection claim.” (citing Gautier

Torres, 435 U.S. at 3 n.4)).

Here, UOCAVA and MOVE violate the right to travel because they

reward travel to foreign countries and to eleven of fourteen Territories with

absentee voting rights but deter and penalize travel to Guam, Puerto Rico,

and the USVI by withholding such rights. For this reason, too, the district

court should be reversed.

IV. This Court Has Jurisdiction Over This Appeal And Appellants
Have Standing.

All parties agree that this Court has appellate jurisdiction because the

district court entered an order on October 28, 2016 disposing of all of

plaintiffs’ claims against all defendants, which constituted a “final decision”

under 28 U.S.C. § 1291. Nevertheless, federal defendants argue that

plaintiffs lack standing to raise a claim as to UOCAVA because their injuries

stem more directly from MOVE. (FDB 21-23.) The district court properly

rejected this argument, and this Court should do the same.

Federal defendants assert that plaintiffs’ harm traces to decisions of the

Illinois legislature and not to UOCAVA because “[n]othing in federal law

prohibits Illinois from accepting plaintiffs’ absentee ballots.” (FDB 23.) They

contend that UOCAVA merely creates a “statutory floor” and states may

choose to accept ballots as they see fit. (FDB 21.)

Not so. Plaintiffs’ disenfranchisement is directly traceable to the

discrimination imposed by UOCAVA and MOVE. It is UOCAVA that requires

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Illinois and other states to confer a benefit to former state citizens residing in

other countries or the NMI and other Territories, but does not require states

to confer the same benefit to former state citizens living in American Samoa,

Guam, Puerto Rico, or the USVI. The federal statute also offers protections to

those with voting status under UOCAVA, for example mandating federal

officials to prescribe the form of certain overseas ballots, set reasonable

deadlines for the submission of absentee ballots, ensure that states accept

early submitted registration applications, and enforce federal requirements

against states as necessary. See, e.g., 52 U.S.C. §§ 20301, 20304, 20306,

20307. In short, even if it is Illinois law that ultimately governs the

administration of absentee voting, it is UOCAVA that sets the relevant

baseline. Accordingly, as the Court held in Romeu, 121 F. Supp. 2d at 273-74,

plaintiffs have standing to challenge both UOCAVA and the state law at

issue.

Ultimately, the logic of federal defendants’ position is that federal law

that imposes a discriminatory standard is immune from review whenever a

state could adopt additional legislation to correct the standard but does not

do so. Such a rule would justify the enactment of federal laws requiring

states to guarantee voting rights for one group but not another based on

other clearly arbitrary classifications, such as the first letter of a person’s

name, because the states could act more broadly if they desired. States have

no obligation to finish the federal government’s work for it, cf. Printz v.

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United States, 521 U.S. 898, 925-26 (1997), and as such when a federal

standard contributes to a plaintiff’s injury, federal defendants cannot avoid

suit on the ground that a state could have prevented it.

Conclusion

For the foregoing reasons and those set forth in appellants’ opening brief,

the Court should reverse the judgment below.

Respectfully submitted,

/s/ Charles F. Smith
Neil C. Weare Charles F. Smith
We the People Project Counsel of Record
1666 Connecticut Avenue, N.W. Lara A. Flath
Suite 500 John J. Schoettle
Washington, D.C. 20009 155 N. Wacker Dr.
(202) 304-1202 Chicago, Illinois 60606
nweare@equalrightsnow.org (312) 407-0700
charles.smith@probonolaw.com
Leevin T. Camacho
The Law Office of Leevin T. Camacho Geoffrey M. Wyatt
194 Hernan Cortez Avenue Michael A. McIntosh
Suite 216 Marisa B. Van Saanen
Hagåtña, Guam 96910 Brendan B. Gants
(617) 477-8894 1440 New York Avenue, N.W.
leevin@guahanlaw.com Washington, D.C. 20005
(202) 371-7000
Semaj Johnson
Law Offices of K.A. Rames PC
Suite 3, 2111 Company Street
Christiansted, St. Croix, Virgin
Islands 00820
(340) 773-7284
semaj.johnson@rameslaw.com

Counsel for Plaintiffs-Appellants

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

This document complies with the type-volume limit of Fed. R. App. P.

32(a)(7)(B) as modified by 7th Cir. R. 32(c) because, excluding the parts of the

document exempted by Fed. R. App. P. 32(f), this document contains 6,745

words.

This document complies with the typeface requirements of Fed. R. App. P.

32(a)(5) (as modified by 7th Cir. R. 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 version 14 in 12-point

Century Schoolbook.

/s/ Charles F. Smith
Charles F. Smith
155 N. Wacker Dr.
Chicago, Illinois 60606
(312) 407-0700

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Certificate of Service

I hereby certify that on June 30, 2017, I electronically filed the

foregoing 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.

Dated: June 30, 2017
Chicago, Illinois

Respectfully submitted,

/s/ Charles F. Smith
Charles F. Smith

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