By: Stephen Fellows

In September 2017 the U.S. Court of Appeals for the Seventh Circuit heard oral arguments for Segovia v. United States.   The Plaintiffs, a group of Illinois citizens residing in Puerto Rico, Guam, or the U.S. Virgin Islands, want the right to vote by absentee ballot in federal elections in Illinois.  They initially brought the case in the U.S. District Court for the Northern District of Illinois.  The complaint stems from Illinois’ Military and Overseas Voter Empowerment (MOVE) Act, which implemented the Overseas Citizens Voting Rights Act (OCVRA) of 1975.  The federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) replaced the OCVRA in 1986. The UOCAVA guarantees the right to vote by absentee ballot in federal elections to Americans, both military and civilians, residing overseas.

The plaintiffs’ argument is centered around the UOCAVA’s definition of “overseas voter”.  The act defines an “overseas voter as “a person who resides outside the United States and is qualified to vote in the last place in which the person was domiciled before leaving the United States”.   It further defines “State” as a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa.  This denies the right to vote in federal elections for absentee voters living within U.S. Territories.  The Illinois’ MOVE Act implemented UOCAVA and provided U.S. Citizens residing “outside the territorial limits of the United States” the ability to vote by absentee ballots in federal elections.  However, Illinois excluded American Samoa from its definition of “territorial limits of the United States”, providing them the right to vote absentee.

Plaintiffs argued the Illinois law violates the Equal Protection Clause by arbitrarily providing preferential treatment to former Illinois citizens residing in American Samoa, the Northern Marianas Islands, and foreign countries by denying the right to vote absentee to similarly situated citizens residing in other U.S. Territories.   In their second motion for summary judgment plaintiffs claimed the state and federal laws violated their right to Due Process based on their right to interstate travel. Plaintiff’s sought an injunction directing the Board of Election of Commissioners for the City of Chicago to accept the plaintiff’s federal absentee voting applications.

The U.S. District Court for the Northern District of Illinois, applying rational basis review, ruled on two sets of cross motions for summary judgment in 2016.  The first summary judgment order dealt with the plaintiffs’ equal protection claim against the federal government.  The second summary judgment order ruled on the plaintiffs’ remaining Due Process Claims against both the federal government and Illinois, as well as Plaintiffs’ Equal Protection Claim against Illinois.  In both judgments the District Court found for the government.

Plaintiffs appealed in April 2017 to the U.S. Circuit Court for the Seventh Circuit, reiterating that the Illinois MOVE Act violates both the equal protection clause and the due process clause.  Plaintiffs Equal Protection Claim argues the district court incorrectly applied rational basis review in place of heightened scrutiny.  Plaintiffs’ believe heightened scrutiny is triggered because residents of U.S. Territories constitute a suspect class.  They further argued that the court both improperly relied on and misconstrued the Insular Cases to find that the right to vote is not a fundamental right for the U.S. Territories.  Plaintiffs claim the statutes penalize plaintiffs for choosing to reside in the territories thus “deterring interstate travel to Guam, Puerto Rico, and the USVI [United States Virgin Islands]” in violation of plaintiff’s Due Process Rights.

Illinois defends its statute on the grounds that it is merely implementing federal law through its MOVE Act.  It attributes the different treatment of American Samoans as a byproduct of UOCAVA replacing the Overseas Citizens Voting Rights Act of 1975, which excluded American Samoa from its definition of state.  The MOVE Act was passed in 1979 to implement the earlier statute, but UOCAVA was passed in 1986 and the MOVE Act was never amended.  However, Illinois claims its failure to amend the statute in line with UOCAVA does not make the statute unconstitutional.  Defendants further argue that providing relief to the Plaintiffs would discriminate against territorial residents that did not formerly reside in one of the fifty United States, and that MOVE does not infringe on the Plaintiff’s right to travel as they are free to come and go as they please and they are being treated equal to all other residents of the territory in which they reside.  They also reiterated that the District Court did not err in applying strict or heightened scrutiny to either UOCAVA or Illinois’ MOVE Act.

However, even if the court sides with the Plaintiffs there is still an argument over the correct remedy. The Department of Justice filed a letter with the court arguing the appropriate remedy should be to remove statutorily provided voting rights to residents of the territories rather than expanding voting rights. Obviously, the Plaintiffs disagree. The Seventh Circuit is expected to issue its ruling on the case in 2018, before the mid-term elections.

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