Case Document

2016 UOCAVA report

Date

Thursday, December 29, 2016

Document Type

Reports/Guidelines/Policy Statements-Public

Attachments

2016_uocava_report_to_congress_12_29_2016.pdf

Office of the Assistant Attorney General
The Honorable Joseph R. Eiden
President
United States Senate Washington, DC 20510

Dear Mr. President:
U.S. Department of Justice

Office of Legislative Affairs

Washington, D.C. 20530

December 29, 2016
Pursuant to the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA") of 1986, 52 U.S.C.
§§ 20301-20311, as amended by the Military and Overseas Voter Empowerment Act ("MOVE Act") of 2009,
Pub. L. No. 111-84, Subtitle H, § 587, we are pleased to transmit to you the Attorney General's
annual report.

We hope this information is helpful. Please do not hesitate to contact this office if we may
yrovide additional assistance regarding this or any other matter.
Sincerely,
Peter Kadzik
Assistant Attorney General
Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington, D.C. 20530

December 29, 2016

The Honorable Orrin G. Hatch President Pro Tempore
United States Senate Washington, DC 20510

Dear Mr. President:

Pursuant to the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA") of 1986, 52 U.S.C.
§§ 20301-20311, as amended by the Military and Overseas Voter Empowerment Act ("MOVE Act") of 2009,
Pub. L. No. 111-84, Subtitle H, § 587, we are pleased to transmit to you the Attorney General's
annual report.

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistaot Attorney General Washington, D.C. 20530

December 29, 2016

The Honorable Mitch McConnell Majority Leader
United States Senate Washington, DC 20510

Dear Mr. Leader:

Pursuaot to the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA") of 1986, 52 U.S.C.
§§ 20301-20311, as amended by the Military and Overseas Voter Empowerment Act ("MOVE Act") of 2009,
Pub. L. No. 111-84, Subtitle H, § 587, we are pleased to transmit to you the Attorney General's
armual report.

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington, D.C. 20530

December 29, 2016

The Honorable Harry Reid Minority Leader
United States Senate Washington, DC 20510

Dear Mr. Leader:

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington, D.C. 20530

December 29, 2016

The Honorable Charles E. Grassley Chairman
Committee on the Judiciary United States Senate Washington, DC 20510

Dear Mr. Chairman:

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington, D.C. 20530

December 29, 2016

The Honorable Patrick J. Leahy Ranking Member
Committee on the Judiciary United States Senate Washington, DC 20510

Dear Senator Leahy:

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington, D.C. 20530

December 29, 2016

The Honorable Paul D. Ryan Speaker
U.S. House of Representative Washington, DC 20515

Dear Mr. Speaker:

Pursuant to the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAV A") of 1986, 52 U.S.C.
§§ 20301-20311, as amended by the Military and Overseas Voter Empowerment Act ("MOVE Act") of 2009,
Pub. L. No. 111-84, Subtitle H, § 587, we are pleased to transmit to you the Attorney General's
annual rep01t.

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington, D.C. 20530

December 29, 2016

The Honorable Kevin McCarthy Majority Leader
U.S. House of Representatives Washington, DC 20515

Dear Mr. Leader:

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

U.S. Department of Justice
.
. Office of
Legislative Affairs

Office of the Assistant Attorney General Washington, D.C. 20530

December 29, 2016

The Honorable Nancy Pelosi Minority Leader
U.S. House of Representatives Washington, DC 20515

Dear Madam Leader:

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington, D C 20530

December 29, 2016

The Honorable Robert W. Goodlatte Chairman
Committee on the Judiciary
U.S. House of Representatives Washington, DC 20515

Dear Mr. Chairman:

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington, D.C. 20530

December 29, 2016

The Honorable John Conyers, Jr. Ranking Member
Committee on the Judiciary
U.S. House of Representatives Washington, DC 20515

Dear Congressman Conyers:

We hope this information is helpful. Please do not hesitate to contact this office if we may
provide additional assistance regarding this or any other matter.

Sincerely,

Peter Kadzik
Assistant Attorney General

Enclosure

United States Department of Jnstice Uniformed and Overseas Citizens Absentee Voting Act
Annual Report to Congress 2016

I. Summary

The Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA") of 1986, 52
U.S.C. §§ 20301-20311, as amended by the Military and Overseas Voter Empowerment Act ("MOVE Act")
of 2009, Pub. L. No. 111-84, Subtitle H, §§ 575-589, 123 Stat. 2190, 2318-35 (2009), requires
States to afford military and overseas voters a meaningful opportunity to register and vote
absentee in elections for Federal office. Protecting the voting rights of military and overseas
voters remains one of the highest priorities of the Department of Justice
("Department"). This report describes the Department's work to enforce this important statute in
2016.

In the 2016 Federal election year, the Department devoted significant resources to monitoring
UOCAVA compliance throughout the country leading up to the primary elections, in advance of special
congressional elections, and in the months and weeks leading up to the
general election. In this cycle, one State, New York, sought an undue-hardship waiver of the 45-
day ballot transmission deadline from the Defense Department pursuant to UOCAVA, 52 U.S.C.
§ 20302(g). That waiver request was granted by the Department of Defense but as a result of the
related litigation, discussed further herein, the waiver proved unnecessary.

In preparation for its nationwide compliance monitoring program for the 2016 Federal election
cycle, the Department wrote to all the chief State election officials 1 in November 2015 to remind
them of their UOCAVA responsibilities and to request teleconferences to discuss their preparations
for the primary elections. As in prior Federal election cycles, we requested that the
State election offices monitor the transmission of absentee ballots to its military and overseas
voters and provide confirmation to the Department that ballots that were requested by the 45th day
prior to the Federal elections were transmitted by that date. In advance of the UOCAVA deadline
for the general election, we reached out again to all the State election offices to inquire whether
plans were in place to ensure timely transmission of the UOCAVA ballots for the Federal general
election.

In 2016, the Department successfully concluded its 2012 litigation brought to ensure UOCAVA
compliance for Federal runoff elections in Alabama. Inaddition, the Department participated in two
cases to defend the constitutionality of UOCAVA. Copies of the United States' briefs and
significant court orders referenced herein are attached to this report.

In addition to our ongoing monitoring and enforcement efforts, the Department continues
to advocate for legislation to provide even stronger protections for military and overseas voters.

1 UOCAVA defines "State" to include the District of Columbia, the Commonwealth of Puerto Rico,
Guam, the Virgin Islands, and American Samoa. 52 U.S.C. § 20310(6). Consequently, our general
references in this report to the phrase "State" include the District of Columbia and the enumerated
territories.

As referenced in its 2015 UOCAVA Annual Report, last year the Department prepared a set of
legislative proposals to enhance the enforcement of UOCAVA. These proposals were transmitted to
Congress on November 10, 2015 as part of the Department of Justice's Servicemembers Legislative
Package, and are similar to sets of proposals transmitted to Congress in September 2011, May 2013,
and April 2014 (referenced in the Department's UOCAVA Annual Reports to Congress in 2011, 2013, and
2014). The Department's UOCAVA proposals would enhance our ability to enforce these important
protections, and we continue to strongly urge their passage.

II. Background

UOCAVA, enacted in 1986, requires that States and Territories allow American citizens who are
active duty members of the United States uniformed services and merchant marine, their spouses and
dependents, and American citizens residing outside the United States to register and vote absentee
in elections for Federal offices. UOCAVA was strengthened significantly in 2009 when Congress
passed the MOVE Act to expand the protections for individuals eligible to vote under its terms.

The Secretary of Defense is the Presidential designee with primary responsibility for implementing
the Federal functions mandated by UOCAVA, and the Attorney General may
bring a civil action in an appropriate district court for such declaratory or injunctive relief as
may be necessary to carry out the provisions of UOCAVA. 52 U.S.C. § 2030l(a); 52 U.S.C. §
20307(a). The Attorney General has assigned responsibility for enforcement of UOCAVA to the Civil
Rights Division. Since UOCAVA was enacted in 1986, the Division has initiated and resolved
numerous cases to enforce UOCAVA. A case list and selected case documents are available at
http://www.i ustice.gov/crt/ about/vot/litigation/caselist.php.

Under the MOVE Act amendments, UOCAVA requires that the Attorney General submit an armual report to
Congress by December 31 of each year on any civil action brought under the Attorney General's
enforcement authority for UOCAVA during the preceding year. 52 U.S.C. § 20307(b). As detailed in
its prior reports to Congress, the Department has engaged in extensive enforcement of the MOVE
Act's requirements since they went into effect for the 2010 general election.

III. Enforcement Activity by the Attorney General in 2016

A. Litigation in 2016 to Defend the Constitutionality of UOCAVA

Segovia v. Board of Election Commissioners for the Citv of Chicago: The Department defended the
Federal defendants named in Segovia v. Board of Election Commissionersfor the City of Chicago,
1:15-CV-10196 (N.D. Ill.), a case that included a challenge to the constitutionality of UOCAVA. In
this case, filed in November 2015, plaintiffs who are former Illinois residents now residing in the
territories sued local election officials in Illinois as well as the United States and the
Department of Defense, asserting an equal protection challenge against UOCAVA and against the
Illinois law governing voting by military and overseas voters.

On February 10, 2016, the Federal defendants filed a motion to dismiss for failure to state a
claim, followed by a combined cross motion for summary judgment, opposition to the plaintiffs'
motion for summary judgment and reply in support of its motion to dismiss on April 18, and a reply
brief on May 17. The Department's briefs argued, inter alia, that the plaintiffs lacked standing
and that UOCAVA is constitutional. On August 23, 2016, the court ruled that the Federal defendants
were entitled to summary judgment as to plaintiffs' equal protection claims based on UOCAVA.

On October 19, 2016, the Federal defendants filed a combined cross motion for summary judgment and
opposition to the plaintiffs' second motion for summary judgment (based on substantive due process
issues). On October 28, 2016, the court rejected plaintiffs' remaining challenges to the
constitutionality of UOCAVA. It granted the Federal defendants' cross-motion for summary judgment,
denied the plaintiffs' second motion for summary judgment, and entered final judgment.

Pidot v. New York State Bd. of Elections: The Department filed two Statements of Interest in Pidot
v. New York State Bd. of Elections, No. 1:16-CV-859 (N.D.N.Y.), a case that raised a potential
constitutional challenge to UOCAVA. In this case, plaintiffs sought a new Republican primary
election for New York's Third Congressional District, and also challenged UOCAVA's
constitutionality to the extent that the statute's 45-day advance ballot transmission requirement
was construed to limit the court's power to schedule a new primary election.

Prior to the federal court proceedings, in New York state court, plaintiff Philip Pidot challenged
the New York State Board of Elections' invalidation of his petition to be designated on the June 28
primary election ballot as a candidate for the Republican nomination for New York's Third
Congressional District. UOCAVA's 45-day ballot transmission deadline for that election fell on May
14, 2016. On June 24, the state court held that, although plaintiff qualified for the ballot, it
could not grant the relief requested-to include plaintiff s name on the June 28, 2016, Republican
primary ballot-due to timing considerations. In addition, by not addressing plaintiff s oral
request for a new election, the court effectively denied that request. Plaintiff appealed on July
7, 2016. On July 21, 2016, the state appellate court affirmed the trial court's decision.

On July 13, 2016, while the state court appeal was pending, plaintiff Pidot and three eligible
Republican Party voters filed suit in federal court seeking an order requiring a new Republican
primary and challenging the constitutionality of UOCAVA's 45-day advance ballot transmission
requirement to the extent it precluded the court from ordering that primary election. On July 19,
the United States District Court for the Northern District of New York certified to the United
States Attorney General the constitutional challenge to UOCAVA, allowing the Attorney General to
intervene in the matter within 60 days. On August 16, the Department filed a Statement of
Interest explaining why the court did not need to address the constitutionality of UOCAVA to
resolve the case, and indicating the Department's intent to intervene if

the court concluded that it must resolve plaintiffs' constitutional challenge. At the conclusion
of a hearing on August 17, the court ordered New York to (1) hold a Republican primary election for
the Third Congressional District on October 6, 2016 and (2) seek a hardship exemption from UOCAVA's
45-day advance transmission requirement for the November 8, 2016 general election. The court did
not address the constitutionality of UOCAVA's 45-day advance transmission requirement.

On August 19, 2016, Defendant-Intervenor Jack Martins, the presumptive Republican candidate for the
Third Congressional District, moved for relief from judgment,
asldng that the court either move the general election for the Third Congressional District to
December 6, or else withdraw altogether the order setting a new primary on October 6. The court
denied this motion from the bench at a hearing on August 30, leaving the previously-ordered
election schedule in place.

On August 22, 2016, the State applied to the Department of Defense for a hardship waiver. On
August 29, the Department of Defense granted the State's request on the condition that the district
court grant an eight-day extension of New York's ballot receipt deadline for the November 8 general
election for the Third Congressional District. On August 31, New York moved for an order extending
the State's ballot receipt deadline. On September 1, the Department filed a supplemental Statement
of Interest in the Pidot case, indicating that it did not oppose the proposed ballot receipt
deadline extension. That same day, the court granted the extension.

On September 1, 2016, Martins appealed the district court's August 17 and 30 orders to the United
States Court of Appeals for the Second Circuit. Martins v. Pidot, No. 16-3028 (2d Cir.). On
September 14, the Second Circuit held oral argument and
reversed the decision of the district court from the bench. The Second Circuit vacated the order
setting the October 6 primary election and remanded with instructions to dismiss the complaint.
The district court subsequently vacated its September 1 order, dismissed the complaint, and entered
judgment in favor of the defendants. Thus the results of the June 28, 2016, Republican primary
election in the Third Congressional District stood, and because no new primary election was held,
the waiver of the 45- day advance transmission requirement for the November 8 Federal general
election proved unnecessary.

B. Activity in Other Litigation by the Attorney General under UOCAVA

United States v. Alabama: In 2016, the Department successfully concluded the remedial phase of its
litigation against Alabama, initiated in 2012 based on Alabama's failure to transmit ballots to
UOCAVA voters at least 45 days prior to the 2012 Federal primary election and failure to ensure
ballots would be transmitted by the 45th day before any Federal primary runoff election that would
be needed.
United States v. Alabama, No. 2: 12-cv-179 (M.D. Ala.); see also Alabama v United States, No.
14-11298 (11th Cir.).

As detailed in the Department's 2012-2015 UOCAVA Annual Reports to Congress,

as of 2015, the Department had achieved a favorable resolution of its claims concerning Alabama's
violations of UOCAVA's 45-day advance transmission deadline in several Federal elections, and on
February 12, 2015, the Eleventh Circuit affmned the district court's summary judgment ruling that
UOCAVA's 45-day advance transmission requirement applies to Federal runoff elections.

On August 14, 2015, the governor of Alabama signed into law Act No. 2015-518, which permits the use
of ranked ballots for Alabama's UOCAVA voters during any applicable Federal primary (and runoff)
election. On August 24, 2015, Alabama filed a motion requesting that the court vacate its
injunction requiring Alabama to hold any Federal primary runoff election 63 days after the primary
election and allow Act No. 2015-518 to be implemented in its stead. On September 25, 2015, the
United States filed with the court a notice that it did not oppose Alabama's motion. On October
5, 2015, the court granted Alabama's motion to permit the State to (1) use ranked ballots in
Federal elections for UOCAVA voters only and (2) return the date for Federal primary runoff
elections to 42 days following the Federal primary election. The court further ordered monitoring
and reporting requirements for the 2016 Federal election cycle.

In 2016, the Department continued to monitor Alabama's compliance with UOCAVA and the federal
district court's orders governing State procedures for ensuring UOCAVA compliance. On March 23,
2016, Alabama filed with the court a notice stating that it had adopted final administrative
regulations concerning the adoption
and use of a ranked balloting process for applicable Federal primary (and runoff) elections. Those
regulations detail the process by which the State will administer the ranked ballot system,
including procedures for the transmission and counting of ranked ballots.

ATTACHMENTS

I. Enforcement Activity by the Attorney General
In 2016

A. Litigation in 2016 to Defend the Constitutionality of UOCAVA

Segovia v. Board of Election Commissioners for the City of Chicago

Case: 1:15-cv-10196 Document #: 39 Filed: 02/10/16 Page 1 of 21 PageID #:135

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

LUIS SEGOVIA, et al.,

Plaintiffs,

)
)
)
)
) 15-cv-10196
)
) Judge Joan B. Gottschall

BOARD OF ELECTION COMMISSIONERS )

FOR THE CITY OF CHICAGO, et al., )
)
Defendants. )

FEDERAL DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS

Date: February 10, 2016

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

ANTHONY J. COPPOLINO
Deputy Branch Director

ZACHARY T. FARDON
United States Attorney

THOMAS WALSH
Assistant United States Attorney

/s/ Caroline Anderson
Caroline J. Anderson IL Bar No. 6308482
Trial Attorney
U.S Department of Justice
Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 7220
Washington, D.C. 20001
Phone: (202) 305-8645
Caroline.J.Anderson@usdoj.gov

Counsel for Federal Defendants

Case: 1:15-cv-10196 Document #: 39 Filed: 02/10/16 Page 2 of 21 PageID #:136

TABLE OF CONTENTS
TABLE OF AUTHORITIES
....................................................................................................
...... ii
INTRODUCTION
....................................................................................................
...................... 1
BACKGROUND
....................................................................................................
........................ 2
I.     LEGAL FRAMEWORK
....................................................................................................
2
II.    PLAINTIFFS’ ALLEGATIONS
........................................................................................ 5
ARGUMENT
....................................................................................................
.............................. 7
I.     PLEADING
STANDARDS...........................................................................................
..... 7
II.    PLAINTIFFS HAVE FAILED TO STATE A CLAIM UPON WHICH REFLIEF CAN BE GRANTED
....................................................................................................
............... 7
A.      UOCAVA Does Not Prohibit Plaintiffs from Voting for Federal Office via Absentee
Ballot..............................................................................................
............................... 7
B.      UOCAVA Meets the Requirements of Equal Protection and Due Process.................. 9
i.   Standard of
Review..............................................................................................
....... 10
ii. UOCAVA Passes Rational Basis
Review................................................................... 11
C.      Plaintiffs’ § 1983 Claim Against the Federal Defendants Must Be Dismissed.......... 15
CONCLUSION..........................................................................................
................................... 15

Case: 1:15-cv-10196 Document #: 39 Filed: 02/10/16 Page 3 of 21 PageID #:137

Cases
Anderson v. Celebrezze,

TABLE OF AUTHORITIES

460 U.S. 780
(1983)..............................................................................................
.................... 2

Ashcroft v. Iqbal,

556 U.S. 662
(2009)..............................................................................................
..................... 7

Att’y Gen. of the Territory of Guam v. United States,

738 F.2d 1017 (9th Cir. 1984)
...................................................................................................
3

City of Cleburne v. Cleburne Living Ctr., Inc.,

473 U.S. 432
(1985)..............................................................................................
................... 10

District of Columbia v. Carter,

409 U.S. 418
(1973)..............................................................................................
................... 15

Dorr v. United States,

195 U.S. 138 (1904)
....................................................................................................
............ 14

E.E.O.C. v. Concentra Health Servs, Inc.,

496 F.3d 773 (7th Cir. 2007)
....................................................................................................
. 7

Igartua De La Rosa v. United States,

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

Igartua v. United States,

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

Katzenbach v. Morgan,

384 U.S. 641
(1966)..............................................................................................
............. 10, 13

McDonald v. Bd. of Election Comm’rs,

394 U.S. 802
(1969)..............................................................................................
................... 13

Case: 1:15-cv-10196 Document #: 39 Filed: 02/10/16 Page 4 of 21 PageID #:138

Meiners v. Moriarity,
563 F.2d 343 (7th Cir. 1977)
...................................................................................................
15
Reed v. City of Chicago,
77 F.3d 1049 (7th Cir. 1996)
...................................................................................................
15
Romeu v. Cohen,
121 F.Supp.2d 264 (S.D.N.Y.
2000)........................................................................................ 10

Romeu v. Cohen,

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

Semler v. Oregon State Bd. of Dental Exam’rs,

294 U.S. 608
(1935)..............................................................................................
................... 14

Tamayo v. Blagojevich,

526 F.3d 1074 (7th Cir. 2008)
...................................................................................................
7

Statutes
10 Ill. Comp. Stat. Ann.
5/20-1..............................................................................................
passim

42 U.S.C. §
1983................................................................................................
....................... 1, 15

52 U.S.C. §
20302...............................................................................................
.................... 4, 8, 9

52 U.S.C. §
20310...............................................................................................
................... passim

U.S. CONST. amend.
XVII................................................................................................
......... 3, 14

U.S. CONST. art. I
....................................................................................................
.................. 3, 14

U.S. CONST. art.
II..................................................................................................
..................... 2, 7

Other Authorities
H.R. REP. NO. 99-765
(1986)..............................................................................................
.......... 11
Joseph E. Horey, The Right of Self-Government in the Commonwealth of the Northern

Mariana Islands, 4 Asian-Pac. L. & Pol’y J. 180 (2003)
....................................................... 13

S. REP. NO. 94-121 (1975)
....................................................................................................
........ 12

iii

Case: 1:15-cv-10196 Document #: 39 Filed: 02/10/16 Page 5 of 21 PageID #:139

INTRODUCTION
Plaintiffs in this action are six individuals who allege they are former residents of Illinois that
now reside in Puerto Rico, Guam, or the U.S. Virgin Islands, along with two organizations that
promote voting rights in the territories, and who challenge the constitutionality of the Uniformed
and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20310 (“UOCAVA”) and Illinois Military and
Overseas Voter Empowerment law (“Illinois MOVE”), 10 Ill. Comp. Stat. Ann. 5/20-1. Plaintiffs seek
declaratory and injunctive relief, asserting that these statutes operate to preclude them from
voting absentee in Illinois in federal elections in violation of their equal protection and due
process rights.1
Plaintiffs’ claims should be dismissed for failure to state a claim against the Federal Defendants
because UOCAVA does not impose the voting disability of which Plaintiffs complain. Rather, that
restriction results from requirements imposed by Illinois law, as well as provisions of the
Constitution, which delegate to the states the authority to regulate voting in federal elections.
It is not UOCAVA that prevents citizens who have become qualified to vote in a particular state
from continuing to vote in that state by absentee ballot during a period of residence in Puerto
Rico, Guam, or the U.S. Virgin Islands.
As an independent basis for dismissal, UOCAVA meets the requirements of Equal Protection and Due
Process. UOCAVA neither affects a suspect class nor infringes upon a fundamental right, and the
statute accordingly must be upheld so long as it is rationally related to

1 Specifically, Plaintiffs seek a declaratory judgment holding that UOCAVA and Illinois MOVE
violate the Fifth Amendment, the Fourteenth Amendment, and 42 U.S.C. § 1983 by defining the United
States in a manner that discriminates among former Illinois residents living overseas. Further,
Plaintiffs seek an order directing Defendants - the United States, Secretary of Defense Ashton
Carter, the Federal Voting Assistance Program, Director of the Federal Voting Assistance Program
Matt Boehmer (hereafter “the Federal Defendants”), and the Board of Election Commissioners for the
City of Chicago, Chairman of the Board of Election Commissioners, and the Rock Island County Clerk
(hereafter “the Illinois Defendants”) - to accept from the individual Plaintiffs applications to
vote absentee in the next federal election in Illinois.

Case: 1:15-cv-10196 Document #: 39 Filed: 02/10/16 Page 6 of 21 PageID #:140

a legitimate government interest. Under that highly deferential standard, UOCAVA satisfies
constitutional requirements. In enacting UOCAVA, Congress sought to expand voting rights to
citizens overseas who, in the absence of the statute, might otherwise be completely
disenfranchised. As the First and Second Circuits have concluded, Congress had a rational basis
for the distinction in absentee voting rights drawn by UOCAVA between State residents who move
overseas and those who move within the United States, as defined to include Guam, Puerto Rico, and
the U.S. Virgin Islands. Absent UOCAVA, some citizens who move to foreign countries might lose the
right to vote in federal elections entirely. Former Illinois residents that move to Puerto Rico,
Guam, and the U.S. Virgin Islands, by contrast, gain the right to vote in federal elections for
each of the territories’ representatives in Congress. Moreover, insofar as UOCAVA’s protections
have not been expanded, Congress is entitled to legislate incrementally in addressing absentee
voting rights for overseas voters, without resolving all issues that may
arise. For these reasons, the Complaint should be dismissed as against the Federal Defendants for
failure to state a claim.2
BACKGROUND

I. LEGAL FRAMEWORK

Article II, section 1, of the Constitution provides, “[e]ach State shall appoint, in such Manner as
the Legislature thereof may direct, a Number of Electors, equal to the Whole Number of Senators and
Representatives to which the State may be entitled in the Congress” to elect the President and
Vice-President of the United States. U.S. Const. art. II, § 1, cl. 2 (emphasis added).
Accordingly, the right to vote for President and Vice-President of the United States inheres in
states, rather than in citizens. See Anderson v. Celebrezze, 460 U.S. 780, n.18 (1983)

2 As addressed below, beyond the failure to state a claim, the Federal Defendants cannot in any
event be enjoined to “accept applications to vote absentee” in Illinois federal elections.
2

Case: 1:15-cv-10196 Document #: 39 Filed: 02/10/16 Page 7 of 21 PageID #:141

(“The Constitution expressly delegates authority to the states to regulate selection of
Presidential electors . . .”); Att’y General of the Territory of Guam v. United States, 738 F.2d
1017, 1019 (9th Cir. 1984), cert. denied, 469 U.S. 1209 (1985) (“[T]he Constitution does not grant
to American citizens the right to elect the President.”). Accordingly, “U.S. citizens who are
residents of Puerto Rico and the other U.S. territories have not received similar rights to vote
for presidential electors because the process set out in Article II for the appointment of electors
is limited to ‘States’ and does not include territories.” Romeu v. Cohen, 265 F.3d 118, 123 (2d
Cir. 2001).
Because Puerto Rico, Guam, and the U.S. Virgin Islands are not states, “those Courts of Appeals
that have decided the issue have all held that the absence of presidential and vice-presidential
voting rights for U.S. citizens living in U.S. territories does not violate the constitution.” Id.
(per curiam) (citing Igartua De La Rosa v. United States, 32 F.3d 8, 9-10 (1st Cir. 1994))
[hereinafter Igartua I]; Att’y General of the Territory of Guam, 738 F.2d at 1019 (“Since Guam . .
. is not a state, it can have no electors, and plaintiffs cannot exercise individual votes in a
presidential election.”).
Article I, section 2, of the Constitution states that:

[t]he House of Representatives shall be composed of Members chosen every second Year by the People
of the several States, and Electors in each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State Legislature
. . . The Times, Places and Manner of holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof . . .
U.S. CONST. art. I, § 2, cl. 1-4 (emphasis added). The Seventeenth Amendment to the Constitution
similarly specifies that “[t]he Senate of the United States shall be composed of two Senators from
each State, elected by the people thereof . . . The electors in each State shall have the
qualifications requisite for electors . . .” U.S. CONST. amend. XVII (emphasis added). The text of
Article I and the Seventeenth Amendment make clear that only the people of a state may vote for the
Senators and members of the House of Representatives from that state. See Igartua
3

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v. United States, 626 F.3d 592, 596 (1st Cir. 2010) (“The text of the U.S. Constitution grants the
ability to choose, and so to vote for, members of the House Representatives to ‘the People of the
Several States’.”) (internal citation omitted). As with the election of the President and Vice-
President, citizens of the territories do not possess the right to vote for members of the House of
Representatives and the Senate. See id. at 597-98 (holding that because Puerto Rico is not a state
of the United States within the meaning of the Constitution, under Article I its residents do not
have the right to vote for members of the House of Representatives).
In UOCAVA, Congress directed that “[e]ach State shall permit absent uniformed services voters and
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 statute defines “overseas voter” as:

(A) an absent uniformed services voter who, by reason of active duty or service, is absent from the
United States on the date of the election involved;
(B) 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; or
(C) a person who resides outside the United States and (but for such residence) would be qualified
to vote in the last place in which the person was domiciled before leaving the United States.

52 U.S.C. § 20310(5). UOCAVA 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,” id. § 20310(6), and it defines “United States, where used in the territorial sense,” to
mean “the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the
Virgin Islands, and American Samoa,” id. at § 20310(8). In sum, under UOCAVA, states shall permit
overseas voters covered by the Act to vote absentee if they live outside of the territorial United
States (defined to include Puerto Rico, Guam, the U.S. Virgin Islands, and

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American Samoa – and thus excluding those locations from the Act’s provisions).3 In so doing, the
statue sets a floor for absentee voting rights, but does not restrict states from extending them
further.
The Illinois statute at issue here (MOVE), which also addresses voting rights of overseas citizens
in federal elections, states in relevant part: “[a]ny non-resident civilian citizen, otherwise
qualified to vote, may make application to the election authority having jurisdiction over his
precinct of former residence for a vote by mail ballot containing the Federal offices4 . . . ” 10
Ill. Comp. Stat. Ann. 5/20-2.2, and defines “non-resident civilian citizens” as:
civilian citizens of the United States (a) who reside outside the territorial limits of the United
States, (b) who had maintained a precinct residence in a county in this State immediately prior to
their departure from the United States, (c) who do not maintain a residence and are not registered
to vote in any other State, and (d) whose intent to return to this State may be uncertain.

Id. at 5/20-1(4). In turn, the “[t]erritorial limits of the United States” are defined to include
“each of the several States of the United States and includes the District of Columbia, the
Commonwealth of Puerto Rio, 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.” Id. at 5/20-1(1). In other words, Illinois law generally tracks UOCAVA in
extending absentee voting rights but, notably in contrast, also allows overseas former State
residents who have moved to American Samoa to vote absentee in Illinois.

3 Under UOCAVA, U.S. citizens who are in the military or the merchant marine and their spouses and
dependents – “absent uniformed services voter[s]” – retain the right to vote in federal elections
by absentee ballot in their last state of residence even if they move to a United States territory
such as Puerto Rico, Guam, or the U.S. Virgin Islands. See 52 U.S.C. § 20310(1)(A-C) (member of
“uniformed service on active duty” or “merchant Marine” need only be “absent from the place of
residence where the member is otherwise qualified to vote.”).
4 “Federal office” is defined to include “the offices of President and Vice-President of the United
States, United States Senator, Representative in Congress, delegates and alternate delegates to the
national nominating conventions and candidates for the Presidential Preference Primary.” 10 Ill.
Comp. Stat. Ann. 5/20-1(6).

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II. PLAINTIFFS’ ALLEGATIONS

Plaintiffs are six individuals that allege they are former residents of Illinois who have since
moved to Puerto Rico, Guam, or the U.S. Virgin Islands, and two organizations, the Iraq Afghanistan
and Persian Gulf Veterans of the Pacific (“IAPGVP”) and League of Women Voters of the Virgin
Islands (“LWV-VI”). Compl. ¶¶ 11-18, ECF No. 1. Each individual Plaintiff alleges that he or she
voted for President and/or voting members of the U.S. House of Representatives and Senate while
residing in Illinois, id. at ¶¶ 11-15, save for one individual Plaintiff that alleges she voted by
absentee ballot while working in the Virgin Islands temporarily before permanently residing there,
id. at ¶ 16. IAPGVP alleges that its mission is “to provide opportunities to engage, enrich, and
empower Pacific Island Veterans . . . and their families,” and is composed of current residents of
Guam who are former residents of Illinois and other states.
Id. at ¶ 17. LWV-VI was founded to promote “political responsibility through informed voters who
actively participate in government” and its membership includes current residents of the Virgin
Islands who are former residents of Illinois and other states. Id. at ¶ 18.
In their claims for relief, Plaintiffs allege that UOCAVA and Illinois MOVE violate the equal
protection and due process guarantees of the Fifth and Fourteenth Amendments and 42 U.S.C.§ 1983 by
“treating similarly situated former state residents differently based on where they reside
overseas.” Id. at ¶ 52. Specifically, Plaintiffs claim that “under Illinois law, former Illinois
residents living in a foreign country, or American Samoa or the [Northern Mariana Islands] NMI –
but not other U.S. Territories overseas – may vote in Illinois by absentee ballot”
for federal office.5 Id. at ¶ 47. Plaintiffs seek an order declaring that UOCAVA and Illinois

MOVE violate the Constitution, a preliminary and permanent order enjoining Defendants to

5 As noted, the State of Illinois has extended absentee voting rights to former residents in
American Samoa by statute. As addressed further below, the NMI is not included in UOCAVA’s
statutory definition of the “United States.”

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accept applications to vote absentee in the next federal election in Illinois from individual
Plaintiffs, and fees and costs. Compl. at 21 (Prayer for Relief ¶¶ a-d). These claims must be
dismissed for failure to state a claim upon which relief can be granted against the Federal
Defendants.
ARGUMENT

I. PLEADING STANDARDS

To withstand a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as
true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In considering such a
motion under Rule 12(b)(6), the Court is to construe the complaint in the light most favorable to
the plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The complaint must
describe the claim in sufficient detail to give the defendant “fair notice of what the . . . claim
is and the grounds upon which it rests.” E.E.O.C. v. Concentra Health Servs, Inc., 496 F.3d 773,
776 (7th Cir. 2007).
II. PLAINTIFFS HAVE FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

A. UOCAVA Does Not Prohibit Plaintiffs from Voting for Federal Office via Absentee Ballot.
Contrary to their allegations, UOCAVA does not prevent Plaintiffs from voting absentee in Illinois
for federal office. Instead, as a result of limitations established by the Constitution, it is the
State of Illinois which imposes the voting restrictions of which Plaintiffs complain. As described
above, the Constitution provides that it is the States, rather than the federal government, that
determine the manner in which their presidential, vice-presidential, and congressional electors are
chosen. U.S. CONST. art. II, § 1, cl. 2; id. at art. I, § 2, cl. 1-4; id. at amend. XVII. Because
Puerto Rico, Guam, the U.S. Virgin Islands, and American Samoa are
7

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concededly not states, these territories are not entitled under Article II to choose electors for
President, Igartua I, 32 F.3d at 9-10 (internal citations omitted), or under Article I and the
Seventeenth Amendment to elect members of Congress or the Senate. As the First Circuit noted, this
disadvantage is not imposed by any federal statutory scheme, but is a consequence of the
Constitution itself. Igartua I, 32 F.3d at 10-11.
In turn, it is the State of Illinois – not the Secretary of Defense, the Federal Voting Assistance
Program, its director, or the United States of America – that determines how to fashion absentee
voting rights in Illinois. UOCAVA merely supplies a floor for these rights, providing that “[e]ach
State shall permit” absent overseas voters “to vote by absentee ballot” in elections for Federal
office. 52 U.S.C. § 20302(a)(1) (emphasis added). By directing states to permit absent overseas
voters to vote by absentee ballot for federal office, UOCAVA in no sense denies states the ability
to broaden the right to vote by absentee ballot to individuals who do not meet the federal
statute’s definition, see 52 U.S.C. §§ 20310(5)-(6), (8). Indeed, Illinois has already done
precisely that: Illinois MOVE extends absentee voting rights to former state residents that now
reside in American Samoa, despite the fact that such residents are expressly not covered by UOCAVA.
See 10 Ill. Comp. Stat. Ann. 5/20-1(1) (excluding American Samoa from its definition of the United
States); cf. 52 U.S.C. § 20302(a)(1) (defining the United States to include American Samoa, such
that individuals living in that territory are not considered overseas voters with guaranteed
absentee voting rights under UOCAVA). The federal statute likewise provides no barrier to Illinois
extending the same rights to former state residents living in Puerto Rico, Guam, or the U.S. Virgin
Islands, such as Plaintiffs. Thus, UOCAVA does not prevent Plaintiffs from voting absentee in
Illinois, rather, the State that imposes this restriction.
Indeed, Plaintiffs’ Complaint acknowledges as much and effectively alleges that state law

governs their absentee voting rights. Plaintiffs appear to recognize that it is the definition
8

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articulated in Illinois MOVE, not UOCAVA, that governs their voting rights: “Under UOCAVA and
Illinois MOVE, [an individual plaintiff] would continue to be able to vote for President and voting
Members of the U.S. House and Senate by absentee ballot in Illinois if he were a resident of the
NMI, American Samoa, or a foreign country.” Compl. ¶ 14(a) (emphasis added). But it is only
Illinois law that extends absentee voting rights to residents of American Samoa, such that
Plaintiffs’ allegation is only an accurate restatement of Illinois MOVE, and not the federal
statute. Cf. 10 Ill. Comp. Stat. Ann. 5/20-1(1) with 52 U.S.C. § 20302(a)(1).
Plaintiffs further acknowledge that the Illinois Defendants, rather than the Federal Defendants,
are capable of providing to Plaintiffs the relief they seek. Although in their Prayer for Relief
Plaintiffs seek an injunction against “Defendants” generally, see Compl. at 21 (Prayer for Relief ¶
b), the Complaint singles out the Illinois Defendants in its specific request for relief, seeking
an “injunction directing Defendants Board of Election Commissioners for the City of Chicago,
Langdon D. Neal [its Chairman], and Karen Karen Kinney [Rock Island County Clerk] to accept
Individual Plaintiffs’ applications to vote absentee in federal elections in Illinois.” Compl. ¶
10. Plaintiffs apparently recognize that only the Illinois Defendants can deliver the remedy they
seek, as the Federal Defendants have no role in accepting or rejecting Illinois absentee ballots.
Because it is state law, rather than UOCAVA, which prohibits Plaintiffs from voting absentee in
Illinois, Plaintiffs have failed to state a claim upon which relief can be granted against the
Federal Defendants.
B. UOCAVA Meets the Requirements of the Equal Protection and Due Process.
Plaintiffs allege that UOCAVA violates equal protection and due process principles, as protected by
the Fourteenth Amendment and the Fifth Amendment. Compl. ¶ 54. They claim that by “protect[ing]
the right to vote for certain U.S. citizens who move overseas, while denying it to others who are
similarly situated,” UOCAVA unfairly discriminates among U.S. citizens
9

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and violates the Constitution. Compl. ¶¶ 48-51 (original emphasis). As the First and Second
Circuits each concluded in analogous cases, this claim lacks merit. See Igartua I, 32 F.3d at 10-
11 (upholding UOCAVA against an equal protection and due process challenge brought by former state
residents seeking to vote by absentee ballot from Puerto Rico); Romeu, 265 F.3d at 127 (same).
i. Standard of Review

The Supreme Court has explained the proper method for analyzing claims under the Equal Protection
Clause: “[t]he general rule is that legislation is presumed to be valid and will be sustained if
the classification drawn by the statute is rationally related to a legitimate state interest.” City
of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985) (internal citations omitted);
Romeu v. Cohen, 121 F.Supp.2d 264, 283 (S.D.N.Y. 2000), aff’d 265 F.3d 118 (2d Cir. 2001). The
First Circuit affirmed the applicability of this standard to an equal protection and due process
challenge to UOCAVA, holding that the distinction Plaintiffs identify “need only have a rational
basis to pass constitutional muster” because it “neither affects a suspect class nor infringes a
fundamental right.” Igartua I, 32 F.3d at 10; see also id. at 10 n.2 (“Although it affects the
right to vote, [UOCAVA] does not infringe that right but rather limits the state’s ability to
restrict it.”).
The Supreme Court has also indicated that this type of statutory classification is subject only to
rational basis review. In Katzenbach v. Morgan, 384 U.S. 641 (1966), plaintiffs challenged section
4(e) of the Voting Rights Act, which barred states from applying English literacy requirements to
voters educated in American-flag schools in which English was not the predominant classroom
language. Id. at 643 & n.1. Plaintiffs claimed that the statute discriminated against voters
educated in a language other than English in non-American-flag
schools, meaning “that Congress violated the Constitution by not extending the relief effected in
10

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[the relevant section] to those educated” outside a territory of the United States. Id. at 656-57.
The Court explained that, because “the distinction challenged by [plaintiffs] is presented only as
a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the
franchise” the Court should be “guided by the familiar principle that a statute is not invalid
under the Constitution because it might have gone farther than it did.” Id. (internal citations
omitted). The Supreme Court rejected plaintiffs’ discrimination claim, holding that “the principle
that calls for the closest scrutiny of distinctions in laws denying fundamental rights . . . [was]
inapplicable.” Id. at 657. Because the Court found legitimate grounds that “might well have been
the basis for the decision of Congress to go ‘no farther than it did,’” the Court upheld section
4(e) against the plaintiffs’ equal protection challenge. Id. at 658. Rational basis review,
rather than the heightened scrutiny appropriate for distinctions in laws denying rights, likewise
applies to Plaintiffs’ challenge to UOCAVA.6
ii. UOCAVA Passes Rational Basis Review

In extending absentee voting protections, Congress distinguished between U.S. citizens who move to
a different jurisdiction within the United States and those who move overseas. The “primary
purpose” of UOCAVA “is to facilitate absentee voting by United States citizens, both military and
civilian, who are overseas” and “who would otherwise be disenfranchised.” See H.R. REP. NO. 99-765,
at 5-6 (1986), reprinted in 1986 U.S.C.C.A.N. 2009, 2009-2010
[hereinafter “1986 House Report”]. Congress expressed concern that “most American citizens residing
outside the United States, who are in the private sector, continue to be excluded from the

6 Although relevant Supreme Court precedent describes rational basis review as the appropriate
legal standard, the Second Circuit declined to decide the precise standard of review in a similar
challenge to UOCAVA, explaining that “regardless whether this distinction is appropriately analyzed
under rational basis review or intermediate scrutiny, or under some alternative analytic framework
independent of the three-tier standard that has been established in Equal Protection cases . . .
Congress may distinguish between those U.S. citizens formerly residing in a State who live outside
the U.S., and those who live in the territories.”). Romeu, 265 F.3d at 124.

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democratic process of their own country.” S. REP. NO. 94-121, at 5 (1975), reprinted in 1975
U.S.C.C.A.N. 2359, 2363.
Absent UOCAVA, citizens that move outside the United States might be completely excluded from
participating in federal elections in the United States, Romeu, 265 F.3d at 124-25, as would be the
case for citizens moving from Illinois to a foreign country. But citizens that move from the
United States to Puerto Rico, Guam, or the U.S. Virgin Islands such as Plaintiffs acquire new
voting rights in these territories and may vote in local elections for officials of the
territories’ respective governments, as well as in each territory’s federal elections for
non-voting delegates. Thus, the First Circuit concluded that because “voters who move overseas
could lose their right to vote in all federal elections . . . [while] 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,” “Congress had a rational basis for seeking to protect the absentee voting rights only
of the former.” Igartua I, 32 F.3d at 11.
Plaintiffs’ Complaint boils down to a dissatisfaction with the fact that former Illinois residents
that move to American Samoa or the NMI gain new voting rights and retain the right to vote absentee
in Illinois for federal office, whereas former Illinois residents that move to Puerto Rico, Guam,
or the U.S. Virgin Islands do not retain that right. See Compl. ¶ 44. But, as previously explained,
supra at 7-9, it is Illinois MOVE, not UOCAVA, that defines the relevant territorial boundaries of
the United States for purposes of Illinois absentee voting rights. Illinois has already extended
absentee voting rights to former residents currently residing in American Samoa – a protection that
goes beyond that which is provided for in the federal statute – and UOCAVA likewise does not
restrict Illinois from similarly extending such rights to former residents living in Puerto Rico,
Guam, or the U.S. Virgin Islands. Thus, Plaintiffs’ grievance can

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be addressed through state law and does not result from UOCAVA, which expands absentee voting
rights.
Moreover, the fact that former Illinois residents that move to the NMI – also a U.S. Territory –
may vote absentee in Illinois does not render UOCAVA unconstitutional. Plaintiffs’ claim in this
respect appears to rest not with any express distinction in the statute among U.S. territories but,
more likely, turns on a matter of historical timing. At the time UOCAVA was enacted in August 1986,
the Covenant between the U.S. and the NMI regarding its territorial status was not yet fully
effectuated, and the NMI was not included in the definition of the
territorial United States in the Act.7

The fact that this anomaly was not corrected in the Act after the NMI became a U.S. territory does
not render UOCAVA unconstitutional. Again as noted, UOCAVA does not restrict any voting rights but
expands them to cover certain overseas voters. The distinction drawn by Congress in doing so was
within its constitutional authority and has a rational basis. See Romeu, 265 F.3d at 124-25. The
law is clear that Congress was not required to extend absentee voting rights to all U.S.
territories but could permissibly provide a partial remedy to a problem of disenfranchisement even
if legislation could have swept more broadly. As Katzenbach instructs, voting rights reform
legislation “is not invalid under the Constitution because it might have gone farther than it did.”
384 U.S. at 657; see also Romeu, 265 F.3d at 125 (upholding absentee voting statutes that were
“designed to make voting more available to some groups who cannot easily get to the polls,” without
making voting more available to all such groups, on the ground that legislatures may “take reform
‘one step at a time’” (citing

7 The NMI and the United States reached a Covenant Agreement that became fully effective on
November 4, 1986, whereby NMI became a Commonwealth of the United States and residents of the NMI
became citizens of the United States. See Horey, Joseph E., The Right of Self-Government in the
Commonwealth of the Northern Mariana Islands, 4 Asian-Pac. L. & Pol’y J. 180, 245, n. 49 (2003),
(citing 48 U.S.C.A. § 1801 (West 2015)). UOCAVA was passed by Congress roughly three months prior,
on August 7, 1986. See 1986 House Report.

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McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807-809 (1969))). The Supreme Court’s teaching
that a legislature need not “strike at all evils at the same time,” Semler v. Oregon State Bd. of
Dental Exam’rs, 294 U.S. 608, 610 (1935), plainly applies to Congress’s decision to extend absentee
voting rights to some, but not all, overseas voters simultaneously. And, the fact that a
distinction now exists between one U.S. territory and the others under the Act can be addressed
under state law, where the Constitution places that responsibility. Thus, the fact that former
residents of Illinois currently living in the NMI (but not other U.S. territories) retain the right
to vote absentee for federal office does not render UOCAVA unconstitutional.
Nor would inclusion of the NMI as part of the definition of the territorial United States now under
UOCAVA (and thus exclusion from the protections of the Act) redress the alleged injury of former
Illinois residents in other U.S. territories such as Plaintiffs. Rather, what Plaintiffs appear to
demand is that, in part because the NMI is not included in the definition of the territorial United
States, the Court should declare the Act unconstitutional, supplant Congress’s judgment to limit
the expansion of absentee voting rights to certain overseas locations, and legislate such rights
for Plaintiffs who reside in all U.S. territories expressly excluded from the Act. Nothing in the
Constitution remotely requires or permits this result.
As Romeu noted, Congress’s regulation of U.S. territories under Article IV of the Constitution “is
not ‘subject to all the restrictions which are imposed upon [Congress] when passing laws for the
United States.’” 265 F.3d at 122 (citing Dorr v. United States, 195 U.S. 138, 143 (1904)). For
voting rights, the status of a U.S. citizen living in U.S. territories is not identical to that of
a U.S. citizen living in a State. See id. That is again because the process set out in Article II
for the appointment of electors is limited to “States” and does not include territories. See id. at
123; see also U.S. CONST. art. I, § 2, cl. 1-4; id. at amend. XVII (same for
Congress). Thus “[w]hile the [UOCAVA] does not guarantee that a citizen moving to Puerto
14

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Rico [or Guam, or the U.S. Virgin Islands] will be eligible to vote in a presidential [or
Congressional] election, this limitation is not a consequence of the Act but of the constitutional
requirements . . . . ” Igartua I, 32 F.3d at 11. For this reason, Plaintiffs’ challenge
appropriately lies with the State of Illinois, which has independent authority to regulate the
extension of absentee voting rights for former residents such as Plaintiffs, not as to the Federal
Defendants.
Ultimately, “the absence of presidential and vice-presidential [and Congressional] voting rights
for U.S. citizens living in U.S. territories does not violate the Constitution.” See Romeu, 265
F.3d at 123; Igartua I, 32 F.3d at 9-10.
C. Plaintiffs’ § 1983 Claim Against the Federal Defendants Must Be Dismissed.

Finally, Plaintiffs fail to state a § 1983 claim against the Federal Defendants. Section 1983
enables aggrieved individuals to redress deprivations of Constitutional rights where the
deprivations occur under the color of state law. See 42 U.S.C. § 1983. The Seventh Circuit has
confirmed that in order to seek relief under § 1983, plaintiffs must allege that the defendant
acted under color of state law, Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996), and
that the federal government and its officers act under color of federal law. Meiners v. Moriarity,
563 F.2d 343, 348 (7th Cir. 1977); see also District of Columbia v. Carter, 409 U.S. 418, 424
(1973) (“[t]he statute deals only with those deprivations of rights that are accomplished under the
law of ‘any State or Territory’ . . . actions of the Federal Government and its officers are beyond
the purview” of § 1983). Here, Plaintiffs have not alleged that the Federal Defendants acted under
the color of state law vis a vis UOCAVA. Accordingly, Plaintiffs’ § 1983 claim against the Federal
Defendants must be dismissed.
CONCLUSION
For the foregoing reasons, the Complaint should be dismissed for failure to state a claim upon
which relief can be granted against the Federal Defendants.
15

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Dated: February 10, 2016 Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

ANTHONY J. COPPOLINO
Deputy Branch Director

ZACHARY T. FARDON
United States Attorney

THOMAS WALSH
Assistant United States Attorney

s/ Caroline Anderson
Caroline J. Anderson IL Bar No. 6308482
Trial Attorney
U.S Department of Justice
Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 5102
Washington, D.C. 20001
Phone: (202) 305-8645
Caroline.J.Anderson@usdoj.gov

Counsel for Federal Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on February 10, 2016, a copy of the foregoing Memorandum in Support of the
Federal Defendants’ Motion to Dismiss was filed electronically. Notice of this filing will be sent
by email to all parties by operation of the Court’s electronic filing system. Parties may access
this filing through the Court’s CM/ECF System.

/s/ Caroline J. Anderson
Caroline J. Anderson

Case: 1:15-cv-10196 Document #: 51 Filed: 04/18/16 Page 1 of 22 PageID #:290

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

LUIS SEGOVIA, et al.,

Plaintiffs,

)
)
)
)
) 15-cv-10196
)
) Judge Joan B. Gottschall

BOARD OF ELECTION COMMISSIONERS )

FOR THE CITY OF CHICAGO, et al., )
)
Defendants. )

FEDERAL DEFENDANTS’ COMBINED MEMORANDUM REPLY IN SUPPORT OF THEIR MOTION TO DISMISS, IN OPPOSITION
TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, AND IN SUPPORT OF THEIR CROSS-MOTION FOR SUMMARY
JUDGMENT

Date: April 18, 2016

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

ANTHONY J. COPPOLINO
Deputy Branch Director

ZACHARY T. FARDON
United States Attorney

THOMAS WALSH
Assistant United States Attorney

Counsel for Federal Defendants

Case: 1:15-cv-10196 Document #: 51 Filed: 04/18/16 Page 2 of 22 PageID #:291

TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………………...1
ARGUMENT............................................................................................
.................................... 3
I.         Plaintiffs Lack Standing to Sue the Federal Defendants Because Their Alleged Injury is
Not Fairly Traceable to UOCAVA
...................................................................................... 4
II.        UOCAVA Meets the Requirements of the Equal Protection and
Due Process
....................................................................................................
............ 6
i.         Standard of Review
......................................................................................... 6
ii.        UOCAVA Passes Rational Basis Review
........................................................ 8
III.       The Remedy Plaintiffs Seek Would Require the Court to Rewrite a Clear Statutory
Limitation that is Within Congress’s Authority Over U.S. Territories
.................................. 14
IV.      CONCLUSION
....................................................................................................
..... 15

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TABLE OF AUTHORITIES

CASES
PAGE(S)
ACORN v. Edgar,

56 F.3d 791, 794 (7th Cir. 1995)………………………………………………………………5

Badaracco v. Commissioner,

464 U.S. 386 (1984)
....................................................................................................
.........15

Blount v. Rizzi,

400 U.S. 410 (1971)
....................................................................................................
.........15

Burdick v. Takushi,

504 U.S. 428 (1992)
....................................................................................................
...........7

City of Chicago v. Shalala,

189 F.3d 598 (7th Cir. 1999)
..............................................................................................8, 9

Commonwealth of N. Mariana Islands v. Atalig,

723 F.2d 682 (9th Cir. 1984)
......................................................................................3, 11, 12

Davis v. Commonwealth Election Commission,

2014 WL 2111065 (D. N.M.I. May 20, 2014)
......................................................................11

Dunn v. Blumstein,

405 U.S. 330 (1972)
....................................................................................................
...........7

Eche v. Holder,

694 F.3d 1026 (9th Cir. 2012)………………………………………………………………13

EEOC v. Calumet County,

686 F.2d 1249 (7th Cir. 1982)
..............................................................................................15

Freedom from Religion Found, Inc. v. Lew,

773 F.3d 815 (7th Cir. 2014)…………………………………………………………….4

iii

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Harper v. Va State Bd. of Elections,
383 U.S. 663 (1966)
....................................................................................................
...........7

Katzenbach v. Morgan,

384 U.S. 641 (1996)
....................................................................................................
.......7, 8

Igartua De La Rosa v. United States,

32 F.3d 8 (1st Cir. 1994)
................................................................................................6,
7, 9

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)……………………………………………………………………………4

McDonald v. Bd. of Election Comm’rs of Chi.,

394 U.S. 802 (1969)
....................................................................................................
...........7

Romeu v. Cohen,

265 F.3d 118 (2d Cir. 2001)
...............................................................................................7, 9

Srail v. Village of Lisle, Ill.,

588 F.3d 940 (7th Cir. 2009)
..............................................................................................8, 9

Tuaua v. United States,

951 F. Supp. 2d 88 (D.D.C. 2013)
........................................................................................12

Wabol v. Villacrusis,

958 F.2d 1450 (9th Cir. 1990)
..................................................................................10, 11, 12

STATUTES & REGULATIONS

52 U.S.C. §
20310...............................................................................................
................1, 8, 9
52 U.S.C. §
20901...............................................................................................
......................13
LEGISLATIVE MATERIALS

H.R. Rep. No. 99-765 (1986)
..................................................................................................5,
6
H.R. Rep. No. 109-110 (2005)
..................................................................................................12

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Pub. L. No. 110-229, 122 Stat. 754
(2008)................................................................................12

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INTRODUCTION

The individual Plaintiffs, former Illinois residents currently residing in Puerto Rico, the

U.S. Virgin Islands, and Guam, claim their equal protection rights are violated by operation of
both Federal and Illinois laws because they cannot cast absentee ballots in Illinois in federal
elections, in contrast to former Illinois residents currently residing in American Samoa and
Northern Mariana Islands (“NMI”). These circumstances do not result from the operation of the
federal statute at issue – the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. §
20310 (“UOCAVA”). Rather, under the Constitution, States possess the authority to regulate voting
in federal elections in the first instance, and it is the Illinois law that Plaintiffs challenge,
the Illinois Military and Overseas Voter Empowerment law (“Illinois MOVE”), 10 Ill. Comp. Stat.
Ann. 5/20-1, that bars them from voting absentee, though it permits residents currently residing in
NMI or American Samoa to do so. Whatever the merit of Plaintiffs’ challenge to that state law,
UOCAVA does not require States to limit absentee voting rights to particular Territories, does not
cause Plaintiffs’ alleged injuries, and does not violate the Constitution.
The purpose and effect of UOCAVA is permissive – it requires States to extend absentee voting
rights to former State residents that reside outside the United States. Plaintiffs’ complaint with
UOCAVA is that, as enacted in 1986, it defines “United States” to include all but one U.S.
territory – NMI. As a result, the protections established by UOCAVA do not extend to former
Illinois residents who reside in Territories, save for NMI, because they are not included in the
statutory definition of “United States.” The Federal Defendants pointed out that this anomaly
might be explained in part by the fact that at the time UOCAVA was enacted, the process of NMI
becoming a Territory was not yet complete. Regardless, UOCAVA has not caused Plaintiffs’ alleged
injuries; Plaintiffs’ true grievance is that UOCAVA does not remedy the
alleged harm they identify, which is that Illinois law does not permit them to vote absentee in
1

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federal elections. Not only does the nature of this alleged injury preclude Plaintiffs’ standing
to challenge UOCAVA, but their claim also fails on the merits. A statute is not constitutionally
infirm because it fails to remedy a claimed injury – particularly where that injury results from
state law in an area reserved by the Constitution to the States in the first instance.
If the Court reaches Plaintiffs’ equal protection challenge to UOCAVA, it should be rejected on the
merits. Because UOCAVA neither affects a suspect class nor infringes the right to vote, instead
merely imposing a limit upon States’ abilities to restrict that right, rational basis review
supplies the appropriate legal standard. UOCAVA easily survives this deferential test. In
fashioning absentee voting rights for overseas voters, Congress could have rationally distinguished
between former State residents that moved to the Territories that existed at the time of UOCAVA’s
enactment, who would acquire new voting rights in federal elections in the Territories, and those
that moved to foreign countries that risked complete disenfranchisement.
That NMI became a U.S. Territory subsequent to UOCAVA’s enactment, and accordingly is not contained
within its definition of the territorial limits of the United States, does not render the statutory
scheme unconstitutional. Congress was entitled to expand absentee voting incrementally for former
residents who moved outside the United States while retaining its authority to make individual
determinations about appropriate treatment of the different Territories. Further, relevant Seventh
Circuit precedent makes clear that under rational basis review, the fact that a statute may be an
imperfect fit between means and ends and results in some practical inequality is not fatal to an
otherwise rational statute.
Alternatively, UOCAVA’s distinction among the Territories can be upheld on the basis of the unique
historical relationship between the United States and NMI. NMI alone was a United Nations Trust
Territory before it became a U.S. Territory, and unlike the other U.S.
Territories, NMI chose to submit to United States sovereignty only upon reaching a negotiated
2

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agreement embodied in the NMI Constitution. For this reason, courts have recognized that NMI
maintains a distinct political status as compared to the other Territories. See Commonwealth of
the Northern Mariana Islands v. Atalig, 723 F.2d 682, 691 n. 28 (9th Cir. 1984), cert. denied, 467
U.S. 1244 (1984). Moreover, Plaintiffs mistakenly read the 1975 predecessor to UOCAVA to have
treated the Trust Territory of the Pacific Islands (“TTPI”), and therefore NMI, as excluded from
the reach of UOCAVA’s protections. In fact, NMI was treated under that statute as outside the
United States (i.e. like a foreign country) and therefore was covered by the Act’s absentee ballot
protections. Thus, Congress may rationally have decided to maintain that status when NMI completed
its transition from a UN Trust Territory to a U.S Territory. Accordingly, there exists a rational
basis for Congress to have concluded that NMI was differently situated than other Territories for
purposes of UOCAVA’s floor for absentee voting rights.
Finally, the Court should decline to enter the remedy Plaintiffs seek concerning UOCAVA.
Plaintiffs ask for a declaration that UOCAVA violates the Equal Protection Clause because it
purportedly defines the territorial limits of the United States “in a manner that discriminates
among former Illinois residents living overseas outside the States.” Compl., Prayer for Relief ¶ a,
and an injunction that would require officials to accept their absentee ballots for federal
elections. Viewed as a whole, Plaintiffs effectively ask the Court to rewrite UOCAVA by extending
its requirements to U.S. Territories (Puerto Rico, Guam, and the U.S. Virgin Islands) that are
expressly excluded by the statutory text. Such a finding would directly conflict with an
express statutory limitation enacted by Congress pursuant to its constitutional authority to
regulate with respect to U.S. territories. Instead, the Court should hold that UOCAVA meets all
Constitutional requirements and leave to Congress the question of whether and how to fine- tune the
definitions in UOCAVA for the purpose of absentee voting in federal elections.
ARGUMENT
3

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In addition to further supporting their Motion to Dismiss,1 the Federal Defendants, by this
submission, oppose the Plaintiffs’ Motion for Summary Judgment and Cross-Move for Summary Judgment.
Plaintiffs’ motion fails to establish any ground on which they are entitled to judgment as a
matter of law that UOCAVA violates the Constitution. As the Federal Defendants have shown,
Plaintiffs have failed to state a claim as a matter of law with respect to UOCAVA, and even if the
Court accepted Plaintiffs’ Undisputed Statement of Facts (ECF No. 49), Plaintiffs have failed to
establish any grounds for judgment in their favor. In the alternative, Plaintiffs have failed to
establish their standing at the summary judgment stage and the Federal Defendants are otherwise
entitled to summary judgment as a matter of law.2
I. Plaintiffs Lack Standing to Sue the Federal Defendants Because Their
Alleged Injury Is Not Fairly Traceable to UOCAVA.

The “irreducible constitutional minimum of standing” requires Plaintiffs to show that he has
suffered or is imminently threatened with “(1) a concrete and particularized injury in fact (2)
that is fairly traceable to the challenged action of the defendant that is (3) likely to be
redressed by a favorable judicial decision.” Freedom from Religion Found., Inc. v. Lew, 773 F.3d
815, 819 (7th Cir. 2014) citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). As
the Federal Defendants have explained, UOCAVA, a permissive statute, supplies a floor for absentee
voting rights and does not deny Plaintiffs the right to vote absentee in Illinois. In enacting
UOCAVA, Congress contemplated that States, which have the constitutional authority and duty to
prescribe the time, place, and manner of voting in federal elections in the first

1 The Federal Defendants incorporate by reference their Motion to Dismiss and their Memorandum of
Law in Support of their Motion to Dismiss. ECF No. 39, 42.
2 The Federal Defendants contest Plaintiffs’ standing and thus dispute Plaintiffs’ averment that
the Court has subject matter jurisdiction. Federal Defs.’ Rule 56.1(b)(3)(A) Stmt. ¶ 3. Defendants
otherwise respond to Plaintiffs’ statement separately, but note that even if the Court accepted all
of Plaintiffs’ factual averments as true, they do not establish their entitlement to judgment as a
matter of law regarding UOCAVA.

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instance, would extend absentee voting rights as they deemed appropriate.3 In fact, it encouraged
them to do so, noting that nothing in UOCAVA “prevent[s] any State from adopting any voting
practice which is less restrictive than the practices prescribed by this Act.” H.R.Rep. No. 99-765,
at 19 (1986) (emphasis added), reprinted in 1986 U.S.C.C.A.N. 2009, 2023. Illinois has done
precisely that by extending absentee voting rights to former State residents residing in American
Samoa. 10 Ill. Comp. Stat. Ann. 5/20-1(1). In any event, it is Illinois MOVE that bars Plaintiffs
from voting absentee in Illinois, 10 Ill. Comp. Stat. Ann. 5/20-1(1), see Federal Defendants’ Mot.
to Dismiss at 7-9 (“Defs.’ Br.”). For these reasons, even assuming arguendo Plaintiffs could
establish an injury in fact that is likely to be redressed by a favorable judicial decision,
Plaintiffs cannot meet the second prong of the Lujan standing test: their alleged injury

– the inability to vote absentee in federal elections in Illinois – is not fairly traceable to
UOCAVA.4
Plaintiffs devote a single paragraph to contradicting the argument that it is Illinois MOVE that
denies them the right to vote absentee, claiming that the Federal Defendants’ “logic, if accepted,
could justify the enactment of federal laws requiring states to guarantee voting rights for one
group but not others on entirely arbitrary classifications.”5 Pls.’ Mot. for Summ. J. at 15

3 The Seventh Circuit has described the regulation of elections for federal office in Article I,
Section 4 of the Constitution thusly: “The first sentence tells the states that they, not Congress,
must regulate the times, places, and manner of holding federal elections …. Article I section 4
goes on to provide that Congress can if it wants step in and either make its own regulations or
alter those adopted by the state pursuant to the duty imposed by the first sentence.” ACORN v.
Edgar, 56 F.3d 791, 794 (7th Cir. 1995). UOCAVA is premised at least in part on Congress’ Article
I, Section 4 authority.
4 The organizational Plaintiffs also lack associational standing because they do not “make specific
allegations establishing that at least one identified member had suffered or would suffer harm.”
Summers
v. Earth Island Inst., 555 U.S. 488, 497-98 (2009). Plaintiffs’ failure to provide allegations of
this nature, let alone provide factual support, is fatal to their attempt to invoke this Court’s
jurisdiction.
5 Plaintiffs cite Howard v. State Board of Election Laws, 976 F. Supp. 350, 351 (D. Md. 1996) for
the proposition that “federal laws give cover to states to make similar distinctions [to those in
UOCAVA]
of their own,” Pls.’ Br. at 15. However, the distinctions within restrictive State statutes placing
limits on the right to vote (as compared to permissive federal statutes such as UOCAVA, which
merely limits States’ abilities to restrict that right), must survive the more exacting strict
scrutiny standard of review.
5

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(“Pls.’ Br.”). That argument is meritless. First, the distinction drawn in UOCAVA was not
arbitrary at the time of its enactment, see infra at 8-9, nor is it arbitrary today, see infra at
10-14. Second, , UOCAVA is a permissive statute which not only extends absentee voting rights
broadly but explicitly encourages States to extend absentee voting rights beyond that which is
provided for in the statute if they see fit. H.R. Rep. No. 99-765, at 19. In short, UOCAVA
directs States to expand certain voting rights, and encourages them to do more, but does not
restrict absentee voting rights anywhere. Thus, UOCAVA does not “deny the franchise” to
Plaintiffs; it is Illinois MOVE that denies Plaintiffs the ability to vote absentee in Illinois.
See Defs.’ Br. at 7-9. Because Plaintiffs’ alleged injury is not fairly traceable to UOCAVA, the
Court lacks jurisdiction to adjudicate Plaintiffs’ claims as to the Federal Defendants.
II. UOCAVA Meets the Requirements of the Equal Protection and Due Process.

i. Standard of Review

Were the Court to reach Plaintiffs’ claim that UOCAVA violates the Equal Protection Clause by
distinguishing among the Territories, that claim fails on the merits. Plaintiffs first contend
that strict scrutiny must be applied to UOCAVA based on the theory that UOCAVA “‘grant[s] the right
to vote to some citizens’ (former Illinois residents who reside in foreign countries and NMI . . .)
while ‘deny[ing] the franchise to others,” Pls.’ Br. at 8-9 (internal citation omitted). This
contention is incorrect. Even assuming arguendo that Plaintiffs’ characterization of UOCAVA was
accurate, both the First and Second Circuits have addressed the appropriate standard of review for
a statute that grants absentee voting rights to some – former state residents living outside of the
United States in foreign countries – while “denying” (in Plaintiffs’ terminology) that right to
others in Puerto Rico, and concluded that rational basis

See Pls.’ Br. at 8 (collecting cases applying strict scrutiny to restrictive state statues
infringing upon the right to vote). Thus, it cannot be said that UOCAVA, a statute subject to the
highly deferential rational basis standard, in any sense gives “cover” to States to make similar
distinctions.
6

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review represents the appropriate standard. See Igartua De La Rosa v. United States, 32 F.3d 8, 10
(1st Cir. 1994) (per curiam) (“Igartua I”) (applying rational basis review to UOCAVA); Romeu v.
Cohen, 265 F.3d 118, 124 (2d Cir. 2001) (rejecting strict scrutiny as the appropriate standard).
Plaintiffs cannot point to a single court that has applied strict scrutiny to the statute. All of
the cases Plaintiffs cite apply strict scrutiny to state statutes that placed restrictions on
existing voting rights of state residents, effectively infringing upon the right to vote. See Dunn
v.
Blumstein, 405 U.S. 330 (1972) (state durational residency voting requirement); Harper v. Va. State
Bd. of Elections, 383 U.S. 663 (1966) (state poll tax); Burdick v. Takushi, 504 U.S. 428 (1992)
(state prohibition on write-in voting). UOCAVA, by contrast, does not “infringe [the right to
vote] but rather limits a state’s ability to restrict it,” Igartua I, 32 F.3d at 20 & n. 2, and is
instead analogous to the federal statute at issue in Katzenbach v. Morgan, 384 U.S. 641 (1966)
(applying rational basis to statute barring states from applying English literacy requirements to
voters educated in American-flag schools in which English was not the predominant classroom
language, where protection did not extend to voters educated in a language other than English in
non-American flag schools), see also Defs.’ Br. at 10-11 (discussing Katzenbach); McDonald v. Board
of Election Commissioners of Chicago, 394 U.S. 802, 810-11 (1969) (applying rational basis in
holding Illinois absentee voting statute providing for furnishing of absentee ballots to persons
who, for medical reasons, could not go to the polls or would be out of the county did not
violate the Equal Protection Clause for failure to extend to certain inmates).6

6 In applying rational basis review to the challenged absentee voting statute, the Court explained
that rational basis was appropriate in part because there was “nothing in the record to indicate
that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental
right to vote,” McDonald, 394 U.S. at 807. UOCAVA, like the statutory scheme at issue in McDonald,
does not deny Plaintiffs the right to vote absentee in Illinois. See Defs.’ Br. at 7-9.
7

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Plaintiffs argue Katzenbach is inapposite because, in that case, “Congress’s approach was plausibly
viewed as incremental” because of the “unique historic relationship between Congress and the
Commonwealth of Puerto Rico,” among other reasons, whereas UOCAVA “do[es] not expand voting rights
to one group of overseas voters . . . [with] which [Congress] . . . ha[s] a special relationship.”
Pls.’ Br. at 10. But Katzenbach is not so narrow; it establishes that when Congress exercises its
authority to expand rights, a statute does not violate equal protection simply because “it could
have gone farther than it did,” so long as there exists a rational basis for the line drawn by
Congress. Id. Further, Congress and NMI likewise maintain a unique historic relationship, under
which NMI transitioned from a UN Trust Territory to a U.S. Territory. See infra at 10-14. There
is little doubt that rational basis review must be applied to UOCAVA.
ii. UOCAVA Passes Rational Basis Review.

Under rational basis review, a statute “must be upheld against [an] equal protection challenge if
there is any reasonably conceivable state of facts that could provide a rational basis for the
classification.” City of Chicago v. Shalala, 189 F.3d 598, 605-06 (7th Cir. 1999) (citation
omitted). “[A]ny rational basis will suffice, even one that was not articulated at the time the
disparate treatment occurred.” Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 946-47 (7th Cir.
2009).
There are several possible rational bases for Congress’s distinct treatment of NMI, and as stated,
so long as any conceivable rational basis justifies the disparity in treatment, UOCAVA passes
constitutional muster. Id. The first possibility is that, in fashioning a floor for overseas
absentee voting rights, Congress distinguished between the U.S. Territories that existed at the
time of its enactment and foreign countries. 52 U.S.C. § 20310(8).7 In so doing, Congress could

7 Plaintiffs argue that “the apparent premise of the federal defendants’ argument – that the NMI
was not addressed [in UOCAVA] simply because it did not yet exist or have an established
relationship with the United States – is wrong as a matter of history” and “lacks even explanatory
force.” Pls.’ Br. at 12-13. This description misconstrues the underpinning of the Federal
Defendants’ argument, which is
8

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have reasonably concluded that while former State residents that move to the Territories gain new
voting rights, such as voting in federal elections for nonvoting delegates to Congress, those that
move to foreign countries might be completely disenfranchised. See Defs.’ Br. at 12; Igartua I, 32
F.3d at 11. Every court to address this distinction has concluded that it survives rational basis
review – indeed, the Second Circuit concluded it survives even more exacting standards. Romeu, 265
F.3d at 124-25, Igartua I, 32 F.3d at 11.
The fact that a historical event subsequent to the statute’s enactment – specifically, the Covenant
between the United States and NMI becoming fully effectuated under which NMI transitioned from a UN
Trust Territory to a U.S. Territorial Commonwealth – does not doom the statutory scheme. As a
matter of law, the Seventh Circuit has emphasized that a statute survives rational basis review
even where it “is not made with mathematical nicety or because in practice it results in some
inequality.” Shalala, 189 F. 3d at id.; Srail, 588 F.3d at 946-47 (emphasis added). Here, the
statute does not explicitly draw distinctions between Puerto Rico, Guam, the
U.S. Virgin Islands, and American Samoa on the one hand and NMI on the other. See 52 U.S.C.

§ 20310(8). By its terms, UOCAVA is silent with respect to NMI, simply defining “overseas voter”
to be one residing outside of the territorial limits of the United States, or outside “the several
States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and
American Samoa.” Id. § 20310(5), (8). Accordingly, even if the Court were to find that a
subsequent historical event rendered the statute an “imperfect fit between means and ends,”
Shalala, 189 F.3d at 606, UOCAVA nevertheless survives rational basis review.

that Congress did not include NMI in its definition of the territorial limits of the United States
along with Puerto Rico, Guam, the U.S. Virgin Islands, and American Samoa because at the time of
UOCAVA’s enactment, NMI was not yet a Territory. Indeed, the Trusteeship Agreement under which NMI
was supervised by the United Nations was still in effect, and the Covenant under which NMI became a
Territory and granted American citizenship to its residents had not yet become fully effectuated.
See Defs.’ Br. at 13, n.7; see also Proclamation No. 5564, 51 Fed. Reg. 40, 399 (1986) (attached as
Exh. A); see also infra at 11. It is perfectly logical that Congress would therefore exclude it
from the definition of the territorial limits of the United States.

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Beyond this, there do appear to be reasonable grounds upon which Congress could have decided to
treat NMI differently under UOCAVA. As Plaintiffs concede, the legislative history is silent on
the question of why NMI was not included within the definition of the territorial United States in
UOCAVA. Pls.’ Br. at 13 (“Congress . . . chose – for no apparent reason – to elevate the status
of former state residents living [in NMI] above the status of similar residents living in” the
other Territories). But, it is not clear whether NMI’s distinct treatment was the product of
historical timing, see supra at 9-10; Defs.’ Br. at 13, or instead a deliberate choice by Congress.
Accordingly, NMI’s exclusion from the territorial limits of the United States may be the rational
result of Congress recognizing NMI’s unique, and continually evolving, relationship with the United
States. Indeed, there are any number of reasons that might have led Congress to determine that the
former State residents that move to NMI are not similarly situated to former State residents that
move to the other Territories.
First and foremost, NMI is not only the newest Territory, it is also the only Territory that
independently chose to become part of the United States. The United States’ relationship with NMI
originated in a Trusteeship Agreement with the Security Council of the United Nations, Wabol v.
Villacrusis, 958 F.2d 1450, 1458 (9th Cir. 1990), cert. denied, 506 U.S. 1027 (1992), under which
the United States served as “Administrator of the Trust Territory of the Pacific Islands.” Id.
The United States’ administration of the Trust Territory was “subject to United Nations supervision
and circumscribed by the United Nations Charter and terms of the Trusteeship Agreement,” id.
(citation omitted), such that “the United States was not a sovereign over, but a trustee for the
Trust Territory.” Wabol, 958 F.2d at 1458 (citations omitted). While all the other islands that
comprised the Trust Territory of the Pacific Islands (Micronesia, the Marshall Islands, and Palau)
ultimately elected to pursue independent statehood, NMI
“expressed different aspirations.” Id. Under the Covenant to Establish a Commonwealth in
10

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Political Union with the United States of America, reprinted as amended in 48 U.S.C.A. section 1681
note (West 1987) (“Covenant”), reached following negotiations between the United States and NMI,
NMI “bec[ame] politically united with and ‘under the sovereignty of the United States” “upon
termination of the Trusteeship Agreement,” Id. at 1459 (citing Covenant §§ 301,
101). “The Trusteeship was terminated on November 3, 1986,” id. at n.14, citing Proclamation No.
5564, 51 Fed. Reg. 40, 399 (1986).8 Through this process and unlike other Territories, NMI came
under U.S. sovereignty of its own accord and on its own terms.
NMI’s historical relationship with the United States has led courts to deem arguments that “[NMI’s]
political status is distinct from that of unincorporated territories such as Puerto Rico” as
“credible” and having “merit,” Commonwealth of the Northern Mariana Islands v. Atalig, 723 F.2d at
691 n.28, because “[a]s a commonwealth, the NMI will enjoy a right to self- government guaranteed
by the mutual consent provisions of the Covenant . . . [and n]o similar guarantees have been made
to Puerto Rico or any other territory.” Id. (citations omitted). As such, NMI’s unique status as a
former UN Trust Territory presents a rational basis for UOCAVA’s distinct treatment of NMI as
compared to the other Territories: Congress could have reasonably concluded that as the only
Territory with origins as a former Trust under UN supervision, it may be treated more like a
foreign country under UOCAVA. Indeed, all other former Pacific Trust Territory Islands ultimately
did become independent nations, Wabol, 958 F.2d at 1458, and “[o]ne of the purposes of the
trusteeship was for the United States to promote independence and self-government among the people
of those islands,” Davis v. Commonwealth Election Commission, No. 1-14-CV-00002, 2014 WL 2111065,
at *1 (D. N.M.I. May 20, 2014).

8 By some accounts, the Trusteeship Agreement did not officially terminate until even later, on
December 22, 1990, when the United Nations Security Council officially terminated the Trusteeship
Agreement. See Letter Dated December 1990 From the President of the Trusteeship Council Addressed
to the President of the Security Council, December 22, 1990 (attached as Exh. B).
11

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Further, it is well documented that the Covenant, a quasi-international Treaty reached through
extensive negotiation with the NMI populace, would not have been realized absent particular
provisions aimed at “protecting local culture and values,” Wabol, 958 F.2d at 1461. See e.g., id.
(“The legislative history of the Covenant and the Constitution indicate that the political union of
the Commonwealth and the United States could not have been accomplished without the [land
alienation] restrictions”); Atalig, 723 F.2d at 685 (“[T]he drafters of the Covenant noted that
without these provisions [restricting right to a trial by jury], ‘the accession of the Northern
Mariana Islands to the United States would not have been possible.’”). That is to say, NMI
retained a unique combination of characteristics aimed at preserving its independence, rooted in
its former status as a Trust, even after becoming a U.S. Territory. For this reason, too, Congress
could have reasonably concluded that moving from a State to NMI is akin to moving from a State to a
foreign country such as Palau, Micronesia, or the Marshall Islands.
And there are still other reasons why Congress might have rationally concluded that NMI enjoys a
distinct, evolving political status as compared to the other Territories, entitling former State
residents who move there to guaranteed absentee voting rights under UOCAVA. For example, unlike
every other Territory, NMI was not entitled to a non-voting delegate to the House of
Representatives with full privileges until 2008. Pub. L. No. 110-229, § 711, 122 Stat. 754
(codified at 48 U.S.C. § 1751 (2008)). Although pursuant to the Northern Mariana Islands
Commonwealth Constitution NMI was entitled to a Resident Representative to Congress as early as
1978, that Representative “ha[d] no official status in the Congress,” H.R Rep. No. 109-110, at 5
(2005); see also id. at 3 (describing NMI as “the last and only territory with a permanent
population that has no permanent voice in Congress.”). By contrast, American Samoa, the second
most recent Territory to acquire a nonvoting delegate in the U.S. House of
Representatives, obtained that right some thirty years earlier, in 1978. See Tuaua v. United
12

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States, 951 F. Supp. 2d 88, 91 (D.D.C. 2013), aff’d 788 F.3d 300 (D.C. Cir. 2015). Along the same
lines, until very recently, NMI “retained nearly exclusive control over immigration to the
territory,” and for decades, time spent in NMI did not count towards residency requirements for
purposes of obtaining U.S. citizenship. Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012).9   Further,
certain other federal voting statutes likewise treat NMI differently than the other Territories.
See Help America Vote Act, 52 U.S.C.A. § 20901(d)(2)(A)-(B) (West) (providing for a minimum payment
to carry out federal election related activities to “the Several States . . .   Puerto Rico, Guam,
American Samoa, or the United States Virgin Islands” but omitting NMI). Accordingly,
Congress could reasonably have concluded that NMI deserves distinct treatment in the realm of
absentee voting rights under UOCAVA as compared to the other Territories.
Finally, an additional rationale exists in the historical evolution of UOCAVA. Plaintiffs appear
to misread the 1975 predecessor to UOCAVA, which they claim “excluded former state citizens
residing [in NMI] from the right to vote in federal elections in their prior states of residence.”
Pls.’ Br. at 12 (original emphasis) (citation omitted).   That is incorrect. In fact, under the
1975 predecessor to UOCAVA, P.L. 94-203, 89 Stat. 1142, absentee voting rights were extended to
TTPI and, thus, to NMI, because the definition of “United States” expressly “d[id] not include . .
. the Trust Territory of the Pacific Islands.” See P.L. 94-203, § 2(3). This made sense since
TTPI was not a U.S. Territory and so was treated like a foreign country. This also supplies a key
rational basis for why Congress has not amended UOCAVA to include NMI among U.S. Territories – in
order to maintain absentee voting rights already operative in that location under prior law,
history, and practice.

9 Although Congress has amended these provisions to bring NMI immigration policies more in line
with the rest the federal immigration system, that transition is still ongoing. See 48 U.S.C. §
1806(a)(2) (transition program extends through December 31, 2019). These developments only
underscore the unique and evolving relationship between the United States and NMI.
13

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Thus, there exists a multitude of bases upon which Congress could have rationally distinguished
between foreign countries and NMI on the one hand, and Puerto Rico, Guam, the
U.S. Virgin Islands, and American Samoa on the other in advancing its legitimate interest in
extending absentee overseas voting rights. Implicit in Plaintiffs’ contrary position is the
suggestion that when Congress legislates with respect to the Territories, it must treat each
Territory identically. See Pls.’ Br. at 7-13. This proposition flies in the face of Congress’s
longstanding understanding and practice to the contrary. See e.g., U.S. Gov’t Accountability Off.,
GAO-98-5, U.S. Insular Areas: Application of U.S. Constitution 1 n.1 (1997) (“Each of these areas
[the Territories] has a unique historical and legal relationship with the United States.”)
(attached as Exh. C). Territories’ distinct political and historical backgrounds render them
inherently sui generis, requiring Congress to maintain flexibility in exercising its plenary power
with respect to the Territories. UOCAVA comports with equal protection principles.
III. The Remedy Plaintiffs Seek Would Require the Court to Rewrite a Clear Statutory
Limitation That is Within Congress’s Authority Over U.S. Territories.

Finally, the Court should contemplate the sheer breadth of the relief Plaintiffs seek, which would
flatly conflict with the plain terms of UOCAVA as well the deference that is due to Congress’s
plenary power with respect to the Territories.10 Plaintiffs ask this Court to effectively rewrite
the federal statute by requiring that former Illinois residents (the only plaintiffs before this
Court) otherwise eligible to vote in Illinois and currently residing in any Territory – including
Puerto Rico, Guam, the U.S. Virgin Islands, and the American Samoa (which Congress explicitly
excluded from its absentee mandate) – be permitted to vote absentee

10 The Court should be mindful that any declaration that UOCAVA operates in violation of equal
protection principles would also call into question the right of former Illinois residents
currently living in NMI to vote absentee. The Federal Defendants do not read the Complaint as
requesting any relief that would disenfranchise voters in NMI, and the Federal Defendants do not
advocate this result, but it is an obvious potential implication of the declaratory relief
Plaintiffs seek.
14

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in federal election, and issue an injunction requiring officials to accept their absentee ballots
for federal elections. Compl., Prayer for Relief ¶ a. In Plaintiffs’ view, the fact that NMI,
through negotiations, later became a Territory should have the effect of invalidating Congress’
pre- existing position with respect to absentee voting rights in other Territories. But this
result would directly contravene the express decision of Congress to limit overseas absentee voting
rights to those residing outside the territorial limits of the United States (defined to include
Puerto Rico, Guam, the U.S. Virgin Islands, and American Samoa). The imprudence of this approach
is highlighted by the dramatic consequences that would necessarily flow from such a decision, which
would extend absentee voting rights to a wave of citizens across the Territories that were
expressly excluded by Congress from UOCAVA’s reach. Cf. E.E.O.C. v. Calumet Cty., 686 F.2d 1249,
1252 (7th Cir. 1982) (citation omitted) (“Congress is given great deference in selecting the
measures necessary and appropriate to secure the guarantees of the Fourteenth Amendment.”).
Ultimately, the Court should be guided by the familiar principle that it may not “alter the text
[of a statute] in order to satisfy the policy preferences” of a party. Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 462 (2002). Rather, “[t]hese are battles that should be fought
among the political branches . . . . parties should not seek to amend [a] statute by appeal to the
Judicial Branch.” Id.; Badaracco v. Commissioner, 464 U.S. 386, 398 (1984) (“Courts are not
authorized to rewrite a statute because they might deem its effects susceptible of improvement,”);
Blount v. Rizzi, 400 U.S. 410, 419 (1971) (“[I]t is for Congress, not th[e] Court, to rewrite [a]
statute.”).
CONCLUSION

The Federal Defendants’ Motion to Dismiss should be granted and Plaintiffs’ Motion for Summary
Judgment should be denied. Alternatively, the Federal Defendants’ Cross-Motion for

Summary Judgment should be granted.
15

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Dated: April 18, 2016 Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

ANTHONY J. COPPOLINO
Deputy Branch Director

ZACHARY T. FARDON
United States Attorney

THOMAS WALSH
Assistant United States Attorney

s/ Caroline J. Anderson
Caroline J. Anderson IL Bar No. 6308482
Trial Attorney
U.S Department of Justice
Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 5102
Washington, D.C. 20001
Phone: (202) 305-8645
Caroline.J.Anderson@usdoj.gov

Counsel for Federal Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on April 18, 2016, a copy of the foregoing combined Reply in Support of the
Federal Defendants’ Motion to Dismiss, Opposition to Plaintiffs’ Summary Judgment Motion, and
Cross-Motion for Summary Judgment was filed electronically. Notice of this filing will be sent by
email to all parties by operation of the Court’s electronic filing system. Parties may access this
filing through the Court’s CM/ECF System.

/s/ Caroline J. Anderson
Caroline J. Anderson

Case: 1:15-cv-10196 Document #: 60 Filed: 05/17/16 Page 1 of 19 PageID #:440

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

LUIS SEGOVIA et al.,

Plaintiffs,

)
)
)
)
) 15-cv-10196
)
) Judge Joan B. Gottschall

BOARD OF ELECTION COMMISSIONERS )

FOR THE CITY OF CHICAGO et al., )
)
Defendants. )

FEDERAL DEFENDANTS’ REPLY IN SUPPORT OF THEIR CROSS-MOTION FOR SUMMARY JUDGMENT

Dated: May 17, 2016

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

ANTHONY J. COPPOLINO
Deputy Branch Director

ZACHARY T. FARDON
United States Attorney

THOMAS WALSH
Assistant United States Attorney

/s/ Caroline Anderson
Caroline J. Anderson IL Bar No. 6308482
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 7220
Washington, D.C. 20001
Phone: (202) 305-8645
Caroline.J.Anderson@usdoj.gov

Counsel for Federal Defendants

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TABLE OF CONTENTS

INTRODUCTION
....................................................................................................
...................... 1
ARGUMENT
....................................................................................................
.............................. 4
I.         Plaintiffs Lack Standing to Sue the Federal Defendants Because Their
Alleged Injury Is Not Fairly Traceable to UOCAVA............................................. 4
II.        UOCAVA Meets the Requirements of Equal Protection and Due Process............ 6
i.         Standard of
Review..................................................................................... 6
ii.        UOCAVA Passes Rational Basis Review................................................... 9
III.       The Remedy Plaintiffs Seek Would Require the Court to Rewrite a Clear Statutory
Limitation That is Within Congress’s Authority Over U.S.
Territories.........................................................................................
..................... 12
CONCLUSION..........................................................................................
................................... 13

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TABLE OF AUTHORITIES

Cases
Anderson v. Celebrezze,
460 U.S. 780
(1983)..............................................................................................
..................... 7
Att’y Gen. of the Territory of Guam v. United States,
738 F.2d 1017 (9th Cir. 1984)
...................................................................................................
8
Besinga v. United States,
14 F.3d 1356 (9th Cir. 1994)
....................................................................................................
. 6
City of Chicago v. Shalala,
189 F.3d 598 (7th Cir. 1999)
...................................................................................................
10
Freedom from Religion Found., Inc. v. Lew,
773 F.3d 815 (7th Cir. 2014)
....................................................................................................
. 4
Frontiero v. Richardson,
411 U.S. 677
(1973)..............................................................................................
..................... 4
Green v. City of Tucson,
340 F.3d 891 (9th Cir. 2003)
....................................................................................................
. 7
Holt Civic Club v. City of Tuscaloosa,
439 U.S. 60
(1978)..............................................................................................
....................... 7
Igartua De La Rosa v. United States,
32 F.3d 8 (1st Cir. 1994)
....................................................................................................
.... 6, 9
Katzenbach v. Morgan,
384 U.S. 641
(1966)..............................................................................................
..................... 8
Lujan v. Defs. of Wildlife,
504 U.S. 555
(1992)..............................................................................................
................. 4, 5
McDonald v. Bd. of Election Comm’rs of Chi.,
394 U.S. 802
(1969)..............................................................................................
..................... 8
Quiban v. Veterans Admin.,
928 F.2d 1154 (D.C. Cir. 1991)
............................................................................................. 6, 7
Romeu v. Cohen,
121 F. Supp. 2d 264 (S.D.N.Y.
2000)........................................................................................ 6
Romeu v. Cohen,
265 F.3d 118 (2d Cir.
2001).............................................................................................
6, 9, 13
Snead v. City of Albuquerque,
663 F. Supp. 1084 (D.N.M. 1987)
............................................................................................. 7
Srail v. Vill. of Lisle,
588 F.3d 940 (7th Cir. 2009)
....................................................................................................
. 9
Summers v. Earth Island Inst.,
555 U.S. 488
(2009)..............................................................................................
................. 5, 6
ii

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United States ex rel. Richards v. De Leon Guerrero,
4 F.3d 749 (9th Cir. 1993)
....................................................................................................
... 11
Weinberger v. Wiesenfeld,
420 U.S. 636
(1975)..............................................................................................
..................... 4
Federal Statutes
48 U.S.C. § 1751 (2008)
....................................................................................................
............. 9
52 U.S.C. § 10502(e)
....................................................................................................
.................. 8
52 U.S.C. §
20310...............................................................................................
............................ 1
52 U.S.C. § 20310(5)
....................................................................................................
................ 13
52 U.S.C. § 20310(5)(B)–(C)
...................................................................................................
8, 12
Pub. L. No. 94-203, 89 Stat. 1142
(1976)......................................................................... 10, 11, 12
Illinois Statutes
10 Ill. Comp. Stat. Ann.
5/20-1..............................................................................................
......... 1
Regulations
51 Fed. Reg. 40,399 (1986)
....................................................................................................
........ 9
Other Authorities
BLACK’S LAW DICTIONARY (10th ed.
2014)................................................................................. 12

iii

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INTRODUCTION

The individual Plaintiffs in this case, six former Illinois residents currently residing in Puerto
Rico, Guam, and the U.S. Virgin Islands, ask this Court to rewrite a permissive federal statute
that extends absentee voting rights to former State residents in foreign countries and the Northern
Mariana Islands (“NMI”). Plaintiffs have failed to establish their standing or that their Equal
Protection challenge has any merit.
As a threshold matter, Plaintiffs maintain no injury that is fairly traceable to the Uniformed and
Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20310 (“UOCAVA”), the federal statute they seek
to challenge. Contrary to Plaintiffs’ suggestion, their alleged injury— the inability to vote
absentee in federal elections in Illinois—stems exclusively from the Illinois Military Overseas
Voter Empowerment Act (“Illinois MOVE”), 10 Ill. Comp. Stat. Ann. 5/20-1, a State law that
functions as a ceiling for absentee voting rights for former Illinois residents.
UOCAVA indisputably supplies only a floor for such rights and does not restrict Illinois from
extending those rights further—indeed, Illinois has done precisely that by extending absentee
voting rights to former State residents in American Samoa. In claiming that their alleged injury
can be traced to both Illinois MOVE and UOCAVA, Plaintiffs effectively ask this Court to collapse
the traceability and redressability analyses of Article III standing: their logic suggests that
because a finding that UOCAVA must extend absentee voting rights to all Territories (contravening
the express will of Congress) would redress their grievances, the federal statute’s selective
extension of absentee voting rights must also cause their alleged injury. But this faulty
reasoning bypasses the essential, independent constitutional requirement of traceability and
plainly misconstrues a permissive statute as a restrictive one. Because UOCAVA does not deprive
Plaintiffs of the right to vote absentee in federal elections in Illinois, their injury cannot
be fairly traced to UOCAVA. The two organizational Plaintiffs lack standing for the additional 1

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reason that they have failed to establish their associational standing. Plaintiffs have not met the
requirements of Article III, and their claims against the Federal Defendants must be dismissed.
If the Court reaches the merits of Plaintiffs Equal Protection claims, rational basis review
supplies the appropriate standard for evaluating UOCAVA. Plaintiffs’ strained efforts to read a
statute that extends absentee voting to some former residents of States into one that “require[s]”
“discrimination,” Pls.’ Opp’n & Reply in Supp. of their Mot. for Summ. J. at 2 (“Pls.’ Opp’n”) (ECF
No. 58), do not support the conclusion that strict scrutiny is appropriate. Under longstanding
Supreme Court precedent, rational basis review plainly applies to statutes, such as UOCAVA, that
extend rights. Plaintiffs’ reliance on a rhetorical device—inserting “discriminatorily” before
“extend[s] absentee voting rights,” in describing UOCAVA, Pls.’ Opp’n at 1—cannot convert a
permissive statute into a restrictive one, and is insufficient to trigger strict scrutiny.
UOCAVA easily meets the requirements of rational basis review. First, Congress could have
rationally distinguished between Territories that existed at the time of UOCAVA’s enactment (Puerto
Rico, Guam, the U.S. Virgin Islands, and American Samoa) and foreign countries in fashioning
absentee voting rights. In so doing, Congress could have reasonably determined that former State
residents that moved to the Territories acquired new voting rights in those Territories, whereas
former State residents that moved to foreign countries risked complete disenfranchisement, absent
protections such as those in UOCAVA. Plaintiffs’ suggestion that this distinction was “patently
arbitrary” ignores the relevant historical context. At the time of UOCAVA’s enactment, NMI had not
yet become a Territory of the United States. Because its status was in flux, it was perfectly
logical for Congress to treat NMI differently than Puerto Rico, Guam, the U.S. Virgin Islands, and
American Samoa, advancing its legitimate interest in
appropriately defining the United States for purposes of absentee voting rights. The fact that
2

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NMI subsequently became a Territory and—decades later—acquired representation in Congress
comparable to the other four territories may have rendered the statute an imperfect fit between
means and ends, but it does not render the rational statute unconstitutional under binding Seventh
Circuit precedent.
Second, Congress could have rationally treated NMI differently than the other Territories on the
basis of NMI’s unique relationship with the United States. In so doing, Congress would have
likewise advanced its legitimate interest in appropriately defining the United States for purposes
of absentee voting rights, in a manner respectful of the United States’ individual relationships
with each Territory, including NMI. Because NMI maintains a distinct political, legal, and
historical status as compared to the other Territories, it was perfectly rational for Congress to
treat NMI more like a foreign country for purposes of absentee voting rights.
Plaintiffs challenge only a single element of this argument, based on their mistaken contention
that former State residents in NMI could not vote absentee under UOCAVA’s 1975 predecessor statute,
such that UOCAVA purportedly effected a change in preexisting law by treating NMI differently than
other U.S. Territories. But Plaintiffs again misapprehend the relevant statutory text from the 1975
law; UOCAVA maintained the status quo by preserving the pre-existing tradition of absentee voting
rights in NMI. In any event, the longstanding absentee voting rights Congress afforded NMI
residents are merely one dimension of NMI’s distinct historical relationship with the United
States: as the only Territory that was formerly part of a United Nations Trust, NMI became a U.S.
Territory only upon reaching a negotiated agreement with the United States. The newest Territory,
NMI did not attain representation in Congress with official status until 2008 and has been treated
differently than the other Territories in other federal voting statutes. Thus, wholly apart from
the impact of the 1975 law, UOCAVA’s
distinction rationally affirms NMI’s unique status.
3

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Finally, the sweeping remedy Plaintiffs seek—extending absentee voting rights to the precise
Territorial residents that Congress explicitly identified as outside the reach of UOCAVA—would
flatly contravene the will of the political branch endowed with plenary power to legislate with
respect to the Territories. The Constitution does not require this result. The Court should defer
to Congress’s expertise in defining the contours of American relations with the Territories and
decline Plaintiffs’ invitation to restructure UOCAVA.
ARGUMENT

I. Plaintiffs Lack Standing to Sue the Federal Defendants Because Their Alleged Injury Is
Not Fairly Traceable to UOCAVA.

Plaintiffs have not demonstrated that their alleged injury—the inability to vote absentee in
Illinois—is fairly traceable to UOCAVA and accordingly have not established their standing to sue
the Federal Defendants. See Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 819 (7th Cir.
2014) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)) (defining the “irreducible
constitutional minimum of standing” as “(1) a concrete and particularized injury in fact (2) that
is fairly traceable to the challenged action of the defendant that is (3) likely to be redressed by
a favorable judicial decision”). Plaintiffs fail to address the Government’s standing argument on
its terms, and instead attempt to distract the Court by reference to the merits analyses set forth
in Frontiero v. Richardson, 411 U.S. 677, 682 (1973) and Weinberger v.
Wiesenfeld, 420 U.S. 636, 647 (1975). See Pls.’ Opp’n at 13 (“[T]he Supreme Court has analyzed
statutes that confer a benefit in a discriminatory fashion using the same framework that applies to
restrictive statutes.”). But of course, the Court need not, and should not, reach the question of
the appropriate analytical merits framework unless Plaintiffs can first establish their standing as
to the Federal Defendants.

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As outlined in the Federal Defendants’ Cross-Motion for Summary Judgment, UOCAVA, a permissive
statute, does not deny Plaintiffs the right to vote absentee in federal elections in Illinois.
Federal Defs.’ Cross-Mot. for Summ. J. at 4–6 (“Cross-Mot.”) (ECF No. 51). Rather, it is Illinois
MOVE that imposes that restriction. Id. Although it is conceivable that extending UOCAVA to provide
universal absentee voting rights in all U.S. Territories could theoretically remedy Plaintiffs’
alleged injury (by requiring Illinois and potentially all other States to amend their implementing
legislation accordingly), this notion is of no consequence absent a showing that their alleged
injury is fairly traceable to UOCAVA. Plaintiffs have not done so. Article III does not permit
Plaintiffs to conflate the independent traceability and redressability requirements set forth in
Lujan, 504 U.S. at 560–61. The Complaint should be dismissed for lack of standing with respect to
the Federal Defendants.
Plaintiffs claim that finding in the Federal Defendants’ favor on this point would result in their
inability to challenge Illinois MOVE. Pls.’ Opp’n at 13. The Federal Defendants take no position
on Plaintiffs’ standing with respect to the Illinois Defendants, but note that because Illinois
MOVE imposes the alleged injury of which Plaintiffs complain—Plaintiffs’ inability to vote absentee
in federal elections in Illinois—it is not apparent why the traceability argument the Federal
Defendants advance here would foreclose Plaintiffs’ standing to challenge that state
law.1 Regardless, Plaintiffs’ claims against the Federal Defendants must be dismissed for lack of

standing.

1 Plaintiffs all but admit that the two organizational plaintiffs lack standing. Pls.’ Opp’n at 14
n.7. Because Plaintiffs failed to make specific allegations establishing that at least one
identified member had suffered or would suffer harm traceable to UOCAVA, the organizational
plaintiffs have not established associational standing. Summers v. Earth Island Inst., 555 U.S.
488, 498–99 (2009). Plaintiffs appear to concede that they have not named a specific individual,
instead submitting that they have “alleg[ed] that IAPGVP’s and LWC-VI’s membership includes current
residents of Guam and the Virgin Islands who are former residents of Illinois,” Pls.’ Opp’n at 14
n.7; see also id. (referring generally to “people” who are allegedly denied absentee voting
rights). But of course, generic references to “current residents” and “people” do not amount to the
naming of a specific individual, as the Supreme Court has required.
5

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II. UOCAVA Meets the Requirements of Equal Protection and Due Process.

i. Standard of Review

If the Court reaches the merits of Plaintiffs’ claims, UOCAVA need only pass rational basis review
in order to satisfy the requirements of the Constitution. In arguing that strict scrutiny must be
applied, Plaintiffs first attempt to impugn the First Circuit’s determination that rational basis
review represents the appropriate standard for Equal Protection challenges to UOCAVA. Pls.’ Opp’n
at 4 (describing the Igartua decision as one reached “without the benefit of oral argument” in a
challenge “brought by a pro se litigant”); see Igartua De La Rosa v.
United States, 32 F.3d 8 (1st Cir. 1994) (per curiam). But no Court has ever applied strict
scrutiny to UOCAVA. See Igartua, 32 F.3d at 10; Romeu v. Cohen, 121 F. Supp. 2d 264, 282– 84
(S.D.N.Y. 2000), aff’d, 265 F.3d 118 (2d Cir. 2001); see also Romeu, 265 F.3d at 124 (concluding
that “the UOCAVA[] . . . is not subject to strict scrutiny”).
The uniform body of law applying rational basis review to UOCAVA challenges is consistent with
numerous other cases establishing that Congress’s power to legislate with respect to the
Territories is subject only to rational basis review. See, e.g., Besinga v. United States, 14 F.3d
1356, 1360 (9th Cir. 1994) (“[T]he broad powers of Congress under the Territory Clause are
inconsistent with the application of heightened judicial scrutiny to economic legislation
pertaining to the territories.”); Quiban v. Veterans Admin., 928 F.2d 1154, 1161 (D.C. Cir. 1991)
(“[T]he Territory Clause permits exclusions or limitations directed at a territory . . . so long as
the restriction rests upon a rational base.”). Quiban also puts to rest Plaintiffs’ contention that
strict scrutiny is justified whenever “the government extends a benefit to one class of individuals

Summers, 555 U.S. at 498–99. Accordingly, even if the Court were to determine that the individual
plaintiffs have established their standing, the two organizational plaintiffs must be dismissed
from the case.

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while denying it to another.”2   Pls.’ Opp’n at 4. In Quiban, then-Judge Ruth Bader Ginsburg
determined that rational basis review applied in an Equal Protection challenge to two federal
statutes that excluded Philippine World War II veterans that had served in the American armed
forces from certain veteran’s benefits. 928 F.2d at 1154. Because the Philippines were formerly a
U.S. Territory, Congress’s power under the Territory Clause informed the D.C. Circuit’s analysis in
upholding the statutes.3   See id. It is clear, therefore, that Plaintiffs’ position is not only
inaccurate as a general proposition, but also within the specific context of Congress’s selective
extension of benefits in the Territories.
But even outside the context of Territories, heightened scrutiny does not apply to every voting
regulation limiting the franchise. See, e.g., Green v. City of Tucson, 340 F.3d 891, 899 (9th Cir.
2003) (rejecting the notion that “every voting regulation [is subject] to strict scrutiny,”); Snead
v. City of Albuquerque, 663 F. Supp. 1084, 1087 (D.N.M. 1987) (“Because the Plaintiffs in this case
have no constitutionally protected right to vote in the city’s elections, the mere fact that the
New Mexico law extends the right to vote to some non-residents does not implicate strict
scrutiny.”); see also Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) (heightened
scrutiny does not apply to all challenges to voting rights). Plaintiffs, like other U.S. citizens
who reside in the Territories, do not have a constitutionally protected right to vote in federal
elections for President or voting representation in Congress.   See Federal Defs.’ Mot. to Dismiss
at 2–3 (citing Anderson v. Celebrezze, 460 U.S. 780, n.18 (1983)) (“The Constitution expressly
delegates authority to the states to regulate selection of Presidential electors . . .”) (emphasis

2 The Federal Defendants maintain the position, articulated in their Cross-Motion for Summary
Judgment, that UOCAVA does not “deny” absentee voting rights to Plaintiffs, instead merely serving
as a limitation on the ability of States’ to restrict absentee voting rights. See Cross-Mot. at
6–7.
3 President Franklin D. Roosevelt called various Philippine military organizations into the service
of American armed forces during World War II. Quiban, 928 F.2d at 1154. Two subsequent statutes,
the
First and Second Supplemental Surplus Appropriation Rescission Act of 1946, provided that service
by Philippine veterans “shall not be deemed to have been active military, naval, or air service”
for purposes of diverse veterans benefit programs, effectively excluding them from such benefits.
Id.
7

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added); Att’y Gen. of the Territory of Guam v. United States, 738 F.2d 1017, 1019 (9th Cir. 1984)
(“[T]he Constitution does not grant to American citizens the right to elect the President.”). Thus,
the fact that Congress has chosen to require States to extend absentee voting privileges to some
U.S. citizens who do not reside in States does not give rise to heightened scrutiny.
Finally, Plaintiffs argue that Katzenbach v. Morgan, 384 U.S. 641 (1966) and McDonald

v. Bd. of Election Comm’rs of Chi., 394 U.S. 802 (1969) cannot aid the Court’s analysis because
those cases “identified narrow groups for inclusion,” Pls.’ Opp’n at 5, whereas UOCAVA purportedly
“effected near-universal expansion of absentee voting rights to former state residents,” while
excluding only a “narrow group,” id. at 6. First, Plaintiffs’ characterization of that case law is
wrong; as previously explained at length, Katzenbach and McDonald clearly held that rational basis
review applies to statutes, like UOCAVA, that permissively extend voting rights. See Cross-Mot. at
7–8. But even if the Court were to accept Plaintiffs’ reading of Katzenbach and McDonald, their
characterization of UOCAVA is again simply wrong: UOCAVA did not single out a “narrow group” of
former State residents that moved to Puerto Rico, Guam, the Virgin Islands, and American Samoa for
exclusion from the protections of statute, as Plaintiffs would have this Court believe. This
depiction of UOCAVA ignores the obvious. UOCAVA’s protections also do not extend to citizens (other
than absent uniformed service voters) that move from one State to any of the 49 other States in the
United States, see 52
U.S.C. § 20310(5)(B)–(C) (limiting UOCAVA’s application to “overseas voters” who “reside[] outside
the United States”).4 Plaintiffs have failed to establish that UOCAVA “singles out a narrow group
for exclusion,” or otherwise demonstrate that strict scrutiny should be applied. This Court should
join the First and Second Circuit in rejecting strict scrutiny’s application to

4 A different federal statute extends certain absentee voting protections to United States citizens
that move from one State to another. See 52 U.S.C. § 10502(e). But UOCAVA itself did not effect a
“near universal expansion of absentee voting rights.” Pls.’ Opp’n at 6.
8

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UOCAVA, see Igartua, 32 F.3d at 10; Romeu, 265 F.3d at 124 (2d Cir. 2001), and apply rational basis
review.
ii. UOCAVA Passes Rational Basis Review.

As the Federal Defendants have previously set forth, there are several rational bases for
Congress’s distinct treatment of NMI. Indeed, “[a]ny rational basis will suffice, even one that
was not articulated at the time the disparate treatment occurred.” Srail v. Vill. of Lisle, 588
F.3d 940, 946–47 (7th Cir. 2009). First, Congress could have rationally distinguished between the
Territories that existed at the time of the statute’s enactment in 1986 and foreign countries,
reasoning that citizens that moved to foreign countries risked complete disenfranchisement without
federal protections, whereas citizens in the Territories acquired voting rights in federal
elections in those Territories. See Cross-Mot. at 8–9. Former State residents in NMI, which was
not yet a U.S. Territory, id. at 11, would not have acquired new voting rights for federal
representation with official status in Congress. See Pub. L. No. 110-229, § 711, 122 Stat. 754
(codified at 48 U.S.C. § 1751 (2008)) (providing for a nonvoting delegate from NMI to Congress with
official status for the first time in 2008). Further, at the time of UOCAVA’s enactment, NMI’s
native residents were not yet U.S. citizens. See Proclamation No. 5564, 51 Fed. Reg.
40,399 (1986). Far from “arbitrary discrimination,” Pls.’ Opp’n at 7, it is therefore perfectly
logical that Congress would have treated U.S. Territories differently than foreign countries and
entities such as NMI. See Romeu, 265 F.3d at 124–25, Igartua, 32 F.3d at 11. The fact that NMI
later became a U.S. Territory in 1986, with representation in Congress comparable to the other
Territories in 2008, potentially rendered UOCAVA an “imperfect fit between means and ends,” City of
Chicago v. Shalala, 189 F.3d 598, 606 (7th Cir. 1999), is not fatal under Seventh Circuit
precedent. See Cross-Mot. at 8–9. Congress was entitled to make a determination with

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respect to then-existing territories, while reserving judgment with respect to any hypothetical
future territories with unknowable relationships to the United States.
Second, Congress could have rationally treated NMI differently than the other U.S. Territories on
the basis of NMI’s unique relationship with the United States. See Cross-Mot. at 10–14.
Plaintiffs do not and cannot contest the unique and evolving relationship between the United States
and NMI. Instead, they focus exclusively on one small dimension of this historical relationship,
arguing that the Federal Defendants’ reading of UOCAVA’s 1975 predecessor statute is flawed. See
Pls.’ Opp’n at 6–9. In their view, the Overseas Citizens Voting Rights Act of 1975, Pub. L. No.
94-203, 89 Stat. 1142 (1976) (“1975 Act”) did not extend absentee voting
rights to former State residents in NMI.5 See id. Respectfully, Plaintiffs’ interpretation of
the

1975 statute continues to be incorrect.

For present purposes, the 1975 Act contains three relevant sections: (1) a “definitions” section
which defines relevant terms, including the “United States;” (2) an operative section that grants
absentee voting rights to citizens “outside the United States;” and (3) a restrictive subsection,
articulating various limitations on that grant of absentee voting rights. See Pub. L. No. 94-203,
§ 2-3. No party disputes that the 1975 Act excluded the Trust Territory of the Pacific Islands
(“TTPI”), of which NMI was a part, from the definition of the United States. See Pls.’ Opp’n at 7.
Accordingly, that statute extended absentee voting rights to former State

5 Plaintiffs suggest that if the Federal Defendants have incorrectly interpreted the 1975 Act, the
entire argument that NMI has a unique historical relationship with the United States, justifying
NMI’s distinct treatment in UOCAVA, is somehow defeated. See Pls.’ Opp’n at 7–10. The Federal
Defendants’ argument, however, was in no sense exclusively premised upon NMI’s treatment under the
1975 Act. See Cross-Mot. at 10–14. NMI’S treatment under the 1975 Act was merely one instance in
the sequence of distinct historical treatment accorded to NMI by Congress. Id. (discussing UOCAVA’s
unique historical status as part of a United Nations Trust Territory, various idiosyncratic
elements of NMI’s negotiated agreement with Congress through which it became a U.S. Territory, the
fact that all other parts of the Trust Territory of the Pacific Islands became independent nations,
NMI’s distinct treatment under other federal voting statutes, and NMI’s very recent acquisition of
a non-voting delegate to Congress with official status).

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residents in NMI, because those citizens were “outside the United States.” See Cross-Mot. at 3,
13.
Plaintiffs disagree, claiming that the subsection articulating limitations on the grant of absentee
voting rights swallows the statute’s extension of such rights to NMI. See Pls.’ Opp’n at 8 (“[t]he
Act made clear that citizens who ‘maintain a domicile . . . in any territory or possession of the
United States’—a category defined to include citizens residing in NMI—were not guaranteed the right
to vote.”) (first emphasis added) (citing Pub. L. No. 94-203, § 3(2)). But this argument is
flawed. It assumes the conclusion that NMI was a “territory or possession of the United States” at
the time of the 1975 statute’s enactment. That is incorrect. See Cross-Mot. at 10–11. Rather, in
1975, NMI was part of a United Nations Trust Territory and did not become a United States Territory
until November 3, 1986. See id.; see also United States ex rel. Richards
v. De Leon Guerrero, 4 F.3d 749, 751 (9th Cir. 1993) (“[T]he United Nations established the Trust
Territory of the Pacific Islands encompassing . . . Northern Mariana Islands.”) (emphasis added);
id. (“On November 3, 1986 . . . the United States terminated the Trusteeship Agreement with respect
to the []NMI by Presidential Proclamation.”) (citation omitted). Accordingly, the restriction on
the grant of absentee voting rights in the 1975 Act that Plaintiffs identify did not apply to TTPI
(and therefore to NMI). As the Federal Defendants explained, the 1975 Act thus extended absentee
voting rights to former State residents in NMI, and UOCAVA merely
maintained the status quo with respect to NMI absentee voting. 6

6 Plaintiffs misread the “domicile” restriction in the 1975 law in other ways. That provision
should be read in tandem with the original grant of absentee voting rights, which applied only to
allow a
U.S. citizen residing outside the United States to cast an absentee ballot in a State in which the
citizen “was last domiciled immediately prior to departure from the United States,” see P.L. 94-203
§ 3, and, inter alia, if that person “does not maintain a domicile” in another State or U.S.
Territory or possession, see id. §3(2). In short, the provision was intended to limit absentee
voting rights to U.S. citizens that were outside the United States who had only one prior domicile
and only to that immediate prior domicile. This provision appears to be aimed at establishing an
overall rule for the grant of absentee ballot rights, not at disenfranchising the residents of
“territor[ies] or possession[s] of the United States.”
11

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In any event, the Federal Defendants identify many dimensions of Congress’s unique relationship
with NMI, justifying its distinct treatment in UOCAVA, that place no reliance whatsoever upon the
1975 Act. See Cross-Mot. at 10–14; see also supra at 10 n.5. Plaintiffs have failed to
meaningfully refute the Federal Defendants’ argument that UOCAVA rationally distinguishes between
NMI on the one hand, and Puerto Rico, Guam, the U.S. Virgin Islands, and American Samoa on the
other, on the basis of NMI’s unique status. Rather than merely an “explanation,” see Pls.’ Opp’n at
9, this distinction is rationally related to Congress’s legitimate interest in appropriately
defining the United States, for purposes of absentee voting rights, in such a way that that
respects its individualized, historical relationships with the Territories, including NMI.
III. The Remedy Plaintiffs Seek Would Require the Court to Rewrite a Clear Statutory
Limitation That is Within Congress’s Authority Over U.S. Territories.

Finally, the Federal Defendants reiterate that Plaintiffs are asking this Court to rewrite UOCAVA
so as to extend absentee voting rights to the very residents of U.S. Territories that the federal
statute expressly excludes from its reach. Pls.’ Opp’n at 11. The suggestion that “Congress would
have willed [this result] had it been apprised of the constitutional infirmity,” id. (internal
citation omitted), strains credulity. The text of the statute is crystal clear: its protections
extend to “person[s] who reside outside the United States,” 52 U.S.C. § 20310(5), and defines

Id. Moreover, even assuming NMI was a “U.S. Territory or possession” in 1975 under Plaintiffs’
erroneous reading of the 1975 law, U.S. citizens in NMI who were only temporarily residing there
would nevertheless retain absentee voting rights in the State in which they were last domiciled.
See Domicile, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “domicile” as “the place at which a
person has been physically present and that the person regards as home; a fixed, principal, and
permanent home, to which that person intends to return and remain”). Thus, even under Plaintiffs’
flawed reading, the 1975 statute would have extended absentee voting rights to at least some (if
not all) former State residents in NMI. Thereafter, in 1986 Congress dispensed with the “domicile”
limitations all together by replacing the 1975 Act with UOCAVA– again before the NMI was a U.S.
Territory – meaning that all former State residents in NMI were treated as outside the United
States and could vote absentee, and Congress could rationally have decided to extend that practice
after the NMI subsequently became a U.S. Territory.

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“United States, where used in the territorial sense,” to mean “the several States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa,” id. In
other words, Congress specifically clarified that former State residents in Puerto Rico, Guam, the
Virgin Islands, and American Samoa are not guaranteed absentee voting rights under UOCAVA but are
instead treated in the same manner as other citizens living in those jurisdictions. Id.; see also
Romeu, 265 F.3d at 125. Plaintiffs’ submission that “extension [of absentee voting rights to
Puerto Rico, Guam, the Virgin Islands, and American Samoa], rather than nullification,” would
comport with the will of Congress, Pls.’ Br. at 11, belies logic, and is contradicted by the one
true indicia of Congressional intent – the actual statutory language.
Plaintiffs also contend that it is “absurd” for the Federal Defendants to suggest that
restructuring an entire federal statute would reap dramatic results. Pls.’ Opp’n at 14. The
Government respectfully disagrees. Contravening the will of Congress by rewriting UOCAVA to
include precisely the U.S. Territorial residents that were explicitly excluded from the statute’s
reach, extending absentee voting rights to former Illinois residents in three additional
Territories, is indeed a dramatic consequence. The Constitution does not require this result, and
the Court should not rewrite UOCAVA in this manner as a purported remedy, even if it were to credit
Plaintiffs’ (meritless) claim against the Federal Defendants.7 See Cross-Mot. at 14–15.

CONCLUSION

7 Finally, in a footnote, Plaintiffs perplexingly argue that “the federal defendants’ remedial
argument” could result in the “untenable consequence of requiring Illinois to bar former residents
in the NMI from voting absentee . . . contrary to UOCAVA’s express mandates.” Pls.’ Opp’n at 11
n.4. But the Federal Defendants have not argued that the Court should restrict absentee voting
rights under Illinois MOVE. In fact, the Federal Defendants have repeatedly emphasized that
Illinois can, and has extended absentee voting rights beyond that which is required by the federal
statute. See Federal Defs.’ Mot. to Dismiss at 8, Cross-Mot. at 5.

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The Federal Defendants’ Motion to Dismiss should be granted and Plaintiffs’ Motion for Summary
Judgment should be denied. Alternatively, the Federal Defendants’ Cross-Motion for Summary Judgment
should be granted.
Dated: May 17, 2016 Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

ANTHONY J. COPPOLINO
Deputy Branch Director

ZACHARY T. FARDON
United States Attorney

THOMAS WALSH
Assistant United States Attorney

s/ Caroline J. Anderson
Caroline J. Anderson IL Bar No. 6308482
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 7220
Washington, D.C. 20001
Phone: (202) 305-8645
Caroline.J.Anderson@usdoj.gov

Counsel for Federal Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on May 17, 2016, a copy of the foregoing combined Reply in Support of the
Federal Defendants’ Cross-Motion for Summary Judgment was filed electronically. Notice of this
filing will be sent by email to all parties by operation of the Court’s electronic filing system.
Parties may access this filing through the Court’s CM/ECF System.

/s/ Caroline J. Anderson
Caroline J. Anderson

Case: 1:15-cv-10196 Document #: 63 Filed: 08/23/16 Page 1 of 42 PageID #:461

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

LUIS SEGOVIA, JOSE ANTONIO ) TORRES, PAMELA LYNN COLON, ) TOMAS ARES, ANTHONY BUNTEN,         )
LAVONNE WISE, IRAQ AFGHANISTAN )                 Case No. 15 C 10196 AND PERSIAN GULF VETERANS OF
      )
THE PACIFIC, and LEAGUE OF                  )                 Judge Joan B. Gottschall WOMEN VOTERS
OF THE VIRGIN           )
ISLANDS,                                                           )
Plaintiffs,                                                )
)
v.                                                  )
)
BOARD OF ELECTION ) COMMISSIONERS FOR THE CITY OF ) CHICAGO, KAREN KINNEY, UNITED ) STATES OF
AMERICA, ASHTON               )
CARTER, FEDERAL VOTING                      )
ASSISTANCE PROGRAM, MATT                )
BOEHMER, AND MARISEL                          )
HERNANDEZ,                                                  )
Defendants.                                             )

MEMORANDUM OPINION AND ORDER

As Franklin D. Roosevelt famously said in a 1944 radio address from the White House, “Nobody will
ever deprive the American people of the right to vote except the American people themselves and the
only way they could do this is by not voting.” This statement assumes that all United States
citizens can vote if they choose to do so. As this case shows, that assumption is incorrect. The
plaintiffs in this action are six United States citizens who are former residents of Illinois and
who now reside in Puerto Rico, Guam, or the U.S. Virgin Islands, plus two organizations that
promote voting rights in United States Territories. The plaintiffs challenge the constitutionality
of the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C.
§ 20310 (“UOCAVA”), contending that it violates their equal protection and due process rights

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by barring them from casting absentee ballots in Illinois for federal elections due to their
residence in the United States Territories of Puerto Rico, Guam, or the U.S. Virgin Islands, while
allowing United States citizens who were previously qualified to vote in Illinois and currently
reside in the United States Territory of the Northern Mariana Islands (“NMI”) or in a foreign
country to cast absentee Illinois ballots.1
The federal defendants (the United States of America, the Federal Voting Assistance Program, Ashton
Carter, in his official capacity as the Secretary of Defense, and Matt Boehmer, in his official
capacity as Director of the Federal Voting Assistance Program) filed a motion to dismiss and a
motion for summary judgment.2 The plaintiffs filed a cross-motion for summary judgment directed
at their claims against the federal defendants. As discussed below, the plaintiffs have standing
to challenge the constitutionality of the UOCAVA, the proper standard of review is rational basis,
as opposed to strict scrutiny, and under the rational basis standard, the challenged provisions of
the UOCAVA are constitutional.

1 The plaintiffs raise a similar challenge to the Illinois Military and Overseas Voter
Empowerment Act (“Illinois MOVE”), 10 Ill. Comp. Stat. § 5/20-1, which allows voters who were
formerly qualified to vote in federal elections in Illinois and who now reside in the United States
Territory of American Samoa to vote in federal elections via Illinois absentee ballot. As the
motions presently before the court all concern the UOCAVA, the court will not address the
plaintiffs’ arguments about Illinois MOVE at this time.

2 The remaining defendants the Board of Election Commissioners for the City of Chicago,
Marisel Hernandez (the Chairman of the Board of Election Commissioners for the City of Chicago),
and Karen Kinney (the Rock Island County Clerk) have answered.

-2-

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I. BACKGROUND3

A. The Parties

The individual plaintiffs (Luis Segovia, Jose Antonio Torres, Pamela Lynn Colon, Tomas Ares,
Anthony Bunten, and Lavonne Wise) are United States citizens and former Illinois residents. Before
moving from Illinois, the plaintiffs voted in federal elections administered by Illinois.
Currently, Mr. Segovia and Mr. Bunten reside in Guam, Mr. Torres and Mr. Ares reside in Puerto
Rico, and Ms. Colon and Ms. Wise reside in the U.S. Virgin Islands, all of which are United States
Territories.
The individual plaintiffs all have distinguished careers serving the United States in the armed
forces and/or as public servants. Because they reside in Puerto Rico, Guam, or the U.S. Virgin
Islands, they cannot vote in federal elections via Illinois absentee ballot. In contrast, former
Illinois residents who were qualified to vote in federal elections while living in Illinois can
cast Illinois absentee ballots in federal elections if they reside in the NMI (pursuant to the
UOCAVA), American Samoa (pursuant to Illinois MOVE), or a foreign country.

3 The following facts are drawn from the parties’ Local Rule 56.1 submissions. The plaintiffs
and the federal defendants failed to reproduce the opposing side’s statements of fact when
preparing their responses. See Loc. R. 56(b)(3)(a). In addition, the parties’ summary chart, which
was submitted at the court’s request due to the unusual combined documents filed by both sides,
does not include any of the Local Rule 56.1 submissions or anything filed after April 26, 2016.
(Dkt. 57.) It thus is of limited utility, especially since the federal defendants filed their
Local Rule 56.1 submissions as attachments to their combined memorandum in support of their summary
judgment/opposition to the plaintiffs’ cross-motion for summary judgment/reply in support of their
motion to dismiss. For the reader’s convenience, the statements of facts filed by the plaintiffs
and the federal defendants are Dkt. 49 and Dkt. 51-4, respectively. The plaintiffs’ response to
the federal defendants’ facts is Dkt. 59 and the federal defendants’ response to the plaintiffs’
facts is Dkt. 51-5.

-3-

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1. Plaintiffs Currently Residing in Puerto Rico

Plaintiff Jose Antonio Torres is a United States citizen born in 1955 in Ponce, Puerto Rico, who
currently resides in Carolina, Puerto Rico. Mr. Torres is a Vietnam-era Veteran who has a combined
100% disability rating by virtue of injuries sustained during his military service. He was
recruited to join the United States Army as a high school student in Ponce, Puerto Rico. In 1973,
he was stationed in Germany as part of the 141st Field Artillery, a posting that required top
secret clearance. He was honorably discharged in 1975 due to severe injuries he sustained in
Germany.
Mr. Torres resided in Chicago from 1982 to 1993. He began working for the United States Postal
Service in 1986. He was transferred from Illinois to Puerto Rico in 1993, where he continued to
work for the Postal Service for another fifteen years until he retired in 2008 after 22 years of
federal service. As a federal employee in Puerto Rico, Mr. Torres was required to pay the same
federal taxes, including federal income tax, as federal employees living on the mainland. When Mr.
Torres resided in Illinois, he voted for President; he now votes in Puerto Rico elections.
Plaintiff Tomas Ares is a United States citizen born in San Lorenzo, Puerto Rico in 1955, where he
currently resides. From 1967 to 2007, he resided in Chicago, Illinois. He then retired and moved
to Puerto Rico. He is a Vietnam-era Veteran who joined the U.S. Army in 1971 at the age of 17,
following the footsteps of his father, who was born in Puerto Rico in 1902 and served in the U.S.
Army’s 65th Infantry from 1920 through 1944. After Mr. Ares was stationed in Germany, he was
honorably discharged in 1972 because he was not of the legal age to serve. When Mr. Ares resided in
Illinois, he voted for President; he now votes in Puerto Rico elections.

-4-

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2. Plaintiffs Currently Residing in Guam

Plaintiff Luis Segovia is a United States citizen born in Chicago, Illinois, in 1978. He moved
from Chicago to Guam in 2010 and is a decorated veteran. He served in the U.S. Army in Iraq from
2005 to 2006, where his primary mission was to provide security for the 2005 Iraqi elections. He
then served in the Illinois National Guard, where he was deployed to Afghanistan from 2008 to 2009.
He joined the Guam National Guard in 2010 after becoming a resident of Guam, and was deployed for
a ten-month second tour of duty in Afghanistan. He was recently promoted to the rank of Staff
Sergeant, and also serves his country as a federal employee with the Department of the Navy’s
civilian security forces police assigned to Anderson Air Force Base in Guam. When Mr. Segovia
resided in Illinois, he voted for President; he now votes in Guam elections.
Plaintiff Anthony Bunten is a United States citizen born in Moline, Illinois in 1976. Mr.

Bunten is a Veteran who joined the U.S. Navy directly out of high school in 1994. He was honorably
discharged in 1997, when he moved to Guam to join his now-wife, Barbara Perez Hattori. When Mr.
Bunten resided in Illinois, he voted for President; he now votes in Guam elections.
3. Plaintiffs Currently Residing in the U.S. Virgin Islands

Plaintiff Pamela Lynn Colon is a United States citizen born in Chicago, Illinois, in 1959.

She lived in Chicago until 1992, when she moved to the U.S. Virgin Islands, and currently resides
in St. Croix. From 1996 to 2000, Ms. Colon served as the Assistant Federal Public Defender in St.
Thomas in the U.S. Virgin Islands. She has defended numerous clients in the
U.S. Virgin Islands who were federally prosecuted, including several who faced the possibility of

-5-

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life in prison or the death penalty. She is the past-President of the Virgin Islands Bar
Association. When Ms. Colon resided in Illinois, she voted for President; she now votes in
elections in the U.S. Virgin Islands.
Plaintiff Lavonne Wise is a United States citizen born in Queens, New York; she currently resides
in St. Croix in the U.S. Virgin Islands. From 2003 to 2009, she resided in Chicago, Illinois. As
a resident of Chicago in 2008, Ms. Wise voted for President by absentee ballot while temporarily
working in St. Croix, but after she became a resident of St. Croix in 2009, she became unable to
vote for President. She now regularly votes in elections in the U.S. Virgin Islands. Previously,
from 1990-1992, Ms. Wise moved from Atlanta, Georgia, to St.
Maarten, Netherland Antilles. While living in St. Maarten, Ms. Wise was able to vote for President
via absentee ballot.
4. Organizational Plaintiffs

The remaining plaintiffs are the Iraq Afghanistan and Persian Gulf Veterans of the Pacific
(“IAPGVP”) and the League of Women Voters of the Virgin Islands (“LWV-VI”). IAPGVP is a nonprofit
organization founded in 2014 whose mission is to provide opportunities to engage, enrich, and
empower Pacific Island veterans of Iraq, Afghanistan, and the Persian Gulf and their families.
While up to one in eight adults in Guam is a veteran and the casualty rate for Guam soldiers in
Iraq and Afghanistan has been up to 4.5 times the national average, in 2012, Guam ranked below
every State in medical-care spending per veteran. IAPGVP’s position is that political
disenfranchisement contributes to the healthcare crisis facing Guam veterans. LWV-VI was founded
in 1968 and is a non-profit, non-partisan political organization. Its main goal is to give a voice
to all Americans by expanding voter participation. LWV-VI’s position is that

-6-

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continuing political disenfranchisement contributes to many hardships facing Virgin Islanders,
including economic development, healthcare, and the environment.
The plaintiffs allege that unspecified former Illinois residents are members of both organizational
plaintiffs. IAPGVP and LWV-VI posit that allowing United States citizens who live in their
respective territories to vote would provide new opportunities for national political engagement
about issues in Guam and the Virgin Islands. All of the plaintiffs allege that they believe that
where one lives as a United States citizen should not affect the right to vote.
5. The Defendants

The state defendants are the Board of Election Commissioners for the City of Chicago, Marisel
Hernandez (the Chair of the Board of Election Commissioners), and Karen Kinney (the Rock Island
County Clerk). The Board of Election Commissioners is the election authority with jurisdiction
over the precincts where Mr. Segovia, Mr. Torres, Ms. Colon, Mr. Ares, and Ms.
Wise resided before they moved from Illinois. The Rock Island County Clerk is the election
authority with jurisdiction over the precinct where Mr. Bunten resided before he moved from
Illinois. The Board of Election Commissioners, Ms. Hernandez, and Ms. Kinney agree that
individuals who were eligible to vote in federal elections when they resided in Illinois and who
now reside overseas in Puerto Rico, Guam, or the U.S. Virgin Islands are ineligible to vote
absentee in Illinois, but would be eligible if they resided in the NMI, American Samoa, or a
foreign country. The federal defendants are the United States of America, Secretary of Defense
Ashton Carter, the Federal Voting Assistance Program, and Director of the Federal Voting Assistance
Program Matt Boehmer. All of the individual defendants have been sued in their official
capacities.

-7-

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B. The UOCAVA and Illinois’ MOVE Act

The UOCAVA imposes a range of responsibilities on states (here, Illinois, as the individual
plaintiffs wish to vote by Illinois absentee ballot) relating to absentee voting in federal
elections by uniformed service members or overseas voters, as those terms are defined in the
UOCAVA. 52 U.S.C. § 20302.
• The UOCAVA defines “[f]ederal office” as “the office of President or Vice President, or
of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress.” 52 U.S.C.
§ 20310(3).

• “‘State’ means a State of the United States, the District of Columbia, the Commonwealth
of Puerto Rico, Guam, the Virgin Islands, and American Samoa.” 52 U.S.C. § 20310(6).

• “‘United States,’ where used in the territorial sense, means 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).

• An “overseas voter” is: “(A) an absent uniformed services voter [serving in the Army,
Navy, Air Force, Marine Corps, and Coast Guard, the commissioned corps of the Public Health
Service, or the commissioned corps of the National Oceanic and Atmospheric Administration] who, by
reason of active duty or service is absent from the United States on the date of the election
involved; (B) 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; or (C) a person who
resides outside the United States and (but for such residence) would be qualified to vote in the
last place in which the person was domiciled before leaving the United States.”4 52 U.S.C. §
20310(5) & (7).

Because the individual plaintiffs currently are domiciled in Puerto Rico, Guam, and the

U.S. Virgin Islands, they fall within the UOCAVA’s definition of “State” and thus do not “reside[]
outside the United States” for the purposes of the UOCAVA. See 52 U.S.C. § 20310(6)

4 The UOCAVA thus creates a seemingly anomalous situation: a member of the armed forces
stationed on, for example, Guam, who was previously qualified to vote in Illinois can vote in
federal elections via an Illinois absentee ballot. If that person retires from service and stays
in Guam, however, she loses her ability to vote via Illinois absentee ballot.

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& (8). Thus, the individual plaintiffs are not “overseas voters” as that term is defined in the
UOCAVA. 52 U.S.C. § 20310(5) & (7). This means that their state of former residence where they
were eligible to vote in federal elections (here, Illinois) is not required to provide absentee
ballots that would allow the individual plaintiffs to vote in federal elections.
Under the UOCAVA, United States citizens who were formerly eligible to vote in federal elections in
Illinois and who now live in American Samoa also cannot vote via Illinois absentee ballot, as
American Samoa like Puerto Rico, Guam, and the U.S. Virgin Islands falls within the UOCAVA’s
definition of “State.” See 52 U.S.C § 20310(6). However, Illinois has extended absentee voting
rights to include former Illinois residents who currently reside in American Samoa and are
otherwise eligible to vote.5 See 10 Ill. Comp. Stat. § 5/20-1(1) (“‘Territorial limits of the
United States’ means 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”).6

5 Illinois MOVE, like the UOCAVA, does not allow United States citizens who were eligible to vote
in Illinois to vote via absentee ballot after they move to Puerto Rico, Guam, and the U.S. Virgin
Islands. See 10 Ill. Comp. Stat. § 5/20-1(1). However, it allows otherwise similarly situated
individuals to vote via absentee ballot if they move to American Samoa. Id. Presumably, this will
be the subject of a second round of dispositive motions.

6 The Trust Territory of the Pacific Islands is a former United Nations strategic trusteeship
that was administered by the United States. It consisted of the Federated States of Micronesia, the
Republic of the Marshall Islands, the NMI, and Palau. See http://www.un.org/ en/
decolonization/selfdet.shtml; see also Davis v. Commonwealth Election Comm’n, No.
1-14-CV-00002, 2014 WL 2111065, at *1 (D. N. Mar. I. May 20, 2014) (the Trust Territory of the
Pacific Islands consists of “the islands that later formed the Commonwealth, the republics of Palau
and the Marshall Islands, and the Federated States of Micronesia. One of the purposes of the
trusteeship was for the United States to promote independence and self-government among the peoples
of those islands.”).

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In 2009, Congress passed the Military and Overseas Voter Empowerment Act, which amended the UOCAVA.
See United States v. Georgia, 778 F.3d 1202, 1203 (11th Cir. 2015). As amended, the UOCAVA requires
states, upon request, to send an absentee ballot to absent uniformed service voters and overseas
voters at least 45 days before an election for Federal office, unless the state provides a hardship
waiver. Id.
III. THRESHOLD ISSUES: JURISDICTION AND STANDING

The federal defendants raise three threshold arguments: (1) this court lacks subject matter
jurisdiction to adjudicate the plaintiffs’ challenge to the UOCAVA, (2) the organizational
plaintiffs lack standing because they have not identified specific former Illinois residents who
are members, and (3) the individual plaintiffs lack standing because their alleged injuries are not
fairly traceable to the UOCAVA.
A. Federal Question Jurisdiction

The court must “consider subject-matter jurisdiction as the first question in every case” and “must
dismiss . . . if such jurisdiction is lacking.” Aljabri v. Holder, 745 F.3d 816, 818 (7th Cir.
2014) (citations omitted). Here, the federal defendants challenge subject matter jurisdiction,
arguing that the plaintiffs lack standing to bring claims against them. “Subject-matter
jurisdiction . . . refers to a tribunal’s power to hear a case.” Morrison v. Nat’l Australia Bank,
Ltd., 561 U.S. 247, 254 (2010). “[A]n issue of statutory standing . . . . has nothing to do with
whether there is a case or controversy under Article III.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 90 (1998). Given the federal constitutional questions at issue, subject matter
jurisdiction is unquestionably proper, despite the federal defendants’ standing arguments. See 28
U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 1343 (“The district courts shall have

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original jurisdiction of any civil action authorized by law to be commenced by any person . . .
[t]o recover damages or to secure equitable or other relief under any Act of Congress providing for
the protection of civil rights, including the right to vote”).
B. Standing

Standing is “an essential and unchanging part of the case-or-controversy requirement of Article
III” of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
To establish standing, a plaintiff must prove that: (1) she suffered a concrete and particularized
injury that is actual or imminent; (2) the injury is fairly traceable to the defendant’s actions;
and (3) it is likely that the injury will be redressed by a favorable decision. Id. When evaluating
standing, the court accepts the material allegations of the complaint as true and construes the
complaint in the plaintiffs’ favor. Davis v. Guam, 785 F.3d 1311, 1314 (9th Cir.
2015) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).

1. Organizational Plaintiffs

The federal defendants challenge the organizational plaintiffs’ standing based on the fact that the
complaint does not name any members of either organization who were eligible to vote in federal
elections when they resided in Illinois. Thus, the federal defendants assert that the
organizational plaintiffs have failed to show that they suffered an cognizable injury. “Where at
least one plaintiff has standing [for a particular claim], jurisdiction is secure and the court
will adjudicate the case whether the additional plaintiffs have standing or not.” Ezell v. City of
Chicago, 651 F.3d 684, 696 n.7 (7th Cir. 2011); see also Tuaua v. United States, 951 F. Supp. 2d
88, 92-93 (D.D.C. 2013), aff’d, 788 F.3d 300 (D.C. Cir. 2015) (holding that it was unnecessary to
address whether the Samoan Federation of America had standing to pursue a citizenship

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challenge on behalf of individuals born in American Samoa because it was undisputed that other
plaintiffs had standing). The federal defendants do not and cannot question the individual
plaintiffs’ contention that they have each suffered a concrete and particularized injury due to
their inability to vote in federal elections via Illinois absentee ballot. Thus, the court need
not delve into the organizational plaintiffs’ membership to determine if those plaintiffs also
suffered an injury. The federal defendants’ arguments about the organizational plaintiffs’ standing
are unavailing.
2. Standing—Traceability

Next, the federal defendants argue that the plaintiffs lack standing to sue them (as opposed to the
state defendants based on Illinois MOVE) because the plaintiffs’ alleged injuries are not fairly
traceable to the UOCAVA. Specifically, the federal defendants assert that the UOCAVA does not
impose the voting disability of which plaintiffs complain; rather, according to the federal
defendants, that restriction results from requirements imposed by Illinois law, as well as
provisions of the Constitution, which delegate the authority to regulate voting in federal
elections to the states.
The federal defendants expressly state that their standing argument is based on traceability.7
The causation element of Article III standing requires the plaintiffs’ injury to be

7 Another court faced with a similar argument analyzed it under the injury-in-fact element of
standing. See Igartua v. United States, 86 F. Supp. 3d 50, 55 (D.P.R. 2015). (There are numerous
cases captioned Igartua, as that plaintiff filed a series of cases addressing voting rights of
United States citizens in Puerto Rico. The court will follow the parties’ numbering convention in
this opinion, but they do not cite to this particular Igartua case so it lacks a number).
Specifically, that court held that a claim that the UOCAVA was responsible for the inability of
United States citizens living in Puerto Rico to vote for representatives from Puerto Rico to the
United States House of Representatives did not rise to the level of an “invasion of a legally
protected interest” because the UOCAVA did not cause the plaintiffs’ injury. Id. (quoting

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“fairly traceable” to the defendants’ actions. Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618,
623 (7th Cir. 2014). To satisfy this standard, a plaintiff’s injury and a defendant’s conduct must
be causally connected. Id.; see also Indiana v. E.P.A., 796 F.3d 803, 809 (7th Cir. 2015) (quoting
Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454
U.S. 464, 485 (1982) (traceability exists when a plaintiff sustains an injury “‘as a consequence
of’ the challenged conduct”)). “If the independent action of some third party not before the court
causes [the plaintiff’s harm],” she cannot show traceability. Sierra Club v. Franklin Cnty. Power
of Illinois, LLC, 546 F.3d 918, 926 (7th Cir. 2008) (internal quotations omitted). Without
traceability, a plaintiff lacks standing. See, e.g., Cnty. of Cook v. HSBC N. Am. Holdings Inc.,
136 F. Supp. 3d 952, 959-60 (N.D. Ill. 2015).
The Constitution contains “no reference to the election of the President, which is by the electoral
college rather than by the voters at the general election; general elections for President were not
contemplated in 1787.” ACORN v. Edgar, 56 F.3d 791, 793 (7th Cir. 1995). Thus, the Constitution
does not give individual citizens a direct right to vote for President and Vice President. See id.
Instead, the Constitution gives this right to “Electors” appointed by “[e]ach State.” U.S. Const.
art. II, § 2; see also id. at amend. XII (“Election of President and Vice- President”). However,
the Supreme Court has held that “[h]istory has now favored the voter, and in each of the several
States the citizens themselves vote for Presidential electors.” Bush v. Gore, 531 U.S. 98, 104
(2000). With respect to the House of Representatives, the “People of the

Lujan, 504 U.S. at 560). This is, essentially, the federal defendants’ standing argument in this
case. Whether their argument is characterized as an alleged lack of injury-in-fact or
traceability, the result appears to be the same. In addition, the federal defendants do not rely
on the purported lack of an injury-in-fact. Thus, the court will not consider injury-in-fact.

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Several States” can choose the members. Id. at art. I, § 2, cl. 1-4. In turn, “[t]he Senate of the
United States shall be composed of two Senators from each state, elected by the people thereof
. . . . ” U.S. Const. amend. XVII.

The Constitution gives broad authority to states to regulate both state and federal elections. See
U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may
at any time by Law make or alter such Regulations, except as to the places of chusing Senators.”).
Article II section 1 provides that “Congress may determine the Time of chusing the Electors [for
President], and the Day on which they shall give their Votes; which Day shall be the same
throughout the United States.” ACORN, 56 F.3d at 793. “This provision has been interpreted to grant
Congress power over Presidential elections coextensive with that which Article I section 4 grants
it over congressional elections.” Id. (citing Burroughs v. United States, 290 U.S. 534 (1934)).
The federal defendants argue that in enacting the UOCAVA, “Congress contemplated that States, which
have the constitutional authority and duty to prescribe the time, place, and manner of voting in
federal elections in the first instance, would extend absentee voting rights as they deemed
appropriate.” (Dkt. 51 at 4-5.) In support, the federal defendants contend that UOCAVA’s
legislative history makes clear that a state can adopt voting practices which are less restrictive
than the practices prescribed by the UOCAVA. See H.R. Rep. No. 99-765, at 19 (1986), reprinted in
1986 U.S.C.C.A.N. 2009, 2023. They note that Illinois has done so by extending absentee voting
rights in federal elections to individuals who were eligible to vote when they resided in Illinois
and then moved to American Samoa. See 10 Ill. Comp. Stat.

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§ 5/20-1(1). Thus, they conclude that Illinois MOVE not UOCAVA bars the individual
plaintiffs from voting absentee in Illinois, because Illinois chose to extend the franchise to
qualified voters who move from Illinois to American Samoa, but did not include similarly situated
people who move to Puerto Rico, Guam, or the U.S. Virgin Islands. In other words, they
characterize the UOCAVA as a floor upon which states may build, as opposed to an independent cause
of the plaintiffs’ claimed injuries.
The federal defendants’ argument that UOCAVA provides a floor and does not prevent Illinois from
giving former Illinois residents in Puerto Rico, Guam, or the U.S. Virgin Islands the right to vote
in federal elections is besides the point. It is true that states are responsible for ensuring
compliance with the UOCAVA. See United States v. Alabama, 857 F. Supp. 2d 1236, 1239 (M.D. Ala.
2012) (“Alabama bears full responsibility for compliance with UOCAVA”).
The parties also agree that states, such as Illinois, not the federal government, control how
federal elections are conducted. However, the federal defendants have not identified any authority
that demonstrates that Illinois’ failure to extend voting rights insulates them from a
constitutional challenge to the UOCAVA’s scope or that Illinois’ control over aspects of the
methodology of the mechanics of voting and Illinois’ ability to expand who may vote means that the
plaintiffs fail to satisfy the traceability element of standing.
Indeed, the UOCAVA includes multiple provisions that require states to “extend additional
protections to the UOCAVA absentee voting process that they might not extend to other absentee
voters as a matter of state law.” Alabama, 778 F.3d at 929. For example, states must accept UOCAVA
registration forms and ballot requests received at least thirty days before any election. 52
U.S.C. § 20302(a)(2). States must allow UOCAVA voters to use federal

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write-in ballots. 52 U.S.C.§ 20302(a)(3). And states cannot enforce requirements regarding
notarization, paper type, or envelope type. 52 U.S.C. 20302(i). The presence of these provisions,
as well as the bedrock voting rights for certain overseas voters in the UOCAVA, show that the
statute consistent with the Constitution’s provisions about voting in federal elections
requires states to confer certain benefits on certain voters.
At least one court has held that in the context of a constitutional challenge to the UOCAVA,
Article II of the Constitution specifies that “only citizens residing in states can vote for
electors and thereby indirectly for the President.” Igartua De La Rosa v. United States (Igartua
I), 32 F.3d 8, 9-10 (1st Cir. 1994) (applying this rule to putative federal voters who are United
States citizens and reside in Puerto Rico); see also Attorney General of Guam on behalf of All U.S.
Citizens Residing in Guam, etc. v. United States, 738 F.2d 1017, 1019 (9th Cir. 1984) (applying
this rule to putative federal voters who are United States citizens and reside in Guam); Ballentine
v. United States, 486 F.3d 806, 810 (3d Cir. 2007) (applying this rule to putative federal voters
who are United States citizens and reside in the U.S. Virgin Islands). Igartua I, however, does not
stand for the proposition that plaintiffs mounting a challenge to the UOCAVA lacked standing to do
so based on traceability. Indeed, that court reached the merits of the plaintiffs’ claims and held
that under a rational basis standard, UOCAVA’s failure to extend the franchise to the plaintiffs
was constitutional. Igartua I, 32 F.3d at 11 (“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.”). Thus, Igartua I
and the federal defendants’ characterization of UOCAVA as a mere floor does not establish that the
plaintiffs’ claimed injuries are divorced from the UOCAVA.

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The fact that state law governs the mechanism by which former Illinois residents who are United
States citizens can cast absentee ballots and that UOCAVA’s legislative history indicates that
states may extend absentee voting rights to other individuals disenfranchised by the UOCAVA, such
as residents of American Samoa, also fails to show that the plaintiffs lack standing to challenge
the UOCAVA. See H.R. Rep. No. 99-765, at 19. As discussed above, the UOCAVA includes Puerto Rico,
Guam, the U.S. Virgin Islands, and American Samoa in its definition of state. Illinois MOVE,
however, carves out American Samoa. See 10 Ill. Comp.
Stat. § 5/20-1(1). Thus, an individual who was qualified to vote in a federal election in Illinois
can continue to vote in federal elections via an Illinois absentee ballot if she moves to American
Samoa, but not if she moves to Puerto Rico, Guam, or the U.S. Virgin Islands.
The federal defendants attempt, without the benefit of authority, to blame Illinois for this
situation. However, they are responsible for the terms of the UOCAVA, not Illinois. Illinois’
ability to provide redress does not insulate the federal defendants from liability. Relatedly,
while the federal defendants have no role in accepting or rejecting Illinois absentee ballots,
Illinois is bound by the floor that the federal defendants stress that the UOCAVA provides. If the
UOCAVA’s definition of “state” excluded Puerto Rico, Guam, and the U.S. Virgin Islands, the
individual plaintiffs would be qualified “overseas voters” under the UOCAVA. In that instance,
Illinois would have to allow the individual plaintiffs to cast Illinois absentee ballots in federal
elections.
For all of these reasons, the federal defendants’ claim that Illinois has the ability to broaden
the right to vote by absentee ballot to individuals who do not satisfy the UOCAVA does not absolve
them from potential liability under UOCAVA; at best, Congress has itself acted in a

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specific way and authorized the states to enact their own more expansive laws if they choose to do
so. The court fails to see how this destroys the plaintiffs’ standing to proceed with equal
protection and due process challenges to the UOCAVA against the federal defendants. The federal
defendants’ request to dismiss the plaintiffs’ claims against them or grant summary judgment based
on standing is denied.
IV. THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT

As is relevant here, the plaintiffs contend that the UOCAVA treats United States citizens who are
former Illinois residents who were qualified to vote in federal elections and who now reside in
United States Territories differently based on the territory in which they live and thus violates
their right to equal protection.8 The parties dispute the applicable standard of review: the
plaintiffs champion strict scrutiny based on their position that the UOCAVA infringes on

8 In their complaint, the plaintiffs allege that the UOCAVA and Illinois MOVE violate the equal
protection and due process guarantees in the Fifth and Fourteenth Amendments. (Dkt. 1 at ¶ 52.)
The plaintiffs’ memorandum in support of their motion for summary judgment (which they combine with
their response to the federal defendants’ motion to dismiss), however, refers only to equal
protection. In turn, the federal defendants’ filings refer generally to both equal protection and
due process. The gravamen of the plaintiffs’ complaint is that UOCAVA and Illinois MOVE treat
“similarly situated former state residents differently based on where they reside overseas.” (Dkt.
1 at ¶ 52.) Thus, the plaintiffs’ due process claim appears to be an equal protection claim recast
in due process terms. “[W]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that Amendment, not the
more generalized notion of substantive due process, must be the guide for analyzing these claims.”
See County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). The parties’ briefs do not address the
viability of a standalone due process claim against the federal defendants. As the court lacks the
benefit of the parties’ views and the plaintiffs’ complaint focuses on equal protection, the court
will likewise focus on the plaintiffs’ equal protection claim against the federal defendants at
this point in the proceedings. The court also expressly declines to consider the plaintiffs’
arguments about the constitutionality of Illinois MOVE at this time, as they are not properly
before the court in connection with motions directed at the federal defendants based on the UOCAVA.

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their fundamental right to vote.9 In contrast, the federal defendants contend that the court
should consider whether the UOCAVA’s treatment of certain overseas voters has a rational basis.
The parties also dispute whether, under their desired standard of review, the challenged portions
of UOCAVA are constitutional. As discussed below, rational basis review applies and the challenged
portions of the UOCAVA satisfy that undemanding standard.
This conclusion does not reflect the court’s view that the current scheme is desirable or proper.
See generally Igartua v. United States, 626 F.3d 592, 594 (1st Cir. 2010) (holding that “the U.S.
Constitution does not give Puerto Rico residents the right to vote for members of the

9 Strict scrutiny also applies to laws that draw distinctions based on suspect categories such as
race, religion, and national origin. See, e.g., Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 943
(7th Cir. 2009). The plaintiffs, who now reside in Puerto Rico, Guam, and the U.S. Virgin Islands,
base their contention that strict scrutiny applies on what they characterize as their fundamental
right to vote in federal elections via Illinois absentee ballot, since they were qualified to vote
in federal elections when they lived in Illinois. Thus, the court will similarly confine its
consideration. However, it notes that the status of unincorporated territories is based, in
significant part, on the so-called Insular Cases, which state that the United States’ possessions
are “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation,
and modes of thought.” Downes v. Bidwell, 182 U.S. 244, 287 (1901). “It could be argued that
because a large segment of the population of the territories is Latino, black, or of Pacific
Islander or Asian extraction, the exclusion of U.S. citizens residing in the territories from the
vote for electors to the electoral college therefore has a disproportionately discriminatory
effect.” Romeu
v. Cohen, 265 F.3d 118, 133 (2d Cir. 2001) (Walker, C.J. concurring). This is consistent with the
description of the Insular Cases as establishing a race-based doctrine of “separate and unequal”
status for residents of overseas United States Territories. See Paeste v. Gov’t of Guam, 798 F.3d
1228, 1231 (9th Cir. 2015) (“the so-called ‘Insular Cases’ . . . established a less-than-complete
application of the Constitution in some U.S. territories”); Igartua-De La Rosa v. United States,
417 F.3d 145, 162 (1st Cir. 2005) (with respect to Puerto Rico, “There is no question that the
Insular Cases are on par with the Court’s infamous decision in Plessy v. Ferguson in licen[s]ing
the downgrading of the rights of discrete minorities within the political hegemony of the United
States”); Ballentine v. United States, No. CIV. 1999-130, 2001 WL 1242571, at *7 (D.V.I. Oct. 15,
2001) (“Those who may not realize the extent to which the current status of the Virgin Islands
depends on an entirely repugnant view of the people who inhabited the Virgin Islands at the time of
their acquisition are invited to read the Insular Cases”). But this issue is not presently before
the court as the plaintiffs do not argue that strict scrutiny applies because a suspect class is at
issue.

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House of Representatives because Puerto Rico is not a state” and noting that “the Constitution does
not permit granting such a right to the plaintiffs by means other than those specified for
achieving statehood or by amendment”). It must be said that the current voting situation in Puerto
Rico, Guam, and the U.S. Virgin Islands is at least in part grounded on the Insular Cases, which
have been described as “establish[ing] a less-than-complete application of the Constitution in some
U.S. territories,” Paeste, 798 F.3d at 1231, based on explicitly racist views which “in today’s
world seem bizarre.” José Trias Monge, Injustice According to Law: The Insular Cases and Other
Oddities, in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution,
228 (Duke 2001).
The inconsistencies between the constitutional rights afforded to United States citizens living in
states as opposed to territories have “been the subject of extensive judicial, academic, and
popular criticism.” Id. (citing Juan Torruella, The Insular Cases: The Establishment of a Regime of
Political Apartheid, 77 Rev. Jur. U.P.R. 1 (2008); Last Week Tonight with John Oliver: U.S.
Territories, Youtube (https://www.youtube.com/watch?v CesHr99ezWE)); see also Igartua De La Rosa
v. United States (Igartua II), 229 F.3d 80, 85-90 (1st Cir. 2000) (Torruella, J., concurring).
Earlier this year, Senator Elizabeth Warren spoke out about the impact that the lack of voting
rights has on United States citizens residing in Puerto Rico, Guam, and the U.S. Virgin Islands,
calling the current situation “absurd” and noting that these individuals have “second class
citizen” status that has “real implications” for their lives. https://www.facebook.
com/senatorelizabethwarren/ videos/vb.131559043673264/580677832094714/?type 2&theater. The episode
entitled Island of Warriors for PBS’ America By the Numbers highlights the

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struggles of veterans in Guam, and asks if they have been forsaken by the country they swore to
defend. http://www.pbs.org/wgbh/ america-by-the-numbers/episodes/episode-102/.
This court’s task, however, is not to opine on the wisdom or fairness of the challenged portions of
the UOCAVA. It can determine only the proper standard of review and then apply that standard to
the plaintiffs’ equal protection claim. The court thus turns to these questions.
A. Legal Standard

The federal defendants filed a Rule 12(b)(6) motion to dismiss followed by a motion for summary
judgment. The plaintiffs filed a cross-motion for summary judgment directed at their claims
against the federal defendants. As both sides submitted Local Rule 56.1 statements of fact that
expand on the factual allegations in the complaint, the court will consider those statements and
apply the summary judgment standard. Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In resolving summary judgment motions, “facts
must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’
dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007).
B. Standard of Review: Strict Scrutiny or Rational Basis?

When evaluating an equal protection claim, the court must first determine the appropriate standard
of review. See Dunn v. Blumstein, 405 U.S. 330, 335 (1972). The plaintiffs assert that strict
scrutiny applies because the UOCAVA treats former Illinois residents who were eligible to vote in
federal elections when they lived in Illinois, but who currently live in territories,

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differently depending on where they reside. Specifically, the plaintiffs take issue with the fact
that the UOCAVA compels Illinois to allow former Illinois residents who currently reside in the NMI
and who were qualified to vote in federal elections when they lived in Illinois to cast Illinois
absentee ballots but allows Illinois to deny the franchise to similarly situated individuals who
reside in Puerto Rico, Guam, and the U.S. Virgin Islands. According to the plaintiffs, the
UOCAVA’s “selective enfranchisement” of NMI absentee voters means that Congress singled out
Illinois absentee voters in Puerto Rico, Guam, and the U.S. Virgin Islands for disfavored
treatment, thereby depriving them of the fundamental right to vote. Based on this reasoning, the
plaintiffs conclude that strict scrutiny applies.
1. The Rational Basis and Strict Scrutiny Standards

“Laws duly enacted by the legislature come to court with a presumption of constitutional validity,
but the level of scrutiny brought to bear on these laws varies.” One Wisconsin Inst., Inc. v.
Nichol, 155 F. Supp. 3d 898, , No. 15 C 324, 215 WL 9239014, at *2 (W.D. Wis. 2015)
(citing Heller v. Doe by Doe, 509 U.S. 312, 319 (1993)). If a law burdens a fundamental right, it
“is subject to strict scrutiny, meaning that the discriminatory action is permissible only if it is
narrowly tailored to address a compelling state interest.” Better Broadview Party v. Walters, No.
15 C 2445, 2016 WL 374144, at *6 (N.D. Ill. Feb. 1, 2016) (citing Illinois State Bd. of Elections
v. Socialist Workers Party, 440 U.S. 173, 184 (1979) (“Restrictions on access to the ballot burden
two distinct and fundamental rights . . . . When such vital individual rights are at stake, a State
must establish that its classification is necessary to serve a compelling interest.”)).

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If no fundamental right is at issue, rational basis review under which a law is constitutional
if a plausible rational explanation supports it applies. Heller, 509 U.S. at 320. Thus, the
Supreme Court “many times [has] said” that:
[R]ational-basis review in equal protection analysis is not a license for courts to judge the
wisdom, fairness, or logic of legislative choices. Nor does it authorize the judiciary to sit as a
superlegislature to judge the wisdom or desirability of legislative policy determinations made in
areas that neither affect fundamental rights nor proceed along suspect lines. For these reasons, a
classification neither involving fundamental rights nor proceeding along suspect lines is accorded
a strong presumption of validity.

Id. at 319 (internal quotations, alterations, and citations omitted). “[R]ational basis review
focuses on the [government’s] justification for its actions, rather than on plaintiffs’
disagreement with those actions.” One Wisconsin Inst., Inc. v. Thomsen, No. 15-CV-324-JDP, 2016 WL
4059222, at *53 (W.D. Wis. July 29, 2016). Thus, the court must determine if “a rational
relationship between the disparity of treatment and some legitimate governmental purpose” exists.
Heller, 509 U.S. at 320.
2. Does the UOCAVA Affect a Fundamental Right?

Generally, the right to vote is both “precious” and “fundamental.” Harper v. Va. State Bd. of
Elections, 383 U.S. 663, 670 (1966). Nevertheless, as discussed above, to the extent that the
Constitution implicitly confers a right to vote on individuals, as opposed to giving the states
“broad authority to regulate the conduct of elections, including federal ones, Griffin v. Roupas,
385 F.3d 1128, 1130 (7th Cir. 2004), that right is conferred on citizens of a state. See Bush, 531
U.S. at 104 (citizens of “the several States . . . vote for Presidential electors”); U.S. Const.
art. I,

§ 2, cl. 1-4 (the “People of the Several States” choose the members of the House of

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Representatives); U.S. Const. amend. XVII (“[t]he Senate of the United States shall be composed of
two Senators from each state, elected by the people thereof . . . . ”).
Citizens residing in territories do not have a constitutional right to vote as citizens of a state
do. See Igartua II, 229 F.3d at 83 (holding that “Puerto Rico, which is not a State, may not
designate electors to the electoral college” so “residents of Puerto Rico have no constitutional
right to participate in the national election of the President and Vice-President”); Igartua-De La
Rosa v. United States, 417 F.3d 145, 148 (1st Cir. 2005) (en banc) (“That the franchise for
choosing electors is confined to ‘states’ cannot be ‘unconstitutional’ because it is what the
Constitution itself provides. Hence it does no good to stress how important is ‘the right to vote’
for President”).
Without a constitutional right, there can be no fundamental right. See Echavarria v. Washington,
No. 1:16-CV-107, 2016 WL 1592623, at *3 (W.D. Mich. Apr. 21, 2016) (“A
fundamental right is not at issue in this case because there is no constitutional right to release
on parole”); Wolfe v. Alexander, No. 3:11-CV-0751, 2014 WL 4897733, at *11 (M.D. Tenn. Sept. 30,
2014) (because there is “no constitutional right to be free of health-based dietary restrictions in
prison . . there is no right being burdened, much less a fundamental right”); Gutierrez v. Corr.
Corp. of Am., No. 3:13CV98-MPM-DAS, 2013 WL 1800205, at *2 (N.D. Miss. Apr. 29, 2013)
(“No fundamental right is implicated in this case, as there is no constitutional right to watch
television”); Thomas v. Rayburn Corr., No. CIV.A. 07-9203, 2008 WL 417759, at *3 (E.D. La. Feb. 13,
2008) (“The fact that the homosexual prisoners are currently housed in a non-working cell block
likewise implicates no fundamental right, because a prisoner has no constitutional right to a
prison job.”). This is critical, as only “[t]he guaranties of certain fundamental personal rights

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declared in the Constitution” apply to the territories. Balzac v. Porto Rico, 258 U.S. 298, 312-13
(1922); see also Wal-Mart Puerto Rico, Inc. v. Juan C. Zaragoza-Gomez, No. 3:15-CV-03018 (JAF),
2016 WL 1183091, at *46 (D.P.R. Mar. 28, 2016) (quoting Puerto Rico v. Branstad, 483
U.S. 219, 229 (1987) (“The United States Supreme Court has ‘never held that the Commonwealth of
Puerto Rico is entitled to all the benefits conferred’ and limitations placed ‘upon the States
under the Constitution.’”).10
The plaintiffs do not dispute that, as a general proposition, United States citizens residing in
territories have no constitutional right to vote in federal elections. Instead, they say that this
point is irrelevant because the UOCAVA allows individuals who were qualified to vote in federal
elections when they resided in Illinois but now reside in the NMI to continue to vote in federal
elections via Illinois absentee ballot but does not allow similarly situated individuals who moved
from Illinois to Puerto Rico, Guam, or the U.S. Virgin Islands to vote in federal elections via
Illinois absentee ballot. According to the plaintiffs, this differing treatment of former Illinois
voters based on the territories they move to merits strict scrutiny.
First, where there is no constitutionally protected right to vote, a state’s law “extend[ing] the
right to vote to some non-residents does not implicate strict scrutiny.” See Snead v. City of
Albuquerque, 663 F. Supp. 1084, 1087 (D.N.M.) (rejecting a challenge to a state law extending

10 It is true that some courts have held that “only fundamental constitutional rights necessarily
apply in the territories.” Davis v. Commonwealth Election Comm’n, No.
1-14-CV-00002, 2014 WL 2111065, at *3 (D. N. Mar. I. May 20, 2014) (citing Wabol v.
Villacrusis, 958 F.2d 1450, 1459 (9th Cir. 1990); Wal-Mart Puerto Rico, 2016 WL 1183091, at
*46 (“To this day, only ‘fundamental’ constitutional rights are guaranteed to inhabitants of
territories.”) (internal quotations and alterations omitted). However, as discussed in the text, a
right cannot be fundamental unless it is also constitutional.

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the right to vote in municipal bond elections to certain non-residents), aff’d by 841 F.2d 1131
(10th Cir. 1987) (unpublished order).
Second, the plaintiffs’ authority supporting their contention that strict scrutiny applies because
they have a fundamental right to vote all involves residents of a state.11 Based on this
authority, the plaintiffs conclude that the UOCAVA allows some citizens (former Illinois residents
who live in foreign countries and the NMI) to vote via absentee ballot but denies the franchise to
others (former Illinois residents who live in territories other than the NMI). See Dkt. 48 at 8-9.
But as discussed above, 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. An Illinois citizen who is qualified to vote in a federal election has a
fundamental right to vote. In contrast, because Puerto Rico, Guam, and the U.S. Virgin Islands are
territories, not states, the fact that the individual plaintiffs are United States citizens who
used to be able to vote in Illinois does not mean that they retain their fundamental right to vote
when they move from Illinois to Puerto Rico, Guam, or the U.S. Virgin Islands. See generally Tuaua,
788 F.3d at 307-08 (rejecting the claim that “non citizen nationals” born in American Samoa have a
constitutional right to United States citizenship where the plaintiffs’ cases supporting their
claim of a fundamental right to citizenship “do not arise in the territorial context” and thus “do

11 The following are illustrative samples of the plaintiffs’ authority: Harper v. Virginia State
Bd. of Elections, 383 U.S. 663 (1966) (challenge to the constitutionality of Virginia’s poll tax),
Obama for Am. v. Husted, 697 F.3d 423, 425 (6th Cir. 2012) (challenge to an Ohio law that prevented
certain voters from casting in-person early ballots), Dunn v. Blumstein, 405 U.S. 330, 336 (1972)
(in the context of a challenge to durational residence requirements, holding that “[i]n decision
after decision, this Court has made clear that a citizen has a constitutionally protected right to
participate in elections on an equal basis with other citizens in the jurisdiction”), and Burdick
v. Takushi, 504 U.S. 428, 434 (1992) (challenge to Hawaii’s prohibition on write-in voting).

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not reflect the [Supreme] Court’s considered judgment as to the existence of a fundamental right to
citizenship for persons born in the United States’ unincorporated territories”).
The plaintiffs also direct the court’s attention to Dunn, a Supreme Court case that holds that
challenges to voting restrictions always merit strict scrutiny. 405 U.S. at 337 (“if a challenged
statute grants the right to vote to some citizens and denies the franchise to others, the Court
must determine whether the exclusions are necessary to promote a compelling state interest”)
(internal quotations omitted). The holding in Dunn, however, is not as broad as the plaintiffs
suggest. The Court made its comments in Dunn in the context of surveying “state statutes that
selectively distribute the franchise” to state voters, not statutes directed at United States
citizens residing in United States Territories. Id. at 336. Thus, the plaintiffs’ authority does
not engage with the federal defendants’ contention that residents of a United States Territory as
opposed to a state do not have a fundamental right to vote in federal elections. Without a
fundamental right (or a suspect class, which as discussed above, is not at issue in this case),
strict scrutiny is not triggered.
Further, the plaintiffs assert that strict scrutiny applies to laws that extend a benefit to one
class of individuals (here, United States citizens who were formerly qualified to vote in federal
elections in Illinois and who currently reside in the NMI) while depriving similarly situated
individuals (here, United States citizens who were formerly qualified to vote in federal elections
in Illinois and who currently reside in Puerto Rico, Guam, and the U.S. Virgin Islands) of that
same benefit. The plaintiffs’ authority, however, involves a challenge to a law that provided
benefits to men but not women. Frontiero v. Richardson, 411 U.S. 677, 682 (1973). The Court held
that the law was subject to “close judicial scrutiny” because classifications based on sex,

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like classifications based on race, alienage, and national origin, are subject to strict scrutiny.
Id. The plaintiffs here have not argued that they belong to a protected class and that the UOCAVA
unconstitutionally discriminated based on their membership in that class.12
The federal defendants’ cases are similarly unhelpful, albeit for a different reason. On a
positive note, their cases involve territories.13 However, they all involve “a constitutional
attack upon a law providing for governmental payments of monetary benefits.” Califano, 435 U.S. at
5. This type of statute “is entitled to a strong presumption of constitutionality.” Id. (internal

12 The court does not express any views on this subject, as the plaintiffs have not raised it and
the parties have not briefed it.

13 The Territory Clause gives Congress the “Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United States; and nothing
in this Constitution shall be construed as to Prejudice any Claims of the United States, or of any
particular State.” U.S. Const., Art. IV, § 3, cl. 2. In Harris v. Rosario, cited by the federal
defendants, the Supreme Court held that the Territory Clause authorized Congress to set a lower
statutory limitation on Aid to Families with Dependent Children payments to residents of Puerto
Rico. 446 U.S. 651, 651 (1980) (per curiam). The Court rejected an equal protection challenge,
concluding that Congress “may treat Puerto Rico differently from States [under the Territory
Clause] so long as there is a rational basis for its actions.” Id. at 651-52. The Court then
concluded that the challenged statute satisfied rational basis review because “Puerto Rican
residents do not contribute to the federal treasury; the cost of treating Puerto Rico as a State
under the statute would be high; and greater benefits could disrupt the Puerto Rican economy.” Id.
(citing Califano v. Torres, 435 U.S. 1 (1978) (per curiam)). Similarly, in Besinga
v. United States, also cited by the federal defendants, the Ninth Circuit held that “the broad
powers of Congress under the Territory Clause are inconsistent with the application of heightened
judicial scrutiny to economic legislation pertaining to the territories.” 14 F.3d 1356, 1360 (9th
Cir. 1994). And in Quiban v. Veterans Admin., the court held that “the Territory Clause permits
exclusions or limitations directed at a territory [regarding certain veterans’ benefits] . . . so
long as the restriction rests upon a rational base.” 928 F.2d 1154, 1161 (D.C. Cir. 1991); see
also Consejo de Salud Playa de Ponce v. Rullan, 586 F. Supp. 2d 22, 26 (D.P.R. 2008) (with respect
to certain Medicaid payments, “[i]n an unincorporated United States territory Congress can also
discriminate against the territory and its citizens so long as there exists a rational basis for
such disparate treatment”).

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quotations omitted). In contrast, in this case, the right to vote, as opposed to a claim to
monetary benefits, is at issue.14
The plaintiffs’ challenge to UOCAVA’s differing treatment of the NMI versus other United States
Territories appears to be an issue of first impression. Given this, the court turns to principles
that are generally applicable to constitutional challenges involving territories. “[T]he
Constitution does not apply in full to acquired territory until such time as the territory is
incorporated into, or made a part of the United States by Congress.” United States v.
Lebron-Caceres, No. CR 15-279 (PAD), 2016 WL 204447, at *7 (D.P.R. Jan. 15, 2016) (citing
Boumediene v. Bush, 553 U.S. 723, 757-758 (2008); Torres v. Commonwealth of Puerto Rico, 442 U.S.
465, 469 (1979)). The NMI, Puerto Rico, Guam, and the U.S. Virgin Islands are all unincorporated
territories. Id. (collecting cases). For unincorporated territories:
Congress is not restricted except in 2 instances: (1) where constitutional provisions flatly
prohibit Congress from enacting certain types of laws; and (2) in case of fundamental
constitutional rights.” See United States v.
Verdugo-Urquidez, 494 U.S. 259, 268 (1989). Otherwise, Congress may treat territories differently
than states provided it has a rational basis for that treatment. Harris, 446 U.S. at 651. In this
sense, unincorporated territories are subject to the plenary power of Congress subject to (1)
structural constitutional limitations; (2) fundamental constitutional rights; and (3) the need for
a rational basis for congressional action.

14 Relatedly, the federal defendants also contend that even outside the context of United States
Territories, heightened scrutiny does not apply to every voting regulation limiting the franchise.
In support, they cite authority about state restrictions that limit the ability to vote. See, e.g.,
Green v. City of Tucson, 340 F.3d 891, 899 (9th Cir. 2003) (holding that state “[e]lection laws
will invariably impose some burden on individual voters” but this does not mean that “every voting
regulation [is subject] to strict scrutiny” and must “be narrowly tailored to advance a compelling
state interest”). This line of cases does not engage with the plaintiffs’ position that the UOCAVA
is subject to strict scrutiny because it treats the NMI differently than other United States
Territories by extending the franchise for federal elections to former state residents who reside
in the NMI while refusing to allow similarly situated residents of Puerto Rico, Guam, and the U.S.
Virgin Islands to vote.

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Id. The court has already found that the individual 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. See Sweeney v. Pence, 767 F.3d
654, 668 (7th Cir. 2014) (“[e]qual protection scrutiny is triggered when a regulation draws
distinctions among people based on a person’s membership in a suspect class or based on a denial of
a fundamental right”) (internal quotations omitted).
In addition, as noted above, the Territory Clause specifically authorizes Congress to make rules
and regulations respecting territories. U.S. Const. art. IV, § 3. The UOCAVA applies to United
States Territories and “does not distinguish 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 within the United States. Given that such a
distinction neither affects a suspect class nor infringes a fundamental right, it need only have a
rational basis to pass constitutional muster.” Igartua I, 32 F.3d at 10; see also Romeu v. Cohen,
265 F.3d 118, 124 (2d Cir. 2001) (holding 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”). The plaintiffs here focus on the UOCAVA’s
distinction between the NMI versus Puerto Rico, Guam, and the U.S. Virgin Islands, as opposed to
the distinction between citizens residing in territories and citizens residing in states that was
drawn in Igartua I and Romeu. Neither distinction, however, infringes upon a fundamental right,
which is the basis for the plaintiffs’ position regarding strict scrutiny.
More generally, “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.”

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Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) (internal quotations and citations omitted).
Instead, “it is well-established that ‘reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative mind’ without creating an equal
protection violation.” Lamers Dairy Inc. v. U.S. Dep’t of Agr., 379 F.3d 466, 475 (7th Cir. 2004)
(quoting Williamson v. Lee Optical, Inc., 348 U.S. 483, 489 (1955)). Thus, the fact that Congress
drew a distinction between United States citizens/former state residents now residing in the NMI
versus United States citizens/former state residents who now reside in other territories does not
mean that it was required to extend absentee voting across the board to all territories.
Accordingly, the UOCAVA’s differing treatment of the NMI versus Puerto Rico, Guam, and the

U.S. Virgin Islands does not trigger strict scrutiny.

C. The UOCAVA: Rational Basis Review Applied to the Plaintiffs’ Equal Protection Claim

First, the plaintiffs argue that the challenged portions of the UOCAVA are not supported by a
“compelling state interest.” (Dkt. 48 at 11.) This is not the appropriate standard for rational
basis review. See, e.g., Heller, 509 U.S. at 320.
Second, the plaintiffs argue that the UOCAVA impermissibly gives the NMI “favored status” among
territories. (Dkt. 48 at 12.) As the federal defendants correctly note, however, the NMI’s
historical relationship with the United States is consistent with the UOCAVA’s treatment of the
NMI. The NMI are a chain of islands “strategic[ally] located” in the North Pacific Ocean in the
area known as Micronesia. See https://www.cia.gov/library/publications/the-world- factbook/
geos/cq.html; United States v. Lebron-Caceres, No. CR 15-279 (PAD), 2016 WL 204447, at *14 (D.P.R.
Jan. 15, 2016). The NMI are just north of Guam, which is also located in

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the Mariana Islands chain but is politically separate. See https://www.britannica.com/place/
Northern-Mariana-Islands.
Stepping back in time:

Spain controlled [the NMI] from the sixteenth century until the Spanish American War. In 1898
after the war ended, Spain ceded Guam to the United States and sold the rest of the Marianas to
Germany. Saipan v. Director, 133 F.3d 717, 720 (9th Cir. 1998). Germany’s brief control ended
with the commencement of World War I, when Japan took possession of all islands except Guam. Id.
After World War I, Japan continued to govern most of what is now considered Micronesia, including
the Northern Mariana Islands, under a mandate from the League of Nations. Gale v. Andrus, 643 F.2d
826, 828 (D.C. Cir. 1980).

Lebron-Caceres, 2016 WL 204447, at *14.

After World War II, the United States administered the Trust Territory of the Pacific Islands,
which included all of the islands in the Mariana Island archipelago, pursuant to a Trusteeship
Agreement with the United Nations Security Council. Mtoched v. Lynch, 786 F.3d 1210, 1213 (9th Cir.
2015). “In 1969, the United States began negotiations with the inhabitants of the Trust Territory
directed to establishment of a framework for transition to constitutional self-government and
future political relationships.” Lebron-Caceres, 2016 WL 204447, at *14. During the negotiations,
the islands comprising the Trust Territories divided into four groups: the NMI, the Federated
States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau. Id.
Although the other portions of the Trust Territories opted for independent statehood or “free
association,” the NMI:
elected to enter into a closer and more lasting relationship with the United States. Years of
negotiation culminated in 1975 with the signing of the Covenant to Establish a Commonwealth of the
Northern Mariana Islands in Political Union with the United States (hereinafter ‘Covenant’). Pub.
L. 94-241, 90 Stat. 263

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(1976). After a period of transition, in 1986 the trusteeship terminated, and [the NMI] was fully
launched.

Mtoched, 786 F.3d at 1213; see also Howard P. Willens & Deanne C. Siemer, An Honorable Accord: The
Covenant Between the Northern Mariana Islands and the United States 350-52 (2002). The parties
agree that the Covenant became fully effective as of 12:01 a.m. on November 4, 1986 (approximately
three months after Congress passed the UOCAVA).15 On December 22, 1990, the United Nations
Security Council officially terminated the United Nations Trusteeship Agreement between the Pacific
Trust Territories, the United States, and the United Nations Security Council.
The Overseas Citizens Voting Rights Act of 1975 and UOCAVA were passed in 1976 and 1986,
respectively, and neither included the NMI as part of the definition of the “the United States.”
At the time of the UOCAVA’s enactment, NMI was not yet a United States Territory, as the parties’
summary judgment submissions (which are consistent with the court’s research) indicate that the
Trusteeship Agreement under which NMI was supervised by the United Nations was still in effect, and
the Covenant under which NMI became a United States Territory and

15 See http://www.lawsource.com/also/usa.cgi?xcm for a helpful collection of links to
proclamations concerning the NMI, including Proclamation No. 5564, dated November 3, 1986. This
proclamation is entitled “Placing into Full Force and Effect the Covenant with the Commonwealth of
the Northern Mariana Islands, and the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands.” In that proclamation, then-President Reagan
stated, “ I determine that the Trusteeship Agreement for the Pacific Islands is no longer in effect
as of . . . November 3, 1986, with respect to the Northern Mariana Islands.” Proclamation No.
5564 at § 1. He also stated that “[t]he Commonwealth of the Northern Mariana Islands in political
union with and under the sovereignty of the United States of America” and that “[t]he domiciliaries
of the Northern Mariana Islands are citizens of the United States” as specified in the Covenant.
Id. at § 2. Finally, he “welcome[d] the Commonwealth of the Northern Mariana Islands into the
American family and congratulate[d] our new fellow citizens.” Id.

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granted American citizenship to its residents was not fully effectuated. Accordingly, a rational
reason supports the UOCAVA’s exclusion of the NMI   which was not yet a United States Territory and
had a unique relationship with the United States    from its definition of the territorial limits
of the United States.
To 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.”
One Wisconsin Inst., 2016 WL 4059222, at *53; Heller, 509 U.S. at 320-21 (the party challenging a
statute must negate “every conceivable basis which might support it . . . whether or not the basis
has a foundation in the record”). So even if the court accepts the plaintiffs’ contention that “the
NMI carve-out” in the UOCAVA was a “product of historical timing” and not a deliberate choice by
Congress (Dkt. 58 at 7), the so-called “historical timing” supports the UOCAVA’s constitutionality.
See City of Chicago v. Shalala, 189 F.3d 598, 605 (7th Cir. 1999) (holding that “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” so “[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”); see also F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)
(the legislature need not “articulate its reasons for enacting a statute, it is entirely irrelevant
for constitutional purposes whether the conceived reason for the challenged distinction actually
motivated the legislature”); Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 946-47 (7th Cir. 2009)
(“any rational basis will suffice, even one that was not articulated at the time the disparate
treatment occurred”).

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Next, the plaintiffs approach Congressional purpose from a different angle, contending that
Congress expressed its rationale for promoting overseas voting rights in the legislative history of
the Overseas Citizens Voting Rights Act of 1975, UOCAVA’s predecessor statute. The plaintiffs
highlight the following legislative history:
At present, even if a private citizen residing outside the United States could honestly declare an
intent to return to the State of his last residence, he would have a reasonable chance to vote in
Federal elections only in the 28 States and the District of Columbia which have statutes expressly
allowing absentee registration and voting in Federal elections for citizens “temporarily
residing”outside the United States. The remaining 22 States do not have specific provisions
governing private citizens temporarily residing outside the United States. Furthermore, all 50
States and the District of Columbia impose residency requirements which private citizens outside
the country for more extended periods cannot meet.

The committee has found this treatment of private citizens outside the United States to be highly
discriminatory. Virtually 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. In the case of these Government personnel, however, the presumption is that the voter
does intend to retain his prior State of residence as his voting domicile unless he specifically
adopts another State residence for that purpose. This presumption in favor of the Government
employee operates even where the chances that the employee will be reassigned back to his prior
State of residence are remote. The committee considers this discrimination in favor of Government
personnel and against private citizens [that violates] the equal protection clause of the 14th
amendment.

H.R. REP. 94-649, pt. 1, at 2, 1975 U.S.C.C.A.N. 2358, 2359-60. According to the plaintiffs, this
shows that Congress intended the UOCAVA (the Act’s successor statute) to extend the federal voting
franchise to each and every overseas voter who is a United States citizen and a former resident of
a state, regardless of the location of their current overseas residence.
The Overseas Citizens Voting Rights Act of 1975 defined “United States” as “the several States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin

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Islands” but not “American Samoa, the Canal Zone, the Trust Territory of the Pacific Islands, or
any other territory or possession of the United States.”16 89 Stat. at 1142. Thus, it
differentiated between (1) the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin
Islands,
(2) the Canal Zone (which ended its relationship with the United States in 1979,
https://www.britannica.com/place/Canal-Zone), American Samoa (whose residents are United States
nationals, not citizens, Tuaua, 788 F.3d at 302), and the now-former Trust Territory of the Pacific
Islands (which included the NMI); and (3) other United States Trust Territories or possessions. The
plaintiffs appear to be asserting that the court should strike down the relevant portions of UOCAVA
for lack of a rational basis based on Congress’ intent as purportedly expressed in the 1975
legislative history for the UOCAVA’s predecessor statute, and find that Congress actually meant to
treat voters in all overseas locations alike when it enacted the UOCAVA. This is at odds with the
language of the Overseas Citizens Voting Rights Act of 1975 as well as the UOCAVA’s language.17
See Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc.,

16 The Twenty-Third Amendment, passed in 1961, created the means by which the residents of the
District of Columbia vote in Presidential elections.

17   The plaintiffs repeatedly contend that the Overseas Citizens Voting Rights Act of 1975
“excluded former state citizens residing [in NMI] from the right to vote in federal elections in
their prior states of residence.” (Dkt. 48 at 12) (emphasis in original.) They then conclude that
“the federal defendants’ argument    that the NMI was not addressed [in the UOCAVA] simply because
it did not yet exist or have an established relationship with the United States    is wrong as a
matter of history.” (Id. at 13.) In support, the plaintiffs contend that the 1975 Act provides
that citizens who “maintain a domicile . . . in any territory or possession of the United
States”    which the plaintiffs claim includes the NMI   cannot vote in federal elections in their
former state of residence. Id. at § 3(2). However, the 1975 Act allowed former state residents
residing in the NMI to vote absentee in federal elections as its definition of “United States”
specifically excluded “the Trust Territory of the Pacific Islands.” See P.L. 94-203, § 2(3). Thus,
the 1975 Act treated the islands comprising the Trust Territory of the Pacific Islands like a
foreign country because they were not United States Territories (and indeed, other than the NMI,
none of the trust territories ever became United States Territories). The plain language of the

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469 U.S. 189, 194 (1985) (“Statutory construction must begin with the language employed by Congress
and the assumption that the ordinary meaning of that language accurately expresses the legislative
purpose”).
Next, the court agrees with the federal defendants that Congress could have reasonably concluded
that because the NMI is the only United States Territory that used to be a Pacific Trust Territory
and, as of the date of the UOCAVA’s enactment, was not yet a United States Territory, it was more
analogous to a foreign country, as opposed to the United States Territories of Puerto Rico, Guam,
and the U.S. Virgin Islands. As noted above, the other Pacific Trust Territory Islands (the
Federated States of Micronesia, Palau, and the Marshall Islands) chose independent statehood or
“free association,” but the NMI entered into a covenant with the United States that set forth
specific parameters of the relationship. Com. of N. Mariana Islands v. Atalig, 723 F.2d 682, 691
(9th Cir. 1984); An Honorable Accord, at 57-194.
In doing so, the NMI’s status as a former Trust Territory informed its relationship with the United
States. When the United States administered the Trust Territories, it did so “based upon the
President’s treaty power conferred in Article II, Section 2, cl. 2 of the Constitution, rather than
under the authority conferred upon Congress by the Territorial Clause.”
Lebron-Caceres, 2016 WL 204447, at *14. Thus, the United States acted as a trustee, not a sovereign
power; “[i]ts authority derived from the trust itself.” Id. (citations omitted).

Overseas Citizens Voting Rights Act of 1975’s reference to “any other territory or possession of
the United States” did not bar former Illinois residents now living in the NMI from voting, given
its specific language granting that right to the “Trust Territory of the Pacific Islands,” which
included the NMI. See Loughrin v. United States, U.S. , 134 S. Ct. 2384, 2390 (2014)
(“courts must give effect, if possible, to every clause and word of a statute”) (internal
quotations and citation omitted).

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Accordingly, “the Trust Territory was not considered a territory or an insular possession of the
United States.” Id. (collecting cases). “And so in approving the Covenant with the Northern
Mariana Islands, the federal government was constrained by the Trusteeship Agreement.” Id.
(citations omitted).
“In contrast, the sovereignty held by Spain over Puerto Rico was formally transferred to the United
States by way of the Treaty of Paris” and “[s]ince then, the United States has administered Puerto
Rico through legislation enacted under the Territorial Clause. Id. The United States acquired Guam
in 1898 when, during the Spanish-American War, Spain ceded Guam to the United States. See United
States v. Vega Figueroa, 984 F. Supp. 71, 77 (D.P.R.
1997). The United States purchased the U.S. Virgin Islands in 1917. Id.; An Honorable Accord, at
293.
Courts have concluded that the position that the NMI has a “political status . . . distinct from
that of unincorporated territories such as Puerto Rico” is “credible.” Com. of N. Mariana Islands,
723 F.2d at 691 n.28. The rationale for the distinction is that “[u]nder the trusteeship
agreement, the United States does not possess sovereignty over the NMI.” Id.; see also Davis, 2014
WL 2111065, at *1 (summarizing the history of the NMI and its political relationship with the
United States); Lebron-Caceres, 2016 WL 204447, at *14 (same). Instead, “[a]s a commonwealth, the
NMI [enjoys] a right to self-government guaranteed by the mutual consent provisions of the Covenant
. . . . No similar guarantees have been made to Puerto Rico or any other territory.” Com. of N.
Mariana Islands, 723 F.2d at 691 n.28; An Honorable Accord at 343 (“Against all odds, [the NMI]
accomplished what no people preceding them had ever done they joined the United States
voluntarily on terms they had negotiated and approved”).

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In addition, in 2008, the NMI first received a non-voting delegate in the House of Representatives.
48 U.S.C. § 1751 (2008). The NMI was entitled to a Resident Representative to Congress as early as
1978, but that Representative “ha[d] no official status in the Congress.”
H. Rep. No. 108-761, at 5 (2005); see also id. at 3 (describing the NMI as “the last and only
territory with a permanent U.S. population that has no permanent voice in Congress.”). The
plaintiffs say that this “reveal[s], at most, a pattern of unique dealings between the United
States and the NMI” and assert that this is not enough to survive rational basis review. (Dkt. 58
at 9.) But the NMI’s unique political status is a reason supporting its treatment in the UOCAVA, as
the plaintiffs can prevail only if they negate “every conceivable basis which might support it . .
. whether or not the basis has a foundation in the record.” Heller, 509 U.S. at 320-21; see also
One Wisconsin Inst., 2016 WL 4059222, at *53 (the rationality of a challenged statute can be based
on “any rational justification,” not merely the “the justifications that the legislature had in
mind at the time that it passed the challenged provisions”).
Moreover, until 2008, the NMI retained nearly exclusive control over immigration to the Territory.
The transition to the full application of federal “immigration laws,” as defined in
§ 101(a)(17) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(17), in the NMI will end on
December 31, 2019. 48 U.S.C. § 1806(a)(2) (“There shall be a transition period beginning on the
transition program effective date and ending on December 31, 2019, during which the Secretary of
Homeland Security, in consultation with the Secretary of State, the Attorney General, the Secretary
of Labor, and the Secretary of the Interior, shall establish, administer, and enforce a transition
program to regulate immigration to the Commonwealth, as provided in this section.”). The
plaintiffs have not pointed to any parallel provisions regarding

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immigration to Puerto Rico, Guam, and the U.S. Virgin Islands.

Finally, the court notes that the plaintiffs’ requested relief 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. Instead, if the plaintiffs prevail, former
Illinois residents who were qualified to vote in federal elections when they lived in Illinois who
then moved to Puerto Rico, Guam, and the U.S. Virgin Islands would be able to vote in federal
elections via Illinois absentee ballot. As another court considering a challenge brought by a
Puerto Rican resident who had previously lived and voted in New York to, among other things, the
UOCAVA’s provisions preventing him from voting for President via a New York absentee ballot after
he moved to Puerto Rico has stated:
if the UOCAVA had done what plaintiff contends it should have done namely, extended the vote in
federal elections to U.S. citizens formerly citizens of a State now residing in Puerto Rico while
not extending it to U.S. citizens residing in Puerto Rico who have never resided in a State the
UOCAVA would have created a distinction of questionable fairness among Puerto Rican U.S. citizens,
some of whom would be able to vote for President and others not, depending [on] whether they had
previously resided in a State. The arguable unfairness and potential divisiveness of this
distinction might be exacerbated by the fact that access to the vote might effectively turn on
wealth. Puerto Rican voters who could establish a residence for a time in a State would retain the
right to vote for the President after their return to Puerto Rico, while Puerto Rican voters who
could not arrange to reside for a time in a State would be permanently excluded.

Romeu, 265 F.3d at 125.18 That reasoning applies equally to Guam and the U.S. Virgin Islands.

18 Romeu centered on the plaintiff’s inability to vote after he moved from New York where he
was qualified to vote in federal elections to Puerto Rico. This case, in
contrast, centers on the differing treatment of Illinois qualified voters depending on the United
States Territory to which they move. This distinction does not affect the applicability of the
Romeu court’s observation to this case. As in Romeu, the relief requested by the plaintiffs in this
case would cause a similar inequality among United States citizens in Puerto Rico, Guam, and the
U.S. Virgin Islands depending on whether they had ever lived, or could arrange to live, in a state
and qualify to vote in federal elections there.

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It is rational, at least as the term is understood in the context of rational basis review, 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.19
For all of these reasons, the court finds that the UOCAVA’s challenged provisions survive rational
basis review. In reaching this conclusion, the court notes that it gave the parties’ arguments the
most serious consideration possible given the gravity of the plaintiffs’ constitutional claims.
However, the parties’ submissions were often repetitive and lacking in substance, and the parties
did not take full advantage of their ability to file written submissions adequately addressing the
interesting, novel, and complex issues presented by this case.
IV. CONCLUSION

For the above reasons, the federal defendants are entitled to summary judgment as to the
plaintiffs’ equal protection claim based on the UOCAVA. Thus, the federal defendants’ motion for
summary judgment [50] is granted, their motion to dismiss [42] is denied as moot, and the
plaintiffs’ cross-motion for summary judgment [47] is denied. The plaintiffs’ standalone due
process claim survives these rulings as the parties did not brief it. This case is set for status
on September 9, 2016, at 9:30 a.m. The parties should be prepared to discuss further proceedings
regarding the plaintiffs’ due process claim against the federal defendants and their contention
that

19 It is true that the NMI appears to differentiate in this way (i.e., a United States citizen
residing in the NMI who has never been eligible to vote in a state-administered federal election
cannot vote for President at all, while a United States citizen who was eligible to vote in federal
elections in Illinois and then moved to the NMI can cast an Illinois absentee ballot in a federal
election). The plaintiffs, however, have failed to establish that given the undemanding nature of
the rational basis standard and the NMI’s unique relationship with the United States, the ability
of some NMI residents to vote depending on their former state voting rights gives the plaintiffs a
similar right.

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portions of Illinois MOVE are unconstitutional due to the statute’s treatment of American Samoa.

Date:   August 23, 2016                                                          /s/
                           Joan B. Gottschall
/cc
                        United States District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

LUIS SEGOVIA, et al.,

Plaintiffs,

)
)
)
)
) 15-cv-10196
)
) Judge Joan B. Gottschall

BOARD OF ELECTION COMMISSIONERS )

FOR THE CITY OF CHICAGO, et al., )
)
Defendants. )

MEMORANDUM IN SUPPORT OF FEDERAL DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT, AND IN OPPOSITION
TO PLAINTIFFS’ SECOND MOTION FOR SUMMARY JUDGMENT

Date: October 19, 2016

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

ANTHONY J. COPPOLINO
Deputy Branch Director

ZACHARY T. FARDON
United States Attorney

THOMAS WALSH
Assistant United States Attorney

s/ Deepthy Kishore Deepthy Kishore (IL Bar No. 6306338) Trial
Attorney
U.S Department of Justice
Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 5102
Washington, D.C. 20001
Phone: (202) 616-4448
deepthy.c.kishore@usdoj.gov

Counsel for Federal Defendants

Case: 1:15-cv-10196 Document #: 78 Filed: 10/19/16 Page 2 of 20 PageID #:697

TABLE OF CONTENTS

INTRODUCTION…………..…………………………………………………………………...1 ARGUMENT……………………………………………………………………………………..2
I. PLAINTIFFS’ SUBSTANTIVE DUE PROCESS CLAIM BASED ON THE CONSTITUTIONAL RIGHT TO INTERSTATE
TRAVEL IS MERITLESS.................................................................2

A. The Court Has Already Rejected the Equal Protection Theory on Which Plaintiffs’ “Right to
Interstate Travel” Claim Depends…………………………...2

B. Plaintiffs Fail to Assert a Deprivation of a Cognizable Constitutional Right……..4

1. Plaintiffs Fail to Show That the Fundamental Right to Interstate Travel Encompasses the
Right to Travel to U.S. Territories…………………..…4

2. Plaintiffs’ Claim Does Not Fall Within the Well-Established Contours of the Fundamental
Right to Interstate Travel……………………………….6

II. REGARDLESS OF HOW PLAINTIFFS LABEL THEIR CLAIM, UOCAVA SATISFIES BOTH RATIONAL BASIS
REVIEW AND HEIGHTENED SCRUTINY………………………………11
CONCLUSION
....................................................................................................
....................... 15

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TABLE OF AUTHORITIES

Federal Cases
Bolling v. Sharpe, 347 U.S. 497 (1954)
....................................................................................................
.. 3
Adarand Constructors v. Pena, 515 U.S. 200 (1995)
................................................................................. 7
Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898 (1986)
............................................................................. 14
Besinga v. United States, 14 F.3d 1356 (9th Cir. 1994)
............................................................................ 12
Califano v. Aznavorian, 439 U.S. 170 (1978)
........................................................................................... 12
Califano v. Torres, 435 U.S. 1 (1978)
.............................................................................................. 7,
9, 12
Car Carriers v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984)
............................................................... 3
Chavez v. Ill. State Police, 251 F.3d 612 (7th Cir. 2001)
......................................................................... 15
Craft v. Health Care Serv. Corp., 84 F. Supp. 3d 748 (N.D. Ill. 2015)
...................................................... 5
De La Rosa v. United States, 32 F.3d 8 (1st Cir. 1994)
.............................................................................. 5
Dunn v. Blumstein, 405 U.S. 330 (1972)
..................................................................................................
14
Fisher v. Reiser, 610 F.2d 629 (9th Cir. 1979)
........................................................................................... 9
Hutchins v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999)
.............................................................. 4
Harris v. Rosario, 446 U.S. 651 (1980)
....................................................................................................
12
Katzenbach v. Morgan, 384 U.S. 641 (1966)
........................................................................................... 14
Martinez v. Bynum, 461 U.S. 321 (1983)
..................................................................................................
15
Matsuo v. United States, 586 F.3d 1180 (9th Cir. 2009)
............................................................................ 9
McCarthy v. Phila. Civil Serv. Comm’n, 424 U.S. 645 (1976)
................................................................. 10
McDonald v. Bd. of Election Comm’rs, 394 U.S. 802 (1969)
............................................................. 13-14
Minn. Senior Fed’n v. United States, 273 F.3d 805 (8th Cir. 2001)
............................................... 9, 10, 15
NRRM, L.L.C. v. Mepco Fin. Corp., 2015 WL 1859851 (N.D. Ill. Apr. 21, 2015)
.................................... 3
Pollack v. Duff, 793 F.3d 34 (D.C. Cir. 2015)
............................................................................................ 7
Prigmore v. Renfro, 356 F. Supp. 427 (N.D. Ala. 1972)
.......................................................................... 11
Quiban v. Veterans Admin., 928 F.2d 1154 (D.C. Cir. 1991)
................................................................... 12
Rahman v. Chertoff, No. 05 C 3761, 2010 WL 1335434 (N.D. Ill. Mar. 31, 2010)
................................. 12
Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001)
................................................................................. 8, 9, 13

iii

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Saenz v. Roe, 526 U.S. 489 (1999)
....................................................................................................
...... 4, 6

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

United States v. Guest, 383 U.S. 745 (1966)
.............................................................................................. 4

Vacco v. Quill, 521 U.S. 793 (1997)
....................................................................................................
..... 12

Zessar v. Helander, No. 05-1917, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006)
....................................... 11

Statutes & Constitutional Provisions
U.S. Const. art. IV, § 2
....................................................................................................
............................ 5

U.S. Const. art. IV, § 3, cl. 2
....................................................................................................
............. 5, 12

42 U.S.C. § 1983 (2012)
....................................................................................................
......................... 3

52 U.S.C. § 20310 (2012)
....................................................................................................
....................... 1

52 U.S.C. § 20310(5) (2012)
....................................................................................................
................ 15

52 U.S.C. § 20310(8) (2012)
....................................................................................................
.................. 5

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

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INTRODUCTION

Plaintiffs, six residents of Puerto Rico, Guam, or the U.S. Virgin Islands who formerly resided in
Illinois, along with two voting rights groups, seek summary judgment for the second time,
challenging the constitutionality of the Uniformed and Overseas Citizens Absentee Voting Act, 52
U.S.C. § 20310 (“UOCAVA”) and Illinois Military and Overseas Voter Empowerment law (“Illinois
MOVE”), 10 Ill. Comp. Stat. Ann. 5/20-1. Plaintiffs assert that these statutes preclude them from
voting absentee in Illinois in federal elections in violation of their equal protection and due
process rights under the Fifth and Fourteenth Amendments. The Court previously rejected
Plaintiffs’ equal protection challenge to UOCAVA, see ECF No. 63, Mem. Op. & Order (“Op.”), at
18–41, which was brought against the Federal Defendants under the Due Process clause of the Fifth
Amendment, but directed further briefing on whether UOCAVA violated Plaintiffs’ substantive due
process rights, Op. 18 n.8 & 41.
Plaintiffs now advance a substantive due process theory that relies on the very same allegations of
discrimination that animated Plaintiffs’ failed equal protection claim. Plaintiffs do not contend
that the Constitution itself creates a substantive due process right to vote absentee in a former
state of residence; rather, they assert that UOCAVA impermissibly infringes their fundamental right
to interstate travel by failing to extend absentee voting rights to former Illinois residents who
now reside in certain U.S. territories while extending that right to those in the Northern Mariana
Islands, thus deterring travel to “disfavored territories.” See ECF No. 71, Pls. 2d Mot. for Summ.
J. (“Pls. 2d Mot.”), at 13; id. at 14 (“UOCAVA authorizes former state residents living in one
Territory but not others to vote absentee.”). Not only does this claim rest on Plaintiffs’
misunderstanding of the rights afforded under UOCAVA, but the Court already squarely considered and
rejected this theory when it held that “UOCAVA’s differing treatment of the NMI versus Puerto Rico,
Guam, and the U.S. Virgin Islands does not trigger strict

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scrutiny,” Op. 31, and satisfies rational basis review. See Op. 41. The Court’s prior holdings
apply with equal force to Plaintiffs’ supposed substantive due process claim; Plaintiffs’ attempt
to re-litigate their equal protection claim in the guise of a separate, standalone “right to
travel” claim thus should be rejected.
Even if distinct from the equal protection claim, however, Plaintiffs’ purported substantive due
process claim fails for other reasons. As an initial matter, the claim rests on Plaintiffs’
unsupported premise that travel to U.S. territories must be treated identically to travel between
the states for Constitutional purposes; Plaintiffs cite no case or constitutional source that would
support this contention. But even assuming travel to the territories is akin to the type of
interstate travel protected by substantive due process principles, even if UOCAVA somehow
implicates a cognizable constitutional right, and even if Plaintiffs had met their burden to show
that UOCAVA infringes a fundamental right, UOCAVA satisfies the applicable rational basis standard
or even heightened scrutiny. Congress has sound reasons for declining to require that new residents
of the territories, or residents who lived in a state, be granted voting rights that the rest of
the territories’ residents do not have. Whatever the scope of a substantive due process right to
travel, the Constitution does not require that Congress provide greater rights for territorial
residents who formerly resided in a state than for the millions of citizens already residing in
those territories.
ARGUMENT

I. PLAINTIFFS’ SUBSTANTIVE DUE PROCESS CLAIM BASED ON THE CONSTITUTIONAL RIGHT TO INTERSTATE
TRAVEL IS MERITLESS.

A. The Court Has Already Rejected the Equal Protection Theory on Which Plaintiffs’ “Right to
Interstate Travel” Claim Depends.
Plaintiffs’ new “right to travel” theory should be rejected for the simple reason that it simply
repackages a claim already rejected by the Court. Plaintiffs previously based their equal
2

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protection claim on their assertion that UOCAVA (and Illinois MOVE) “protect the right to vote for
certain U.S. citizens who move overseas, while denying it to others who are similarly situated,
even going so far as to draw lines based on the particular territory in which a person resides.”
Compl. ¶ 51 (original emphasis). Plaintiffs now present their new due process claim in the same
equal protection terms: “UOCAVA and MOVE penalize and deter travel by Illinois residents to Guam,
Puerto Rico, and the USVI by refusing to extend the right to vote absentee in federal elections in
Illinois, even while affording such rights to those who move to American Samoa or the NMI. Because
these distinct classifications do not advance any substantial government interest, the laws cannot
survive scrutiny.” Pls. 2d Mot. 2 (emphasis added); see also id. at 14 (“UOCAVA and MOVE
established ‘created rights’ to vote in some Territories but not others, and it is this
classification . . . that establishes the infringement of the right here.”).
This is the same argument the Court squarely considered and rejected in ruling on the parties’
cross-motions for summary judgment. See Op. 18 (“[P]laintiffs contend that the UOCAVA treats United
States citizens who are former Illinois residents who were qualified to vote in federal elections
and who now reside in United States Territories differently based on the territory in which they
live[.]”). Plaintiffs cannot recast their failed equal protection theory, thereby circumventing
this Court’s prior rulings and controlling circuit precedent, see infra Part I(B), by simply
changing the label of the claim to substantive due process.1

1 The Federal Defendants respectfully incorporate by reference all facts and defenses raised in
their prior motions and in the conference before the Court, including that Plaintiffs have waived
or forfeited their newly raised substantive due process claim based on the right to travel.
Although the Court appears to have construed Plaintiffs’ complaint as including separate due
process and equal protection claims against the Federal government, Plaintiffs brought only a
single challenge to UOCAVA, which was a claim that by denying Plaintiffs equal protection of the
law, the federal statute violates the Due Process clause of the Fifth Amendment (because the
Fourteenth Amendment applies only to states). See, e.g., Bollinger v. Sharpe, 347 U.S. 497 (1954)
(explaining that Fifth Amendment’s Due Process clause incorporates equal protection principles as
against the federal government). Plaintiffs allege nowhere in their Complaint that
3

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B. Plaintiffs Fail to Assert a Deprivation of a Cognizable Constitutional Right.

1. Plaintiffs Fail to Show That the Fundamental Right to Interstate Travel Encompasses the
Right to Travel to U.S. Territories.

“[T]he right to unimpeded interstate travel, regarded as a privilege and immunity of national
citizenship, was historically seen as a method of breaking down state provincialism, and
facilitating the creation of a true federal union.” United States v. Guest, 383 U.S. 745, 767
(1966); id. at 758 (describing the right to interstate travel as originating in the Articles of
Confederation and as being a “necessary concomitant of the stronger Union the Constitution
created”); Hutchins v. D.C., 188 F.3d 531, 536 (D.C. Cir. 1999) (collecting cases). While the
Supreme Court has frequently recognized “the constitutional right to travel from one State to
another,” Saenz v. Roe, 526 U.S. 489, 498 (1999) (quotation omitted), it has never recognized a
fundamental right to travel from a state to a territory of the United States. Plaintiffs

UOCAVA interferes with their right to interstate travel, and the Complaint sets forth no
substantive due process theory or allegations that are independent of the equal protection claims
of discriminatory treatment. See ECF No. 1, Compl. ¶ 52 (“By treating similarly situated former
state residents differently based on where they reside overseas, UOCAVA and Illinois MOVE violate
the equal-protection and due process guarantees of the Fifth and Fourteenth Amendments and 42 U.S.C
§ 1983.”); see also id. ¶ 53-54 (challenging alleged disparate treatment of similarly situated
overseas citizens as deprivation of the equal protection of the law). Indeed, in their prior
briefing, Plaintiffs expressly acknowledged that their due process claim is the same as their equal
protection claim. See ECF No. 48, Pls. MSJ and Opp. at 2 n.2 (“Plaintiffs sue federal defendants
directly under the Due Process Clause of the Fifth Amendment based on the federal defendants’
violation of the equal-protection component of due process.”). By failing to present any distinct
arguments to support a “right to travel” claim in their response to the Federal Defendants’ prior
motion for summary judgment, Plaintiffs have forfeited any those arguments. See NRRM, LLC v. Mepco
Finance Corp., 10 C 4642, 2015 WL 1859851, at *3 (N.D. Ill. April 21, 2015) (“Choice elected to
make no other arguments opposing Mepco’s summary judgment motion, thereby forfeiting any such
arguments.”). In all events, it is well-established that parties cannot amend their complaints
through briefing. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984).
Having failed to allege any allegations or theory in support of a “right to travel” claim in their
complaint, Plaintiffs are barred from raising it now. See id.
4

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acknowledge this fact, yet they provide no support for the notion that the fundamental right to

interstate travel also encompasses travel from the states to the U.S. territories.2

It is not clear how Plaintiffs’ purported “right to interstate travel” could be squared with the
text and structure of the Constitution, which does not, by its terms, apply the Privileges and
Immunities clause to citizens of the territories, see U.S. Const., art. IV, § 2, or grant all the
rights of citizens of a state to citizens of a territory. See, e.g., Tuaua v. United States, 788
F.3d 300, 307–08 (D.C. Cir. 2015) (rejecting the claim that “non citizen nationals” born in
American Samoa have a constitutional right to United States citizenship after concluding that the
“Citizenship Clause is textually ambiguous as to whether ‘in the United States’ encompasses
America’s unincorporated territories”). Nor do they explain how Congress’s broad power to “make
all needful Rules and Regulations” with respect to the territories, U.S. Const., art. IV, § 3, cl.
2, could be reconciled with a “virtually unqualified” fundamental right to travel from the states
to all of the territories, Pls. 2d Mot. 7, which each has its own particular relationship with the
United States. See ECF 51-3 (discussing relationships of the insular areas with the United
States); ECF 51-4 (same). Thus, Plaintiffs’ attempt to invoke a right to interstate travel misses
the special character of the territories under the Constitution.3 No court has recognized such a
right, and this Court need not be the first.

2 Plaintiffs note, in passing, that neither the Supreme Court nor any other court “has conclusively
resolved the question whether the right to interstate travel applies to travel between all U.S.
Territories and the fifty states.” Pls. 2d Mot. 11 n.8. By failing to supply any argument in
support of a right to travel to U.S. territories, Plaintiffs have waived any substantive due
process claim based on this theory. See Craft v. Health Care Serv. Corp., 84 F. Supp. 3d 748,
753–54 (N.D. Ill. 2015) (citing Ripberger v. Corizon, Inc., 773 F.3d 871, 879 (7th Cir. 2014))
(parties waive undeveloped and perfunctory arguments); Eberhardt v. Brown, 580 F. App’x 490, 491
(7th Cir. 2014) (parties waive arguments that they raise for the first time in a reply brief).

3 UOCAVA itself defines “State” to mean “a State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa.” 52 U.S.C.
§ 20310(8). As this Court and others have observed, it does not follow that U.S. territories are
5

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2. Plaintiffs’ Claim Does Not Fall Within the Well-Established Contours of the Fundamental
Right to Interstate Travel.

Ultimately, this Court need not decide whether travel to the territories is “interstate travel” for
constitutional purposes, because there are ample alternative reasons for concluding that this case
does not implicate a constitutionally protected right to travel. Assuming, arguendo, that travel by
U.S. citizens to U.S. territories constitutes interstate travel that is protected as a fundamental
right under the substantive component of the due process clause, Plaintiffs have not established
that the right to interstate travel is even implicated by UOCAVA. The right to interstate travel
embraces three components: “[1] the right of a citizen of one State to enter and to leave another
State, [2] the right to be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State, and, [3] for those travelers who elect to become permanent
residents, the right to be treated like other citizens of that State.” Saenz v.
Roe, 526 U.S. 489, 500 (1999). As the Supreme Court explained in Saenz, the first component— the
right to freely cross state borders—was understood to be a fundamental aspect of the union
established by the Constitution, and the second and third components are expressly protected by the
privileges and immunities clause and the Fourteenth Amendment, respectively. Id. at 500–
02. Plaintiffs make no effort to identify any component which might be implicated by their claim.
The first two recognized theories of a right to travel are plainly inapplicable; UOCAVA does not
restrict anyone from entering or leaving a U.S. territory, and Plaintiffs are residents of,

necessarily “states” for purposes of the U.S. Constitution. Op. 26 (“Puerto Rico, Guam, and the
U.S. Virgin Islands are territories, not states.”); Igartua De La Rosa v. United States, 32 F.3d 8,
9 (1st Cir. 1994) (“Puerto Rico is concededly not a state”). Indeed, in the context of the right to
vote absentee in a presidential election—the core of the claim at issue here—the Constitution is
also clear that U.S. territories are not states granted the right to select electors. See id.
(citing
U.S. Const. art. II, § 1, cl. 2 (“each state … in such manner as the Legislature thereof may
direct”) (emphasis added); see also Igartua De La Rosa v. United States, 229 F.3d 80, 83 (1st Cir.
2000); Igartua-De La Rosa v. United States, 417 F.3d 145, 148 (1st Cir. 2005) (en banc).

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not visitors to, U.S. territories. The third prong—the right for those who move to a state to be
treated like other residents of the state—is also inapplicable, and only underscores the problem
with Plaintiffs’ substantive due process claim.4 At bottom, what Plaintiffs demand is not the
right to be treated the same as the other citizens of Puerto Rico, Guam, or the U.S. Virgin
Islands, but to a benefit (the right to vote in Illinois elections) the residents of those
territories do not have.
The Supreme Court has squarely rejected this type of argument in the context of a right-
to-interstate-travel claim against the federal government. In Califano v. Gautier Torres, 435
U.S. 1 (1978), the Court held that a federal statute did not infringe the plaintiffs’
constitutional right to interstate travel where it excluded residents of Puerto Rico from receiving
certain benefits available to those residing in states. Id. at 4. The Court reasoned that the right
to interstate travel does not permit a person who travels to a new state (or territory) to demand
benefits superior to those enjoyed by others residents of that state (or territory) by invoking the
law of the state from which the person came. Id. Further, it explained that “the broader
implications of such a doctrine in other areas of substantive law would bid fair to destroy the
independent power of each State under our Constitution to enact laws uniformly applicable to all of
its residents.” Id.
Applying this principle specifically to a “right to travel” challenge to UOCAVA, the Second
Circuit, in Romeu v. Cohen, held that UOCAVA does not violate “any of the components

4 “[T]he Privileges and Immunities Clause of Article IV does not constrain the powers of the
federal government at all.” Pollack v. Duff, 793 F.3d 34 (D.C. Cir. 2015). Unlike the Privileges
and Immunities Clause, the principle of equal protection applies to the federal government as well
as to the states. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) (explaining that
the Supreme Court “treat[s] the equal protection obligations imposed by the Fifth and the
Fourteenth Amendments as indistinguishable”).

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of the right to travel listed in Saenz.”5 265 F.3d 118, 126 (2d Cir. 2001). As to the first
component, the Court observed that “mov[ing] to a U.S. territory . . . require[s] that [one] give
up voting for the office of President” id., but that UOCAVA was not the cause of that loss. “[The]
loss of the right to vote for President is the consequence of [the] 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. More generally, the Court observed that “[a] citizen’s decision to move
away from her State of residence will inevitably involve certain losses[]”: “She will lose the
right to participate in that State’s local elections, as well as its federal elections, the right
to receive that State’s police protection at her place of residence, the right to benefit from the
State’s welfare programs, and the right to the full benefits of the State’s public education
system. Such consequences of the citizen’s choice do not constitute an unconstitutional
interference with the right to travel.” Id. at 126–27.
The Court in Romeu also found that the “second and third components of the travel right are not
implicated at all” by UOCAVA. UOCAVA does not “in any way impair [one’s] opportunity to be welcomed
in [a territory] as a visitor or to be treated like other U.S. citizens residing [there] upon his
establishing residence there.” Id. at 127. There (as here) the plaintiffs “complain[ed] not that
[they are] being treated differently from other . . . citizens residing in [the territories], but
rather that [they are] being treated identically to them.” Id. And there (as here) the plaintiffs
“[b]y virtue of [their] former residence in [a State], seek[] to be allowed to vote in the
[federal] election in a manner denied to other citizens of [the territories]. The denial of that
special treatment does not constitute an unconstitutional burden on his right to travel.” Id.; see

5 The Second Circuit assumed for purposes of the opinion that the constitutional right to
interstate travel includes travel to U.S. territories “and that the reference to the right to enter
and leave a State includes also the right to change one’s residence from one political subdivision
of the United States to another.” Romeu, 265 F.3d at 126.
8

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also Op. 40.6 Thus, even assuming Saenz’s references to States were intended to encompass travel
to U.S. territories, UOCAVA imposes no violation of any of the components of the right to travel
listed in Saenz. See Romeu, 265 F.3d at 126.
Plaintiffs’ arguments to the contrary are unavailing. Plaintiffs first attempt to distinguish
Califano on the ground that they have been deprived of “the right to vote absentee in federal
elections in Illinois,” whereas in Califano the plaintiffs had lost government monetary
benefits. Br. 13-14. But the fact that the federal benefits statute at issue in Califano was
entitled to a “strong presumption of constitutionality,” Califano, 435 U.S. at 5, does not undercut
the Supreme Court’s conclusion that the constitutional right to travel does not permit a plaintiff
to demand benefits from a state in which he does not reside. Rather, Califano “makes it abundantly
clear” that the constitutional right to interstate travel recognized in the very cases cited by
Plaintiffs, see Pls. 2d Mot. 12–13—“cannot be the basis for automatically imposing a reverse
obligation on the former state” to continue to extend benefits to a former resident. Fisher v.
Reiser, 610 F.2d 629, 634 (9th Cir. 1979). In analogous contexts, every court of appeals to have
considered this question reached the same conclusion based on Califano. See id.; see also, e.g.,
Matsuo v. United States, 586 F.3d 1180, 1184–85 (9th Cir. 2009); Minnesota Senior Fed’n v.
United States, 273 F.3d 805, 810 (8th Cir. 2001).

Plaintiffs further attempt to distinguish Romeu’s application of Saenz to UOCAVA on the basis of a
somewhat convoluted theory—that the fundamental right to interstate travel is

6 This Court relied on Romeu to reach a similar conclusion in dismissing Plaintiffs’ equal
protection claim. See Op. 40. Quoting extensively from Romeu, the Court found that what Plaintiffs
seek is “a distinction of questionable fairness” where, unlike other residents, Plaintiffs, as
former residents of Illinois, would retain their right to vote for President in Puerto Rico, Guam,
and the U.S. Virgin Islands. Id. (quoting Romeu, 265 F.3d at 125). The Court’s equal protection
analysis should informs its assessment of whether the right to travel, discussed in Saenz, is
implicated by UOCAVA.

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“bidirectional,” protecting the right to emigrate from a state without restriction, Pls. 2d Mot.
12, and that this right to emigrate from Illinois is burdened because UOCAVA denies them access to
“created rights”—the right to vote absentee in Illinois—by “penalizing and deterring” interstate
travel to Guam, Puerto Rico, and the US Virgin Islands, see id. at 13. This argument rests on the
faulty premise that UOCAVA deprived Plaintiffs of the right to vote in federal elections by
absentee ballot issued by a former state of residence. UOCAVA does no such thing; it does not
prohibit states from extending absentee voting rights to former state residents in U.S.
territories.
Moreover, the sum and substance of Plaintiffs’ argument—that “moving to certain Territories but not
others serves as a deterrent to moving to disfavored Territories,” Pls. 2d Mot. 13—reduces to the
same equal protection theory that already has been rejected by the
Court. Plaintiffs’ due process claim remains a claim of differential treatment depending on where
they chose to move and reside, not a claim that there is a substantive due process right to vote
absentee in a state of former residence. Thus, the Court need not resolve a distinct due process
claim here; Plaintiffs’ complaint is that the statute has drawn an arbitrary line between
territories, and the Court has already properly rejected that equal protection argument.
And even if the due process claim is viewed solely within the confines of the right to interstate
travel, Plaintiffs “right to emigrate with created rights” theory is no more than a reprise of the
theory rejected in Califano and Romeu—that is, that the right to interstate travel is infringed
where benefits do not follow a person to another state.7 Plaintiffs still fail to cite any

7 The Supreme Court drew an analogous conclusion in McCarthy v. Philadelphia Civil Service
Commission, 424 U.S. 645 (1976), which held that a city regulation requiring employees to be
residents of the city did not impair the constitutional right to interstate travel of a person
whose employment was terminated because he moved his permanent residence to a city in another
state. The Court explained: “In this case appellant claims a constitutional right to be employed
by the city of Philadelphia while he is living elsewhere. There is no support in our cases for such
a claim.” Id. at 646–47 (emphasis in original).

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authority suggesting that the right to interstate travel to one place would be penalized or
deterred because there are greater benefits available if the person chose to travel someplace
else.8 Plaintiffs’ assertions thus fall far short of showing that UOCAVA implicates any
constitutionally protected right to interstate travel.
II. REGARDLESS OF HOW PLAINTIFFS LABEL THEIR CLAIM, UOCAVA SATISFIES BOTH RATIONAL BASIS
REVIEW AND HEIGHTENED SCRUTINY.

Even assuming that UOCAVA somehow implicates a constitutionally protected right to travel, the
Court’s review of the merits of this claim, like the earlier equal protection claim, should be
under the rational basis standard. Plaintiffs assert that precisely the same provisions of UOCAVA
(excluding certain U.S. territories from absentee ballot requirements) over precisely the same
circumstances (where former Illinois residents now reside in Puerto Rico, Guam, or the
U.S. Virgin Islands), is subject to a markedly different standard of review when challenged under
the very same constitutional amendment. That makes little intuitive sense, and is not supported by
any authority cited by Plaintiffs. Courts deciding equal protection claims based on alleged
discriminatory treatment of persons who reside in U.S. territories, have uniformly applied rational
basis review based on Congress’s broad powers under the Territory Clause of the

8 UOCAVA also cannot be said to infringe the right to interstate travel because “[t]here is no
fundamental right to an absentee ballot. That ballot is a mere gratuitous convenience supplied by
the state. Therefore, the restriction which denial of that privilege imposes on the right to
travel is not significant and does not overburden the right to travel.” Prigmore v. Renfro, 356
F.Supp.
427, 433 (N.D.Ala.1972), summ. aff’d, 410 U.S. 919 (1973). Plaintiffs’ reliance on Zessar v.
Helander, No. 05-1917, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006), is misplaced. That case addressed
procedural (not substantive) due process protections that should be afforded to a person who, after
receiving statutory rights to vote by absentee ballot, had his absentee ballot rejected without
notice and a hearing. Id. at *5. Here, Plaintiffs do not allege that they ever fell within UOCAVA’s
coverage, let alone that they were deprived of rights they previously received under UOCAVA. If
anything, Zessar only underscores the normal rule that there is no constitutional right to vote by
absentee ballot. See id. at *6 (“Defendants correctly assert that state regulations or restrictions
on absentee voting do not, as a general matter, violate a fundamental constitutional right.”)
(citing, inter alia, Prigmore, 356 F. Supp. 427).
11

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Constitution, which gives Congress the “Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United States; and nothing
in this Constitution shall be construed as to Prejudice any Claims of the United States, or of any
particular State.” U.S. Const., Art. IV, § 3, cl. 2. Quiban v. Veterans Admin., 928 F.2d 1154, 1161
(D.C. Cir. 1991), relying on Harris v. Rosario, 446 U.S. 651, 651 (1980) (per curiam); Califano v.
Torres, supra, 435 U.S. 1 (1978) (per curiam)); see also Besinga v. United States, 14 F.3d 1356,
1360 (9th Cir. 1994).
While Plaintiffs attempt to avoid this result by labeling their claimed right to reside in the
territories as the right of interstate travel, as explained above, no court has resolved that
question, and sound constitutionally-based considerations weigh against it. Indeed, Plaintiffs
acknowledge that the “right” of international travel has been subject to regulation within the
ordinary bounds of due process. See Pls. 2d Mot. 1; see also Califano v. Aznavorian, 439 U.S. 170,
176 (1978) (explaining difference between the freedom to travel internationally and the right of
interstate travel); see also Rahman v. Chertoff, No. 05 C 3761, 2010 WL 1335434, at *5 (N.D. Ill.
March 31, 2010) (“Government action that infringes the right to travel abroad will be upheld unless
it is ‘wholly irrational.’”) (quoting Califano, 439 U.S. at 176); Vacco v. Quill, 521 U.S. 793, 799
(1997) (The deferential rational basis test applies where, as here, “a legislative classification
or distinction neither burdens a fundamental right nor targets a suspect class.”) (internal
quotation omitted).
In any event, whether analyzed under rational basis review or heightened scrutiny, the result
should be the same; as the Second Circuit held in Romeu, UOCAVA’s extension of absentee voting
rights to U.S. citizens formerly residing in a State who live outside the territorial United States
“is supported by strong considerations, and the statute is well tailored to serve
these considerations.” Romeu, 265 F.3d at 124. Congress sought to maintain the voting rights of 12

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the place of former residence for those individuals who, by virtue of moving to a foreign country,
might be blocked completely from participating in the election of government officials. Id. By
extending absentee ballot voting rights only to former residents of a state who move away from the
United States, UOCAVA treats citizens who move from a state to Guam, Puerto Rico, and
U.S. Virgin Islands “in the same manner as it treats citizens who leave a State to establish
residence in another State.” Id. at 125. In both situations, the citizens “possess voting rights
in their new place of residence.” Id.
Congress undoubtedly had a compelling interest in avoiding the result that would follow from
Plaintiffs’ requested relief. If UOCAVA had extended the vote in federal elections to former
citizens of a State who now reside in the territories, it “would have created a distinction of
questionable fairness” among U.S. citizens residing in the territories by extending the right to
vote in federal elections to U.S. citizens who had previously resided in a State while not doing so
for those who have always resided in a territory. Id.; see also Op. 40. Citizens in U.S.
territories with the resources to establish residence in a state would retain the right to vote in
federal elections after their return to the territories, while those who could not afford to do so
“would be permanently excluded.” Id. That Congress did not include the NMI in UOCOVA’s definition
of “United States” only reflects the fact that NMI, “as of the date of the UOCAVA’s enactment, was
not yet a United States Territory” and “was more analogous to a foreign country, as opposed to the
United States Territories of Puerto Rico, Guam, and the U.S. Virgin Islands.” Op. 37.
Even setting aside this historical rationale, the fact that Congress extended absentee ballot
rights to certain groups but not others does not render the statute unconstitutional. See McDonald
v. Board of Election Comm’rs, 394 U.S. 802, 809 (1969) (upholding absentee voting statutes that
were “designed to make voting more available to some groups who cannot easily get
to the polls,” without making voting more available to all such groups, on the ground that
13

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legislatures may “take reform ‘one step at a time’” (citations omitted)); Katzenbach v. Morgan, 384
U.S. 641, 657 (1966) (applying to voting rights reform legislation the rule that “a statute is not
invalid under the Constitution because it might have gone farther than it did”) (quotation marks
omitted)). Thus, even if UOCAVA made travel to certain territories less favorable than travel to
other territories, that result would not infringe the constitutional right to travel.
Further, as Plaintiffs concede, “not every law that weighs on the decision to travel is
constitutionally significant[.]” Pls. 2d Mot. 12. A “law implicates the right to travel when it
actually deters such travel, when impeding travel is its primary objective, or when it uses any
classification which serves to penalize the exercise of that right.” Attorney Gen. of N.Y. v. Soto–
Lopez, 476 U.S. 898, 903 (1986) (plurality) (internal quotation marks and citations omitted).
Assuming UOCAVA could be said to restrict travel at all, Plaintiffs do not contend that impeding
travel is the “primary objective” of UOCAVA, nor that UOCAVA actually deterred them from traveling
to the territories in which they now reside. Instead, Plaintiffs argue that UOCAVA created a
classification that penalized or deterred their exercise of the right to travel by extending
absentee voting rights to certain territories but not others. But as explained above, Plaintiffs
failed to establish any violation of the right to interstate travel, and their arguments are
otherwise mistaken.
Citing a case involving durational residence requirements for voting, Plaintiffs contend that
UOCAVA “disadvantage[s] new state residents in the exercise of fundamental rights like voting[.]”
Pls. 2d Mot. 12 (citing Dunn v. Blumstein, 405 U.S. 330 (1972)). Again, that contention is
meritless. UOCAVA extended eligibility to vote by absentee ballot in federal elections to “overseas
voters.” Congress defined “overseas voters” to include U.S. citizens formerly qualified to vote in
the United States who now reside outside the U.S. states or
territories, see supra note 4 (citing 52 U.S.C. § 20310(5)); that definition does not prevent
14

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Plaintiffs from traveling to any state or to any U.S. territory. See Chavez v. Illinois State
Police, 251 F.3d 612 (7th Cir. 2001) (finding no “direct impairment” of interstate movement where
state’s challenged practices of stopping and detaining certain motorists did “nothing to prevent
Chavez from entering or leaving the state[.]”); Martinez v. Bynum, 461 U.S. 321 (1983) (holding
that a challenged residence requirement “[d]oes not burden or penalize the constitutional right of
interstate travel” where “any person is free to move to a State and to establish residence there”
to avail themselves of that State’s benefits).
Plaintiffs also contend that UOCAVA penalizes or deters interstate travel by “denying” Plaintiffs
“the right to vote absentee” in Illinois. Pls. 2d Mot. 13. Once again, this is incorrect. UOCAVA
does not deny Plaintiffs, or anyone else, the right to vote absentee. Moreover, to the extent
Plaintiffs contend that UOCAVA implicates a constitutional right to travel because it could have
the incidental effect of deterring migration to certain territories, that argument fails on the
merits under Saenz because they are not receiving fewer benefits than available to residents of the
state to which they are relocating. See Minnesota Senior Federation, Metropolitan
Region v. United States, 273 F.3d 805, 810 (8th Cir. 2001) (discussing “deterrence” theory of
right-to-travel violations and holding that plaintiff would be treated equally with residents of
the state to which she is relocating, and giving up more generous benefits in moving does not
penalize her right to travel).
CONCLUSION

For the foregoing reasons, Plaintiffs’ second motion for summary judgment should be denied, and
summary judgment should be granted in favor of the Federal Defendants.

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Dated: October 19, 2016 Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

ANTHONY J. COPPOLINO
Deputy Branch Director

ZACHARY T. FARDON
United States Attorney

THOMAS WALSH
Assistant United States Attorney

Counsel for Federal Defendants

Case: 1:15-cv-10196 Document #: 81 Filed: 10/28/16 Page 1 of 18 PageID #:739

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

LUIS SEGOVIA, et al.,                                 )
)
Plaintiffs,                    )          Case No. 15 C 10196
)
v.                                                         )
)          Judge Joan B. Gottschall
BOARD OF ELECTION ) COMMISSIONERS FOR THE CITY OF ) CHICAGO, et al.,
          )
)
Defendants.                )

MEMORANDUM OPINION AND ORDER

The plaintiffs in this action are six United States citizens who are former residents of Illinois
and who now reside in Puerto Rico, Guam, or the U.S. Virgin Islands, plus two organizations that
promote voting rights in United States territories. The defendants are comprised of state and
federal voting-related commissions and groups, as well as the United States of America and several
individuals sued in their official capacities. A complete description of the parties and the
underlying factual history of the case can be found in this court’s August 23, 2016 Memorandum
Opinion and Order (the “prior order”) [63].
Before the court is the plaintiffs’ second motion for summary judgment [70] and the federal
defendants’ cross–motion for summary judgment [77]. The plaintiffs raise two main arguments:
first, they challenge the constitutionality of the Illinois Military Overseas Voter Empowerment Act
(“Illinois MOVE”), arguing that this statute violates their equal protection rights by excluding
former Illinois voters now living in Puerto Rico, Guam, and the U.S. Virgin Islands (“USVI”) from
voting by Illinois absentee ballot in federal elections, while allowing former Illinois residents
living in American Samoa and the Northern Mariana Islands (“NMI”) to

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vote absentee. Second, the plaintiffs contend that Illinois MOVE and the Uniformed and Overseas
Citizen Absentee Voting Act (“UOCAVA”), infringe upon their substantive due process right to
interstate travel.
As discussed below, the court concludes that Illinois MOVE does not violate the plaintiffs’ equal
protection rights because this statute’s different treatment of former Illinois residents living in
various U.S. territories is rationally related to legitimate state interests. These legitimate
state 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”). In arriving at this conclusion, the court rejects the plaintiffs’ request for strict
scrutiny review of Illinois MOVE and applies instead the more lenient rational basis review.
The plaintiffs’ briefs focus extensively on the fact that Illinois MOVE tracks the language of the
UOCAVA’s predecessor statute, the OCVRA, instead of the more recent UOCAVA. However, the court
notes that the practical effect of Illinois MOVE’s alleged “outdatedness” is the enfranchisement of
more former Illinois citizens living in U.S. territories than federal law currently provides. This
consequence of enhanced absentee voting rights does not create a constitutional inequality because
Congress specifically has authorized the states to provide more generous voting rights than those
provided by the UOCAVA.
The court also rejects the plaintiffs’ argument that Illinois MOVE and the UOCAVA
unconstitutionally burden their right to interstate travel. The plaintiffs’ inability to vote in
federal elections by absentee ballot in their respective territories stems not from a violation of
their right to travel, but from the constitutional status of Puerto Rico, Guam, and the USVI.

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Thus, the court denies the plaintiffs’ second motion for summary judgment and grants the federal
defendants’ cross-motion for summary judgment.
I. LEGAL ARGUMENT

A. RELEVANT STATUTES: the OCVRA, the UOCAVA, and Illinois MOVE

Before turning to the parties’ summary judgment arguments, the court first identifies the three
statutes involved in the court’s ruling and the key definitions of each:
The Overseas Citizens Voting Rights Act (OCVRA), Pub. L. 94-203, 89 Stat. 1142, was enacted in 1976
and provided uniform procedures for absentee voting in federal elections. This federal statute
imposed a range of responsibilities on the states, including Illinois, relating to absentee voting
by citizens of the United States residing overseas, as those terms are defined in the statute. It
has now been repealed but nevertheless is relevant in this case. It contained the following
definitions:
• “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, and the Virgin Islands. 42 U.S.C. § 1973dd(2).

• “United States” includes the several States, 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.
42 U.S.C. § 1973dd(3).

The Uniformed and Overseas Citizen Absentee Voting Act (UOCAVA), 52 U.S.C. § 20302, replaced the
OCVRA in 1986. It also imposes a range of responsibilities on the states, including Illinois,
relating to absentee voting in federal elections by uniformed service members or overseas voters,
as those terms are defined in the statute. It contains the following definitions:
• “State” means a State of the United States, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Virgin Islands, and American Samoa. 52 U.S.C. § 20310(6).

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• “United States,” where used in the territorial sense, means 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).
Illinois MOVE, 10 Ill. Comp. Stat. § 5/20-1 et seq., likewise addresses absentee voting for
Illinois residents who live overseas. It contains the following relevant definition:
• “Territorial limits of the United States” means 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. § 5/20-1(1).

Putting these three statutes together, the following result occurs: under the now repealed OCVRA,
former Illinois residents living in Puerto Rico, Guam, and the USVI were not eligible to vote by
absentee ballot because they were included within the statute’s definitions of “State” and the
“United States.” Former Illinois residents living in the NMI and American Samoa were not similarly
included in these definitions and thus could vote absentee. Under the UOCAVA, the same result
occurred except that American Samoa also was included within the definition of “State” and “United
States” so former Illinois residents living in American Samoa lost the ability to vote by absentee
ballot. Under Illinois MOVE, which tracks the language of the OCVRA (the reason for this will be
discussed at length below), American Samoa and the NMI are not included within the definition of
the “[t]erritorial limits of the United States” and thus former Illinois residents living in either
American Samoa or the NMI retain the right to vote by absentee ballot, although former Illinois
residents living in Puerto Rico, Guam, and the USVI are not
afforded this right.1

Illinois MOVE’s tracking of the OCVRA instead of the UOCAVA creates a difference in treatment as to
American Samoa that goes to the heart of the plaintiffs’ equal protection

1 A more detailed description of the interaction between the UOCAVA and Illinois MOVE is contained
in the court’s prior order. See Dkt. 63, at 8-10.

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argument: under Illinois MOVE, former Illinois residents living in American Samoa may vote by
absentee ballot. Had Illinois updated its election laws following the OCVRA’s repeal in 1986 to
mirror the newly enacted UOCAVA, these residents of American Samoa would have lost their right to
absentee vote.
B. EQUAL PROTECTION UNDER ILLINOIS MOVE

Having identified the operative statutes and their effect upon territorial residents, the court
moves to the plaintiffs’ first argument: that Illinois MOVE violates their right to equal
protection under the 14th Amendment of the Constitution because they (residents of Puerto Rico,
Guam, and the USVI who were formerly registered to vote in Illinois) are denied the right to vote
absentee in federal elections while former Illinois citizens living in American Samoa and the NMI
are afforded this right. The plaintiffs also focus upon the fact that Illinois MOVE tracks the
language of the repealed OCVRA and thus treats American Samoa differently from the more recent
UOCAVA. This, they contend, is arbitrary and violates their right to equal protection.
The plaintiffs maintain that Illinois MOVE’s disparate treatment of former Illinois residents
living in various U.S. territories violates the Equal Protection Clause under any level of
scrutiny, but they seek the application of a strict scrutiny standard of review.2

2 The court limits its analysis of Illinois MOVE to American Samoa only. The plaintiffs allege
that Illinois MOVE is arbitrary because it treats former Illinois residents now living in American
Samoa and the NMI differently from similarly situated person livings in Puerto Rico, Guam, and the
USVI. However, in its prior order, the court discussed at great length the NMI’s unique historical
relationship with           the United States and expressly found that the UOCAVA’s treatment of
the NMI survives rational review scrutiny. Illinois MOVE and the UOCAVA treat the NMI identically:
under both statutes, former Illinois residents living in the NMI may vote by absentee ballot. The
court applies to Illinois MOVE the rational basis arguments contained in its prior order and finds
that Illinois MOVE’s treatment of the NMI—which mirrors that of the UOCAVA—is rationally based.
There is no reason to recreate the wheel with     respect to the NMI where there are no relevant
differences between the two statutes and where it is clear that the federal government’s treatment
of the territories informs the states’ voting laws, regardless of whether the states retain control
over the mechanics of voting. The court therefore rejects the plaintiffs’ argument that “Illinois
has no comparable ‘unique relationship’ with the NMI . . .[and thus] the      [c]ourt’s grounds for
sustaining UOCAVA do not apply to [Illinois] MOVE.” Pls.’ Mot., Dkt. 71, at 5.
5

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A. Standard of Review

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides
that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the
laws.” U.S.C.A. Const. Amend. XIV, § 1. “The guarantee of equal protection coexists, of course,
with the reality that most legislation must classify for some purpose or another.” Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 995 (N.D. Cal. 2010). When evaluating an equal protection
claim, the court must first determine the appropriate standard of review, whether “strict scrutiny”
or “rational basis.” See City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 452
(1985); Sweeney v. Pence, 767 F.3d 654, 668 (7th Cir. 2014) (noting that “[i]f either a suspect
class or fundamental right is implicated, ‘the government’s justification for the regulation must
satisfy the strict scrutiny test to pass muster under the Equal Protection Clause.’ But if neither
condition is present, the proper standard of review is rational basis”) (citations omitted).
The plaintiffs argue that they comprise a suspect class, thereby giving rise to strict scrutiny,
because “historical experience has shown that Territorial residents have been effectively locked
out of the political process.” Pls.’ Mot., Dkt. 71, at 6.3 Alternatively, the plaintiffs argue
that rational basis review is applicable. The court examines each standard of review to determine
which is applicable.

3 In its first motion for summary judgment, the plaintiffs did not advance a suspect class theory
but instead sought to establish an equal protection violation based upon the existence of a
fundamental right. This was unsuccessful. In its prior order, the court concluded, as have many
other courts, that citizens residing in territories do not have a constitutional right to vote in
federal elections in the same manner as citizens of the 50 states, and, further, that in the
absence of a constitutional right to vote, there can be no violation of a fundamental right giving
rise to strict scrutiny review. See Prior Order, Dkt. 63, at 24; see also Romeu v. Cohen, 265 F.3d
118, 123 (2d Cir. 2008) (“Citizens . . . living in U.S. territories possess more limited voting
rights than U.S. citizens living in a State.”). Stripped of their ability to make a “fundamental
right” argument based on their right to vote, the plaintiffs now alight upon the “suspect class”
language as a new approach to defeating rational basis review in favor of strict scrutiny review.
6

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1. Strict Scrutiny Based on a Suspect Class

Classifications based on sex, race, alienage, and nationality are inherently suspect. See Frontiero
v. Richardson, 411 U.S. 677, 682 (1973) (plurality). The Supreme Court first articulated the term
“suspect class,” along with its corresponding indicia of “suspectness,” in San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 28 (1973), where the Court addressed whether poor school districts
in Texas comprised a suspect class. Answering in the negative, the Court noted that: “[t]he system
of alleged discrimination and the class it defines have none of the traditional indicia of
suspectness: the class is not saddled with such disabilities, or 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.” Id. at 28; see also
Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 128 S. Ct. 2146, 2147 (2008) (“equal protection
jurisprudence has typically been concerned with governmental classifications that ‘affect some
groups of citizens differently than others’”) (citation omitted); McCauley v. City of Chicago, No.
09 C 2604, 2009 WL 3055312, at *3 (N.D. Ill. Sept. 18, 2009), aff'd on other grounds, 671 F.3d 611
(7th Cir. 2011).
The plaintiffs’ argument that they are a suspect class is unpersuasive for a number of reasons.
First, the plaintiffs have not provided the court with any authority supporting their contention
that they comprise a suspect class based on their political powerlessness. The plaintiffs’
discussion of cases where strict scrutiny has been applied to various statutes based on a suspect
class do not involve U.S. territories or voting rights, and the plaintiffs have not drawn the
court’s attention to any aspects of these cases that are relevant or compelling to the issues
presented here. See, e.g., Dandamudi v. Tisch, 686 F.3d 66 (2d Cir. 2012) (finding a suspect class
and applying heightened scrutiny to a statute that prohibited legally admitted aliens from

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working as pharmacists in New York); Adusumelli v. Steiner, 740 F. Supp. 2d 582 (S.D.N.Y. 2010)
(finding a suspect class and applying strict scrutiny to a statute preventing nonimmigrant aliens
on temporary work visas from working as pharmacists in New York). It appears that some of the
cases the plaintiffs cite were chosen because the statutes in those cases created improper
classifications based on alienage, but it is settled law that Congress, and the states when
implementing federal law, may continue to treat residents of territories differently from residents
of the 50 states. See Igartua v. U.S. , 86 F. Supp. 3d 50, 55-56 (D. Puerto Rico 2015) (U.S.
territories cannot be defined as “States” for purpose of Articles I and II of the Constitution);
Romeu v. Cohen, 265 F.3d 118, 123 (2d Cir. 2001) (citizens living in territories possess more
limited voting rights than citizens living in a State). It has been long established that
residents of
U.S. territories “lack equal access to channels of political power.” Quiban v. Veterans Admin., 928
F.2d 1154, 1160 (D.C. Cir. 1991). However, this lack of political power is consistent with
Congress’s right under the Territory Clause of the Constitution, U.S. Const. Art. IV, § 3, cl. 2
(the “Territory Clause”), to treat the 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. The plaintiffs certainly are unhappy with their lack of political influence, but their
attempt to create a suspect class based on this reality is not supported by legal precedent.
Furthermore, numerous other courts have held that Congress’s power to make laws regarding the
territories is subject to rational basis review. See, e.g., Harris v. Rosario, 446 U.S. 651, 651
(1980) (applying rational basis review to federal statute providing less federal financial
assistance to Puerto Rican families than families living in the 50 states); Besinga v. U.S., 14
F.3d 1356, 1360 (1994) (holding that “[b]ecause the Philippines was a territory of the United
States at the relevant time, this dispute implicates Congress’ power to regulate territorial
affairs under the

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Territory Clause. Controlling precedent dictates rational basis review); Romeu v. Rossello, 121

F. Supp. 2d 264, 282 (S.D.N.Y. 2000) (declining to find Puerto Ricans a suspect class for purposes
of the Equal Protection Clause and applying rational review to provisions of the UOCAVA and New
York election law). The court joins in this conclusion.
Additionally, the court finds without merit the plaintiffs’ argument that because the Constitution
includes no provision granting the 50 states the authority to treat residents of the territories
differently, Illinois MOVE’s disparate treatment of territorial residents should be reviewed under
a heightened level of scrutiny. This unavailing argument collapses the separation of powers
inherent in our system of federalism. Only Congress “shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other Property belonging to the United
States.” U.S. Const. Art. IV, § 3, cl. 2. The states’ power, meanwhile, is established by the Tenth
Amendment to the Constitution, which provides that “[t]he powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States respectively,
or to the people.” U.S. Const., Amend. X. It is well-established that the states retain the power
to conduct elections, but this power is informed by the federal government’s equally
well-established ability to treat the territories differently from the 50 states pursuant to the
Territory Clause. See Iguarta-De La Rosa v. U.S., 417 F.3d 145, 147 (1st Cir.
2005) (the territories are not considered “states” within the meaning of the Constitution). The
plaintiffs’ attempt to meld the distinct powers of the federal and state governments into one pot
by arguing that the states have no broad authority to treat residents of the territories
differently, thus triggering strict scrutiny review of a statute that does so (see Pls.’ Mot., Dkt.
71, at 10), is without merit.

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For these reasons, the court finds that former Illinois residents currently living in U.S.
territories who may not vote by absentee ballot in federal elections do not constitute a suspect
class. The plaintiffs’ desire to participate in the federal election process is understandable, but
the plaintiffs have not persuaded the court that they constitute a suspect class for purposes of
engendering strict scrutiny of Illinois MOVE. Rational basis review is appropriate.4
2. Rational Basis Review as Applied to Illinois MOVE

On rational basis review, a classification in a statute enjoys a strong presumption of validity.
See Lyng v. Automobile Workers, 485 U.S. 360, 370 (1988). “[T]hose attacking the rationality of
the legislative classification have the burden ‘to negative every conceivable basis which might
support it.’” F.C.C. v. Beach Commc’n, 508 U.S. 307, 314-15 (1993) (citations omitted).
Additionally, because a legislature is not required to articulate its reasons for enacting a
statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the
challenged distinction actually motivated the legislature.” Id. at 315; see also Nordlinger v.
Hahn, 505 U.S. 1, 15 (1992) (equal protection “does not demand for purposes of rational- basis
review that a legislature or governing decision-maker actually articulate at any time the purpose
or rationale supporting its classification”). As long as there is “a rational relationship between
the disparity of treatment and some legitimate governmental purpose,” the statute survives rational
basis scrutiny. City of Chicago v. Shalala, 189 F.3d 598, 605 (7th Cir. 1999)

4 The court also notes another problem with the plaintiffs’ attempt to characterize themselves as a
suspect class: doing so raises potential equal protection issues as to all other persons residing
in U.S. territories who were not once Illinois residents. As noted in Romeu, “extend[ing] the vote
in federal elections to
U.S. citizens formerly citizens of a State now residing in Puerto Rico while not extending it to
U.S. citizens residing in Puerto Rico who have never resided in a State . . . would have created a
distinction of questionable fairness among Puerto Rican U.S. Citizens.” 265 F.3d at 125. Similarly
here, and as this court noted in its prior order, the plaintiffs’ requested relief “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.” See Prior Order, Dkt. 63, at 40 &
n.8.

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(citations omitted). With these guidelines in mind, the court turns to the language of Illinois
MOVE and the parties’ arguments.
Illinois MOVE prevents former Illinois citizens living in Puerto Rico, Guam and the USVI from
voting absentee in federal elections. But it grants this right to similarly situated persons living
in American Samoa (and the NMI). Illinois MOVE is more expansive than the UOCAVA with respect to
American Samoa. The plaintiffs maintain that Illinois MOVE’s failure to mirror the UOCAVA as to
American Samoa lacks a rational basis and is arbitrary.
Defendants the Board of Election Commissioners for the City of Chicago and Marisel Hernandez
respond that a rational basis exists for the disparate treatment under Illinois MOVE of former
Illinois residents living in the various territories. They explain 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 provisions of the OCVRA. The State of Illinois did not
similarly amend its election laws following the OCVRA’s repeal and the UOCAVA’s enactment. These
state defendants do not provide any explanation for this inaction other than to say it was a
“product of historical timing.” Defs.’ Mem., Dkt. 74, at 8-11.
Any rational justification of an embattled statute will overcome an equal protection challenge. The
state defendants posit that Illinois MOVE mirrored the OCVRA beginning in 1979 to stay in
compliance with federal law, and that this mirrored language simply remained in place even after
the OCVRA was repealed in 1986. The court accepts this explanation and finds that Illinois had (and
has) a legitimate state interest in staying abreast of federal voting rights laws. The adoption of
language into Illinois MOVE that mirrored federal statutes such as the OCVRA legitimately achieved
this purpose.

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The court also finds that Illinois—certainly at least until 1986—had a legitimate state interest in
treating American Samoa differently from Puerto Rico, Guam, and the USVI. American Samoa became a
United States territory in 1900, “when the traditional leaders of the Samoan Islands of Tutuila and
Aunu'u voluntarily ceded their sovereign authority to the United States Government.” Tuaua v. U.S.,
788 F.3d 300, 302 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 2461 (2016); see also Hon. Fofo I.F.
Sunia of American Samoa, Address at the University of San Diego (May 14, 1986), 132 Cong. Rec.
E1664-01, 1986 WL 791182. However, in 1949, this nation of islands and coral atolls rebuffed the
Department of the Interior’s attempt to introduce Organic Act 4500, which sought to incorporate
American Samoa into the United States in the same fashion as already had been achieved in Puerto
Rico and the USVI, and soon would be achieved in Guam. See
http://www.newworldencyclopedia.org/entry/American_Samoa (last
visited Oct. 27, 2015).5

American Samoa strives to preserve its traditional way of life, called fa’a Samoa, notwithstanding
its growing ties with the United States. See U.S. Gov’t Accountability Office, GAO-08-1124T (Sept.
18, 2008), at 6 (hereinafter “GAO Report”). American Samoa’s constitution protects the Samoan
tradition of communal ownership of ancestral lands by large, extended families, and “American
Samoans take pride in their unique political and cultural practices, and . . .[their] history free
from conquest or involuntary annexation by foreign powers.” Tuaua v. U.S., 951 F. Supp. 2d 88, 91
(D.D.C. 2013).
Federal law classifies American Samoa as an “outlying possession” of the United States.

See Immigration and Naturalization Act (“INA”) § 101(a)(29), 8 U.S.C. § 1101(a)(29). People

5 An Organic Act is an act of Congress establishing a territory of the United States. The U.S.
entered into an Organic Act with Puerto Rico in 1900, with the USVI in 1936 (repealed and replaced
in 1954), and with Guam in 1950. See Pub. L. 56–191, 31 Stat. 77 (Puerto Rico); Pub. L. 64–389, 39
Stat. 1132 (USVI); (Pub. L. 83–517, 68 Stat. 497) (USVI); and 48 U.S.C. § 1421 et seq.) (Guam). In
the absence of an Organic Act, a territory is classified as “unorganized.”
12

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born in American Samoa are U.S. nationals but not U.S. citizens at birth. See INA § 308(1), 8

U.S.C. § 1408(1). The State Department’s Foreign Affairs Manual (“FAM”) categorizes American Samoa
as an unincorporated territory and states that “the citizenship provisions of the Constitution do
not apply to persons born there.” 7 FAM § 1125.1(b).
This basic understanding of the history of 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—leads the court to conclude that a rational basis supported
Illinois’ decision with respect to Illinois MOVE to track the language of the OCVRA and to exclude
American Samoa from its definition of “[t]erritorial limits of the United States.” 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.
But what of the fact, as the Plaintiffs repeatedly point out, that Illinois neglected to update
Illinois MOVE following the OCVRA’s repeal and the UOCAVA’s enactment? The plaintiffs maintain
that Illinois’ failure to update Illinois MOVE is an irrational act that creates an
unconstitutional disparity among former Illinois residents living in the various territories.
Again, the court disagrees. While it is true that Illinois MOVE remains predicated on an 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 UOCAVA, the practical effect of Illinois MOVE’s
outdatedness is that it provides more generous voting rights to former Illinois residents than
would exist had Illinois updated its laws to mirror the UOCAVA. And, critically, this state-based
electoral generousness is clearly permitted under the OACAVA. 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. See H.

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R. Rep. No. 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). The UOCAVA provides the voting practices floor upon which
Illinois must stand, but at the same time it grants Illinois the right to expand upon these
practices. 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.
In sum, the court denies the plaintiffs’ equal protection challenge as to Illinois MOVE. It is true
that Illinois MOVE is premised upon a repealed statute, but Illinois’ failure to amend its election
laws after the UOCAVA’s passage resulted only in the ability of former Illinois residents living in
American Samoa to retain their right to cast absentee ballots in federal elections. Any disparity
created by Illinois MOVE’s outdatedness is cured by the UOCAVA’s express endorsement of the states’
ability to provide greater voting rights than those provided in the UOCAVA. Additionally, the court
finds that American Samoa’s unique relationship with the United States rationally supports
Illinois’ decision to track the language of the OCVRA back in 1979. It matters not that Illinois
continues to do so almost 40 years later.
The plaintiffs’ attempt in this second round of summary judgment motions to pit federal and state
voting statutes against each in an effort to find irrationalities that may further their goal of
federal election enfranchisement cannot succeed. The underlying reality in this case is that
Congress retains the right to dictate the terms of its relationship with the U.S. territories, and
these terms sometimes shift and change depending on the individual territory and the historical

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context informing each relationship. But even in the face of these shifts and changes, the federal
statutes are not so rigid as to deprive the states of their ability to provide greater voting
rights than those enumerated under federal law. The court’s ruling today—which finds no
unconstitutionality with regards to Illinois MOVE’s treatment of American Samoa in a fashion that
differs from the UOCAVA, or of its treatment of American Samoa and the NMI in a manner that is
different from Puerto Rico, Guam, and the USVI—is grounded in large measure on the fact that
Illinois retains the right to enfranchise persons disenfranchised by the UOCAVA and by the fact
that Illinois’ absentee and overseas voting laws are informed by rationally-based federal statutes
constitutionally curtailing the federal election absentee voting rights of residents of United
States territories.
C. Right to Interstate Travel

The court now addresses the plaintiffs’ second argument: that the UOCAVA and Illinois MOVE violate
their “fundamental right to interstate travel, which is protected by the substantive component of
due process.” Pls.’ Mot., Dkt. 71, at 2.
“The right to travel interstate, although nowhere expressed in the Constitution, has long been
recognized as a basic fundamental right.” Andre v. Bd. of Trs. of Village of Maywood, 561 F.2d 48,
52 (7th Cir. 1977) (citation omitted); see also Perez v. Personnel Bd. of City of Chicago, 690 F.
Supp. 670, 673 (N.D. Ill. 1988) (noting that “[t]he right to interstate travel lacks any precise
textual source but is considered fundamental to our federal system”). As noted in Shapiro v.
Thompson, 394 U.S. 618, 629 (1969), overruled on other grounds by Edelman v.
Jordan, 94 S. Ct. 1347 (1974):

This Court long ago recognized that the nature of our Federal Union and our constitutional concepts
of personal liberty unite to require that all citizens be free to travel throughout the length and
breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or
restrict this movement.

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The right to travel encompasses three 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.” Saenz v.
Roe, 526 U.S. 489, 500 (1999). That being said, as the plaintiffs concede, it has not been
determined conclusively whether the right to travel applies to travel between the 50 states and the
U.S. territories. See Pls.’ Mot., Dkt. 71, at 11 n.8.
If anything, the plaintiffs’ arguments come closest to invoking the first prong of the three-part
test—the right to leave one state and enter another. But neither the UOCAVA nor Illinois MOVE
infringe upon the plaintiffs’ right to leave Illinois and travel to a U.S. territory. They are free
to come and go as they please, although their decisions to relocate to Puerto Rico,
Guam, or the USVI have come at a cost. They moved outside of the State of Illinois and became
residents of U.S. territories “in a constitutional scheme that allocates the right to appoint
electors to States but not territories.” Romeu, 265 F.3d at 126. As further noted in Romeu:
A citizen’s decision to move away from her State of residence will inevitably involve certain
losses. She will lose the right to participate in that State’s local elections, as well as its
federal elections, the right to receive that State’s police protection at her place of residence,
the right to benefit from the State’s welfare programs, and the right to the full benefits of the
State’s public education system. Such consequences of the citizen’s choice do not constitute an
unconstitutional interference with the right to travel.

Id. at 126-27. By moving to their respective territories, the plaintiffs gained the rights and
privileges of citizens of their new residence. Their loss of the right to vote in federal
elections was not caused by the UCOAVA or Illinois MOVE, but by their own decision to relocate. See
Brian C. Kalt, Unconstitutional but Entrenched: Putting UOCAVA and Voting Rights for Permanent
Expatriates on a Sound Constitutional Footing, 81 Brook. L. Rev. 466 (2016)

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(opining that “the right to travel does not give citizens an unconditional right to emigrate
without cost or consequence”).
Nor do the plaintiffs’ arguments successfully invoke the second and third prongs of the right to
travel analysis. Neither the UOCAVA nor Illinois MOVE 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. See Memorial Hosp. v. Maricopa Cnty.,
415 U.S. 250, 261 (1974) (“The right of interstate travel must be seen as insuring new residents
the same right to vital governmental benefits and privileges in the States to which they migrate as
are enjoyed by other residents.”). Indeed, 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. 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 on their right to travel. But
again, the denial of special treatment does not equate with an unconstitutional violation of the
right to travel. See Romeu, 265 F.3d at 127. The plaintiffs’ inability to vote by absentee ballot
in their respective territories stems not from a violation of their right to travel, but from the
constitutional status of Puerto Rico, Guam, and the USVI. See Romeu, 121 F. Supp. 2d at 278.
In Califano v. Gautier Torres, 435 U.S. 1 (1978), the Court addressed whether the Social Security
Act’s exclusion of Puerto Rico from Supplemental Security Income (“SSI”) benefits constituted an
interference with the plaintiff’s constitutional right. 6 In that situation, the plaintiff

6 The Social Security Act’s 1972 amendment defined eligible individuals for SSI benefits as only
those persons living within the 50 states and the District of Columbia. 42 U.S.C. § 1382c(e).
However, as noted in Califano, 435
U.S. at 2, persons in Puerto Rico not eligible to receive SSI benefits were still eligible to
receive benefits under pre- existing programs.

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was a former resident of Connecticut who had moved to Puerto Rico. While noting that “laws
prohibiting newly arrived residents in a State or county from receiving the same vital benefits as
other residents unconstitutionally burdened the right of interstate travel,” the Court refused to
extend that doctrine to the premise that “a person who travels to Puerto Rico must be given
benefits superior to those enjoyed by other residents of Puerto Rico if the newcomer enjoyed those
benefits in the State from which he came.” Id. at 4. The Court added that “[i]f there ever could
be a case where a person who has moved from one State to another might be entitled to invoke the
law of the State from which he came as a corollary of his constitutional right to travel, this is
surely not it.” Id. at 5.
Nor does the court find that this is such a case. The court already has rejected the plaintiffs’
attempts to find Illinois MOVE and the UOCAVA unconstitutional. The court can find no way to allow
the plaintiffs to create a right to travel violation premised upon these constitutional statutes.
II. CONCLUSION

For the reasons set forth above, the court denies the plaintiffs’ second summary judgment motion
[70] and grants the federal defendants’ cross-motion for summary judgment [77]. The clerk is
directed to enter final judgment accordingly.

Date: October 28, 2016
/s/

Joan B. Gottschall
United States District Judge

Pidot v. New York State Bd. of Elections

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

PHILIP PIDOT, NANCY HAWKINS and
STEVEN AXELMAN, individually and as representatives of eligible Republican Party voters in Suffolk,
Nassau and Queens Counties within New York’s Third Congressional District,

Plaintiffs,

NEW YORK STATE BOARD OF ELECTIONS; SUFFOLK COUNTY BOARD OF ELECTIONS; NASSAU COUNTY BOARD OF
ELECTIONS; BOARD OF ELECTIONS IN THE CITY OF NEW YORK; PETER KOSINSKI and DOUGLAS
KELLNER, in their official capacities as Commissioners and Co-Chairs of the New York State Board of
Elections; ANDREW J. SPANO and GREGORY P. PETERSON, in their official capacities as Commissioners
of the New York State Board of Elections; TODD D. VALENTINE and ROBERT A. BREHM, in
their official capacities as Co-Executive Directors of the New York State Board of Elections; and
JACK MARTINS,

Defendants.

Civil Action No.
1:16-CV-00859-FJS-CFH

STATEMENT OF INTEREST OF THE UNITED STATES

The United States of America (“United States”) respectfully submits this Statement of Interest
pursuant to 28 U.S.C. § 517, which authorizes the Attorney General to attend to the interests of
the United States in any pending lawsuit. As pled, this matter may implicate the
constitutionality of the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C.
§§ 20301 et seq., as amended by the Military and Overseas Voter Empowerment Act,

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Pub L. No. 111-84, Subtitle H, §§ 575-589, 123 Stat. 2190, 2318-2335 (2009) (“MOVE Act”).

Congress has accorded the Attorney General broad enforcement authority over UOCAVA, 52

U.S.C. § 20307(a), and the United States has a substantial interest in defending UOCAVA’s
constitutionality.
The United States files this Statement for the limited purpose of explaining why the Court need not
address Plaintiffs’ constitutional challenge to UOCAVA to resolve this matter. The United States
takes no position on any other issue at this time. However, should the Court conclude it must
resolve Plaintiff’s constitutional challenge, the United States respectfully notes its intent to
intervene promptly to defend UOCAVA’s constitutionality and to address other matters as
appropriate, pursuant to Rule 5.1(c) of the Federal Rules of Civil Procedure and 28
U.S.C. § 2403(a).1

I. BACKGROUND

Plaintiffs ask the Court to order Defendants to hold a new Republican federal primary election for
New York’s Third Congressional District (“primary election”) with Plaintiff Philip Pidot and
Defendant Jack Martins on the ballot.   See Compl. ¶ 48.   Absent relief, they argue, their First
Amendment associational rights, Fourteenth Amendment equal protection rights, and, perhaps, rights
under UOCAVA will be violated.    Id. ¶¶ 54-69.    As to the latter point, Plaintiffs contend that
UOCAVA is unconstitutional if and only if the Court finds that a new primary election is warranted,
but that UOCAVA’s 45-day advance transmission requirement for mailing ballots to military and
overseas voters bars that relief.   See id. ¶¶ 47-53; 52 U.S.C.

1 The United States calculates the deadline for seeking intervention to be September 12, 2016. FED.
R. CIV. P. 5.1(c); 28 U.S.C. § 2403(a). The United States will, however, promptly comply with any
order necessitating it to intervene prior to the statutory deadline.

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§ 20302(a)(8)(A).    But UOCAVA is neither the source of Plaintiffs’ injury nor a bar to the relief
Plaintiffs seek here.    Accordingly, and consistent with constitutional avoidance principles, this
Court need not address Plaintiffs’ constitutional challenge to UOCAVA.
A.        Statutory Background

UOCAVA, as amended by the MOVE Act, constitutes “a comprehensive series of requirements aimed at
ending the widespread disenfranchisement of military voters stationed overseas.”   United States v.
Alabama, 778 F.3d 926, 928 (11th Cir. 2015).    UOCAVA thus requires that states permit absent
uniformed services voters and overseas voters (“UOCAVA voters”) “to vote by absentee ballot in
general, special, primary, and runoff elections for Federal office.”   52 U.S.C. § 20302(a)(1).2
As relevant here, UOCAVA requires that states transmit validly requested absentee ballots to
UOCAVA voters not later than 45 days before an election for federal office when the request is
received at least 45 days before the election (the “45-day advance transmission requirement”).
Id. § 20302(a)(8)(A).

2 UOCAVA defines “absent uniformed services voter” to include: (1) “a member of a uniformed service
on active duty who, by reason of such active duty, is absent from the place of residence where the
member is otherwise qualified to vote”; (2) “a member of the merchant marine who, by reason of
service in the merchant marine, is absent from the place of residence where the member is otherwise
qualified to vote”; and (3) “a spouse or dependent of a [member of a uniformed service or the
merchant marine] who, by reason of the active duty or service of the member, is absent from the
place of residence where the spouse or dependent is otherwise qualified to vote.” 52 U.S.C. §
20310(1). UOCAVA defines “overseas voter” to include: (1) “an absent uniformed services voter
who, by reason of active duty or service is absent from the United States on the date of the
election involved”; (2) “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”; and (3) “a
person who resides outside the United States and (but for such residence) would be qualified to
vote in the last place in which the person was domiciled before leaving the United States.” 52
U.S.C. § 20310(5).

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As a failsafe, UOCAVA authorizes Chief State Election Officials to request waivers from the
Department of Defense (“DOD”)3 if they cannot comply with UOCAVA’s 45-day advance transmission
requirement due to an undue hardship. Id. § 20302(g)(1). The DOD may grant a waiver in
several enumerated circumstances, including where “[t]he State has suffered a delay in generating
ballots due to a legal contest,” and such an issue “creates an undue hardship for the

State.”4

Id. § 20302(g)(2)(B).

In addition, absent hardship waivers, courts have ordered into effect remedial plans to vindicate
UOCAVA voters’ rights when UOCAVA voters would otherwise have been left without ample time to cast
their ballots. See Consent Decree, United States v. West Virginia, No. 2:14-cv-27465 (S.D. W.Va.
Nov. 3, 2014), ECF No. 5 at 4-5 (adopting a remedial plan to protect UOCAVA voters where an undue
hardship waiver was rejected), available at

3 UOCAVA requires the President to designate an executive department head to have primary
responsibility for federal functions under UOCAVA. 52 U.S.C. § 20301. The Secretary of Defense
was designated the Presidential designee by Executive Order 12642, 53 Fed. Reg. 21975 (June 8,
1988). The Secretary of Defense has delegated this authority to the Under Secretary of Defense
(Personnel & Readiness) through DOD Directive 1004.04.

4 State waiver applications must “explain the hardship preventing the state from complying with the
forty-five day rule and propose a substitute timeline specifying how many days before the election
UOCAVA voters will receive their ballots.”   Alabama, 778 F.3d at 930 (citing 52
U.S.C. § 20302(g)(1)(B)-(C)).    Along with the substitute timeline, the application must
articulate a “comprehensive plan to ensure that [UOCAVA] voters are able to receive absentee
ballots which they have requested and submit marked absentee ballots to the appropriate State
election official in time to have that ballot counted in the election for Federal office[.]”   52
U.S.C. § 20302(g)(1)(D).   The Under Secretary of Defense for Personnel and Readiness reviews
States’ waiver applications, consults with the Department of Justice, and decides whether the
applications do or do not meet the requirements for a one-time undue hardship waiver.   See Decl.
of David V. Simunovich in Supp. of Order to Show Cause, Ex. 8 (Federal Voting Assistance Program,
Guidance on Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) Ballot Delivery Waivers),
ECF No. 22-8 at 9.    For waivers sought on the basis of a delay due to a legal contest, the
Presidential designee is required to respond within five business days of receipt.    52 U.S.C. §
20302(g)(3)(B).

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https://www.justice.gov/crt/about/vot/misc/wv_uocava_cd.pdf (last visited Aug. 16, 2016);
Memorandum-Decision and Order, United States v. New York, 1:10-cv-1214, ECF No. 59 at 2 (N.D.N.Y.
Jan. 27, 2012) (ordering a UOCAVA-compliant primary date after hardship waivers granted for prior
elections had proven inadequate), available at

https://www.justice.gov/crt/about/vot/misc/ny uocava order.pdf (last visited Aug. 16, 2016). These
plans typically involve extending the ballot receipt deadline for UOCAVA voters to afford these
voters a full 45-day period in which to receive, mark, and return their ballots. See, e.g.,
Consent Decree, United States v. New York, No. 1:10-cv-1214 (N.D.N.Y. Oct. 19, 2010), ECF No. 9 at
6-7, available at https://www.justice.gov/crt/about/vot/misc/ny_uocava10_cd.pdf (last visited Aug.
16, 2016); Settlement Agreement and Stipulated Motion for Entry of Order, United States
v. Vermont, No. 5:12-cv-236 (D. Vt. Oct. 22, 2012), ECF No. 10 at 3, available at

https://www.justice.gov/crt/about/vot/misc/vt uocava settlement12.pdf (last visited Aug. 16, 2016).
   Remedial court orders may also provide for alternative means of transmission and receipt of
UOCAVA voters’ ballots, allowing these voters to receive and return their ballots on an expedited
basis via pre-paid express mail or electronic transmission.   See, e.g., Consent Decree, United
States v. Virgin Islands, No. 3:12-cv-00069 (D.V.I. Sept. 7, 2012), ECF No. 10 at 8, available at
https://www.justice.gov/crt/about/vot/misc/vi cd.pdf (last visited Aug. 16, 2016). Through such
remedial court orders, federal courts have ensured that UOCAVA voters’ rights are protected to the
extent possible.    See Memorandum-Decision and Order, United States v.
New York, 1:10-cv-1214, ECF No. 59 at 2 (N.D.N.Y. Jan. 27, 2012) (Sharpe, J.) (“It is

unconscionable to send men and women overseas to preserve our democracy while simultaneously
disenfranchising them while they are gone.”).

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B. Factual Background

On April 14, 2016, Plaintiff Pidot filed a designating petition with Defendant New York State Board
of Elections (“SBOE”) seeking to have his name placed on the ballot for the Republican nomination
for New York’s Third Congressional District.   Compl. ¶¶ 22-23.
Under an existing consent decree between New York and the United States entered by this Court, the
Republican primary election for the Third Congressional District was scheduled to take place on
June 28, 2016.   See Compl., Ex. 1, ECF No. 1-1 at 1-2; see also Supplemental Remedial Order,
United States v. New York, No. 1:10-cv-1214 (N.D.N.Y. Oct. 29, 2015), ECF No. 88, Decl. of Ernest
A. McFarland in Supp. of Statement of Interest of the United States, Ex. A. UOCAVA’s 45-day advance
transmission deadline for that election fell on May 14, 2016.
On April 27, 2016, objectors to Pidot’s petition commenced a special proceeding in New York State
Supreme Court, Nassau County, seeking to invalidate Pidot’s designating petition.
Compl. ¶ 24.   On May 4, 2016, in response to this invalidation proceeding, Defendant SBOE
determined that Pidot’s designating petition contained too few valid signatures to qualify for
inclusion on the primary election ballot.    Id. ¶ 25.
On May 6, 2016, Pidot commenced a special proceeding under Article 16 of New York State Election
Law in New York State Supreme Court, Nassau County, to dispute the rejection of his designating
petition.   Id. ¶ 26.   The court dismissed Pidot’s suit on May 11, 2016 for failure to effect
proper service of process.   Id. ¶ 28.   That decision came three days before the May 14, 2016,
45-day advance transmission deadline for UOCAVA ballots.
On May 18, 2016, Pidot moved to vacate the trial court’s order dismissing his petition.

Id. ¶ 30. The Supreme Court, Nassau County denied this motion on June 7, 2016, and Pidot

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appealed to the Appellate Division, Second Department. Id. ¶¶ 30-31. On June 17, 2016, that court
reversed the trial court’s dismissal order and remanded for a determination of the merits of
Pidot’s petition.    Id. ¶ 31.
The state trial court held a three-day hearing and, on June 24, 2016, ruled that Pidot’s petition
contained enough valid signatures to place his name on the ballot.    Id. ¶¶ 36, 39.    But, given
that the primary election remained scheduled for June 28, 2016, Pidot’s counsel conceded that
adding Pidot’s name to the ballot for the June 28, 2016 primary election was infeasible.
Compl., Ex. 2, ECF No. 1-2 at 2. The trial court agreed, noting multiple reasons preventing Pidot’s
addition to the ballot in the short period of time remaining, including the long-passed deadline
for transmitting UOCAVA ballots.   Id.
Although conceding that Pidot’s name could not be added to the June 28, 2016 ballot, Pidot’s
counsel sought alternative relief in the form of a new primary election date.   Id. at 2-3. The
state trial court denied this relief, however, explicitly noting the state court defendants’
arguments that new elections are rarely granted under New York State law.    Id. at 3.   The trial
court did not cite UOCAVA as an additional reason for denying Pidot’s request for a new election.
Nor would UOCAVA have in any way limited the grant of a new primary election set for a date
allowing timely transit of ballots to UOCAVA voters.
On July 7, 2016, represented by new counsel, Pidot appealed from the state trial court’s order
denying him relief.    See Decl. of David V. Simunovich in Supp. of Order to Show Cause, Ex. 7, ECF
No. 22-7 at 10, 25.   On July 21, 2016, the Appellate Division affirmed the trial court decision in
all respects.    Id., Ex. 9, ECF No. 22-9 at 1.    As to Pidot’s request to be placed on the June
28, 2016 ballot, the appellate court found that “[t]he Supreme Court properly concluded

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based, inter alia, on the concession of Pidot’s counsel, that it would be impossible to grant Pidot
the relief he specifically requested in his petition, namely, to include his name on the June 28,
2016, primary ballot.”   Id. at 2 (internal citation omitted).   The appellate court similarly
rejected Pidot’s request for a rescheduled primary election, noting that this relief had not been
requested in Pidot’s petition and had only been sought orally by his counsel on the last day of the
trial court hearing.    Id.    The Appellate Division’s decision does not mention UOCAVA or cite it
as a reason for not ordering a new election.
C.        Procedural History

On July 13, 2016, Plaintiffs Pidot, Nancy Hawkins, and Steven Axelman filed this

action.5

All three Plaintiffs, as purported voters in the Third Congressional District, along with

Pidot, as a candidate seeking election from this district, argue that their First and Fourteenth
Amendment rights, and possibly their rights under UOCAVA, have been violated by the failure to hold
a new primary election.   Compl. ¶¶ 47-69.   Seeking a Court-ordered primary election as a remedy,
they argue that, to the extent such an election conflicts with UOCAVA’s 45-day advance transmission
requirement, this Court should require Defendant SBOE to seek a hardship exemption under UOCAVA.
Id. at 17.    Should a UOCAVA exemption be unavailable or infeasible, Plaintiffs alternatively seek
a declaration that UOCAVA’s 45-day advance transmission requirement is unconstitutional as applied
here.   Id.

When filing their Complaint, Plaintiffs requested that this case be designated as related to

5 On June 27, 2016, following the state trial court’s decision, Pidot and Hawkins filed a pro se
complaint in the United States District Court for the Eastern District of New York. Compl.
¶ 40. On July 5, 2016, Plaintiffs’ present counsel entered an appearance in the action and
voluntarily dismissed it without prejudice pursuant to Federal Rule of Civil Procedure 41(a). Id. ¶
41.

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United States v. New York, No. 10-cv-1214 (N.D.N.Y. filed Oct. 12, 2010), a separate case in which
this Court set the primary election calendar for federal Congressional elections throughout New
York.    See Notice of Related Cases, ECF No. 6.    On July 18, 2016, the Honorable Gary
L. Sharpe, who presided over the previous matter, denied Plaintiffs’ request.   See Order, July 18,
2016, ECF No. 11.
Along with their Complaint, Plaintiffs also filed notice that this action involves a challenge to
the constitutionality of UOCAVA, pursuant to Federal Rule of Civil Procedure 5.1(a)(1)(A).    See
Notice to Court that Action Involves Challenge to Constitutionality of Federal Statute, ECF No. 2.
On July 19, 2016, this Court ordered that the question of UOCAVA’s constitutionality be certified
to the United States Attorney General, pursuant to Rule 5.1(b) and 28 U.S.C. § 2403.    See Order,
July 19, 2016, ECF No. 16.   Under Rule 5.1(c), the United States has 60 days from the filing of
Plaintiffs’ notice to intervene in this litigation (i.e., September 12, 2016).    FED. R. CIV. P.
5.1(c).    In the interim, this Court may reject Plaintiffs’ constitutional challenge, but it may
not enter a final judgment holding UOCAVA unconstitutional before the time to intervene expires.
Id.
II.       ARGUMENT

This Court need not reach Plaintiffs’ potential claim regarding UOCAVA’s constitutionality to
resolve this matter. That is because the state courts’ refusals to order a new election for New
York’s Third Congressional District were premised on state law grounds only. UOCAVA played no role.
Plaintiffs’ alleged harms, therefore, if any, resulted solely from state courts applying state
law -- and not from any barrier imposed by UOCAVA.

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Nor does UOCAVA present any barrier to relief now. To the extent the Court believes it appropriate
to order a new election, that election can be conducted in a manner that fully protects UOCAVA
voters’ rights. Accordingly, because UOCAVA imposed no harm below, and because it presents no
barrier to relief here, its constitutionality is not implicated by this case.6
A. UOCAVA Played No Role In Causing The Harms Alleged Here.

Plaintiffs ask this Court to order what New York State courts applying state law have already
declined to grant -- a new federal primary election.   They also ask this Court to declare UOCAVA’s
45-day advance transmission requirement unconstitutional to the extent that it bars that requested
relief.   But because UOCAVA played no role in blocking the relief Plaintiffs seek here, its
constitutionality is not at issue.
In state Supreme Court, Plaintiff Pidot initially requested that his name be placed on the ballot
for the then-pending June 28, 2016 Republican primary election.   The court denied that request,
after Pidot conceded there was not enough time to grant this relief.   Compl., Ex. 2, ECF No. 1-2
at 2.   Although the state trial court cited UOCAVA as one of several reasons for not placing Pidot
on the ballot for the scheduled primary election, UOCAVA appeared to play no role whatsoever in the
court’s rejecting Pidot’s eleventh hour alternate request for a new election (the relief Pidot
seeks here).   Id. at 2-3.   On the latter point, the trial court noted only New York’s argument
that ordering a new election lacked precedent under state law absent evidence of fraud. Id. at 3.

6 As noted, should the Court disagree and find that an analysis of UOCAVA’s constitutionality is
unavoidable under the circumstances, the United States would expect to intervene in this action to
defend UOCAVA’s constitutionality on or before September 12, 2016 (or as ordered by the Court).
FED. R. CIV. P. 5.1(c); 28 U.S.C. § 2403(a).

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The state trial court’s failure to cite UOCAVA in denying Pidot’s request for a new election was
not likely an oversight.   At the time of the trial court’s decision on June 24, 2016, more than
four months remained before the general election, and UOCAVA’s 45-day advance transmission
requirement posed no bar whatsoever to a rescheduled primary election.   Ample time remained to
schedule a new UOCAVA-compliant primary election without affecting preparation for the general
election.
Nor did UOCAVA play any role in the Appellate Division’s refusal to order a new election.   Its
decision notes only that Pidot’s request for a new election was procedurally defective, having been
raised for the first time during the state trial court hearing.   Decl. of David
V. Simunovich in Supp. of Order to Show Cause, Ex. 9, ECF No. 22-9 at 2.   As with the trial court
ruling, UOCAVA was not and could not have been the basis for the Appellate Division’s refusal to
order a new election.   At the time of the Appellate Division’s decision, sufficient time existed
to schedule a new primary election that complied fully with UOCAVA’s 45-day advance transmission
requirement.
Thus, because UOCAVA played no role whatsoever in the decisions by New York State courts to deny
Pidot’s request for a new election, UOCAVA could not have caused any of the harms alleged here.7

7 Plaintiffs allege that New York’s failure to seek a hardship waiver exemption violated UOCAVA.
Pls.’ Mem. of Law in Supp. of Their Request to Proceed by Order to Show Cause and For a New
Election, ECF No. 20 at 12-13.   To remedy this alleged violation, they ask the Court to order the
state to seek a “hardship exemption” from DOD -- but only “if it is determined that a Republican
primary election for the Third Congressional District cannot be held in compliance with UOCAVA’s
45-day requirement[.]”   Id. at 14.   Yet, under the circumstances of this case, it is unclear what
harm, if any, flowed from the State’s alleged failure to seek a hardship exemption. The state
courts noted several logistical impediments to adding Pidot’s name to the June 28, 2016 primary
election ballot, notwithstanding the absence of a “hardship waiver.”   Compl., Ex. 2, ECF
11

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B. UOCAVA Is No Bar to a New Election Should This Court Order One.

Should this Court conclude that a new election is an appropriate remedy for the First and
Fourteenth Amendment harms alleged here, it still need not consider UOCAVA’s constitutionality.
That is because UOCAVA is no bar to a new election.   Indeed, if a new election is deemed
appropriate and if that new election were required to be held without sufficient time to transmit
ballots 45 days before the required election day, then -- consistent with prior cases where
compliance with UOCAVA’s 45-day advance transmission requirement has proven impossible (and absent
a waiver) -- this Court may require Defendants, in consultation with the United States, to
implement that primary election on a schedule that ensures the rights of UOCAVA voters.   This
course would serve the Plaintiffs’ interests, vindicate the rights of the state’s military and
overseas voters, and honor principles of constitutional avoidance.
1. New York Can Develop an Election Calendar to Remedy Any Imminent UOCAVA Violation.

Nothing bars this Court from ordering UOCAVA-compliant relief. Indeed, in other cases, including
those originating in this court, courts have fashioned relief even where strict compliance with
UOCAVA’s 45-day advance transmission deadline has not been possible because of time constraints.
See, e.g., Consent Decree, United States v. New York, No. 1:10-cv-1214 (N.D.N.Y.

No. 1-2 at 2.   Even if a state court had ordered a new election (which, of course, did not
happen), and even if a UOCAVA waiver had been granted in the days before June 28, 2016, see Pls.’
Mem. of Law in Supp. of Their Request to Proceed by Order to Show Cause and For a New Election, ECF
No. 20 at 13 (arguing that Defendant SBOE “should have sought a waiver no later than June 17, 2016”
(emphasis omitted)), these other logistical challenges would still have prevented Pidot’s placement
on the ballot.   Moreover, it is unclear whether a private right of action exists to force states
to seek hardship waiver exemptions.   Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (noting that
“private rights of action to enforce federal law must be created by Congress.”) Accordingly,
Plaintiffs’ allegations regarding the state’s failure to seek a hardship waiver exemption are
inapt.

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Oct. 19, 2010), ECF No. 9 at 7 (remedial order adopted “[t]o ensure that New York’s UOCAVA voters
will have sufficient opportunity under Federal law to receive absentee ballots they have requested
and submit marked absentee ballots in time to be counted”); Consent Decree, United States v.
Illinois, No. 1:13-cv-00189 (N.D. Ill. Jan 11, 2013), ECF No. 9 at 1 (“[T]he State will not be able
to transmit ballots to UOCAVA voters 45 days prior to the scheduled February 26, 2013 special
primary election . . . .”), available at
https://www.justice.gov/crt/about/vot/misc/il uocava cd13.pdf (last visited Aug. 16, 2016).   In
such cases, UOCAVA’s protections for military and overseas voters are not ignored or discarded as
barriers standing in the way of the constitutional rights of candidates and voters.   Rather, even
absent an undue hardship exemption, courts have remedied imminent or actual UOCAVA violations and
provided military and overseas voters constructive relief.   See Supplemental Consent Decree,
United States v. Illinois, No. 1:13-cv-00189 (N.D. Ill. Oct. 31, 2013), ECF No. 11 at 1 (explaining
that the Consent Decree “order[ed] the State to take certain actions as an appropriate remedy” for
its UOCAVA violations), available at

https://www.justice.gov/crt/about/vot/misc/il uocava cd13 supp.pdf (last visited Aug. 16, 2016).

Such remedies are designed to ensure that UOCAVA voters enjoy sufficient time to receive, mark, and
return their ballot, consistent with the purpose of UOCAVA’s 45-day advance transmission
requirement. For example, jurisdictions can extend the deadline for receipt of ballots from
UOCAVA voters, provide notice to these voters of such extension, and offer

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alternative means of expedited transmission and receipt of ballots.8

See, e.g., Settlement

Agreement and Stipulated Motion for Entry of Order, Vermont, ECF No. 10 at 3-4 (providing
additional time for receipt of absentee ballots from eligible UOCAVA voters whose ballots were sent
late, as well as individual notice to each affected voter); Consent Decree, Virgin Islands, ECF No.
10 at 6-8 (extending the ballot return deadline for UOCAVA ballots, and utilizing express mail, fax
and e-mail options for the delivery and return of UOCAVA ballots).

Indeed, this Court has entered several orders to address imminent or actual UOCAVA violations,
including where New York had missed deadlines under an existing UOCAVA waiver or scheduled special
elections on short notice. See Consent Decree, United States v. New York, No. 1:10-cv-1214
(N.D.N.Y. Oct. 19, 2010), ECF No. 9 at 6-7 (providing extra time for the receipt and counting of
ballots, along with additional transmission methods, where ballots were sent with insufficient time
to permit timely return) ”); Consent Decree, United States v. New York, No.
1:09-cv-335 (N.D.N.Y. Mar. 26, 2009), ECF No. 6 at 4-6 (providing additional time for the receipt
and counting of ballots where a special election was scheduled with insufficient time for UOCAVA
voters to receive and return ballots), available at

https://www.justice.gov/crt/about/vot/misc/ny_uocava09_cd.pdf (last visited Aug. 16, 2016); see
also Memorandum-Decision and Order, United States v. New York, 1:10-cv-1214, ECF No. 59 at

8 Additionally, such a remedy may provide that, where the existing vote margin exceeds the number
of outstanding UOCAVA ballots, states with an extended deadline for receipt of ballots can certify
election results prior to expiration of the receipt deadline. See Consent Decree, United States
v. Wisconsin, No. 3:12-cv-197 (W.D. Wis. Mar. 23, 2012), ECF No. 6 at 7 (explaining that election
results “may be formally certified by late-transmittal municipalities if the number of outstanding
absentee ballots from UOCAVA voters could not mathematically alter the outcome of the election,
subject to amendment or re-certification to add any votes from any ballots returned by the extended
receipt deadline.”), available at
https://www.justice.gov/crt/about/vot/misc/wi uocava cd12.pdf (last visited Aug. 16, 2016).
14

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2 (N.D.N.Y. Jan. 27, 2012) (ordering an earlier primary date to prevent upcoming UOCAVA
violations). 9
Accordingly, if the Court decides that a new election is necessary here, it need not undertake an
inquiry implicating the constitutionality of UOCAVA, as applied or otherwise. Rather, as in past
cases where transmitting ballots to UOCAVA voters 45 days prior to an election is not possible, the
Court should order New York, in consultation with the United States, to develop a primary election
calendar that protects the rights of UOCAVA voters.   New York is best suited to determine the
timing and manner for scheduling and conducting a new
UOCAVA-compliant election.   The Defendants, in consultation with the United States, can likely
adopt a calendar that allows sufficient time for UOCAVA voters to receive, mark, and return their
ballots both in any newly scheduled primary election and in a subsequent federal general election.
This calendar can account for practical concerns involved in scheduling a new primary election,
including the truncated time needed to prepare and certify ballots, and the availability of polling
places, voting machines, and poll workers.
2.   Constitutional Avoidance Counsels Against Ruling On UOCAVA’s Constitutionality.

In the event a new election is deemed appropriate, requiring New York to develop an emergency
compliance plan here would serve principles of constitutional avoidance. See Nw. Austin Mun.
Utility Dist. No. One v. Holder, 557 U.S. 193, 204 (2009) (“[J]udging the constitutionality of an
Act of Congress is the gravest and most delicate duty that this Court is

9 If the court decides that a new primary election is warranted in the Third Congressional
District, among the various options that would be available is for the primary election to be held
in that congressional district on the date of the November general election, and for a special
general election to be held in that district thereafter. This would be another way to meet all of
the interests involved, including those of UOCAVA voters.

Case 1:16-cv-00859-FJS-CFH Document 64 Filed 08/16/16 Page 16 of 18

called on to perform.”   (internal quotation marks omitted)).   Plaintiffs explicitly frame their
claim that UOCAVA is unconstitutional as a solution of last resort, to be used if no other course
is available to grant relief.   See Compl. at 17.   They are correct.   “It is a well established
principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will
not decide a constitutional question if there is some other ground upon which to dispose of the
case.” Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984).   Rather than undertake an expedited
analysis of UOCAVA’s constitutionality, this Court can simply require New York to follow past
remedial practices in similar cases.   See Horne v. Coughlin, 191 F.3d 244, 246 (2d Cir. 1999)
(“Under our system of constitutional government, we generally prefer some prolongation of
uncertainty over unnecessary, hasty resolution of constitutional questions.”).   Indeed, if
necessary here, this Court may, consistent with its role in other UOCAVA cases, enter an order that
ensures that UOCAVA’s 45-day advance transmission requirement will not conflict with any purported
constitutional interest. This course is preferred because it allows New York to resolve any
difficulties posed by scheduling a new primary election without requiring the Court to undertake a
disfavored and unnecessary analysis of UOCAVA’s constitutionality.   See Branch v. Smith, 538 U.S.
254, 272 (2003) (“Only when it is utterly unavoidable should we interpret a statute to require an
unconstitutional result – and that is far from the situation here.”).
CONCLUSION

For the foregoing reasons, this Court should resolve this litigation without addressing the merits
of Plaintiffs’ as applied constitutional challenge to UOCAVA.

Case 1:16-cv-00859-FJS-CFH Document 64 Filed 08/16/16 Page 17 of 18

Respectfully submitted,

DATED: August 16, 2016

RICHARD S. HARTUNIAN                                     VANITA GUPTA
United States Attorney                                               Principal Deputy Assistant
Attorney General
Northern District of New York                                  Civil Rights Division

/s/ Ernest A. McFarland
JOHN D. HOGGAN, JR. – 511254                           T. CHRISTIAN HERREN, JR.
Assistant United States Attorney                               REBECCA J. WERTZ
United States Attorney’s Office                                 RICHARD DELLHEIM
James T. Foley U.S. Courthouse                                ERNEST A. MCFARLAND – 515101
445 Broadway, Room 218                                         NEAL UBRIANI – 520192
Albany, N.Y. 12207                                                   RACHEL EVANS
Attorneys, Voting Section Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

Case 1:16-cv-00859-FJS-CFH Document 64 Filed 08/16/16 Page 18 of 18

CERTIFICATE OF SERVICE

I hereby certify that on August 16, 2016, I served the foregoing on all counsel of record via the
Court’s ECF Filing System. In addition, I hereby certify that on August 16, 2016, I served the
foregoing via United States Postal Service first-class mail on the following counsel:
Steven H. Richman General Counsel
Board of Elections in the City of New York Executive Office
32 - 42 Broadway, 7 Floor New York, NY 10004

/s/ Ernest A.McFarland
ERNEST A. MCFARLAND – 515101
U.S. Department of Justice
Civil Rights Division - Voting Section Room 7265-NWB
950 Pennsylvania Avenue, N.W. Washington, DC 20530
Phone: (202) 307-6552
Email: ernest.a.mcfarland@usdoj.gov

Case 1:16-cv-00859-FJS-CFH Document 66 Filed 08/17/16 Page 1of 2
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JUDGMENT IN A CIVIL CASE

PHILIP PIDOT, NANCY HAWKINS and STEVEN AXELMAN ,

Plaintiffs,
v. CASE NUMBER: 1:16-CV-859
(FJS/CFH)

NEW YORK STATE BOARD OF ELECTIONS, SUFFOLK COUNTY BOARD OF ELECTIONS, NASSAU COUNTY BOARD OF
ELECTIONS, BOARD OF ELECTIONS IN THE CITY OF NEW YORK , PETER KOSINSKI, DOUGLAS KELLNER, ANDREW J.
SPANO, GREGORY P. PETERSON, TODD D. VALENTINE and ROBERT A. BREHM,

JACK MARTINS,

Defendants,

Intervener Defendant.

Decision by Court. This action came to a hearing before the Court. The issues have been heard and a
decision has been rendered.

IT IS ORDERED AND ADJUDGED

That Plaintiffs' # [19] motion is GRANTED. The Court ORDERS that Defendants shall hold a Republican
primary election for New York's Third Congressional District with a ballot that names both Jack
Martins and Philip Pidot as candidates on October 6, 2016. The Court further
ORDERS that the State Defendants shall seek a "hardship exemption" pursuant to 52 U.S.C. §
20302(g )(2)(B)(ii) from UOCAVA's 45-day requirement with regard to the November 2016 general
election. The Court further ORDERS that Defendant Martins' # 49 cross-mot ion for judgment on the
pleadings is DENIED as moot. Judgment is entered in favor of Plaintiffs.

All of the above pursuant to the oralorder of the Honorable Judge Frederick J. Scullin, Jr.,
rendered on the 17th day of August, 2016.

DATED: August 17, 2016

t £.. a4_v- g
NiCOle Eaonardo
Deputy Clerk

Case 1:16-cv-00859-FJS-CFH Document 66 Filed 08/17/16 Page 2 of 2

Federal Rules of Appellate Procedure
Rule 4. Appeal as of Right

(a) Appeal in a Civil Case.

1. (1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of
appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the
judgment or order appealed from.
(B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or
order appealed from if one of the parties is:
(i) the United States;
(ii) a United States agency;
(iii) a United States officer or employee sued in an official capacity; or
(iv) a current or former United States officer or employee sued in an individual capacity for an
act or omission occurring in connection with duties performed on the United States' behalf —
including all instances in which the United States represents that person when the judgment or
order is entered or files the appeal for that person.
(C) An appeal from an order granting or denying an application for a writ of error coram nobis is
an appeal in a civil case for purposes of Rule 4(a).
(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision
or order—but before the entry of the judgment or order—is treated as filed on the date of and after
the entry.
(3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a
notice of appeal within 14 days after the date when the first notice was filed, or within the time
otherwise prescribed by this Rule 4(a), whichever period ends later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any of the following motions under the Federal
Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the
order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the
motion would alter the judgment;
(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule
58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is
entered.
(B)(i) If a party files a notice of appeal after the court announces or enters a judgment—but
before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a
judgment or order, in whole or in part, when the order disposing of the last such remaining motion
is entered.
(ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or
a judgment's alteration or amendment upon such a motion, must file a notice of appeal, or an
amended notice

of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the
entry of the order disposing of the last such remaining motion.
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time
prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex
parte unless the court requires otherwise. If the motion is filed after the expiration of the
prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days
after the date when the order granting the motion is entered, whichever is later.
(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal
for a period of 14 days after the date when its order to reopen is entered, but only if all the
following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil
Procedure 77 (d) of the entry of the judgment or order sought to be appealed within 21 days after
entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days
after the moving party receives notice under Federal Rule of Civil Procedure 77 (d) of the entry,
whichever is earlier; and
(C) the court finds that no party would be prejudiced.
(7) Entry Defined.
(A) A judgment or order is entered for purposes of this Rule 4(a):
(i) if Federal Rule of Civil Procedure 58 (a) does not require a separate document, when the
judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79 (a); or
(ii) if Federal Rule of Civil Procedure 58 (a) requires a separate document, when the judgment or
order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the
earlier of these events occurs:
• the judgment or order is set forth on a separate document, or
• 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of
Civil Procedure 79 (a).
(B) A failure to set forth a judgment or order on a separate document when required by Federal Rule
of Civil Procedure 58 (a) does not affect the validity of an appeal from that judgment or order.

UNDER SECRETARY OF DEFENSE
4000 DEFENSE PENTAGON
WASHINGTON.D.C. 20301-4000

PERSONNEL AND READINESS

Executive Director Robert A. Brehm Executive Director Todd D. Valentine New York State Board of
Elections
40 North Pearl Street, Suite 5 Albany, NY 12207-2729

AUG 2 9 ?.016

Dear Executive Directors Brehm and Valentine:

On August 22, 20 16, the Department of Defense received from New York State an application dated
August 22, 2016, for an undue hardship waiver under the Uniformed and Overseas Citizens Absentee
Voting Act (UOCA VA) for the November 8, 2016, New York Third Congressional District general
election.

Under delegated authority from the Secretary of Defense as the Presidential Designee for UOCAVA, I
have reviewed the State's application, and after consultation with the representative of the
Attorney Genera], find that it meets the req uirements for an undue hardship waiver under 52 U.S.C.
§ 20302 (g)(2). Accordingly, Iapprove the State of New York 's request to waive the application of
52 U.S.C. § 20302 (a)(8)(A) for the November 8, 2016, general election.

Tn rendering this decision, Icarefu lly considered the assertions made by the State in support of
its waiver request, which are addressed in detail in the Memorandum attached to this letter. This
waiver is based on the understanding that the State of New York wi ll comply with all commitments
described herein , including that New York will seek a court order for an eight-day extension of
its ballot receipt deadline for the Novem ber 8, 2016, general election in the Third Congressional
District. Based on those assertions and the attached memorandum , Ihave determined the
following: the State faces an undue hardship, and the State's proposed comprehensi ve plan for
this election provides sufficient time for UOCAVA voters to vote and have their ballots counted as
a substitute for the requirement that timely-requested absentee ballots be transmi tted to all
UOCAVA voters at least 45 days prior to Election Day.

Peter Levine Acting

Enclosure:
As stated

MEMORANDUM

Approval of the State of New York’s Waiver Request under 52 U.S.C. § 20302 (g)(2)
for the November 8, 2016, NY Third Congressional District General Election

The Federal Voting Assistance Program (FVAP) of the Department of Defense received the application
of the State of New York (the State), dated August 22, 2016, for an undue hardship waiver for the
November 8, 2016, Third Congressional District general election, as provided by the Uniformed and
Overseas Citizens Absentee Voting Act (UOCAVA).1 Approval of the waiver request and this
memorandum rely on the statements made by the State in support of its August 22, 2016, official
waiver request and subsequent supplementary information provided during the August 23, 2016,
conference call between the State, FVAP, and the United States Department of Justice.

Under delegated authority from the Secretary of Defense as the Presidential Designee for UOCAVA,2
the Acting Under Secretary of Defense for Personnel and Readiness has reviewed New York’s
application, consulted with the representative of the Attorney General, and finds the State’s
application meets the requirements for a one-time undue hardship waiver under 52 U.S.C.
§ 20302 (g)(2)(A),3 and approves New York’s waiver request under 52 U.S.C. § 20302 (a)(8)(A)4 for
the November 8, 2016, Federal general election in New York’s Third Congressional District. For
purposes of this Memorandum, the term “Presidential Designee” includes those officials exercising
authority delegated by the Presidential Designee.

I. Background and Initial Findings

UOCAVA authorizes the Presidential Designee to grant a waiver only to those States whose reason for
a waiver corresponds with one of the following situations:

1. The State’s primary election date prohibits the State from complying with subsection
(a)(8)(A);
2. The State has suffered a delay in generating ballots due to a legal contest; or
3. The State Constitution prohibits the State from complying with such Section.5

On August 17, 2016, the United States District Court for the Northern District of New York ordered
the State to hold a Republican primary election for New York’s Third Congressional District on
October 6, 2016. The court further ordered that the State seek a hardship exemption

1 52 U.S.C § 20302 (formerly 42 U.S.C. § 1973ff, et seq.) UOCAVA’s waiver provision is found at 52
U.S.C. § 20302 (g)(2).
2 The Secretary of Defense was designated the Presidential Designee by Executive Order 12642 (June
8, 1988), 53 CFR § 21975. The Secretary of Defense has delegated this authority to the Under
Secretary of Defense (Personnel & Readiness) through DOD Directive 5124.02.
3 Formerly 42 U.S.C. § 1973ff-1 (g)(2)(B)(ii).
4 Formerly 42 U.S.C. § 1973ff-1 (a)(8)(A).
5 52 U.S.C. § 20302 (g)(2)(B) (formerly 42 U.S.C. § 1973ff-1(g)(2)(B)).
1

pursuant to 52 U.S.C. § 20302(g)(2)(B)(II) from UOCAVA’s 45-day advance transmission requirement
with regard to the November 8, 2016, Federal general election in that district. As the
court-ordered primary election will occur after the 45-day deadline for transmitting UOCAVA ballots
for the November 8, 2016, general election, and the State will be unable to transmit ballots for
the Third Congressional District until the Republican primary election results are known, the State
is unable to comply with 52 U.S.C. § 20302 (a)(8)(A).6

Under UOCAVA, if a State determines that it is unable to comply with the requirement to transmit
timely-requested absentee ballots at least 45 days before an election for Federal office (45-day
advance transmission requirement) due to one of the three situations referenced above resulting in
an undue hardship, the Chief State Election Official shall request a waiver from the Presidential
Designee pursuant to the Act. The Presidential Designee shall approve such a request if the
Presidential Designee determines that:

1. One or more of the three referenced situations creates an undue hardship for the State; and,
2. The State’s comprehensive plan presented in support of its request provides absent uniformed
services and overseas voters (UOCAVA voters) sufficient time to receive and submit absentee ballots
they have requested in time to be counted in the election for Federal office.

The Presidential Designee’s findings for each of these requirements are addressed separately below.

In the memorandum of February 7, 2012, to Chief State Election Officials, the Director of FVAP
provided guidance on UOCAVA ballot delivery waivers. In Appendix A, Section IV, Evaluation of
Comprehensive Plans, the guidance concludes:

In summary, a State’s comprehensive plan must provide sufficient time for UOCAVA voters to receive,
mark, and return the ballot in time to be counted. The burden is upon the State to demonstrate that
a waiver qualifying condition exists, that compliance with the requirements of UOCAVA in light of
the condition presents an undue hardship to the State, and that the comprehensive plan provides the
UOCAVA voters sufficient time to receive, mark, and return their ballots in time to be counted. To
serve as a substitute for the 45-day prior requirement, the comprehensive plan must provide UOCAVA
voters sufficient time to successfully vote as compared to the time available by strictly complying
with UOCAVA’s minimum ballot transmission requirements.7

The comprehensive plan proposed by New York addressed the following requirements set forth in
UOCAVA:

6 Formerly 42 U.S.C. § 1973ff-1(a)(8)(A)); see also 52 U.S.C. § 20302 (g)(2)(B)(i) (formerly 42
U.S.C. § 1973ff-1 (g)(2)(B)(i)).
7 Guidance on Uniformed and Overseas Citizen Absentee Voting Act (UOCAVA) Ballot Delivery Waivers,
Memorandum Dated February 7, 2012, available at http://www.fvap.gov/eo/waivers.
2

(i) the steps the State will take to ensure that UOCAVA voters have time to receive, mark, and
submit their ballots in time to have those ballots counted in the election;
(ii) why the plan provides UOCAVA voters sufficient time to vote as a substitute for the
requirements of the UOCAVA; and
(iii) the underlying factual information which explains how the plan provides such sufficient time
to vote as a substitute for such requirements.8
Further, as required by 52 U.S.C. § 20302 (g)(1)(A),9 New York’s application recognizes that the
purpose of the Act’s 45-day advance transmission requirement is to allow UOCAVA voters enough time
to vote and have their votes counted in an election for Federal office.

In determining whether the State’s comprehensive plan provides sufficient time to vote as a
substitute for the requirement to transmit ballots 45 days before the election, the Presidential
Designee considered that the minimum absentee ballot requirements under the law require
timely-requested ballots to be transmitted 45 days prior to Election Day, using the voter’s choice
of either postal mail or electronic transmission method.

The State’s comprehensive plan was evaluated against several criteria; the analysis as to whether
the comprehensive plan provides sufficient time was examined by considering the totality of
circumstances presented. Among the issues considered was the total time a voter has to receive,
mark, return the ballot, and have it counted (including the number of days before and after
Election Day). Also among the issues considered was the cumulative number and accessibility of
alternative methods of ballot transmission, and, if applicable, ballot return, as additional
alternative methods provide more UOCAVA voters with the likelihood they will have sufficient time
to receive, vote, return their ballot, and have it counted. Finally, the comprehensive plan was
reviewed for any additional efforts made by the State that improved the likelihood a UOCAVA voter
would be able to receive, vote, return the ballot, and have it count.

II. The State Has Shown Undue Hardship

New York states that the court has ordered it to hold a Republican primary election on October 6,
2016, for New York’s Third Congressional District. The October 6, 2016, date for that court-
ordered primary election falls after the September 24, 2016, 45-day deadline for transmitting
UOCAVA ballots for the November 8, 2016, general election. Due to New York’s inability to transmit
the general election ballot for the Third Congressional District until after a winner of the
Republican primary election is determined, the court further ordered the State to seek a hardship
exemption pursuant to 52 U.S.C. § 20302(g)(2)(B)(II) from UOCAVA’s 45-day requirement with regard
to the November 8, 2016, general election.

For this reason, the State’s waiver application has demonstrated an undue hardship.

8 52 U.S.C. § 20302 (g)(1)(D) (formerly 42 U.S.C. § 1973ff-1(g)(1)(D)).
9 Formerly 42 U.S.C. § 1973ff-1 (g)(1)(A).

III. The State’s Comprehensive Plan Provides Time for UOCAVA Voters To Vote and Have Those Votes
Counted

Once the State has shown that it has suffered an undue hardship, as it has in this case, the State
must show that its comprehensive plan provides “sufficient time for UOCAVA voters to receive, mark,
and return the ballot in time to be counted.”10 In this case, the only UOCAVA voters affected are
those UOCAVA voters in New York’s Third Congressional District. In reaching a determination, the
Presidential Designee must examine the totality of circumstances presented in the plan to determine
whether it provides sufficient time to vote as a substitute for UOCAVA’s requirement that ballots
be transmitted at least 45 days prior to Election Day. Among the issues considered are the time
voters have to receive, mark, return their ballots, and have them counted (both before and after
Election Day); the cumulative number of alternative methods of ballot transmission and return; and
the accessibility of the alternative ballot transmission methods presented in the comprehensive
plan.

New York’s comprehensive plan to provide sufficient time to vote as a substitute for UOCAVA’s
45-day advance transmission requirement is as follows:

• As soon as practicable, each county board will transmit to its affected UOCAVA voters, in the
manner of transmission stated on each voter’s application, a communication providing a clear and
concise summary of the court-ordered primary and how it will impact the number and timing of
ballots they will receive. The communication will also include the various deadlines and methods of
return of each ballot to be received.

• For those voters who have requested to receive their voting materials by postal mail, but have
not previously provided an email address, additional language will be included in their September
24, 2016, mailing of the November General Election ballots communication encouraging them to submit
a revised Federal Post Card Application for the purposes of establishing an email address of record
and to facilitate a change in their transmission preference, if they choose, to “Email/Online” to
allow for the expeditious delivery of all future voting materials. New York will work with FVAP to
identify and seek assistance from the Department in communicating to these voters at any official
Department sponsored email address.

• A communication will be included with the September 24, 2016, voting materials explaining to
each voter that a general election ballot for the Third Congressional District will not be
transmitted until after the results of the October 6, 2016, primary election are known. At this
time, voters will be informed of their option to use an enclosed Federal Write-In Absentee Ballot
for the purpose of voting in the Third Congressional District in advance of them receiving their
official ballots, along with information on how to obtain the results of the October 6, 2016,
primary election.

A separate ballot, containing only the Third Congressional District contest will be transmitted
once the results from the October 6, 2016, Republican primary election are certified. This

10 52 U.S.C. § 20302 (g)(2)(A) (formerly 42 U.S.C. § 1973ff-1(g)(2)(A)).
4

certification date is dependent on whether an “unambiguous winner”11 can be determined by the polls
closing on October 6, 2016. Should an “unambiguous winner” be determined on October 6, 2016, each
county board of elections will issue a provisional certification of the results by October 7, 2016,
which will allow the State to certify the general election ballot on the same day. Should all of
these criteria be met in the timeline specified, the counties will transmit the Third Congressional
District ballots on October 8, 2016, or 31 days before to the November 8, 2016, general election.

• If an “unambiguous winner” cannot be determined based on Election Day returns, then each
affected county election board will enter an expedited post-primary certification process with the
intended completion date of not later than seven days after the election. Under this revised
timeframe, the State will transmit Third Congressional District general election ballots by October
15, 2016, or 24 days before the general election.

• The State will coordinate county voter registration systems with the State’s voter list and
its online ballot delivery portal. For voters who have requested their voting materials be
transmitted by postal mail, the Third Congressional District ballot will be sent by an unspecified
expedited mail service. Voters will also be provided a return envelope allowing them to use the
same expedited service to return their ballot at no expense to the voter.

• New York will seek a court order for an eight-day extension of their ballot receipt deadline
until November 29, 2016.

• All communications to voters will include a point of contact at their respective county board
for assistance in the process.

• The State will provide sample language to all county boards to use for each communication to
ensure uniform language is being used for all affected voters.

Absent a waiver request, States are specifically required to transmit timely-requested absentee
ballots 45 days prior to Election Day. A waiver request becomes necessary when a State is no
longer able to meet this requirement. In this case, it is impossible for New York to transmit
timely-requested ballots 45 days prior to Election Day. Under the potential scenario in which there
is not a “unambiguous” primary election winner on October 6, 2016, voters will have 24 days from
the time ballots are transmitted to the postmark deadline of November 7, 2016. This is 21 days
fewer than UOCAVA voters are provided under 52 U.S.C. § 20302 (a)(8)(A).

A State’s comprehensive plan submitted as a part of a waiver request must provide remedies for
affected voters that will allow them sufficient time to receive, mark, and return their ballot. To
help ensure sufficient time for voters to receive, mark, and return their ballot in time to be
counted, New York’s proposed remedy is to take immediate steps to communicate directly with
affected voters regarding when and how they will receive and return their ballots, to provide for

11 New York defines an “unambiguous winner” as “when the margin of victory is greater than the
total number of outstanding absentee and affidavit ballots such that the uncanvassed ballots cannot
change the winner of the election.”

expedited mailing of ballots to those who have requested their materials by mail, and to provide
those voters with an expedited cost-free method of return. Voters who have requested their
materials be provided electronically will receive their ballots on the day of transmittal.

New York also proposes an extension of the ballot return deadline by eight days and has committed
to seeking a Federal court order approving such extension. Although the number of days ballots are
transmitted before an election are qualitatively superior to days after Election Day, because
voters must have time to receive and mark them by the state’s deadline for casting or postmarking
the ballot, the Department considered not only the overall timing, but the nature of the State’s
comprehensive approach to offset this timeline with direct voter communications and express
delivery of the ballots to voters who request postal mail delivery. FVAP reviewed New York’s plan
pursuant to its published waiver guidance and provided a set of formal clarifying questions during
the course of its deliberation. The original questions and corresponding responses are included in
Appendix A.

FVAP recognizes the unique legal contest situation presented in this hardship waiver request. Given
the court’s order, compliance with the 45-day prior requirement, 52 U.S.C. § 20302 (a)(8)(A), is
impossible. Therefore, based on the totality of the circumstances in this case, as well as the
commitments made by the State in its comprehensive plan, especially its stated intent to seek
Federal court approval of its proposed calendar, the Presidential Designee finds that New York’s
comprehensive plan provides UOCAVA voters with sufficient time to receive, mark, and return their
ballots in time to be counted.

IV. Conclusion

The Presidential Designee has determined that, given the totality of circumstances, New York’s
comprehensive plan provides absent UOCAVA voters sufficient time to receive and submit absentee
ballots they have requested in time to be counted in the November 8, 2016, election.
Accordingly, the plan in this specific circumstance is a sufficient substitute for 52 U.S.C. §
20302 (a)(8)(A)’s12 requirement to transmit timely-requested ballots 45 days in advance of Election
Day in Federal elections, and thus serves as the basis for granting a hardship waiver under 52
U.S.C. § 20302 (g)(2).13

A. Post-Election Evaluation

Because a waiver plan must provide UOCAVA voters sufficient time to vote, an important component of
the approved comprehensive plan is a post-election evaluation of the comprehensive plan, provided
to FVAP by January 6, 2017, which must include the following:

• Written certification that ballots were transmitted to UOCAVA voters on the date and in the
manner described in the waiver application;
• The numbers of ballots sent to absent uniformed services voters to APO and FPO addresses, the
number of ballots sent to uniformed services voters at a street

12 Formerly 42 U.S.C. § 1973ff-1 (a)(8)(A).
13 Formerly 42 U.S.C. § 1973ff-1(g)(2).
6

address within the United States, and the number of ballots sent to overseas civilian voters;
•    The number of ballots from each of these groups returned in time to be counted;
•    The number of ballots from each of these groups returned too late to be counted;
•    If possible, a breakdown of further details about each of the above categories between ballots
faxed, emailed, downloaded from the online ballot delivery and ballot marking system and sent by
postal mail;
•    Any feedback, whether positive or negative, received from voters about any elements of the
State's waiver plan; and
•    Any additional information relevant to the effectiveness of the comprehensive plan, including
information to show measured results of the comprehensive plan, and how the plan provided UOCAVA
voters sufficient opportunity to receive, vote, and return their ballots.

B. Reporting

As part of its comprehensive plan, New York officials agreed to keep FVAP and DOJ/ Voting appraised
of any subsequent problems in implementing the comprehensive plan as proposed, including but not
limited to any failures of local election officials to transmit absentee ballots in accordance with
the timeframe specified by the State’s comprehensive plan.

If you have any questions or concerns, please contact Nate Bacchus, FVAP State Affairs Specialist
for New York State, at 571-372-0739, or nate.a.bacchus@fvap.gov.

Appendix A: New York State Board of Elections Responses to Questions

1. Can you please verify that all three affected counties sent ballots for the Primaiy by the
45 day deadline (yesterday)?

All counties have verified to the State Board that all ballots were transmitted to voters in the
manner in which they requested it by the August 22nd deadline.

2. Please provide data on the # of voters who have overseas and APO/FPO addresses who have
requested postal ballots and have not provided an email address.

For the General Election in the 3rd Congressional District, there is a slight revision to the
numbers of voters who have requested their balloting materials by postal mail, but for whom an
email address is on file.Of the 349 voters cited in the waiver request, there are actually 266 (not
221) who have also provided an email address (76%). Of the remaining 83 voters who have requested
to receive their balloting materials by postal mail, and for whom no email address is on file, 67
are located overseas and 16 are domestic.The county breakdown of these voters is as follows: Nassau
-42 overseas / 9 domestic; Suffolk - 12 overseas I 6 domestic; Queens - 13 overseas / 1domestic.
For those voters overseas, the following table shows a breakdown of the countries in which these
voters are located.

Nassau
Country                 #
Arnba                  1
Australia             1
Austria                 1
Canada                  8
China                  1
France                   5
Ge1many              5
Holland              1
Hungary              1
freland                 1
Israel                    5
Italy                     2
Netherlands         1
No1way               1
Republic of           1

Suffolk
Count1y               #
Canada               3
France                2
Ge1many            1
freland                 1
Israel                  1
Japan                1
Netherlands       1
Spain                1
United
Kingdom            1

Queens
Count1y               #
Argentina           1
Canada            I
Ge1many          1
Greece                4
Israel                   4
Switzerland      1
United
Kingdom           1

Korea
Serbia                    1
Spain                     1
Sweden                 2
Switzerland           1
United
Kingdom               2

3. Can you provide the communication to voters that went out with the August 22nd primary
ballots?

The following language was provided to counties to use in their communications to voters and were
also instructed to include contact information for their board:

On August 17, 2016 a Federal Judge ordered that a Republican primary in the 3rd Congressional
District be held on October 6, 2016. This is your ballot for that election only.

If you have any questions, please contact your local board of elections.

4. Is the State amenable to sending out an expedited communication/mailing to affected voters
prior to the September 24th general election ballot transmittal date?

The State Board would work with each County Board to facilitate such a communication and ensure it
is done in a timely and consistent manner.

5. Is the State amenable to allowing for expedited return for all voters, including those who
receive their ballot electronically?

The State has been investigating various commercial vendor offerings that counties could
potentially use for allowing those voters who have requested their balloting materials
electronically to expedite their ballots’ return. However, we have not to date found a process that
would make the provision of this service feasible for counties or that would mitigate potential
issues with international voters who may have moved from the address originally stated on their
application or who have provided an email address without also providing a physical address.

6. Please provide the citation that grants the State the authority over the counties to
ensure compliance with the plan.

The following sections of NYS Election Law grant the State the necessary authority.
9

* * *
§ 3–102. State board of elections; general powers and duties
In addition to the enforcement powers and any other powers and duties specified by law, the state
board of elections shall have the power and duty to:

1. issue instructions and promulgate rules and regulations relating to the administration of the
election process, election campaign practices and campaign financing practices consistent with the
provisions of law;

* * *
§ 10–124. Military voting; state board of elections; regulatory powers
1. The state board of elections is hereby authorized to take such steps and do such things as, in
its opinion, are necessary to make effective the provisions of any other legislation, in order to
utilize fully any federal or other facilities in the distribution of military ballots. The state
board of elections shall have power to adopt and promulgate orders or regulations adopting, with
respect to the military voters of this state, the provisions of that legislation.
* * *
§ 11–220. Federal voting; applicability of general provisions
The general provisions of this chapter shall apply to this article, except as they are inconsistent
herewith. The provisions of this article shall be liberally construed for the purpose of providing
special federal voters the opportunity to vote. The state board of elections shall have power to
adopt and promulgate regulations to effectuate the provisions of this article.

Case 1:16-cv-00859-FJS-CFH Document 111 Filed 09/01/16 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Plaintiffs,

Defendants,

JACK MARTINS,

Intervenor-Defendant,

TOM SUOZZI,

Intervenor.

Civil Action No.
1:16-CV-00859-FJS-CFH

SUPPLEMENTAL STATEMENT OF INTEREST OF THE UNITED STATES

Case 1:16-cv-00859-FJS-CFH Document 111 Filed 09/01/16 Page 2 of 5

The United States of America (“United States”) respectfully submits this Supplemental Statement of
Interest pursuant to 28 U.S.C. § 517, which authorizes the Attorney General to attend to the
interests of the United States in any pending lawsuit. This matter continues to implicate the
Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C.
§§ 20301 et seq., as amended by the Military and Overseas Voter Empowerment Act, Pub L. No. 111-84,
Subtitle H, §§ 575-589, 123 Stat. 2190, 2318-2335 (2009), a statute over which Congress accorded
the Attorney General broad enforcement authority. See 52 U.S.C.
§ 20307(a).

This Court’s August 17, 2016, judgment required Defendants to conduct a Republican primary election
for New York’s Third Congressional District on October 6, 2016. See Judgment, Aug. 17, 2016, ECF
No. 66. Because that date impacts New York’s ability to comply with UOCAVA’s 45-day advance
ballot transmission requirement for the November 8, 2016, federal general election, this Court
further required New York to seek a waiver from the Department of Defense (“DOD”), pursuant to 52
U.S.C. § 20302(g)(2)(B)(ii), from that advance

transmission requirement.1

Id.

Pursuant to the Court’s order, New York applied to the DOD for an undue hardship waiver from
UOCAVA’s 45-day advance transmission requirement for the November 8, 2016, federal general election
in New York’s Third Congressional District.   See Decl. of Robert A. Brehm, Ex. D, ECF No. 89-6 at
1.    As required by UOCAVA, New York’s waiver application proposed a comprehensive plan for
providing UOCAVA voters sufficient time, given the circumstances, to receive, cast, and return
their ballots in time to be counted.   52 U.S.C.

1 The 45th day before the November 8, 2016, federal general election is September 24, 2016.
2

Case 1:16-cv-00859-FJS-CFH Document 111 Filed 09/01/16 Page 3 of 5

§ 20302(g)(1)(D).   That plan included a proposed extension of the state law deadline for receiving
timely cast ballots by UOCAVA voters and New York’s promise to seek ratification of that extension
by this Court.   See Decl. of Robert A. Brehm, Ex. D, ECF No. 89-6 at 9.   On August 29, 2016, the
DOD granted the State’s hardship waiver request.   See Letter of New York State Board of Elections,
ECF No. 99.
On August 31, 2016, and in conformity with the State’s comprehensive plan, Defendant New York State
Board of Elections moved this Court for an order extending by eight days the state law deadline for
receiving timely cast and timely postmarked UOCAVA ballots for the November 8, 2016, federal
general election for New York’s Third Congressional District.   See Letter Motion of New York State
Board of Elections, ECF No. 106.
In light of this Court’s August 17, 2016, judgment, and the DOD’s August 29, 2016, grant of New
York’s undue hardship waiver application, the United States respectfully informs the Court that it
does not oppose New York’s motion.
The United States also respectfully notes that New York’s motion appears to implicate this Court’s
Supplemental Remedial Order in United States v. New York, No. 1:10-cv-1214 (N.D.N.Y. Oct. 29,
2015), which incorporates a calendar for the November 8, 2016, federal general election in New York
State.    See Supplemental Remedial Order, United States v. New York, No. 1:10-cv-1214 (N.D.N.Y.
Oct. 29, 2015), ECF No. 88 at 6 (Sharpe, J.) (noting that “portions of the Calendar could change as
a result of future legislative enactment or court orders”); see also Decl. of Ernest A. McFarland,
Ex. A, ECF No. 64-2 (same).

Case 1:16-cv-00859-FJS-CFH Document 111 Filed 09/01/16 Page 4 of 5

Respectfully submitted,

DATED: September 1, 2016

/s/ Ernest A. McFarland
JOHN D. HOGGAN, JR. – 511254                           T. CHRISTIAN HERREN, JR.
Assistant United States Attorney                               REBECCA J. WERTZ
United States Attorney’s Office                                 RICHARD DELLHEIM
James T. Foley U.S. Courthouse                                ERNEST A. MCFARLAND – 515101
445 Broadway, Room 218                                         NEAL UBRIANI – 520192
Albany, N.Y. 12207                                                   RACHEL EVANS – 520206
Attorneys, Voting Section Civil Rights Division Room 7265-NWB
U.S. Department of Justice
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

Case 1:16-cv-00859-FJS-CFH Document 111 Filed 09/01/16 Page 5 of 5

CERTIFICATE OF SERVICE

I hereby certify that on September 1, 2016, I served the foregoing on all counsel of record via the
Court’s ECF Filing System.

/s/ Ernest A.McFarland
ERNEST A. MCFARLAND – 515101
U.S. Department of Justice
Civil Rights Division - Voting Section Room 7265-NWB
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Phone: (202) 307-6552
Email: ernest.a.mcfarland@usdoj.gov

Case 16-3028, Document 136-1, 09/16/2016, 1864387, Page1 of 6

16-3028
Martins v. Pidot et. al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR
AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND
THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY
ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

1        At a stated term of the United States Court of Appeals
2   for the Second Circuit, held at the Thurgood Marshall United
3   States Courthouse, 40 Foley Square, in the City of New York,
4   on the 16th day of September, two thousand sixteen.
5
6   PRESENT: DENNIS JACOBS,
7            BARRINGTON D. PARKER,
8            DEBRA A. LIVINGSTON,
9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   JACK MARTINS,
13            Defendant-Intervenor-
14            Appellant,
15
16            -v.-                                16-3028
17
18   PHILIP PIDOT, NANCY HAWKINS, STEVEN
19   AXELMAN,
20            PlaintiffS-Appellees,
21
22            AND
23
24   NEW YORK STATE BOARD OF ELECTIONS,
25   SUFFOLK COUNTY BOARD OF ELECTIONS,
26   NASSAU COUNTY BOARD OF ELECTIONS,
27   BOARD OF ELECTIONS IN THE CITY OF NEW
28   YORK, PETER KOSINSKI, DOUGLAS

Case 16-3028, Document 136-1, 09/16/2016, 1864387, Page2 of 6

1   KELLNER, ANDREW J. SPANO, GREGORY P.
2   PETERSON, TODD D. VALENTINE, ROBERT
3   A. BREHM, IN THEIR OFFICIAL
4   CAPACITIES AS BOARD MEMBERS,
5   COMMISSIONERS, AND EXECUTIVE
6   DIRECTORS OF THE NEW YORK STATE BOARD
7   OF ELECTIONS,
8            Defendants-Appellees
9
10            AND
11
12   TOM SUOZZI
13            Intervenor-Appellee*
14
15   - - - - - - - - - - - - - - - - - - - -X
16
17   FOR APPELLANT JACK MARTINS:     JASON TORCHINSKY, SHAWN
18                                   TOOMEY, STEVE ROBERTS,
19                                   Holtzman Vogel Joesefiak
20                                   Torchinsky PLLC, Warrenton,
21                                   Virginia
22
23                                   PAUL DEROHANNESIAN,
24                                   DANIELLE R. SMITH,
25                                   DerOhannesian &
26                                   DerOhannesian, Albany, New
27                                   York
28
29   FOR APPELLEES PHILLIP PIDOT, NANCY HAWKINS, STEVEN AXELMAN:
30                                   JERRY H. GOLDFEDER, DAVID
31                                   V. SIMUNOVICH, Stroock,&
32                                   Stroock & Lavan LLP, New
33                                   York, New York
34
35   FOR APPELLEE BOARD OF ELECTIONS IN THE CITY OF NEW YORK:
36                                   JANET L. ZALEON, for
37                                   Zachary W. Carter,
38                                   Corporation Counsel of the
39                                   City of New York, New York,
40                                   New York (Susan Greenberg,
41                                   on the brief)
42

*The Clerk of Court is directed to amend the caption as set forth above.

Case 16-3028, Document 136-1, 09/16/2016, 1864387, Page3 of 6

1   FOR APPELLEES NEW YORK STATE BOARD OF ELECTIONS, PETER
2   KOSINSKI, DOUGLAS KELLNER, ANDREW J. SPANO, GREGORY P.
3   PETERSON, TODD D. VALENTINE, ROBERT A. BREHM, IN THEIR
4   OFFICIAL CAPACITIES AS BOARD MEMBERS, COMMISSIONERS, AND
5   EXECUTIVE DIRECTORS OF THE NEW YORK STATE BOARD OF
6   ELECTIONS:
7                                   BRIAN QUAIL, WILLIAM
8                                   MCCANN, JR, New York, New
9                                   York
10
11
12   FOR APPELLEE TOM SUOZZI:
13                                   ABHA KHANNA, MARTIN E.
14                                   GILMORE, Perkins Coie LLP,
15                                   New York, New York
16
17        Appeal from judgment of the United States District

18 Court for the Northern District of New York (Scullin, J.).

19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20 AND DECREED that the injunction of the district court be

21 VACATED, and that the case is remanded with direction to

22 dismiss.

23 This appeal, heard on an expedited basis, is taken from

24 an injunction that directs a special election for the

25 Republican nomination to stand for Congress in the Third

26 Congressional District of New York. Appellant Jack Martins

27 stood unopposed in the Republican general primary on June 28

28 while litigation was ongoing in the New York state courts as

29 to whether a potential opponent for the Republican

30 nomination, Phillip Pidot, had submitted sufficient

31 signatures to get on the ballot. The signatures on Pidot’s

Case 16-3028, Document 136-1, 09/16/2016, 1864387, Page4 of 6

1 petition were validated by the state court four days before

2 the primary, by which point it was found to be impossible to

3 make the arrangements for Pidot to appear on the ballot and

4 to arrange compliance with the other requirements of state

5 and federal law. After the original primary date, the

6 United States District Court for the Northern District of

7 New York (Scullin, J.) issued an injunction requiring that

8 the primary election, with Pidot now on the ballot, be

9 conducted on October 6.

10 Appellant Martins challenges the injunction on several

11 grounds, including voter confusion, the burden holding an

12 election would place on the local boards of election, and

13 the brevity of the interval between the new primary and the

14 general election.

15 We conclude that Martins has standing to appeal the

16 district court’s order; that the Rooker-Feldman doctrine

17 does not apply because Pidot was a state court winner, and,

18 in any event, did not invite review of the state court’s

19 legal judgment; that collateral estoppel is not a bar to

20 this suit, in part because the district court found no

21 privity between Pidot and the voter plaintiffs and in part

22 because the issues involved in the federal action–-i.e.

23 UOCAVA and the First Amendment–-were neither actually

24 litigated nor necessarily decided in the state action; and

Case 16-3028, Document 136-1, 09/16/2016, 1864387, Page5 of 6

1 that Pidot has not precipitated delays sufficient to entail

2 the application of the doctrine of laches. We assume

3 arguendo that Pidot’s suit is not barred by res judicata.

4 Our review of the record indicates that the district

5 court’s resolution of Pidot’s application for an injunction

6 failed to address the applicable injunction standards.

7 A party seeking a preliminary injunction must

8 ordinarily establish (1) irreparable harm, (2) a likelihood

9 of success on the merits, and (3) that issuance of an

10 injunction is in the public interest. See New York ex rel.

11 Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir.

12 2015). The district court’s decision here to order a

13 special primary is a form of permanent injunction. See Pope

14 v. County of Albany, 687 F.3d 565, 569-70 (2d Cir. 2012).

15 “The requirements for a permanent injunction are essentially

16 the same as for a preliminary injunction, except that the

17 moving party must demonstrate actual success on the merits.”

18 New York Civil Liberties Union v. New York City Transit

19 Auth., 684 F.3d 286, 294 (2d Cir. 2011). We properly

20 reverse an order of a permanent injunction where the

21 district court decision rests on an error of law. Pope, 687

22 F.3d at 570-71.

23 Our decision in Rivera-Powell v. New York City Board of

24 Elections, 470 F.3d 458 (2d Cir. 2006), forecloses Pidot’s

Case 16-3028, Document 136-1, 09/16/2016, 1864387, Page6 of 6

1 claim. After review, we conclude that Martins did not waive

2 his Rivera-Powell argument in the district court, and that

3 we can construe Pidot’s First Amendment claim in this case

4 as analogous to a due process claim, as was done in Rivera-

5 Powell itself. Id. at 469. Under Rivera-Powell, “when a

6 candidate raises a First Amendment challenge to his or her

7 removal from the ballot based on the allegedly unauthorized

8 application of an admittedly valid restriction,” such as

9 here, “the state has satisfied the First Amendment if it has

10 provided due process.” Id. at 469-70. Pidot does not

11 allege that the state failed to afford him due process. We

12 therefore vacate the injunction on that ground.

13 Further, Pidot failed to establish–-and the district

14 court failed to find–-that the balance of equities tipped in

15 his favor or that the injunction would be in the public

16 interest. Accordingly, Pidot is not entitled to the

17 injunctive relief which he seeks.

18 For the foregoing reasons, and finding no merit in

19 Pidot’s other arguments, we hereby VACATE the order of the

20 district court and direct the court to enter judgment in

21 favor of the defendants.

22 FOR THE COURT:
23 CATHERINE O’HAGAN WOLFE, CLERK
24

Case 16-3028, Document 136-2, 09/16/2016, 1864387, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse
40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: September 16, 2016 Docket #: 16-3028cv
Short Title: Pidot v. New York State Board of Electi

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 16-cv-859
DC Court: NDNY (SYRACUSE)
DC Judge: Scullin DC Judge: Hummel

BILL OF COSTS INSTRUCTIONS

The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of
costs is on the Court's website.

The bill of costs must:
*   be filed within 14 days after the entry of judgment;
*   be verified;
* be served on all adversaries;
*   not include charges for postage, delivery, service, overtime and the filers edits;
*   identify the number of copies which comprise the printer's unit;
*   include the printer's bills, which must state the minimum charge per printer's unit for a page,
a cover, foot lines by the line, and an index and table of cases by the page;
*   state only the number of necessary copies inserted in enclosed form;
*   state actual costs at rates not higher than those generally charged for printing services in
New York, New York; excessive charges are subject to reduction;
* be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 16-3028, Document 136-3, 09/16/2016, 1864387, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse
40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: September 16, 2016 Docket #: 16-3028cv
Short Title: Pidot v. New York State Board of Electi

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 16-cv-859
DC Court: NDNY (SYRACUSE)
DC Judge: Scullin DC Judge: Hummel

VERIFIED ITEMIZED BILL OF COSTS

Counsel for

respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to
prepare an itemized statement of costs taxed against the

and in favor of

for insertion in the mandate.

Docketing Fee

Costs of printing appendix (necessary copies )

Costs of printing brief (necessary copies )

Costs of printing reply brief (necessary copies )

(VERIFICATION HERE)

Signature

I. Enforcement Activity by the Attorney General
in 2016

B. Activity in Other Litigation by the Attorney General under UOCAVA

United States v. Alabama

Case 2:12-cv-00179-MHT-WC Document 179 Filed 03/23/16 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

UNITED STATES OF AMERICA,              )
)
Plaintiff,                                               )
)
v.                                                )        Case No.
)        2:12-cv-00179-MHT-WC
)
STATE OF ALABAMA and                         ) HONORABLE JOHN H. MERRILL,           )
Secretary of State, in his official capacity,    )
)
Defendants.                                          )

STATE’S NOTICE OF FILING FINAL REGULATIONS

The State of Alabama and the Alabama Secretary of State, defendants in this action, hereby
respectfully file with this court notice of the finality of Ala. Admin. Code § 820-2-10-.18, which
implements the State’s new ranked choice balloting process for UOCAVA voters, as follows:
1. This court previously authorized the State of Alabama to implement Act No. 2015-518. Doc. 164 at
2. In so doing, the court required that the State and the United States “notify the court of their
agreement or their respective positions as to the United States’ request for . . . the filing of
regulations with this court.” Doc. 164 at 4.

Case 2:12-cv-00179-MHT-WC Document 179 Filed 03/23/16 Page 2 of 4

2. In compliance therewith, the State filed a notice that discussed, inter alia, both emergency
regulations and non-emergency regulations.1   Doc. 165.
3. Thereafter, the State filed emergency regulations, doc. 169-1, and amended emergency
regulations, doc. 174-1, with the court.
4. The State also filed with the court its Notice of Intended Action for the non-emergency
regulations, doc. 174-2, and explained that these regulations are subject to a comment period under
State law, and thus did not take effect immediately, doc. 174 at 2.
5. Thereafter, the Secretary of State filed with the Legislative Reference Service a Certification
of Administrative Rules, which is filed once the public comment period has ended. That
Certification was filed on February 5, 2016, and the undersigned emailed a copy of it to counsel
for the United States on February 18, 2016. The email noted that a change had been made to the
regulations and further that a 45-day window for legislative action remained.
6. That window has now closed. Ala. Admin. Code § 820-2-10-.18 is final under State law and is in
effect. A copy is attached hereto beginning at page 11 of Exhibit A.
7. Consistent with the agreement of the parties, as reflected in the State’s Notice   Concerning
Federal   Runoff   Potential,   Training,   and   Regulations,

1 Emergency regulations take effect immediately under State law, but they also
expire.

Case 2:12-cv-00179-MHT-WC Document 179 Filed 03/23/16 Page 3 of 4

doc. 165, the obligation of the State and Secretary of State to file any regulations with this
court terminates with the Remedial Order on December 31, 2016. Thereafter, the State will be free
to make changes to its ranked choice ballot regulations over the years, including the possibility
of drafting entirely new regulations and repealing some or all of the original regulations, all
without any obligation to continue notifying the court of those changes. Any such changes must
comply with UOCAVA.

Respectfully submitted,

LUTHER STRANGE (ASB-0036-G42L)
Attorney General

BY:

s/ Misty S. Fairbanks Messick   Winfield J. Sinclair (ASB-1750-S81W)
Misty S. Fairbanks Messick (ASB-1813-T71F)
Assistant Attorneys General
OFFICE OF THE ATTORNEY GENERAL
501 Washington Avenue Post Office Box 300152
Montgomery, Alabama 36130-0152
Telephone:   (334) 242-7300
Facsimile:   (334) 353-8440 wsinclair@ago.state.al.us mmessick@ago.state.al.us

Attorneys for the State & Secretary Merrill

Case 2:12-cv-00179-MHT-WC Document 179 Filed 03/23/16 Page 4 of 4

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 23rd day of March, 2016, I electronically filed the foregoing document
with the Clerk of the Court using the CM/ECF system which will send notification of such filing to
the following counsel of record:

Victor J. Williamson Amanda Hine
Anna Baldwin Elizabeth M. Ryan Ernest McFarland Richard Dellheim Stephen M. Doyle
T. Christian Herren, Jr.
for the United States

J. Cecil Gardner Robert D. Segall Sam Heldman Edward Still
for the amicus

s/ Misty S. Fairbanks Messick Of Counsel

Case 2:12-cv-00179-MHT-WC Document 179-1 Filed 03/23/16 Page 1 of 18

Exhibit A

Case 2:12-cv-00179-MHT-WC Document 179-1 Filed 03/23/16 Page 2 of 18

Secretary of State Chapter 820-2-10

STATE OF ALABAMA
OFFICE OF THE SECRETARY OF STATE ADMINISTRATIVE CODE

CHAPTER 820-2-10
PROCEDURES FOR IMPLEMENTING THE UNIFORMED AND OVERSEAS CITIZENS ABSENTEE VOTING ACT (“UOCAVA”)

TABLE OF CONTENTS

820-2-10-.01 Purpose
820-2-10-.02 Applicability
820-2-10-.03 Application And Procedures For Issuance Of Absentee Ballot
820-2-10-.04 Return Of Absentee Ballots 820-2-10-.05 Counting Of Absentee Ballots
820-2-10-.06 Minimum Criteria To Ensure Secure.
Remote Electronic Transmission Of Blank Absentee Ballots
820-2-10-.07 Application Of Postmark Deadline To Delivery Of Ballots By Commercial Carriers
820-2-10-.08 Delivery Of Printed Ballots And
Preparation Of Electronic Ballot Transmission System
820-2-10-.17 Counting Of Votes
820-2-10-.18 UOCAVA State Written Plan For Federal Primary Runoff Election

820-2-10-.01 Purpose. The purpose of this chapter is to provide for implementation of the
Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 42 U.S.C. §1973FF et seq., as
Amended by the Military and Overseas Voter Empowerment Act, Pub. L. No. 111-84, Subtitle H,
§§575-589, 123 Stat. 2190, 2318-2355 (2009)(“MOVE Act”) and Act of Alabama 2011-619, for those
qualified individuals requesting to vote by absentee ballot pursuant to the Federal Uniformed and
Overseas Citizens Absentee Voting Act (UOCAVA). The procedures in this chapter are promulgated
under authority granted the Secretary of State as Chief Elections Official pursuant to the UOCAVA
and Code of Ala. 1975, sections 17-11-42 and 17-1-3(a).
Author: Edward Packard; Jean Brown; William Sutton Statutory Authority: Code of Ala. 1975,
§§17-11-40 et seq., 17-1-3(a), 17-11-4, 17-11-5(d), 17-11-9.

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History: New Rule: Filed March 28, 2014; effective May 2, 2014.

820-2-10-.02 Applicability. This chapter applies to absentee balloting for all elections for
individuals eligible to vote by absentee ballot pursuant to the Uniformed and Overseas Citizens
Absentee Voting Act (UOCAVA).
Author: Edward Packard; Jean Brown; William Sutton Statutory Authority: Code of Ala. 1975,
§§17-11-40 et seq., 17-1-3(a), 17-11-4, 17-11-5(d), 17-11-9.
History: New Rule: Filed March 28, 2014; effective May 2, 2014.

820-2-10-.03 Application And Procedures For Issuance Of Absentee Ballot.

(1) Individuals voting by absentee ballot pursuant to UOCAVA may apply for an absentee ballot
by utilizing an application adopted by the State of Alabama pursuant to
§§17-11-4 or 17-11-5(d) or by utilizing the Federal Postcard Application provided for by UOCAVA.
The application must be submitted by the voter by U.S. mail or hand-delivery to the absentee
election manager in the county in which the prospective absentee voter is registered to vote. The
application prescribed by the Secretary of State pursuant to §17-11-5(d) shall provide the UOCAVA
applicant the means to request delivery of the blank absentee ballot by U.S. mail, by hand-delivery
or by electronic transmission.

(2) A voter who chooses to have the blank absentee ballot transmitted to him or her
electronically must designate that choice on the Federal Postcard Application or on the
state-prescribed absentee ballot application prescribed pursuant to §17-11-5(d). If the voter does
not make such designation, the blank absentee ballot shall be delivered to the voter by U.S. mail
or hand-delivery.

(3) If the voter requests to have the blank absentee ballot transmitted electronically, the
absentee election manager shall:

(a) verify the voter registration status of the applicant;

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(b) record in the Alabama Voter Registration and Election Management System the request for
the absentee ballot;

(c) deliver to the voter the blank absentee ballot by electronic transmission utilizing the
electronic blank ballot transmission developed by the Secretary of State;

(d) shall notify the voter that to be properly cast and counted, the voted absentee ballot must
be returned to the appropriate absentee election manager by the date specified in state law and
provide the voter said date;

(4) Each absentee ballot delivered to a voter pursuant to UOCAVA shall include a “UOCAVA
Affidavit” which
shall read as prescribed in §17-11-7, Code of Ala. 1975, except:

(a) the instructions to the voter regarding signing and witnessing of the affidavit shall not
include any reference to notarization and shall read “IF YOUR AFFIDAVIT IS NOT SIGNED (OR MARKED),
AND IF YOUR AFFIDAVIT IS NOT WITNESSED BY TWO WITNESSES 18 YEARS OF AGE OR OLDER, PRIOR TO BEING
DELIVERED OR MAILED TO THE ABSENTEE ELECTION MANAGER, YOUR BALLOT WILL NOT BE COUNTED.”, and

(b) the affidavit shall not include a section for completion by a notary public.

(c) item (5) in paragraph (b) of §17-11-7 shall read “(5) I am entitled to vote an absentee
ballot because I am a member of or a spouse or dependent of a member of the Armed Forces of the
United States or am otherwise entitled to vote pursuant to the federal Uniformed and Overseas
Citizens Absentee Voting Act, 42 U.S.C. 1973ff.”

(5) For voters requesting electronic transmission of the absentee ballot, the “UOCAVA
Affidavit” shall be provided in electronic format to the voter; otherwise the “UOCAVA Affidavit”
shall be provided printed on the ballot return envelope.

(6) For purposes of the MOVE Act and Section 104 of the Uniformed and Overseas Citizens
Absentee Voting Act, the Federal Postcard Application (FPCA) for absentee balloting provided for by
Section 101(b)(2), of the Uniformed and Overseas Citizens Absentee Voting Act shall be processed as
follows:

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(a) An FPCA marked to request delivery of the absentee ballot by e-mail shall be processed as
a request for electronic delivery of the blank absentee ballot.

(b) An FPCA marked to request delivery of the absentee ballot by fax shall be processed as a
request for delivery by U.S. mail of the blank absentee ballot. Author: Edward Packard; Jean Brown;
William Sutton
Statutory Authority: Code of Ala. 1975, §§17-11-40 et seq.,
17-1-3(a), 17-11-4, 17-11-5(d), 17-11-9.
History: New Rule: Filed March 28, 2014; effective May 2, 2014.

820-2-10-.04 Return Of Absentee Ballots.

(1) After the voter marks his or her choices on the ballot, the voter shall:

(a) complete the “UOCAVA Affidavit”, including the section for two witnesses as required by
§17-11-7, Code of Ala. 1975;

(b) when the voter has requested electronic transmission of the blank absentee ballot, insert
and seal the ballot in a blank envelope for secrecy and not write any personally identifying
information on the envelope and then insert and seal the blank envelope (which contains the voted
ballot) and the completed UOCAVA Affidavit into a second envelope to be used for returning the
absentee ballot to the appropriate absentee election manager by hand-delivery, U.S. mail, or
commercial air or ground carrier;

(c) when the voter has requested that the absentee ballot be delivered by U.S. Mail or
hand-delivery, insert and seal the voted ballot into the secrecy envelope and then insert and seal
the secrecy envelope into the envelope on which is printed the “UOCAVA Affidavit” and which is used
as the return envelope for delivering the ballot to the absentee election manager by hand-delivery,
U.S. mail, or commercial air or ground carrier; and

(d) return the absentee ballot by hand-delivery, U.S. mail, or commercial air or ground
carrier, to the appropriate absentee election manager using the address information provided by the
absentee election manager.

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(2) In the event a voter does not place the absentee ballot inside a secrecy envelope, the
absentee election manager shall immediately upon discovery insert and seal the voter’s ballot into
a secrecy envelope and place inside an envelope of sufficient size the secrecy envelope, the UOCAVA
Affidavit, and the envelope used by the voter to deliver the ballot.
Author: Edward Packard; Jean Brown; William Sutton Statutory Authority: Code of Ala. 1975,
§§17-11-40 et seq., 17-1-3(a), 17-11-4, 17-11-5(d), 17-11-9.
History: New Rule: Filed March 28, 2014; effective May 2, 2014.

820-2-10-.05 Counting Of Absentee Ballots.

(1) As provided in §17-11-10, no poll worker or other election official shall count an
absentee ballot unless the appropriate affidavit has been properly completed by the voter.

(2) An affidavit is properly completed if the voter has complied with the provisions of
§17-11-7, Code of Ala. 1975, including the requirement for witnessing, except that the affidavit is
not required to be notarized.
Author: Edward Packard; Jean Brown; William Sutton Statutory Authority: Code of Ala. 1975,
§§17-11-40 et seq., 17-1-3(a), 17-11-4, 17-11-5(d), 17-11-9.
History: New Rule: Filed March 28, 2014; effective May 2, 2014.

820-2-10-.06 Minimum Criteria To Ensure Secure Remote Electronic Transmission Of Blank Absentee
Ballots. The minimum criteria to ensure the secure electronic transmission of blank absentee
ballots shall include the following:

(1) The capability for secure access by the overseas voter to the electronic ballot
transmission server.

(2) The capability to verify the identity of the overseas voter before granting access to the
electronic ballot transmission server.
Author: Edward Packard; Jean Brown; William Sutton
Statutory Authority: Code of Ala. 1975, §§17-11-40 et seq.

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History: New Rule: Filed March 28, 2014; effective May 2, 2014.

820-2-10-.07 Application Of Postmark Deadline To Delivery Of Ballots By Commercial Carriers. For
the purpose of delivering an absentee ballot to a county absentee election manager by commercial
ground or air carrier, the postmark requirement specified in §17-11-18 shall refer to the date on
which the absentee ballot is tendered to the commercial carrier for delivery.
Author: Edward Packard; Jean Brown; William Sutton Statutory Authority: Code of Ala. 1975,
§§17-11-40 et seq. History: New Rule: Filed March 28, 2014; effective
May 2, 2014.

820-2-10-.08 Delivery Of Printed Ballots And Preparation Of Electronic Ballot Transmission System.

(1) The Judge of Probate in each county shall prepare the absentee ballots for UOCAVA voters.

(2) Pursuant to Code of Ala. 1975, Section 17-11-12 (2014), the Judge of Probate shall deliver
the absentee ballots to the absentee election manager not later than 55 days prior to the primary
and general election.

(3) Pursuant to Code of Ala. 1975, Section 17-11-12 (2014), the Judge of Probate shall provide
to the Secretary of State as soon as practicable, but in no case later than the 68th day prior to
the primary and general election, the absentee ballots in electronic format or as electronic ballot
definition files for use in the blank electronic ballot transmission system developed by the
Secretary of State.
Author: Edward Packard, Jean Brown, William Sutton
Statutory Authority: Uniformed and Overseas Citizens Absentee Voting Act, 42 USC §1973 ff et seq.,
as amended by the Military and Overseas Voter Empowerment Act, Pub. L. No. 111-84, Subtitle H,
§§575-589, 123 Stat. 2190, 2318-2335 (2009); Code of Ala.
1975, §§17-11-40 et seq., 17-1-3(a), 17-11-12.
History: New Rule: Filed October 9, 2014; effective November 13, 2014.

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820-2-10-.17 Counting Of Votes.

(1) An elector’s ballot shall be counted for each office to be filled except for each office
where it is impossible to determine the elector’s choice for that office. The inability to
determine the elector’s choice for any particular office to be filled shall not cause the rejection
of votes for other offices where the elector’s choice can be determined. No ballot shall be
rejected for any technical error which does not make it impossible to determine the elector’s
choices.

(2)(a) In precincts utilizing precinct ballot counters, if the elector has overvoted his or her
ballot in in one or more contests, the counters shall be programmed to permit the elector to choose
whether to 1) review and correct his or her ballot or
2) have the counter tabulate all votes on the ballot except in any contest where the elector has
overvoted the ballot.

(b) If the elector chooses to correct the ballot, the original ballot shall be spoiled by a
poll worker and the elector shall be issued a new, blank ballot.

(c) If the elector chooses not to correct the ballot, the elector shall be permitted to have
the counter tabulate all votes on the ballot except in any contest where the elector has overvoted
the ballot.

(3) In counties utilizing central ballot counters, the counters shall be programmed to permit
the ballot to be tabulated by the counter if the elector has overvoted his or her ballot in any
contest. The counter shall be programmed to tabulate all votes on the ballot except in any contest
where the elector has overvoted the ballot.

(4)(a) In precincts utilizing precinct ballot counters, if the ballot counter detects a blank
ballot, that is, a ballot where the elector has not marked any choices in accordance with the
instructions for properly marking his or her choices, the ballot counter shall be programmed to
return the ballot to the elector. The elector shall be permitted the opportunity to mark his or her
choices on the original ballot or a replacement ballot according to the instructions for properly
marking the ballot. The ballot may then be tabulated by the ballot counter. The ballot counter
shall be programmed to accept a blank ballot

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in those circumstances where the elector chooses to not remedy his or her blank ballot.

(b) In counties utilizing central ballot counters, if the ballot counter detects a blank
ballot, that is, a ballot where the elector has not marked any choices in accordance with the
instructions for properly marking his or her choices, the ballot counter shall be programmed to
return the ballot or otherwise divert the ballot to be reviewed by the attending poll workers. The
poll workers shall review the ballot to determine if the elector has marked no choices on the
ballot or if the elector has marked choices on the ballot inconsistent with the instructions for
properly marking the ballot. If the elector has marked choices on the ballot inconsistent with the
instructions for properly marking the ballot, the ballot shall be counted by hand as described in
paragraphs (1) and (5) of this rule. If the elector has marked no choices on the ballot, the ballot
shall be set aside to be sealed with all other ballots in the ballot box after all ballots have
been tabulated.

(5) When ballots are to be counted by hand, polling officials shall determine the elector’s
choice by considering the ballot as a whole and determining the manner in which the elector marked
his or her choices on the ballot. Only those choices marked consistently in this manner shall be
counted for each office to be filled. As used herein, “marked consistently” pertains to the manner
in which the elector expresses his or her choice and not the pattern of candidates selected as
between political parties on the ballot. If the polling officials are unable to determine the
manner in which an elector marked his or her choices, the ballot shall be rejected in its entirety.

(6)(a) If a precinct ballot counter should malfunction, the poll shall remain open and voters
shall deposit their ballots in a ballot box or other suitable container. The inspector shall notify
the custodian, who shall attempt to repair or replace the equipment, and the probate judge, who
shall maintain a public list of all precincts in which equipment failure has occurred.

(b) If the precinct ballot counter cannot be repaired, after the polls close the ballot box
shall be opened and the ballots counted either by hand as described in paragraphs (1) and (4) of
this rule or by feeding the ballots into an operable precinct ballot counter. If counted by hand,
the determination of the elector’s choice shall be governed by paragraph (4) of this rule. Poll
watchers of opposing interests

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and members of the media, if any are present, shall be permitted to witness this process. The
results of this hand count shall be added to the official results, and the ballots shall be bound
separately and returned with the other ballots.

(c) In counties utilizing precinct ballot counters, any ballot returned by the machine in a
post-election recount must be counted by hand following the rules for central ballot counters as
provided in paragraphs (1) and (4) of this rule. The results of this hand count shall be added to
the official results, and the ballots shall be bound separately and returned with the other
ballots.

(7) If a central ballot counter should malfunction, the count shall be suspended until the
equipment is repaired or replaced or the ballots are counted by hand as described in paragraphs (1)
and (4) of this rule. If counted by hand, the determination of the elector’s choice shall be
governed by paragraph (4) of this rule. Poll watchers of opposing interests and members of the
media, if any are present, shall be permitted to witness this process. The results of this hand
count shall be added to the official results, and the ballots shall be bound separately and
returned with the other ballots.

(8)(a) In counties utilizing precinct ballot counters, if a ballot is defective and the counter
is unable to accept or read the ballot, 1) the ballot shall be spoiled and the elector shall be
issued a new ballot or 2) if the elector does not choose to mark a new ballot, the elector’s
original ballot shall be counted by hand as described in paragraphs (1) and (4) of this rule. The
results of this hand count shall be added to the official results, and the ballots shall be bound
separately and returned with the other ballots.

(b) In counties utilizing central ballot counters, if a ballot is defective and the counter is
unable to accept or read the ballot, the ballot shall be counted by hand as described in paragraphs
(1) and (4) of this rule. If counted by hand, the determination of the elector’s choice shall be
governed by paragraph (4) of this rule. Poll watchers of opposing interests and members of the
media, if any are present, shall be permitted to witness this process. The results of this hand
count shall be added to the official results, and the ballots shall be bound separately and
returned with the other ballots.
Authors: Edward Packard; Jean Brown

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Statutory Authority: Code of Ala. 1975, §17-7-25 (formerly
§17-24-7(b)).
History: New Rule: Filed February 10, 1998; effective March 7, 1998. Amended: Filed February 7,
2002; effective
March 14, 2002. Amended: Filed October 9, 2014; effective
November 13, 2014.

820-2-10-.18 UOCAVA State Written Plan For Federal Primary Runoff Election.

(1) Pursuant to 52 U.S.C. Section 20302(a)(9), these rules provide the state written plan for
any Federal primary runoff election.

(a) Federal law provides that, when a UOCAVA voter has requested a ballot for a federal
election by the 45th day before that election, the State must transmit the ballot to that voter by
the 45th day before the election. 52 U.S.C. Section 20302(a)(8)(A). The U.S. District Court for
the Middle District of Alabama and the Eleventh Circuit Court of Appeals have held that this
provision applies to federal runoff elections.

Thus, when a UOCAVA voter requests to vote in a federal primary runoff election on or before the
45th day before such election, the ballot must be transmitted to the voter on or before the 45th
day before the primary runoff election by the method of transmission requested by the voter.

For a variety of reasons, it has long been Alabama’s preference to hold any runoff elections, also
known as second primary elections, less than 45 days after the first primary election. Separating
the elections sufficiently to allow for the determination of the primary election results and the
printing and transmission of the primary runoff ballots would mean more than two months between the
two elections. Accordingly, the State recently implemented instant runoff ballots for UOCAVA voters
in order to address the State’s concerns about the
primary schedule while protecting the rights of UOCAVA voters to participate in federal elections
and ensuring the State’s compliance with federal law.

This chapter applies only to UOCAVA voters in the circumstances described below. It provides
procedures for election officials to follow when there is a federal primary election in a county or
portion of a county where three or more candidates have

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qualified with the same political party to run for the same federal office (other than the office
of President).

These rules do not alter in any way the current election cycle.

Instant runoff ballots are not needed for a Presidential race, regardless of the number of
candidates qualifying for that office, because Alabama does not hold a second primary election in
that race.

(b) To facilitate the participation of UOCAVA voters in Alabama’s federal second primary
elections, ballot preparation under the UOCAVA State Written Plan for Federal Primary Runoff
Election shall be as follows.

1. When three or more candidates have qualified with the same political party to run for the
same federal office (other than the office of President), the probate judge shall prepare both a
special federal ballot and a special state ballot for the primary election. The special federal
ballot materials shall include instructions prepared by the Secretary of State. These instructions
shall explain how a UOCAVA voter casts his or her vote using the special federal instant runoff
primary ballot.

2. If necessary, the probate judge shall prepare a special state ballot for a second primary
election.

1. A special federal ballot shall be used in a federal instant runoff primary election. The
special federal ballot shall contain a list of all federal offices (other than the office of
President) for which three or more candidates have qualified with the same political party to run
for the same federal office and said candidates’ names. The special federal ballot shall permit the
UOCAVA voter to cast a ballot in a federal instant runoff primary election by indicating his or her
order of preference for each candidate for each federal office listed on the ballot. UOCAVA voters
may also use this ballot to participate in the second federal primary election alone, in which case
it shall be specifically labeled “Runoff Only.” The labeling may be done in the ballot preparation
or manually prior to its transmission to the UOCAVA voter.

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2. A special state ballot shall be used when there is the possibility of a federal primary
runoff election. This ballot shall contain the office of President in presidential election years,
any federal offices for which only two candidates have qualified with the same political party to
run for the same office and said candidates’ names, all state and county offices and said
candidates’ names, and any referenda to be voted on in the primary election.

3. If necessary, a special state ballot for a second primary election shall be used. This
ballot shall contain any state or county offices for which a second primary election is required,
the names of the candidates who have qualified for said offices, and any referenda to be voted on
in a second primary election.

(d) Except with respect to cross-over voting, which is addressed below, issuance and
transmission of ballots shall be as follows.

1. When a UOCAVA voter requests an absentee ballot and votes in a precinct where a federal
race with the potential for a runoff is on the ballot, the absentee election manager shall
initially issue both a special federal ballot and a special state ballot.

2. The ballots shall be transmitted together, with provisions made for both ballots to be
returned together.

3. If the UOCAVA voter has requested a runoff ballot, and there is the potential for a runoff
in a non-federal race, or if any referenda are contained on a special state second primary election
ballot, the absentee election manager shall issue the special state second primary election ballot
to the voter when it is ready.

(e) In the event of authorized cross-over voting, issuance and transmission of ballots shall
be as follows.

1. Alabama law authorizes the political parties holding a primary election to permit or
prohibit cross-over voting. Code of Ala. 1975, Section 17-3-7. Because the instant runoff
legislation does not explicitly prohibit UOCAVA voters from taking advantage of any political
party’s decision to allow voters to cross-over, and because federal law is designed to enable
UOCAVA voters to have the same electoral opportunities as

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Alabama’s non-UOCAVA voters, these rules provide for cross-over voting for UOCAVA voters.

2. When a UOCAVA voter applies to participate in the primary election of one political party
and the primary runoff election of a second political party, and that second political party allows
for cross-over voting, the absentee election manager shall initially issue the requested primary
election ballot and the federal instant runoff primary election ballot (which shall be labeled
“Runoff Only”). If the requested first primary ballot is also a special federal instant runoff
primary election ballot – and thus only contains federal races – then the absentee election manager
shall also issue the special state ballot.

3. The ballots shall be transmitted together, with provisions made for both ballots to be
returned together.

4. If the UOCAVA voter has requested a runoff ballot, and there is the potential for a runoff
in a non-federal race, or if any referenda are contained on a special state second primary election
ballot, the absentee election manager shall issue the special state second primary election ballot
to the voter when it is ready.

(f) UOCAVA voters may participate in Alabama’s federal primary election and any second federal
primary elections using the Federal Write-In Absentee Ballot (“FWAB”).

1. UOCAVA voters who vote using a Federal Write-In Absentee Ballot (“FWAB”) in a federal
primary election in which three or more candidates have qualified with the same political party to
run for the same federal office may rank their choices for such candidates on the FWAB in the same
manner provided for in Code of Ala. 1975, Section 17-13-8.1(c)(2).

2. UOCAVA voters participating in the primary election of one political party and the primary
runoff election of a second political party, when that second political party allows for cross-over
voting, may specify their choice for the primary election and may then rank their choices for the
federal runoff election candidates on the FWAB in the same manner provided for in Code of Ala.
1975, Section 17-13-8.1(c)(2).

3. The rules contained in the UOCAVA State Written Plan for Federal Primary Runoff Election
shall govern the receipt, counting, canvassing, storage, and reporting of FWAB

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ranked ballots cast in the first federal primary election, and second federal primary election, if
necessary.

(g) The deadline for receipt of ballots shall be as follows.

1. Special Federal Ballot, FWAB, or Special State Ballot for Primary Election.

(i) If received by mail, no special federal ballot, FWAB, or special state primary ballot
shall be opened or counted in the first federal primary election unless the absentee ballot is
postmarked as of the date of the first primary election and received by the absentee election
manager no later than noon seven days after the first primary election.

(ii) If received electronically, no special federal ballot or special state primary ballot
shall be opened or counted in the first federal primary election unless the absentee ballot is
received by midnight on the date of the first primary election.

2. Special Federal Ballot, FWAB, or Special State Ballot for Second Primary Election.

(i) If received by mail, no special federal ballot, FWAB, or special state ballot for a second
primary election shall be opened or counted unless the absentee ballot is postmarked as of the date
of the second primary election and received by the absentee election manager no later than noon
seven days after the second primary election.

(ii) If received electronically, no special federal ballot or special state ballot for a second
primary election shall be opened or counted unless the absentee ballot is received by midnight on
the night of the federal primary runoff election.

(h) The determination as to whether the special federal ballot is entitled to be counted shall
be as follows.

1. For a federal primary election in which three or more candidates have qualified with a
single political party to run for the same federal office (other than the office of President),
where the voter is required to complete an absentee ballot affidavit, the absentee election poll
officials provided for in Code of Ala. 1975, Section 17-11-11 shall follow the

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procedures set forth in Code of Ala. 1975, Section 17-11-10 to determine whether the UOCAVA
absentee ballot affidavit establishes that the UOCAVA voter is entitled to vote by absentee ballot.
Where the voter is required to complete an overseas voter certificate in accordance with Code of
Ala. 1975, Section 17-11-46, the absentee election manager shall determine whether the overseas
voter certificate establishes that the UOCAVA voter is entitled to vote by absentee ballot.

2. The determination in paragraph (1) governs all ballots submitted together, including for
any second federal primary election, such that no new determination as to the adequacy of the same
absentee ballot affidavit, or overseas voter certificate, as applicable, need be made.

3. For any ballots submitted separately, such as stand-alone runoff ballots or a special
state ballot for a second primary election, where the voter is required to complete an absentee
ballot affidavit, the absentee election poll officials provided for in Code of Ala. 1975, Section
17-11-11 shall follow the procedures set forth in Code of Ala. 1975, Section 17-11-10 to determine
whether the UOCAVA absentee ballot affidavit establishes that the UOCAVA voter is entitled to vote
by absentee ballot. Where the voter is required to complete an overseas voter certificate in
accordance with Code of Ala. 1975, Section 17-11-46, the absentee election manager shall determine
whether the overseas voter certificate establishes that the UOCAVA voter is entitled to vote by
absentee ballot.

4. If the absentee election poll officials or absentee election manager, as applicable,
determine(s) that the UOCAVA absentee ballot is entitled to be counted, upon the closing of the
polls, the ballot shall be counted in accordance with state law.

5. If the absentee election poll officials determine that an absentee ballot affidavit is
insufficient and therefore the UOCAVA absentee ballot is not entitled to be counted, a record shall
be made as to the reason for rejection of the ballot and said record of the reason for rejection of
any ballot shall be provided to the absentee election manager. If the absentee election manager
determines that an overseas voter certificate is insufficient and therefore the UOCAVA absentee
ballot is not entitled to be counted, a record shall be made and maintained as to the reason for
rejection of the ballot. The absentee election manager shall thereafter record in the

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Chapter 820-2-10 Secretary of State

statewide election management system which absentee ballots have been accepted or rejected and if
rejected, the reason therefor.

(i) The method for counting the special federal ballot and FWAB and securing same shall be as
follows.

1. In a federal primary election in which the special federal ballot or FWAB is used, the
first choice preference of each voter shall be the vote counted as cast by the voter. Only the
first choice preference votes of the voters shall be counted or divulged during the count or upon
the conclusion of the primary election. The total count of first choice preference votes received
by each federal candidate shall be added to the count of votes produced for candidates pursuant to
Section 17-13-13.

2. Upon the conclusion of this count, the special federal ballots or FWABs shall be returned
to the absentee election manager, who shall secure and maintain the ballots until the time for
counting the ballots for any second primary election. Any FWAB on which the UOCAVA voter has
written in a single choice in the federal Congressional races, without crossing-over for the
runoff, and where the voter’s single choice is facing only one opponent is a FWAB which has not
registered a vote for any potential federal runoff election, and it may be returned to the absentee
election manager or secured along with the traditional ballots pursuant to governing state law.

3. If a federal second primary election is necessary, the vote to be counted as cast by each
voter shall be the highest designated choice of the voter of the two candidates participating in
the contest. In the event that the voter has only ranked one choice, the vote will be counted for
that candidate if he or she is a candidate in the federal runoff election. The total count of the
votes received by each candidate shall be added to the count of votes pursuant to Section 17-13-18.

4. If, on the special federal ballot, the voter marks an “X” or places a check mark by only
one candidate’s name, circles only one candidate’s name, or otherwise clearly designates his or her
choice for only one candidate, that candidate shall be counted as the voter’s first choice
candidate.

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Secretary of State                              Chapter 820-2-10
Supp. 3/31/16               2-10-17
5.       The votes for any office listed on the special
federal ballot or FWAB shall be canvassed, certified, and announced in the manner provided for in
Section 17-13-17 and Section 17-13-18.

6. Upon the conclusion of the first federal primary election, and the second federal primary
election, if necessary, the special federal ballots and FWABs shall be stored with the records of
election as required by state law, but shall be segregated from regular absentee ballots and
labeled.

(j) The method for counting the special state ballot shall be as follows.

1. The special state ballot shall be counted in the manner provided for in Section 17-13-13 or
Section 17-13-18, as applicable to a primary election or second primary election.

2. The votes for any office listed on the special state ballot shall be canvassed, certified,
and announced in the manner provided for in Section 17-13-17 and Section 17-13-18.

3. If the absentee election officials determine that an absentee ballot affidavit is
insufficient and therefore the UOCAVA absentee ballot is not entitled to be counted, a record shall
be made as to the reason for rejection of the ballot and said record of the reason for rejection of
any ballot shall be provided to the absentee election manager. If the absentee election manager
determines that an overseas voter certificate is insufficient and therefore the UOCAVA absentee
ballot is not entitled to be counted, a record shall be made and maintained as to the reason for
rejection of the ballot. The absentee election manager shall thereafter record in the statewide
election management system which absentee ballots have been accepted or rejected and if rejected,
the reason therefor. Authors: Jean Brown; Edward Packard
Authority: 52 U.S.C. Section 20302(a)(9); Code of Ala. 1975, Section 17-13-8.1 (2015).
History: New Rule: Filed February 5, 2016; effective March 21, 2016.
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Updated April 18, 2023