plaintiffs, reply in support of msj and opposition to cross-msj

8/17/2019 Plaintiffs, Reply in Support of MSJ and Opposition to Cross-MSJ

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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 AND PERSIAN GULF

VETERANS OF THE PACIFIC, and LEAGUE

OF WOMEN VOTERS OF THE VIRGINISLANDS,

Plaintiffs,

v.

BOARD OF ELECTION COMMISSIONERSFOR THE CITY OF CHICAGO, MARISEL A.

HERNANDEZ, in her official capacity as

Chairman of the Board of ElectionCommissioners for the City of Chicago, KAREN

KINNEY, in her official capacity as Rock Island

County Clerk, UNITED STATES OFAMERICA, ASHTON CARTER, in his official

capacity as the Secretary of Defense, FEDERAL

VOTING ASSISTANCE PROGRAM, and

MATT BOEHMER,in his official capacity as Director of the Federal

Voting Assistance Program,

Defendants.

Case No. 15-cv-10196

Judge Joan B. Gottschall

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY

JUDGMENT AND OPPOSITION TO FEDERAL DEFENDANTS’ CROSS-MOTION

FOR SUMMARY JUDGMENT

Date: May 3, 2016

Leevin T. CamachoThe Law Office of Leevin T. Camacho

194 Hernan Cortez Avenue

Suite 216Hagåtña, Guam 96910

(617) 477-8894

[email protected]

Charles F. SmithLara A. Flath

John J. Schoettle

155 N. Wacker Drive, Suite 2700Chicago, Illinois 60606

(312) 407-0700

[email protected]

Case: 1:15-cv-10196 Document #: 58 Filed: 05/03/16 Page 1 of 21 PageID #:413


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Luis G. Rivera Marín

Rivera Marín & Talavera Law Offices112 Uruguay Street

Hato Rey, Puerto Rico 00918

(787) [email protected]

Semaj Johnson

Law Offices of K.A. Rames PCSuite 3, 2111 Company Street

Christiansted, St. Croix, Virgin Islands 00820

(340) 773-7284

[email protected]

[email protected]

[email protected]

Geoffrey M. Wyatt

Michael McIntosh

Marisa B. Van SaanenW. Graham McCall

1440 New York Avenue N.W.

Washington, D.C. 20005


Neil C. Weare

We the People Project1666 Connecticut Avenue N.W.

Suite 500

Washington, DC 20009(202) 304-1202

[email protected]

Attorneys for Plaintiffs



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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................3

I. UOCAVA And MOVE Are Subject To Strict Scrutiny And, In Any Event,

Defendants Have Not Identified Any Legitimate Government Interest That Is

Rationally Advanced By The Arbitrary Dividing Lines Drawn By These Laws. ...............3

A. UOCAVA And MOVE Are Subject To Strict Scrutiny. .........................................3

B. UOCAVA And MOVE Fail Under Any Level Of Scrutiny. ...................................6

II. The Federal Defendants’ Remedial Arguments Are Contrary To Law. ............................11

III. Plaintiffs Have Standing to Challenge UOCAVA Under Well-Settled Equal

Protection Law. ..................................................................................................................12

CONCLUSION ..............................................................................................................................14



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ii

TABLE OF AUTHORITIES

CASES

Boumediene v. Bush,553 U.S. 723 (2008) ................................................................................................................ 10

Califano v. Westcott ,

443 U.S. 76 (1979) .................................................................................................................. 11

Crawford v. Marion County Election Board ,

472 F.3d 949 (7th Cir. 2007) .................................................................................................. 14

Dunn v. Blumstein,

405 U.S. 330 (1972) .................................................................................................................. 5

Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero,

426 U.S. 572 (1976) ................................................................................................................ 10

Frank v. Walker ,

17 F. Supp. 3d 837, 2014 U.S. Dist. LEXIS 59344 (E.D. Wis. 2014).................................... 14

Frontiero v. Richardson,411 U.S. 677 (1973) ........................................................................................................ 4, 7, 13

Harper v. Va. State Bd. of Elections,

383 U.S. 663 (1966) .................................................................................................................. 5

Igartúa De La Rosa v. United States,

32 F.3d 8 (1st Cir. 1994) (per curiam) .................................................................................. 3, 4

Katzenbach v. Morgan,

384 U.S. 641 (1966) .................................................................................................................. 5

Levin v. Commerce Energy, Inc.,

560 U.S. 413 (2010) ................................................................................................................ 11

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

394 U.S. 802 (1969) .............................................................................................................. 5, 6

Murphy v. Ramsey,114 U.S. 15 (1885) .................................................................................................................. 10

Nat’l Council of La Raza v. Cegavske,800 F.3d 1032 (9th Cir. 2015) ................................................................................................ 14

Romeu v. Cohen,121 F. Supp. 2d 264 (S.D.N.Y. 2000)..................................................................................... 13



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iii

Romeu v. Cohen,

265 F.3d 118 (2d Cir. 2001)...................................................................................................... 4

Smith v. City of Chi.,

457 F.3d 643 (7th Cir. 2006) ................................................................................................ 7, 9

Weinberger v. Wiesenfeld ,

420 U.S. 636 (1975) ................................................................................................................ 13

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. art. IV, § 3 .................................................................................................................. 10

Pub. L. 94-203, 89 Stat. 1142 (1976) .......................................................................................... 7, 8

OTHER AUTHORITIES

GAO, Elections: Absentee Voting Assistance to Military and OverseasCitizens Increased for the 2004 General Election, but Challenges

Remain, Apr. 2006, available at

https://www.gpo.gov/fdsys/pkg/GAOREPORTS-GAO-06-521/pdf/GAOREPORTS-GAO-06-521.pdf ............................................................................ 11

Harris County Electronic Absentee Systems for Elections Technical

Proposal, available at

https://www.fvap.gov/uploads/FVAP/Grants/Harris_application.pdf .................................... 11

Sam Howe Verhovek, Giant Leap for the Space Crowd: Voting , N.Y.

TIMES, Aug. 26, 1997, http://www.nytimes.com/1997/08/26/us/giant-leap-for-the-space-crowd-voting.html .................................................................................... 11

United States Election Assistance Commission, Voting from Abroad: ASurvey of UOCAVA Voters, App’x E (2007), available at

http://www.eac.gov/assets/1/Page/Voting%20from%20Abroad%20A

%20Survey%20of%20UOCAVA%20Voters.pdf .................................................................. 11

Voting Rights for U.S. Citizens Residing Abroad: Hearing on H.R. 3211

Before H. Comm. On H. Admin., 94th Cong. 23 (1975) (statement of

Sen. Mathis) ............................................................................................................................ 11



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INTRODUCTION

Federal defendants are correct that former state residents living overseas in foreign

countries and U.S. Territories have no inherent constitutional guarantee that they will be

provided the right to vote for President and voting representation in Congress once they are no

longer residents of a State. But the Constitution’s guarantee of equal protection nonetheless

prohibits Congress or Illinois from discriminatorily extending absentee voting rights to some

U.S. citizens living overseas, while denying it to other Americans who are similarly situated.

Absent a sufficiently compelling justification, the federal Uniformed and Overseas Citizens

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

(“MOVE”) violate plaintiffs’ equal-protection rights – not only by discriminating between

former state residents living in foreign countries and those living in U.S. Territories, but also by

drawing lines even as between the Territories, something no court has yet considered. The

federal defendants have failed to offer any identifiable legitimate – much less compelling –

government interest that is advanced by this discrimination. So while strict scrutiny should be

applied here, their arguments fail under any level of scrutiny. The state defendants have not

even attempted a defense, declining to submit any opposition to summary judgment.

The federal defendants oppose summary judgment and now seek entry of summary

judgment on their own behalf in addition to their earlier motion to dismiss. But none of their

arguments have merit.

First , UOCAVA itself violates plaintiffs’ equal-protection rights. Notably, the federal

defendants do not even attempt to argue that UOCAVA could survive heightened scrutiny.

Instead, they argue that heightened scrutiny does not apply because the law expands rather than

restricts voting rights. But as the Supreme Court has recognized, the same equal-protection

framework that governs restrictions on rights applies to governmental benefits when they are



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conferred in a discriminatory manner. And in any event, UOCAVA cannot survive even

rational-basis review. The federal defendants’ attempts to supply post hoc rationalizations are

flawed as an historical matter, but more importantly they fail to explain how any of the suggested

government interests would be advanced by the discriminatory lines drawn in UOCAVA.

Second , the remedy requested by plaintiffs – to expand absentee voting rights to all

former state residents living overseas, including those in Guam, Puerto Rico, and the U.S. Virgin

Islands – is entirely appropriate under controlling Supreme Court precedent. Expansion is

consistent with Congress’s broader purpose of ensuring former state residents living overseas are

not discriminated against when it comes to maintaining their right to vote for President and

voting representation in Congress. The federal defendants offer no plausible alternative remedy

to ameliorate the equal-protection injury posed by UOCAVA.

Third , plaintiffs have standing to sue because plaintiffs’ disenfranchisement is directly

traceable to the discrimination required by UOCAVA. The fact that the federal defendants are

only now raising standing issues for the first time exposes the weakness of both their standing

and merits arguments. Indeed, their argument against standing simply repackages the flawed

merits argument that laws that discriminate in conferring benefits are protected from equal-

protection scrutiny. The federal defendants also do not contest that challenges to UOCAVA in

the First and Second Circuits were correct to reach the merits rather than being dismissed on

standing grounds.

Accordingly, and as further detailed below, the Court should grant plaintiffs’ motion for

summary judgment against all defendants and deny the federal defendants’ motions.



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ARGUMENT

I. UOCAVA And MOVE Are Subject To Strict Scrutiny And, In Any Event,

Defendants Have Not Identified Any Legitimate Government Interest That Is

Rationally Advanced By The Arbitrary Dividing Lines Drawn By These Laws.

The federal defendants do not even attempt to argue that UOCAVA and MOVE survive

any level of scrutiny beyond rational-basis review. Instead, they assert that rational-basis review

applies here, and that UOCAVA satisfies that standard. The federal defendants are wrong on

both counts. Strict scrutiny applies because UOCAVA and MOVE protect the absentee voting

rights of some former state residents living overseas but not others, and this type of selective

enfranchisement that singles out particular groups for disfavored treatment is subject to strict

scrutiny. Regardless what level of scrutiny applies, there is not even a rational basis for these

distinctions. Indeed, as even the federal defendants appear to concede, UOCAVA’s distinctions

between Territorial residents might well have been arbitrary. The only explanations the federal

defendants offer are premised on a misreading of the Overseas Citizens Voting Rights Act of

1975 and in any event fail to identify any legitimate government interest advanced by the

discriminatory treatment. Moreover, none of the federal defendants’ speculative explanations for

UOCAVA’s distinctions serve to explain the discrimination imposed by MOVE. Accordingly,

as detailed further below, the statutes violate plaintiffs’ equal-protection rights under the law.

A. UOCAVA And MOVE Are Subject To Strict Scrutiny.

As plaintiffs demonstrated in their opening brief (Pls.’ Br. at 8-11, ECF No. 48),

UOCAVA and MOVE must satisfy strict scrutiny because the statutes grant the right to vote to

some citizens while denying the right to vote to others similarly situated. The federal defendants

challenge the application of strict scrutiny on three grounds. None has merit.

First , the federal defendants argue that this Court should follow the decisions in Igartúa

De La Rosa v. United States, 32 F.3d 8 (1st Cir. 1994) (per curiam), and Romeu v. Cohen, 265



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F.3d 118 (2d Cir. 2001), which the federal defendants claim establish that rational basis review

should apply here. (See Defs.’ at Br. 6-7, ECF No. 51.) But Romeu expressly avoided reaching

a decision on level of scrutiny. 265 F.3d at 124 (leaving open whether the distinctions in

UOCAVA should be “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”). And Igartúa, a per curiam decision reached

without the benefit of oral argument in a challenge brought by a pro se litigant, grounded its

rational basis determination on the demonstrably false factual assertion that UOCAVA “does not

distinguish between those who reside overseas and those who take up residence in Puerto Rico,

but between those who reside overseas and those who move anywhere within the United States.”

32 F.3d at 10 (emphasis added). Neither Court had occasion to grapple with the fact, undisputed

by the federal or state defendants here, that UOCAVA and MOVE actually do “distinguish

between those who reside overseas” – whether in foreign countries, the Northern Mariana Islands

(“NMI”), or American Samoa – “and those who take up residence in Puerto Rico,” Guam, or the

U.S. Virgin Islands.1

Second , the federal defendants seek to limit application of the Supreme Court voting-

rights precedent cited by plaintiffs ( see Pls.’ Br. at 8-9) to “state statutes that placed restrictions

on existing voting rights of state residents, effectively infringing upon the right to vote.” (Defs.’

Br. at 7.) Igartúa makes the same mistake. 32 F.3d at 10, n.2. But the notion that strict scrutiny

is reserved for restrictive statutes and not applicable where the government extends a benefit to

one class of individuals while denying it to another is clearly wrong. See, e.g., Frontiero v.

Richardson, 411 U.S. 677, 682 (1973) (applying “close judicial scrutiny” to statute that provided

1 Plaintiffs also maintain in any event that these cases were wrongly decided, as set forth in their opening

brief. (Pls.’ Br. at 9.)



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fringe benefits to male but not female service members). And nothing the federal defendants cite

suggests the contrary.

Moreover, the Supreme Court has made clear that strict scrutiny applies whenever a

“challenged statute grants the right to vote to some citizens and denies the franchise to

others . . . .” Dunn v. Blumstein, 405 U.S. 330, 337 (1972); see also Harper v. Va. State Bd. of

Elections, 383 U.S. 663, 667 (1966) (“[O]nce the franchise is granted to the electorate, lines may

not be drawn which are inconsistent with [equal protection].”). This is precisely the case here,

where UOCAVA and MOVE “grant[] the right to vote to some citizens” (citizens and former

Illinois residents who reside in foreign countries and the NMI and, under MOVE, American

Samoa) and “den[y] the franchise to others” (former Illinois residents who reside in Puerto Rico,

Guam, or the U.S. Virgin Islands). Supreme Court precedent accordingly mandates that the

statutes be struck down unless they survive strict scrutiny. See Dunn, 405 U.S. at 337; Harper ,

383 U.S. at 667.

Third , the federal defendants claim that rational-basis review applies because UOCAVA

is “analogous” to the statutes at issue in Katzenbach v. Morgan, 384 U.S. 641 (1966), and

McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802 (1969). (Defs.’ Br. at 8.) But the

federal defendants ignore the obvious and constitutionally significant difference between the

statutes here and those analyzed in Katzenbach and McDonald . As highlighted in plaintiffs’

opening brief, the laws in Katzenbach created an incremental expansion of the right to vote and

identified narrow groups for inclusion ( see Pls.’ Br. at 10). McDonald is in the same mold,

involving an incremental expansion of absentee ballot access to a limited class of voters who

have difficulty reaching the polls. Id. at 807-08. The appellants there brought suit claiming that

the law violated the rights of arrestees being held without bail, who did not benefit from similar



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access to absentee ballots. Id. Notably, the Supreme Court first concluded that the denial of

absentee ballots did not “impact on appellants’ ability to exercise the fundamental right to vote,”

394 U.S. at 807, because they were still permitted to vote by other means. Here, by contrast, the

denial of absentee voting rights results in the complete denial of plaintiffs’ right to vote for

President and voting representation in Congress. The Supreme Court then concluded, similarly

to Katzenbach, that the extension of absentee rights to one narrow class of resident voters was a

justifiable incremental reform, “particularly in view of the many other classes of Illinois citizens

not covered by the absentee provisions, for whom voting may be extremely difficult, if not

practically impossible.” Id. at 809-10.

UOCAVA and MOVE present the opposite situation. They effected near-universal

expansion of absentee voting rights to former state residents, singling out only a narrow group of

citizens for exclusion from being able to continue to vote for President and voting representation

in Congress. Indeed, the broad scope of UOCAVA and MOVE protects the voting rights of

former state residents living in foreign countries, the NMI, and American Samoa – together

comprising 99.99% of the land area outside the 50 states – excluding only those who live in

Puerto Rico, Guam, and the U.S. Virgin Islands. As such, these laws are the converse of the

statutes addressed in Katzenbach and McDonald , and the federal defendants therefore may not

seek refuge in the principle that “a statute does not violate equal protection simply because ‘it

could have gone farther than it did.’” (Defs.’ Br. at 8.) Rather, because the laws single out

narrow groups for exclusion from an otherwise universal benefit, they should be subjected to

strict scrutiny. (See Pls.’ Br. at 11.)

B. UOCAVA And MOVE Fail Under Any Level Of Scrutiny.

Whatever the level of scrutiny, UOCAVA and MOVE violate the Constitution’s

guarantee of equal protection. The federal defendants do not even suggest that UOCAVA and



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MOVE satisfy strict scrutiny. Nor can either statute pass muster even under rational-basis

review. The federal defendants offer a range of speculative bases for Congress’s discrimination

between former residents living overseas in foreign countries and the NMI and those living in

other Territories, but none satisfies the appropriate test by showing that the “difference in

treatment was . . . rationally related to a legitimate state interest,” Smith v. City of Chi., 457 F.3d

643, 651 (7th Cir. 2006).

The starting point is the federal defendants’ candid admission that Congress might have

had no reason at al l for UOCAVA’s classification, rendering the statute wholly arbitrary. See

Defs.’ Br. at 10 (conceding possibility that the NMI carve-out was simply a “product of

historical timing” and not a “deliberate choice by Congress”). Arbitrary discrimination by

definition cannot advance any government interest and violates equal protection per se. E.g.,

Frontiero, 411 U.S. at 683 (acknowledging that “legislative classification[s]” that are “‘ patently

arbitrary’” cannot survive even “‘traditional’ equal protection analysis” – i.e., rational-basis

review).

The federal defendants speculate that Congress may have made a “deliberate” (but

apparently secret) reason for discriminating against former state citizens residing in Territories

other than the NMI (Defs.’ Br. at 10), but these suggestions all fail because each is premised on a

flawed reading of the Overseas Citizens Voting Rights Act of 1975, UOCAVA’s predecessor.

Specifically, the federal defendants argue that former state citizens residing in the NMI were

granted the right to vote in federal elections under the 1975 Act, and that UOCAVA merely

“maintain[ed] absentee voting rights already operative in [the NMI] under prior law, history, and

practice.” (Defs.’ Br. at 13.) Not so. To be sure, the 1975 Act expressly excluded the Trust

Territory of the Pacific Islands (of which the NMI was a part) from the definition of “United



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States.” Pub. L. 94-203, § 2(3), 89 Stat. 1142, 1142 (1976). But in the subsequent section, the

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 the NMI – were not

guaranteed the right to vote in federal elections in their former state of residence. Id. § 3(2); see

also id. § 2(3) (r eferring to “American Samoa, the Canal Zone, the Trust Territory of the Pacific

Islands, or any other terr itory or possession of the United States”) (emphasis added).

Thus, far from “maintain[ing]” voting rights previously granted to former state citizens

residing in the NMI, UOCAVA altered the pre-existing law by uniquely enfranchising such

citizens while denying similar rights to other citizens residing in the Territories. The federal

defendants offer no legitimate interest that Congress sought to further by changing prior law to

protect the right to vote of former state citizens residing in only certain Territories. Quite the

opposite, the federal defendants seek to justify UOCAVA’s disparate treatment of citizens

residing in the Territories by pointing to a supposedly long-standing special provision for voting

rights in the NMI that in fact did not exist. (See, e.g., Defs.’ Br. at 10 (“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.”); id. at 11 (“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.”); id. at 12 (“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.”).) These justifications fail in light of Congress’s

historical exclusion of citizens residing in the NMI (along with citizens residing in all other

Territories) from the right to vote in federal elections. Even if the federal defendants are right to

claim that the NMI long has occupied a unique station among what now make up the Territories,



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that offers no legitimate reason for denying the right to vote to citizens residing in the NMI under

the precursor to UOCAVA and then changing the law with the enactment of UOCAVA in 1986.

Beyond the flawed premise of the federal defendants’ varied arguments that UOCAVA

satisfies rational basis review, the federal defendants also fail to offer any legitimate interests

that are advanced by the distinction among citizens residing in the Territories (even accepting

the counterfactual history of voting rights they proffer). Instead, they offer mere explanations

for drawing the distinction (for instance, that the NMI has a special relationship with the United

States (Defs.’ Br. at 10); that the NMI “independently chose to become part of the United

States,” (id. at 10-11); and that “certain other federal voting statutes likewise treat NMI

differently than the other Territories” (id. at 13)). These explanations, at most, reveal a pattern of

unique dealings between the United States and the NMI. They fall far short of meeting the

requisite standard: that treating citizens residing in the NMI differently from citizens residing in

other Territories for voting purposes specifically is “rationally related to a legitimate state

interest.” See Smith, 457 F.3d at 651. They do not explain, for example, how permitting former

state residents to continue voting for President and voting representatives in Congress while

living in the NMI would advance the “special relationship” between the United States and the

NMI. UOCAVA thus must be struck down under any level of scrutiny.

The practical significance of the federal defendants’ position is no mere quibble. The

federal defendants’ proposed level of scrutiny and attempted justifications, if accepted, would

give Congress a largely free hand to draw arbitrary lines under UOCAVA to suit the interests of

the majority of the moment. One Congress, thinking perhaps that overseas votes in the Americas

are more favorable to the majority party, might limit UOCAVA’s protections to countries and

Territories in that part of the world, justifying the distinction by recognizing our nation’s close



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political and geographic relationship with these areas. Another Congress might only protect the

right to vote of former state residents from states with high numbers of expatriates, justifying the

limitation on the ground that a broader requirement has been overly burdensome on states with a

smaller overseas voting population. Certainly the equal-protection concern that UOCAVA was

intended to ameliorate – the differential treatment between military service members and civlians

living overseas – could have been easily justified under the logic pressed by federal defendants

here. The fact that Congress itself believed such a distinction likely to be unconstitutional

suggests a higher level of scrutiny than rational-basis review is appropriate. As such, the Court

must demand more.

Finally, none of the proffered justifications applies to MOVE, and no other justification

has been offered for the discrimination imposed by that statute, which extends the right to vote

not only to the NMI but also American Samoa. Even if Congress’s purported special

relationship with the NMI could justify the bizarre history of overseas voting rights there, it

strains belief to suppose that the State of Illinois has a similar special relationship with the NMI

or American Samoa. Nor do states enjoy the same constitutional powers over the Territories that

are accorded to Congress. See U.S. Const. art. IV, § 3.2 No other attempted justification of

MOVE’s discriminatory provision can be imagined, and none is forthcoming.3 The state

defendants’ failure to defend MOVE is striking, particularly given the fact that the federal

2 Although Congress has broad powers in the Territories, “its powers are not ‘absolute and unlimited’ but are

subject ‘to such restrictions as are expressed in the Constitution.’” Boumediene v. Bush, 553 U.S. 723, 765 (2008)(quoting Murphy v. Ramsey, 114 U.S. 15, 44 (1885)). This includes the guarantee of equal protection. See, e.g.,

Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 600 (1976).

3 The state defendants informed counsel for plaintiffs that they do not plan to file a response to plaintiffs’

motion. The Chicago defendants (Board of Election Commissioners for the City of Chicago and Marisel A.

Hernandez) indicated that they have not yet decided whether to adopt the arguments of the federal defendants, but as

set forth in the text, it would not help them if they did, as the federal defendants’ arguments are specific to

UOCAVA and, if anything, argue for the invalidation of MOVE.



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defendants have stated that MOVE, not UOCAVA, is the cause of any constitutional violations

at issue in this case. (See, e.g., Defs.’ Br. at 1.) Accordingly, regardless whether UOCAVA

survives equal- protection scrutiny (and it does not for the reasons set forth above), MOVE’s

discriminatory provisions cannot be sustained.

II. The Federal Defendants’ Remedial Arguments Are Contrary To Law.

The federal defendants next contend that the remedy plaintiffs seek is inappropriate

because it would require the Court to “rewrite” UOCAVA by extending the absentee-voting

rights of former state citizens to include those residing in Territories other than the NMI. (Defs.’

Br. at 14.) But generally, “extension, rather than nullification, is the proper course” in

circumstances like these, Califano v. Westcott , 443 U.S. 76, 89 (1979), and a court should

implement what it believes Congress “would have willed had it been apprised of the

constitutional infirmity,” Levin v. Commerce Energy, Inc., 560 U.S. 413, 427 (2010). Here,

Congress’s express intent was to expand voting rights to overseas citizens, as the federal

defendants themselves acknowledge on the opening page of their response. (Defs.’ Br. at 1.)

See also Voting Rights for U.S. Citizens Residing Abroad: Hearing on H.R. 3211 Before H.

Comm. On H. Admin., 94th Cong. 23 (1975) (statement of Sen. Mathis) (“[W]hat we are trying

to do is give the greatest number of people the right to participate in the political duties of

American citizens.”).4

The federal defendants also assert that “dramatic consequences” would flow from

extending absentee rights already afforded to former state citizens living in other Territories and

4 Moreover, the federal defendants’ remedial argument would have particularly bizarre results if, as they

contend elsewhere in their brief, plaintiffs are entitled to relief only against the state defendants. If the Court were to

restrict rather than expand Territorial voting rights under MOVE, it would have the untenable consequence of

requiring Illinois to bar former residents in the NMI from voting absentee in federal elections, contrary to

UOCAVA’s express mandates.



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countries. (Defs.’ Br. at 15.) This argument is absurd. Under UOCAVA, states entertain

absentee ballots from Americans residing in any number of the 196 countries around the world;

from Antarctica; and even from outer space.5 Moreover, Illinois already accepts absentee ballots

from one additional Territory, without any apparent adverse results, and the federal defendants

themselves elsewhere tout states’ freedom to extend absentee voting rights beyond the “floor” set

by UOCAVA. ( E.g., Defs.’ Br. at 4.) As such, it is not plausible that adding three more

Territories to the universe of eligible absentee voting locations will result in any “dramatic” or

otherwise adverse consequences or disturb congressional intent. To the contrary, denial of

plaintiffs’ claims will mean plaintiffs and other former state residents living in Puerto Rico,

Guam, and the U.S. Virgin Islands will be unable to vote for President in November, a

“dramatic” consequence for these Americans.6

III. Plaintiffs Have Standing to Challenge UOCAVA Under Well-Settled Equal

Protection Law.

That federal defendants have waited until now to raise a challenge to plaintiffs’ standing

speaks to the weakness of both their standing and merits arguments. This repackaged argument

– that “UOCAVA is a permissive statute” and “does not restrict absentee voting rights

anywhere” (Defs.’ Br. at 6) – is no more compelling in the context of standing than it is as a

5 See, e.g., United States Election Assistance Commission, Voting from Abroad: A Survey of UOCAVA

Voters, App’x E (2007), available at

http://www.eac.gov/assets/1/Page/Voting%20from%20Abroad%20A%20Survey%20of%20UOCAVA%20Voters.p

df; GAO, Elections: Absentee Voting Assistance to Military and Overseas Citizens Increased for the 2004 General

Election, but Challenges Remain, Apr. 2006, at 14, available at https://www.gpo.gov/fdsys/pkg/GAOREPORTS-

GAO-06-521/pdf/GAOREPORTS-GAO-06-521.pdf; Harris County Electronic Absentee Systems for ElectionsTechnical Proposal at 3, available at https://www.fvap.gov/uploads/FVAP/Grants/Harris_application.pdf; Sam

Howe Verhovek, Giant Leap for the Space Crowd: Voting , N.Y. TIMES, Aug. 26, 1997,

http://www.nytimes.com/1997/08/26/us/giant-leap-for-the-space-crowd-voting.html.

6 Plaintiffs acknowledge and would welcome the benefits of a political solution, as proposed in the federal

defendants’ opposition (Defs.’ Br. at 15), but the mere fact that Congress has the power to amend UOCAVA or

other laws bearing on the rights of Territorial residents is no bar to this Court’s authority to protect constitutional

rights.



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merits argument. (Compare Defs.’ Br. at 4-6 (calling this a “standing” argument), with Mot. To

Dismiss at 7-9, ECF No. 39 (casting the argument as one of a failure to state a claim).)

As set forth above, the allegedly “permissive” character of UOCAVA does not absolve

the federal government of its duties to honor equal-protection rights; the Supreme Court has

analyzed statutes that confer a benefit in a discriminatory fashion using the same framework that

applies to restrictive statutes. E.g., Frontiero, 411 U.S. at 682; see also, e.g., Weinberger v.

Wiesenfeld , 420 U.S. 636, 647 (1975) (holding that social security benefits for widows “must be

distributed according to classifications which do not without sufficient justification differentiate

among covered employees solely on the basis of sex” and concluding that the law violated equal

protection).

The fact is, UOCAVA requires states to confer a benefit on former state citizens residing

in other countries or in the NMI; but it does not require states to extend the same benefit to

former state residents who, like plaintiffs, live in Guam, Puerto Rico, or the U.S. Virgin Islands.

As a result of that scheme, Illinois (and every other state) is compelled under federal law to allow

former state citizens residing in the NMI and foreign countries to vote. The federal defendants

cannot pass the buck to Illinois any more than state defendants can point the finger back at

Congress. If the federal defendants’ standing argument is right, plaintiffs could be denied

standing to challenge either UOCAVA or MOVE, since both Congress and Illinois could have

gone further to address the voting rights of overseas voters. The reality is that plaintiffs’ injuries

stem both from UOCAVA and MOVE, and plaintiffs therefore have standing to challenge both

statutory regimes.

Notably, the federal defendants also omit the fact that the district court in Romeu

expressly held that the plaintiffs there had standing to challenge both state law and UOCAVA.



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Romeu v. Cohen, 121 F. Supp. 2d 264, 173 (S.D.N.Y. 2000) (holding that the plaintiffs had

standing to attack both UOCAVA and the state laws at issue). And neither the First Circuit in

Igartúa nor the Second Circuit in Romeu found any standing issues requiring them to avoid

reaching the merits in those cases. In short, well-established equal protection law establishes

plaintiffs’ standing to challenge UOCAVA.7

CONCLUSION

For the foregoing reasons, as well as those set forth in their opening brief, plaintiffs

respectfully request that the Court grant summary judgment in their favor and deny the federal

defendants’ motion to dismiss and cross-motion for summary judgment.

Date: May 3, 2016

Leevin T. Camacho

The Law Office of Leevin T. Camacho194 Hernan Cortez Avenue

Suite 216

Hagåtña, Guam 96910(617) 477-8894

Respectfully submitted,

s/ Charles F. Smith

Charles F. Smith

Lara A. FlathJohn J. Schoettle

155 N. Wacker Drive, Suite 2700

Chicago, Illinois 60606(312) 407-0700

7 The federal defendants also argue in a footnote that the organizational plaintiffs – Iraq Afghanistan and

Persian Gulf Veterans of the Pacific (“IAPGVP”) and The League of Women Voters of the Virgin Islands (“LWV-

VI”) – lack standing because plaintiffs have not “ma[d]e specific allegations establishing that at least one identified

member had suffered or would suffer harm.” (Pls.’ Br. at 4 n.4.) In fact, plaintiffs have made numerous

submissions to this Court alleging that IAPGVP’s and LWC-VI’s membership includes current residents of Guam

and the Virgin Islands who are former residents of Illinois – i.e., people who are denied absentee voting rights and

have therefore suffered harm. ( E.g., Compl. ¶¶ 16-17, ECF No. 1; Local Rule 56.1 Stmt. ¶¶ 52-61, ECF No. 49;

Decl. of Dr. Gwen Moolenaar ¶¶ 1-4, ECF No. 49-8; Decl. of Rodney Cruz, Jr. ¶¶ 1-5, ECF No. 49-9.) Plaintiffs

submit that no further allegations or evidence are required. E.g., Nat’ l Council of La Raza v. Cegavske, 800 F.3d

1032, 1041 (9th Cir. 2015) (“Where it is relatively clear, rather than merely speculative, that one or more members

have been or will be adversely affected by a defendant’s action, and where the defendant need not know the identity

of a particular member to understand and respond to an organization’s claim of injury, we see no purpose to be

served by requiring an organization to identify by name the member or members injured.”). In any event, whether

the organizational plaintiffs have standing has no impact on the individual plaintiffs’ standing. Therefore, even if

the Court were to dismiss the organizational plaintiffs for lack of standing, the equal-protection challenge would

remain to be resolved. For that reason, the Court need not even address the standing issue. See, e.g., Frank v.

Walker , 17 F. Supp. 3d 837, 880, 2014 U.S. Dist. LEXIS 59344, *124 (E.D. Wis. 2014) (finding the issue of

organizational standing moot where individual plaintiffs had standing because, “as long as one plaintiff has standing

to seek the injunctive relief requested, question of standing of additional parties can be ignored”) (citing Crawford v.

Marion County Election Board , 472 F.3d 949, 951 (7th Cir. 2007), rev’d on other grounds, 768 F.3d 744 (7th Cir.

2014)).



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[email protected]

Luis G. Rivera MarínRivera Marín & Talavera Law Offices

112 Uruguay Street

Hato Rey, Puerto Rico 00918(787) 946-9400

[email protected]

Semaj JohnsonLaw Offices of K.A. Rames PC

Suite 3, 2111 Company Street

Christiansted, St. Croix, Virgin Islands 00820


[email protected]

[email protected]

[email protected]

Geoffrey M. Wyatt

Michael McIntoshMarisa B. Van Saanen

W. Graham McCall

1440 New York Avenue N.W.

Washington, D.C. 20005(202) 371-7000

[email protected]

Neil C. WeareWe the People Project

1666 Connecticut Avenue N.W.

Suite 500Washington, DC 20009

(202) 304-1202

[email protected]

Attorneys for Plaintiffs



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CERTIFICATE OF SERVICE

I certify that on May 3, 2016, I filed this document using the Court’s Electronic Case

Filing (“ECF”) system, which will automatically deliver a notice of electronic filing to all

parties’ counsel of record who are registered ECF users.

s/ Charles F. Smith

Attorney for Plaintiffs


plaintiffs, reply in support of msj and opposition to cross-msj

Documents