CHICAGO — Residents of the Virgin Islands, Guam and Puerto Rico have no right to vote absentee in their former state of residence, the 7th U.S. Circuit Court of Appeals ruled late Thursday, even though residents of the Northern Mariana Islands and some in American Samoa are granted that privilege.
“Absent a constitutional amendment, only residents of the 50 states have the right to vote in federal elections,” U.S. Circuit Judge Daniel Manion wrote for a three-judge panel. “The plaintiffs have no special right simply because they used to live in a state.”
American astronauts in space have a special procedure allowing them to vote, and American citizens living abroad can vote absentee, but 5 million residents of U.S. territories currently cannot vote for president and have no voting representation in Congress.
The U.S. Supreme Court has upheld the constitutionality of this system, finding that territory residents have no protected right to vote because the territories are “not a part” of the U.S.
But by a strange quirk, the Uniformed and Overseas Citizens Absentee Voting Act requires all states to allow former residents currently living in the Northern Mariana Islands to vote via absentee ballot. Illinois extends this right to former residents living in American Samoa.
However, former residents of U.S. states living in the U.S. Virgin Islands, Guam, or Puerto Rico are not allowed to vote absentee in federal elections.
Six former Illinois residents living in these territories filed suit over this allegedly arbitrary distinction between the territories, seeking the right to cast absentee ballots in their former state. The plaintiffs are represented by We the People, a nonprofit dedicated to expanding voting rights in the territories.
The Seventh Circuit dismissed the plaintiffs’ claims rooted in federal law for lack of jurisdiction, ruling that federal law does not bar territory residents from voting absentee in their former state of residence.
“Federal law requires Illinois to provide absentee ballots for its former residents living in the Northern Mariana Islands, but it does not prohibit Illinois from providing such ballots to former residents in Guam, Puerto Rico, and the Virgin Islands. State law could provide the plaintiffs the ballots they seek; it simply doesn’t,” Manion wrote. “To be sure, federal law could have required Illinois to provide the plaintiffs absentee ballots. But that does not render federal law the cause of the plaintiffs’ injuries.” (Emphasis in original.)
The court outright rejected the plaintiffs’ challenge to the Illinois statute.
“While the distinction among United States territories may seem strange to an observer today, it made more sense when Illinois enacted the challenged definition,” according to the 12-page opinion.
In 1979, both American Samoa and the Northern Mariana Islands were trust territories rather than fully incorporated U.S. territories, and it made sense to treat them as foreign countries for the purpose of absentee voting, the court found.
“Our conclusion that the Illinois definition was rational in 1979 controls the outcome,” Manion said.
The judge also echoed the Second Circuit’s stated concern that extending rights to some residents of the territories, but not residents born there, would create a class of “super citizens” who can vote for president, while others cannot.
“The natural result…would be to treat all the territories as part of the United States, so that residing in a territory would give one the rights to participate in territorial elections, but not federal elections in one’s former state of residence,” Manion said.
This result would strip residents of the Northern Mariana Islands and American Samoa of the right to vote absentee in federal elections, but would be more consistent.
“Until that happens, however, we see no reason to require Illinois to extend voting rights to its former residents living in Guam, Puerto Rico, and the Virgin Islands,” the judge wrote.
Manion was joined on the Seventh Circuit panel by U.S. Circuit Judges Ilana Rovner and David Hamilton.
The case presented an equal protection challenge by plaintiffs in Guam, Puerto Rico, and the U.S. Virgin Islands who would be able to absentee vote for president and voting representation in Congress if they lived in other U.S. territories or a foreign country, but are denied such rights based solely on their ZIP code.
In a surprising move, the panel concluded that plaintiffs lacked legal standing to even challenge federal overseas voting laws, a potentially far-reaching conclusion that has previously been rejected by other courts. On the merits, the panel concluded that state overseas voting laws may constitutionally extend absentee voting rights to residents of American Samoa and the Northern Mariana Islands while withholding them from residents of Guam, Puerto Rico, and the Virgin Islands. The panel also embraced the suggestion of the Trump Administration that even if a constitutional violation was found, the remedy would be to contract rather than expand voting rights in U.S. territories.
“The right to vote should not depend on your zipcode or where you happen to live. We are disappointed the court found no issue with laws that extend absentee voting rights to citizens living in the Northern Mariana Islands, American Samoa or a foreign country, while denying these same rights to citizens living in Guam, Puerto Rico, or the Northern Mariana Islands,” said Neil Weare, President and Founder of We the People Project. “There is simply no basis for treating residents of one territory differently from those of another when it comes to something as basic as the right to vote.”
Plaintiffs will make a decision whether to appeal the Seventh Circuit’s decision to the Supreme Court in the coming weeks. They have until April 18, 2018 to petition the Supreme Court to review the case.
All case filings are available at http://www.equalrightsnow.org/segovia.
Luis Segovia, the lead plaintiff, is a member of the Guam Army National Guard, serving two deployments to Afghanistan. He also was deployed to provide security during the 2005 Iraqi Elections. Also serving as plaintiffs in Guam are Anthony Bunten, another Veteran, and the Iraq, Afghanistan and Persian Gulf Veterans of the Pacific. Attorney Leevin Camacho serves as local counsel.
In the Virgin Islands, Plaintiffs include Pamela Colon, a criminal defense lawyer, Lavonne Wise, and the League of Women Voters for the Virgin Islands.. Attorney Semaj Johnson serves as local counsel.
In Puerto Rico, Plaintiffs include Jose Antonio Torres, a disabled Vietnam-era Veteran who also served for 22 years in the U.S. postal service, and Tomas Ares, another Vietnam-era Veteran.