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Segovia v. Board of Election Commissioners for City of Chicago

United States District Court, N.D. Illinois, Eastern Division.

August 23, 2016

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 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

          Joan B. Gottschall United States District Judge

         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 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.

         I. Background[3]

         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.

         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.

         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 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 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.

         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) & (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]

         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 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 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 ...


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