7th Circuit Appeals Court Upholds Lower Court Denying Rights of Statehood in Territories
A three-judge federal appeals court panel has issued a ruling on territorial voting rights being praised by U.S. territorial law experts. The ruling in Segovia v. U.S. clears up confusion emanating from a federal lawsuit by lawyers for a small, carefully selected group of U.S. citizens who relocated from the state of Illinois to Puerto Rico, Guam and U.S. Virgin Islands.
Last year a lower Federal District Court in Illinois rejected the lawsuit seeking a judicial order for federal and state election officials to provide absentee voting ballots so former state residents in the territories could vote in federal elections. In the appeal of that ruling by lawyers for the plaintiffs, the Federal Court of Appeals for the 7th Circuit upheld the lower court ruling, holding that former Illinois residents in the territories did not have a right under federal law to cast absentee ballots in Illinois.
The arguments by lawyers for the plaintiffs in the Segovia case were based on an interpretation of the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). That federal law allows military personnel as well as civilian citizens who are outside the U.S. to vote absentee in their last state of residence, if previously eligible to vote in that state.
However, under the provisions of the federal statute, UOCAVA does not apply in the 50 states of the union, Washington DC, or “within the territorial limits of the United States.” This includes the territories of Puerto Rico, Guam, the Virgin Islands or American Samoa. Those islands are defined by the act not as overseas foreign locations, but rather as domestic areas, not in a state but still within the U.S. national borders.
Even if the federal courts had exceeded constitutional limits on judicial powers and ordered former state residents eligible to vote in a prior state of residence, that would only enable a small percentage of U.S. citizens in American territories to vote. It would not have ended the denial of federal voting rights for the vast majority of territorial residents, because the U.S. Constitution allocates the power to vote for representation in Congress and the Electoral College only to citizens of the states.
Exception Proves Rule
The provisions of UOCAVA include the states, Washington DC, American Samoa, Guam, Puerto Rico and U.S. Virgin Islands as domestic areas within the U.S. whose residents are not eligible for absentee voting in a state of prior residence. That is why the plaintiffs now residing in Illinois who were from Puerto Rico, Guam and the U.S. Virgin Islands were not able to obtain absentee ballots under UOCAVA.
Only one territory – Northern Mariana Islands (NMI) – was not defined under UOCAVA as a domestic area in which the overseas voting rights did not apply. As a result, U.S. citizens in the NMI can vote absentee in federal elections under the UOCAVA, based on prior residence and eligibility to vote in a state.
Lawyers for the former Illinois voters residing in Puerto Rico, Guam and the Virgin Islands argued that conferring UOCAVA absentee voting rights in NMI but denying the same rights in other territories denied U.S. citizens in all territories equal protection under federal law. The lawyers also argued that all U.S. citizens have a right to travel outside U.S. domestic areas as defined in UOCAVA and reside in territories, but keep the same federal voting rights as former state residents who travel overseas.
The 7th Circuit Court of Appeals rejected that argument and held that Congress has latitude in its governance of areas under U.S. sovereignty but not within a state, under the Territorial Clause in Article IV, Section 3, Clause 2 of the U.S. Constitution. Accordingly, it was not impermissibly discriminatory for Congress to treat some territories different than others under UOCAVA, and there was a “rational basis” for Congress to do so.
The court recognized Congress could provide that all territories should be treated uniformly under UOCAVA. Rather than treating all other territories the same as NMI, the law could be amended by Congress to include NMI with the other territories defined as domestic instead of outside the U.S. for purposes of UOCAVA.
Ruling Confirms Limits of Court Power
More fundamentally, the court ruled that territorial residents did not have standing to seek a remedy against federal election officials because the UOCAVA does not prevent Illinois or any other state from providing an absentee ballot to residents of the territories.
Accordingly, in a novel twist the court reached a result consistent with governing federal territorial jurisprudence, holding:
“To the extent the plaintiffs are injured, it is because they are not entitled to ballots under state law.”
On that basis the Federal Court of Appeals vacated the ruling of the lower Federal District Court as to the federal law claims in the Segovia case, holding the federal courts had no jurisdiction because the controversy in the case was over state not federal law.
That act by the court recognizes that U.S. citizenship may be required under federal and state law to vote in federal elections, but the constitutional right to vote in federal elections for representation in Congress and the Electoral College is allocated by the U.S. Constitution exclusively to citizens of the states.
At the same time, the Federal Court of Appeals upheld the earlier Federal District Court ruling that the Illinois state election law is not a constitutionally impermissible denial of equal protection or the right to travel. Instead, the three judge appellate panel ruled that the Illinois state law provisions on absentee voting by state residents in U.S. territories have a “rational basis” that serves reasonable purposes.
Specifically, the Court of Appeals noted that the Illinois state election law included the 50 states, Washington DC, Puerto Rico, Guam and Virgin Islands as domestic territories in the United States not eligible for absentee ballots. In contrast, the Illinois state elections law excluded American Samoa and “any other territory or possession” of the U.S. from the definition of domestic territories not eligible for absentee ballots.
That Illinois state statute defining areas not within the U.S. for purposes of absentee voting is consistent with the federal UOCAVA because it does not prevent application for a state absentee ballot from U.S. citizens in the NMI. That is why there was no plaintiff from NMI denied an absentee ballot in Illinois to join as a plaintiff in the lawsuit.
The Illinois statute denying absentee ballots only to the territories of Puerto Rico, Guam and the U.S. Virgin Islands explains why only former state residents in those territories were named as plaintiffs in the Segovia case. The Illinois state law denying absentee ballot voting to U.S. citizens in those three is also consistent with federal territorial law that also does not confer U.S. citizenship based on birth in American Samoa or “any other territory or possession” of the United States other than Puerto Rico, Guam, NMI and the U.S. Virgin Islands.
Federal Voting Rights NOT Based on National Citizenship
As noted, federal and state elections laws require U.S. nation citizenship to vote in federal elections. However, under Article I, Section 2 and Article II, Section 1, respectively, the constitutionally prescribed right to vote for representation in the U.S. Congress and the Electoral College is allocated to the states of the union as a right of state citizenship.
In other words, no one votes in a federal election for representation in the federal constitutional process through which the people count to the supreme law of the land, based on U.S. national citizenship alone.
States theoretically at least can give away the right to vote in state elections to whoever the state legislature chooses, but for purposes of federal elections the states must decide who is able to vote in state elections in a manner consistent with the U.S. Constitution. If citizens of the states want to dilute their vote on important issues by enlarging the voter pool to include people who are not U.S. citizens, not state residents or otherwise eligible to vote in the state, that should be expected to trigger a challenge in state and/or federal court.
For example, U.S. citizens actually residing in and eligible to vote in a state might well bring a lawsuit to protect their right to one person one vote, and challenge any state law allowing nonresidents and non-citizens to dilute their voting power. That is a case the federal as well as state courts would hear, whether arising under state law, federal law, or both.
“We The People Project” Racks Up 4 Losses to 0 Wins for Territories
Under the direction of territorial lobbyist Neil Weare, the Tuaua v. U.S. case was brought by the “We The People Project” (WTPP). In that case Weare asked the federal courts to change the political status of all five U.S. territories. If not rejected by the federal courts at the trial and appellate level, this would have been be done by declaring all persons born in U.S. territories have the same rights of U.S. citizens in territories in the states.
If not denied review by the U.S. Supreme Court, the Tuaua case could have created confusion even greater than that clarified by the Segovia case as discussed above. Critics of WTPP argue that its self-appointed “President,” Neil Weare, is pursuing legal cases doomed to fail by demands territories be granted rights by the federal courts that the U.S. Constitution grants only to states of the union.
For example, former counsel on territorial law in the Executive Office of the President and U.S. State Department, Howard Hills, has stated, “As I told Mr. Weare before he brought the first WTPP lawsuit, every time citizens in the territories bring federal court cases based on flawed legal predicates inevitably and foreseeably rejected by federal courts, that is used by special interest lobbyists defending the status quo to misinform Congress that current federal territorial law and policy is legally normative and constitutionally sound.”
Hills, author of the book Citizens Without A State, adds, “Like the earnest but misdirected Harris, Acosta-Martinez, Quinones, Igartua, Romeu and Sanchez Valle cases in Puerto Rico, recent WTPP litigation in the Tuaua and Segovia cases enables staff and members in Congress to rationalize perpetuation of the status quo.”
According to Hills, “That, in turn, is cited to justify abdication by Congress of its constitutional duty affirmatively to manage resolution of the political status and rights of citizens in the territories based on democratic self-determination. Those in the territories who have been persuaded to donate and sponsor the failed WTPP litigation program can now judge for themselves whether these court cases are advancing or impeding democratization for those with U.S. nationality and citizenship residing the America’s territories.”