Seventh Circuit hears territorial voting rights challenge

The U.S. Court of Appeals for the Seventh Circuit heard oral arguments Friday in Segovia v. United States, 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.

The Appeals Court panel consisted of Judge David Hamilton, Judge Ilana Rovner, and Judge Daniel Manion. Oral argument will be posted online.

Earlier this week, the Trump Department of Justice filed a last-minute letter with the court arguing that the remedy to any equal protection violation should be to strip away statutorily provided voting rights that are already guaranteed to residents of certain territories. At oral argument, Hamilton asked several questions about remedy. As plaintiffs explained in its response to DOJ and at argument, the Supreme Court has never “leveled down” as a remedy to an equal protection violation in voting rights cases, and the Seventh Circuit shouldn’t do so here.

With respect to the federal and state defendants’ arguments that territories can each be treated differently with respect to voting rights, Rovner expressed skepticism to the idea that “being treated differently” can itself be a justification for being treated differently. Plaintiffs argued in court there was simply no justification to expand absentee voting rights to the Northern Mariana Islands and American Samoa, and foreign countries, while denying them in Guam, Puerto Rico, and the U.S. Virgin Islands.

None of the judges raised the Insular Cases during oral argument.

While the District Court had relied on the controversial, Plessy-era Insular Cases to rule that the right to vote is not a “fundamental right” in U.S. territories, not even the defendants in the case supported this view.

A group of prominent academics filed an amicus brief rejecting any reliance on the Insular Cases to restrict voting rights in U.S. territories.

“We made a powerful case today that where you live should not impact your right to vote,” said Neil Weare, president and founder of We the People Project, a non-profit that advocates for equal rights and representation in U.S. territories. “The fact that residents of the U.S. Virgin Islands and Puerto Rico who are recovering from Hurricane Irma and residents of Guam who face nuclear threats from North Korea are denied any voting representation in Washington highlights the important work that remains, both in the courtroom and through the political process.”

“I was pleased to see the judges engaged in these important issues, and look forward to a decision from the court,” said Geoffrey Wyatt, who argued the case for Plaintiffs.

A decision in the case is expected early next year, in time for the 2018 Mid-Term Elections.

The Segovia plaintiffs are appealing a district court decision that relied on the much-maligned Insular Cases to hold for the first time that the right to vote is not a “fundamental right” in U.S. territories. In doing so, it applied the lowest level of judicial scrutiny—rational basis review—to uphold federal and state overseas voting laws that allow former state residents to continue voting for President and voting representation in Congress by absentee ballot if they live in the Northern Mariana Islands, American Samoa, or a foreign country, but not Guam, the U.S. Virgin Islands, or Puerto Rico. 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, also a veteran, and the Iraq, Afghanistan and Persian Gulf veterans of the Pacific. Attorney Leevin Camacho serves as local counsel.

In the U.S. Virgin Islands, plaintiffs include Pamela Colon, a criminal defense lawyer, Lavonne Wise, and the League of Women Voters for the Virgin Islands. Colon and Wise had made travel arrangement to attend the argument, but their flights were cancelled as a result of the devastation brought by Hurricane Irma. 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.

Segovia v. United States received attention earlier this year as one of the first cases successfully funded by CrowdJustice, an online crowd-fundraising platform.