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Appeals court asked to end discrimination against territorial residents in overseas vote

By Pacific Island Times News Staff

The briefing is now complete before the U.S. Court of Appeals for the Ninth Circuit in Borja v. Nago, which challenges federal and state overseas voting laws that discriminate against residents of Guam, the U.S. Virgin Islands and other territories.

In a brief filed this week, plaintiffs ask the court to reject arguments from the U.S. Justice Department that voting is not a “fundamental right” for residents of U.S. territories who could vote for president by absentee ballot in their former state of residence if they lived in any foreign country or the Northern Mariana Islands but cannot because they live in Guam or the U.S. Virgin Islands.

Going further, the Justice Department argues that even assuming these discriminatory laws are unconstitutional, the federal government cannot be sued because Hawaii remains free to “fix” any injury caused by federal discrimination.


The Justice Department also argues that the proper remedy for any unconstitutional discrimination would be to deny overseas voting rights in the Northern Mariana Islands rather than extend them equally to all former state residents who lose their right to vote simply by moving overseas.

“While long-established Supreme Court precedent makes clear that voting is a ‘fundamental right’ for all citizens, it is disappointing to see the Biden Justice Department arguing that is not true when federal overseas voting laws discriminate against citizens who move from a state to Guam or the U.S. Virgin Islands," said Neil Weare, co-director of Right to Democracy, which seeks to advance democracy and self-determination in U.S. territories, and who represents the Borja plaintiffs.

"This is just another example of how the federal government continues to diminish democracy, self-determination, and political power in U.S. territories.

“DOJ’s constricted view – that statutory extensions of the right to vote are not considered ‘fundamental’ – would upend voting rights jurisprudence as we know it. Simply put, the right to vote is ‘fundamental’ no matter where you happen to live or whether it is based on statute or the constitution," Weare added.


“DOJ defends the discriminatory federal law by arguing that states are free to ‘fix’ it,” said Parker Rider-Longmaid, counsel at Skadden, Arps, Slate, Meagher & Flom LLP, which also represents the Borja plaintiffs.

“That’s absurd. The federal government’s law defines the state’s political community to include former state residents but then unconstitutionally discriminates against those who move to certain territories" Rider-Longmaid said.

"The federal government must take responsibility for that law. It’s equally absurd for DOJ to suggest that the appropriate fix here is to take away voting rights, rather than extend them with an even hand when the entire purpose of this law was to enfranchise more citizens," she added.

Last year, a Hawaii district court denied the Borja plaintiffs’ challenge to these discriminatory federal and state overseas voting laws.

Under current law, residents of Hawaii or other states who move to a foreign country or the Northern Mariana Islands remain free to vote for president by absentee ballot in their former state of residence. But those who move to Guam, the U.S. Virgin Islands, or other territories cannot.

Plaintiffs are also represented by Guam attorney Vanessa Williams, Virgin Islands Attorney Pamela Colon, and former Guam resident T.J. Quan, who is now an attorney in Hawaii.

The next step in the case is oral argument before the Ninth Circuit, which is expected early next year.

The lawsuit is part of a broader effort by Right to Democracy to advance democracy and self-determination in U.S. territories.

Right to Democracy does not take a position on political status – that is for the people of each territory to decide. But when federal or state laws discriminate to unconstitutionally deny residents of U.S. territories their right to vote, courts can and should intervene. (Right to Democracy)

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