By Pacific Island Times News Staff
A federal district court in Hawaii has dismissed Borja v. Nago, a lawsuit brought by individuals living in Guam and the U.S. Virgin Islands who are challenging overseas voting laws that would allow them to vote for President and have voting representation in Congress based on their prior residence in Hawaii if they lived anywhere else outside the fifty states, including the Northern Mariana Islands.
While limitations on voter eligibility are typically subjected to strict scrutiny, the court held that such limitations when applied to overseas voting are only subject to rational basis review.
As a result, the court ruled that Congress and state legislatures could selectively withhold overseas voting rights from former state residents who move to certain disfavored territories while extending them to those who move to certain favored territories or foreign countries.
“When legislatures selectively exclude some people from being eligible to vote while including others who are similarly situated, that should be subject to the court’s highest level of judicial scrutiny,” said Neil Weare, president and founder of Equally American, which represents the plaintiffs in the case and is also an organizational plaintiff.
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“It also defies reason to protect the right to vote for President for people who move from a state to the Northern Mariana Islands, but to deny that right to people who move to Guam, another U.S. territory that is less than 150 miles away. Where you live shouldn't affect your right to vote.”
Plaintiffs are also represented by Guam attorney Vanessa Williams, Virgin Islands Attorney Pamela Colon, former Guam resident T.J. Quan, and a team of other pro bono attorneys.
Plaintiffs will decide whether to appeal the case to the Ninth Circuit Court of Appeals in the coming weeks.
Under federal and state overseas voting laws, U.S. citizens living in certain U.S. territories or in a foreign country can vote for President and voting representation in Congress by absentee ballot.
But citizens living in other U.S. territories cannot. Equally American has joined with six U.S. citizens in Guam and the U.S. Virgin Islands to challenge federal and state laws that deny them absentee voting rights enjoyed by citizens literally anywhere else in the world (and even outer space!).
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Vicente T. Borja is a 28-year veteran of the United States Navy. Mr. Borja has served on multiple tours, lived in Hawaii, and established residency there, but had to relocate to Guam after his wife's cancer treatment was unfortunately unsuccessful.
Even though Borja was part of the draft, resided in a state, and served for the United States, he has no right to vote for the president of the United States as a resident of Guam.
Borja is not even allowed to vote by absentee ballot in Hawaii. Like many others,
Borja is of the opinion that if he is eligible for the draft, he should also be eligible to vote.
Under the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and Hawaii's Uniform Military and Overseas Voters Act (Hawaii UMOVA), a former resident of Hawaii who is now a resident of the Northern Mariana Islands or a foreign country can continue voting for President and voting representation in Congress in Hawaii by absentee ballot. But plaintiffs – each former residents of Hawaii – have lost full enjoyment of their right to vote by virtue of living in Guam or the U.S. Virgin Islands.
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