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Ninth Circuit panel hears arguments on expanded voting rights in US territories

Updated: Feb 14

By Pacific Island Times News Staff

Three federal judges heard arguments on Monday in Honolulu, Hawaii as the Ninth Circuit considered Borja v. Nago, a federal lawsuit that seeks to expand voting rights in U.S. territories by challenging discriminatory federal and state overseas voting laws.

Under the challenged laws, former residents of Hawaii or other states who live in a foreign country or the Northern Mariana Islands remain free to vote for president by absentee ballot in their former state of residence. But former residents who live in Guam, the U.S. Virgin Islands, or other territories cannot. The Borja plaintiffs argue this violates the Constitution’s guarantee of equal protection. Today’s hearing was an appeal of a 2022 district court decision denying their claims.

Lead plaintiff Benny Borja, a Navy veteran, was in Honolulu recovering from open heart surgery to address a service-connected ailment. While he was unable to join the argument in person because of his recovery, he stated, “I hope the court will recognize that my right to vote is as fundamental as any other U.S. citizen. I served my country, I deserve to be treated the same as everyone else.” 

Borja is a 28-year Navy veteran, who served on multiple tours. He 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 U.S. president as a resident of Guam. Borja is not even allowed to vote by absentee ballot in Hawaii.                                                                                                         

Under the federal Uniformed and Overseas Citizens Absentee Voting Act 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 – all 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.

“The Ninth Circuit has the opportunity to ensure the same legal standards apply to voting in U.S. territories as they do to voting anywhere else,” said Neil Weare, co-counsel in the case and co-director of Right to Democracy, which has joined Borja to sue to advance democracy, equity and self-determination in U.S. territories. “Discrimination of the right to vote should not be permitted just because it happens to affect people in U.S. territories.”

“If our clients in Guam had instead decided to live in the Northern Mariana Islands or the Philippines, under federal and state overseas voting laws they could vote for president in their last state of residence,” said Vanessa Williams, a Guam attorney who was in Hawaii for the argument.

“That kind of discrimination in voting should be subject to strict scrutiny by the courts.”

The Borja plaintiffs are also represented by former Guam resident T.J. Quan, who is an attorney in Hawaii, and Pam Colon, an attorney in the U.S. Virgin Islands. The appeal was argued by Parker Rider-Longmaid, Counsel at Skadden, Arps, Slate, Meagher & Flom LLP.

The Ninth Circuit panel included Judge Milan D. Smith, Jr., Judge Richard A. Paez, and Judge Lucy H. Koh. The Ninth Circuit will issue its decision in the coming months.

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


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