Former Hawaii residents now living in US territories barred from voting in federal elections

Allowing voters living in U.S. territories to vote absentee in states they used to live in would give them outsized voting rights compared to fellow residents, a federal judge found.

by Candace Cheung, Court House News, September 7, 2022

HONOLULU (CN) — A federal judge in Hawaii ruled Tuesday that prior residence in Hawaii doesn't give U.S. citizens the right to cast absentee ballots for the state in federal elections.

“This case is not about the denial or deprivation of the right to vote, but about whether a failure to extend voting rights that do not otherwise exist violates the Equal Protection Clause. The statutes are not unconstitutional merely because they do not grant plaintiffs a right given to others, especially when plaintiffs’ fellow territorial residents lack such a right,” Otake wrote in the ruling.

The case was first brought against the United States and the state of Hawaii two years ago, one month before the 2020 presidential elections. The plaintiffs claimed the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and Hawaii’s corresponding Uniform Military and Overseas Voters Act (UMOVA) unconstitutionally contribute to the disenfranchisement of residents in the territories of Guam, the U.S. Virgin Islands, Puerto Rico and American Samoa.

Although residents of U.S. territories can vote in primary elections, they are barred from voting in the general presidential and congressional elections. Activists have long decried the situation, pointing out that while residents can't have their voices heard, territories are still subject to the results of these elections.

The plaintiffs, represented by an international team of attorneys, moved for summary judgment in August, with both federal and state defendants countering. The suit named Hawaii Chief Election Officer Scott Nago, the United States of America, the secretary of Defense, and the Federal Voting Assistance Program and its director David Beirne, as defendants.

The five plaintiffs, all former residents of Hawaii who now live in territories of the United States, originally contended that their right to vote had been unfairly denied due to their current living situations, whereas the voting rights of U.S. citizens living abroad or in the Northern Mariana Islands were intact. The plaintiffs currently reside in either Guam or the U.S. Virgin Islands. Equally American, an organization for the civil rights of territory residents, rounds out the plaintiffs.

Most of the plaintiffs’ tenure in Hawaii occurred decades ago as part of military stationing and were usually brief stays — in one case, only for a year.

The UOCAVA and UMOVA statutes are meant to restore the ability to vote to U.S. citizens living in other countries, many of them military who would otherwise have wholly lost the right to vote. The plaintiffs, however, are registered voters in Guam and the Virgin Islands.

U.S. District Judge Jill A. Otake, at the summary judgment hearing and in her ruling Tuesday, noted that although the plaintiffs raise fair points about the limitations on voting rights for those living in the U.S. territories, “plaintiffs’ continued efforts to transform this issue into one concerning territorial voting rights is misguided and ineffective,” she wrote.

Otake rejected the plaintiffs' claims that the UOCAVA and UMOVA violate the Fifth and 14th Amendments. She found former residents of Hawaii who live in territories cannot be considered a protected class and that U.S. citizens living in territories do not have a superseding right to vote in federal elections.

“UOCAVA and UMOVA in fact treat plaintiffs the same as former state residents who move to another state or the District of Columbia, so the actual disparity is nothing close to Plaintiffs’ dramatic portrayal,” she wrote.

The federal and state defendants cited concerns that conveying the right to vote in absentee to former residents of a state would give those residents outsized voting rights, compared to other territorial residents who cannot claim former residency in one of the 50 states. Otake wrote that the creation of this sort of ‘super citizen’ would lead to wealth-based inequity to voting access that could have distinct effects on the results of elections.

"The concern over creating "super-citizens" is perplexing - all our plaintiffs are asking is to enjoy the same right to vote for President that any other citizen enjoys who moves outside the 50 states. The problem now - and the reason for our lawsuit - is that they are being treated as second-class citizens simply because of where they now live," said Neil Weare, attorney for the plaintiffs and president of Equally American.

"Bottom line, where you live shouldn't affect your right to vote," he said.

Representatives for the state and federal defendants could not be reached immediately.

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GPDN: Former Hawaii residents lose territorial voting rights case