9th Circuit To Hear Oral Argument in Absentee Voting Case for Citizens in U.S. Territories 

by Madeleine Greenberg, Democracy Docket, February 12, 2024

WASHINGTON, D.C. — U.S. citizens who live in a foreign country can vote in federal elections, but former Hawaii residents who live in Puerto Rico, Guam, the Virgin Islands or American Samoa cannot. A lawsuit challenging this reality will be heard by the 9th U.S. Circuit Court of Appeals today. 

In 2020, former Hawaii residents filed a novel lawsuit challenging their disenfranchisement. 

In October 2020, former Hawaii residents now residing in Guam and the U.S. Virgin Islands filed a lawsuit challenging a Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) provision and Hawaii Uniform Military and Overseas Voters Act (UMOVA) requirements that preclude former Hawaii residents from voting absentee for president in their former state if they are currently living in Guam, the U.S. Virgin Islands, American Samoa or Puerto Rico. 

The plaintiffs point out that former Hawaii residents may vote absentee for president if they currently reside in the Northern Mariana Islands, certain other U.S. territories or live abroad. Despite being both U.S. citizens and former Hawaii residents, the plaintiffs cannot vote absentee for president because they reside in either Guam or the U.S. Virgin Islands.  

They argue that former state residents of Hawaii living in Guam, the U.S. Virgin Islands, American Samoa, and Puerto Rico are “disenfranchised and relegated to a status as second-class citizens in ways they would not have been had they moved to anywhere else on Earth.”

“Indeed, even if they resided in Antarctica – or left Earth entirely to work at the International Space Station – they would still be permitted to vote for President and voting members of Congress in federal elections,” their complaint reads. 

The plaintiffs allege that the UOCAVA and UMOVA provisions violate the Equal Protection and Due Process Clauses under the Fifth and 14th Amendments and violate a federal law protecting the rights of those living in U.S. territories by treating “similarly situated former state residents differently based on where they reside overseas.” 

A Trump-appointed judge ruled against the plaintiffs in the district court. 

A Trump-appointed federal judge, Jill Otake, upheld the plaintiffs’ second-class citizenship status by ruling that they are not permitted to vote absentee for president from Guam or the U.S. Virgin Islands. 

In a 38-page order, the judge rejected the plaintiffs’ claims that the UOCAVA and UMOVA provisions at issue violate the Fifth and 14th Amendments, holding that the statutes that disenfranchise these citizens do not infringe upon the right to vote.

Additionally, the judge stated that “territorial residents have no right to vote in federal elections and U.S. citizens who move to certain territories likewise have no right to vote absentee in their former states of residence.” 

The judge concluded that granting the plaintiffs the right to vote would “create a class of ‘super citizens’ whose ability to vote in federal elections — a right not given to territorial residents — would turn on prior residence in a state,” despite the plaintiffs simply advocating to not be disenfranchised based on their current place of residence.

The plaintiffs appealed this decision to the 9th U.S. Circuit Court of Appeals, which will hear the case today. 

The 9th Circuit will review the district court’s decision. The former Hawaii residents who brought the case are asking the circuit to reverse the trial court’s decision, arguing that the current system results in discrimination that “deprives former Hawaii residents of a fundamental right and violates the Constitution’s equal-protection guarantee.” It will be up to a three-judge panel to decide if former state residents who are citizens are entitled to federal voting rights.