Joan B. Gottschall
Joan B. Gottschall

A federal judge has dealt a setback to former Illinois residents who are blocked from voting by absentee ballot in next week’s presidential election because they now live in certain U.S. territories.

In a written opinion last week, U.S. District Judge Joan B. Gottschall rejected the argument that the Illinois Military Overseas Voter Empowerment (MOVE) Act violates the equal protection clause by treating former Illinois voters differently depending on their current residence.

Illinois’ MOVE Act bars former state residents living in Puerto Rico, Guam or the U.S. Virgin Islands from voting by Illinois absentee ballot in federal elections, but allows their counterparts in American Samoa and the Northern Mariana Islands to do so.

The disparate treatment, Gottschall held, “is rationally related to legitimate state interests.”

Those interests include the “synchronization” of Illinois MOVE with federal overseas and absentee voting laws, Gottschall held.

The language of Illinois MOVE, she wrote, tracks the language of one of those federal laws, the Overseas Citizens Voting Rights Act.

Gottschall conceded the Overseas Citizens Voting Rights Act was replaced by the Uniformed and Overseas Citizen Absentee Voting Act following the enactment of the MOVE Act.

She also conceded that the current federal statute differs from its predecessor by barring U.S. citizens living in American Samoa from voting by states’ absentee ballots in federal elections.

But the fact that former Illinois residents living in American Samoa may vote by absentee ballot while former residents of other states also living there are barred from doing the same “does not create a constitutional inequity,” Gottschall wrote.

Under the current federal law, she wrote, states are authorized “to provide more generous voting rights” to their former residents than those residents would otherwise be provided.

“The [Uniformed and Overseas Citizen Absentee Voting Act] provides the voting practices floor upon which Illinois must stand, but at the same time it grants Illinois the right to expand upon these practices,” Gottschall wrote.

And the “practical effect” of state lawmakers’ decision to refrain from updating the MOVE Act to track the language of the current federal law, she wrote, is that more former Illinois residents now living in U.S. territories have the right to vote in federal elections.

Gottschall granted summary judgment in favor of the federal government in a lawsuit filed by six former Illinois residents and two nonprofit organizations that promote voting rights.

The lead attorney for the plaintiffs is Charles F. Smith Jr. of Skadden, Arps, Slate, Meagher & Flom LLP.

Another attorney for the plaintiffs, Neil Weare of the We the People Project in Washington, D.C., said he is disappointed by Gottschall’s ruling.

He said his clients have not decided yet whether to seek an immediate ruling in the case from the 7th U.S. Circuit Court of Appeals.

“Unfortunately, the deadline for applying to vote overseas has passed, so it doesn’t seem that an immediate appeal would make a difference in this election,” Weare said.

The lead attorneys for the federal government are Deepthy Kishore and Justin M. Sanberg, both of the U.S. Justice Department in Washington.

The Justice Department could not be reached for comment.

The individual plaintiffs in the suit are American citizens serving in the military or as public servants in U.S. territories.

The other plaintiffs are the Iraq, Afghanistan and Persian Gulf Veterans of the Pacific and the League of Women Voters of the Virgin Islands.

In her opinion, Gottschall also rejected the argument that the state MOVE Act and the federal statute violate the fundamental right to interstate travel.

The courts have not determined whether this right “applies to travel between the 50 states and the U.S. territories,” Gottschall wrote.

Even if the right does apply when an American citizen moves from a state to a territory, she wrote, neither the MOVE Act nor federal law has infringed on the plaintiff’s right to leave Illinois.

“They are free to come and go as they please, although their decisions to relocate to Puerto Rico, Guam or the [U.S. Virgin Islands] have come at a cost,” Gottschall wrote.

The loss of the right to vote in federal elections, she wrote, was not caused by either law, “but by their own decision to relocate.”

In fact, the plaintiffs are not complaining that they have received worse treatment than their fellow citizens, Gottschall wrote.

“In truth,” she wrote, “it is the denial of special treatment — the ability to vote by absentee ballot in federal elections (because of their former nexus to Illinois) despite the fact that citizens of Puerto Rico, Guam or the [U.S. Virgin Islands] do not have the right to vote in federal elections — that the plaintiffs now try to convert into a due process violation based on their right to travel.”

Gottschall issued her opinion Friday in Luis Segovia, et al. v. Board of Election Commissioners for the City of Chicago, et al., No. 15 C 10196.