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Judge denies feds’ motion to dismiss voting rights lawsuit in Hawaii

A motion to dismiss a voting rights lawsuit involving U.S. citizens who moved to overseas territories was denied by a federal judge on Friday, allowing the case to proceed.

(CN) — A federal judge in Hawaii denied a motion to dismiss a lawsuit filed by six former residents who claimed they were wrongfully denied their right to vote in the 2020 U.S. election because they moved to Guam and the U.S. Virgin Islands.

The plaintiffs in the case argued that had they moved to a foreign country they would have retained their right to vote in U.S. elections, but because they moved to non-state territories, they were wrongfully denied that right.

The lawsuit was originally filed on behalf of Air Force veteran Randall Jay Reeves, who moved to Guam in 1996 to work for the Federal Aviation Administration, but lost his ability to vote after being transferred to Hawaii in 2002 before going back to Guam. Another plaintiff, Vicente “Ben” Borja, a Navy veteran who is now the lead plaintiff in the case, lived in Hawaii before moving to Guam in accordance with his wife’s dying wishes.

The plaintiffs filed their lawsuit in October 2020 to challenge Hawaii’s Uniform Military and Overseas Voters Act, or UOCAVA, enacted in 1986, which they claim violates their Fifth and Fourteenth Amendment rights under the Constitution. The complaint notes that even citizens who have never set foot on U.S. soil are eligible to vote, yet former Hawaii residents who move to Puerto Rico, Guam, the U.S. Virgin Islands or American Samoa, all legally considered U.S. territory, must currently forfeit that right.

The defendants, which includes the federal government and Hawaii's chief election officer, twice sought to have the case dismissed, claiming the federal court lacks subject matter jurisdiction under Article III of the Constitution, which states that the plaintiffs must show they’ve suffered an injury in fact, that the injury is fairly traceable to the defendant’s conduct and that it’s likely to be remedied by a favorable decision in the case.

U.S. District Judge Jill Otake on Friday denied the defendants’ latest motion to dismiss the case and claimed their deadline to seek reconsideration of the dismissal order had “long passed.”

In her ruling, Otake said the “plaintiff’s allegations regarding the denial of equal treatment sufficiently identify an injury in fact,” noting that they were denied the right to vote, constituting an injury, and weren’t merely posing a hypothetical. “There is nothing ‘abstract’ about Plaintiffs’ disparate treatment claim; it is the sole basis for this litigation,” Otake explained. “The Federal Defendants persistently mischaracterize the disparate treatment claim as Plaintiffs’ recasting of injuries when Plaintiffs have advanced this theory since day one.”

The plaintiffs alleged in their complaint that this disparate treatment violates the Constitution’s guarantee of equal protection for residents of U.S. territories under the Fourteenth Amendment’s equal protection clause or the equal protection component in the due process clause of the Fifth Amendment. The plaintiffs argue that disparate treatment in regards to voting is a particularly grievous violation because voting is a fundamental right of all Americans.

Quoting a 56-year-old statement by the Supreme Court, the plaintiffs added “no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”

According to the complaint, the plaintiffs were denied that most fundamental of rights because they chose to move to certain overseas U.S. territories, despite the fact that U.S. citizens living around the world are still allowed to vote in national elections via absentee ballot. They argue that the Constitution authorizes neither Congress nor individual states to determine which voters living abroad or in non-state territories are allowed to maintain their right to vote for president and for representation in Congress.

The plaintiffs claim the Hawaii law singles out a specific group of residents for unfavorable treatment: those who move to Guam, the US Virgin Islands, American Samoa or Puerto Rico. “Since 1898, residents of America’s overseas territories have been improperly relegated to a form of second-class citizenship based on the concern that these areas were populated by ‘alien races.’”

“Indeed, it is well established that unequal treatment constitutes an injury in fact,” Otake ruled. “For these reasons the Court again concludes that Plaintiffs have alleged an injury in fact for standing purposes.”

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