Plaintiffs in a federal voting rights lawsuit have asked for a summary judgment in their favor because of an absentee voting law in the state of Illinois, where that state’s former residents, who are US citizens, are allowed to vote in federal elections — while residing in American Samoa — but not if they are residing in Guam, US Virgin Islands and Puerto Rico.

US District Court Judge Joan B. Gottschall held a hearing last month after dismissing in August this year a challenge filed last November at the federal court at the Northern District of Illinois, by six plaintiffs — all US citizens and former residents of Illinois — now living in Guam, Puerto Rico, and US Virgin Islands. The plaintiffs all serve in the US Armed Forces.

It’s been common knowledge that US citizens living in American Samoa, as well as other US territories are not eligible to vote in the US Presidential race, although they can select a candidate for President during the local Democratic Party or Republican Party convention or caucus.

However, according to Illinois’ little-known law — if you are a former resident of Illinois, a US citizen, and you moved to American Samoa — you can vote absentee in American Samoa, in federal elections, i.e. US Presidential and congressional races.

The defendants in the case are both from Illinois State and the federal government that deal with voting issues.

The voting rights plaintiffs, which includes two organizations that promote voting rights in US territories, note that the lawsuit concerns the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and the Illinois statute implementing its requirements, known as the Illinois Military and Overseas Voter Empowerment (MOVE) law.

In dismissing the lawsuit in August, Gottschall scheduled a hearing last month and ordered that parties should prepare to discuss further proceedings regarding the plaintiffs’ due process claim against the federal defendants and their contention that portions of Illinois MOVE are unconstitutional due to the statute’s treatment of American Samoa.

At last month’s status hearing, plaintiffs expressed a desire to proceed with the remaining due process claim — dealing with Illinois MOVE, which allows former state residents to vote absentee in American Samoa, according to court records, which also states that defendants argued that any remaining claims have been waived.

However, Gottschall scheduled a briefing for plaintiffs to be filed on Sept. 23rd and they did. Defendants’ response is scheduled for Oct. 19th.

In its new motion, plaintiffs request the court grant summary judgment against the state defendants and in favor of the plaintiffs because the individual plaintiffs, who are former residents of Illinois, are denied the right to vote in federal elections in Illinois that is afforded to all other former Illinois residents residing overseas solely “because they each reside in certain disfavored territories excluded from overseas voting rights by state law.”

“This exclusion violates equal-protection principles as a matter of law under any level of scrutiny,” the plaintiffs said and argued that the MOVE law “lacks a rational basis” for authorizing former Illinois residents living in American Samoa to vote in federal elections while denying the same right to former Illinois residents living in Guam, Puerto Rico and the US Virgin Islands.

Additionally, the state defendants had acknowledge that they are “without knowledge or information sufficient to form a belief” as to whether any legislature had articulated a legitimate justification for MOVE’s disparate treatment of former residents living in the Territories.

Moreover, the state defendants have suggested that this arrangement reflects the old federal scheme prior to UOCAVA’s enactment in 1986, but this argument would be self-defeating. “If the state’s justification for its law is an intent to mirror federal requirements, that rationale falls short because Illinois’s treatment of the Territories has been out of sync with federal law for three decades,” the plaintiffs said.

“The Court should subject MOVE to heightened scrutiny,” said plaintiffs who noted that former Illinois residents living in Guam, Puerto Rico, and the USVI “lack meaningful political power” because they are barred from voting for President or voting members of Congress.

The plaintiffs also request that the Court grant summary judgment against the state and federal defendants on the basis that both the federal and state statutes violate the plaintiffs’ fundamental right to interstate travel, which is protected by the substantive component of due process.

According to the plaintiffs UOCAVA and MOVE penalize and deter travel by Illinois residents to Guam, Puerto Rico, and the USVI “by refusing to extend the right to vote absentee in federal elections in Illinois, even while affording such rights to those who move to American Samoa.”

“Because these distinct classifications do not advance any substantial government interest, the laws cannot survive scrutiny,” they argued.

It remains unclear — based on court filings so far — as to why American Samoa and the Northern Mariana Islands are included in the MOVE law but not the other US territories. Hopefully the state defendants will provide a much clearer picture in their Oct. 19th response.