A federal judge denied an attempt to dismiss a lawsuit filed by six former Hawaii residents who claim their constitutional rights were violated by a state law that blocked them from voting in the 2020 election after they moved to U.S. territories where they were prevented from casting absentee ballots.
U.S. District Judge Jill A. Otake issued an order
Sept. 2 that the challenge to the constitutionality of the Uniformed and Overseas Citizens Absentee Voting Act and the Hawaii Uniform Military and Overseas Voters Act may continue after denying a motion by attorneys representing the federal government who claimed a lack of subject-matter jurisdiction.
“While UMOVA does not itself distinguish between the Northern Mariana Islands and other territories, through administrative rules, Hawaii allows former Hawaii citizens now residing in the NMI to vote absentee in federal elections like overseas voters. UMOVA additionally permits absentee voting by U.S. citizens born outside the United States who have never resided in the United States or registered to vote in any state, if their parents or guardians last resided in Hawaii and would have been eligible to vote there before moving overseas. As a result, U.S. citizens who have never resided in the United States can vote in Hawaii’s federal elections while former
Hawaii residents lose the right to participate in such elections if they move to Guam, the U.S. Virgin Islands, American Samoa, or Puerto Rico,” Otake wrote in her order. “Plaintiffs’ amended requested relief alters the landscape with the addition of the request to strike the provisions that prevent them from voting absentee and the deletion of the request for an order requiring Defendants to accept their applications to vote absentee and to expand voting rights to all
former Hawaii citizens living in any territory.”
UMOVA allows Hawaii residents to vote absentee for candidates running for president and the Congress if they reside in the Northern Mariana Islands, certain other insular territories or
a foreign country, but not if they live on Guam or in the U.S. Virgin Islands, American Samoa or Puerto Rico, according to the complaint, filed in October in U.S. District Court for the District of Hawaii.
“This disparate treatment violates the U.S. Constitution’s guarantee of equal protection. Equal protection rights for residents of U.S. Territories are guaranteed by either the Equal Protection Clause of the Fourteenth Amendment or the equal-protection component of the Due Process Clause of the Fifth Amendment,” reads the complaint.
Neil Weare, a Washington, D.C.- based civil rights attorney representing the plaintiffs, said the Hawaii election law permits someone born and raised overseas, whose parent was a Hawaii resident, to cast an absentee ballot.
“But if you are a U.S. citizen who lived in Hawaii but moved to Guam, you cannot. That’s another layer of absurdity on top of another layer of absurdity. The idea is that as U.S. citizens they should have the right to vote for president and voting rights in Congress wherever they live,” said Weare, in an interview with the Honolulu Star-
Advertiser. “Borja (Vicente “Ben” Borja) is a veteran who served a full career in the U.S. military … and followed the orders of the commander in chief but couldn’t vote for the commander in chief.”
Weare is president and founder of Equally American Opens in a new tab, a nonprofit dedicated to “equality and civil rights for all Americans, wherever you live.”
Deputy Attorney General Lori N. Tanigawa, who is
defending the state, and
Hawaii’s chief election officer, Scott T. Nago, did not
reply to Star-Advertiser requests for comment.
Gary H. Yamashiroya, special assistant to the attorney general, said the department will file a response to the complaint.
“The Office of Elections does not comment on pending litigation,” said Nedielyn I. Bueno, spokeswoman for the state Office of Elections, in a statement to the Star-
Advertiser.
The federal complaint was brought on behalf of Borja, a U.S. Navy veteran who lived in Hawaii before moving to Guam, and U.S. 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 ahead of
a move back to Guam.
According to the complaint, Reeves, Borja, Edmund Frederick Schroeder Jr., Ravinder Singh Nagi,
Patricia Arroyo Rodriguez and Laura Castillo Nagi lost their right to vote because of the U.S. territories they chose to live in. The U.S. Constitution does not permit Congress or states to choose which voters living abroad or in nonstate territories are allowed to maintain their right to vote for presidential and congressional candidates.
“As U.S. citizens the right to vote should be the same wherever you happen to live,” said Weare.
No trial date is scheduled, and the case is likely to move straight to resolution.
