Borja v. Nago

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VICENTE TOPASNA BORJA, et al., Plaintiffs, v. SCOTT NAGO, in his official capacity as Chief Election Officer for the Hawaii Office of Elections, et al., Defendants.

CIVIL No. 20-00433 JAO-RT

United States District Court, D. Hawaii

September 6, 2022

ORDER (1) GRANTING DEFENDANTS' CROSS-MOTIONS FOR SUMMARY JUDGMENT AND (2) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

JILL A. OTAKE UNITED STATES DISTRICT JUDGE

Plaintiffs Vicente Topasna Borja (“Borja”), Edmund Frederick Schroeder, Jr. (“Schroeder”), Ravinder Singh Nagi (“R. Nagi”), Patricia Arroyo Rodriguez (“Rodriguez”), Laura Castillo Nagi (“L Nagi”), and Equally American Legal and Defense and Education Fund (“Equally American”) (collectively, “Plaintiffs”) challenge the constitutionality of the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), codified at 52 U.S.C. §§ 20301 to 20311, Hawaii's Uniform Military and Overseas Voters Act (“UMOVA”) codified at Hawai‘i Revised Statutes (“HRS”) §§ 15D-1 to -18, and Hawai‘i Administrative Rules (“HAR”) § 3-177-600. Although this case broadly implicates voting rights, the narrow issue before the Court is whether UOCAVA and UMOVA violate the Equal Protection Clause by declining to extend the right to vote absentee in federal elections to Plaintiffs, who are former Hawai‘i residents now residing in Guam and the U.S. Virgin Islands (“Virgin Islands”).

The parties cross move for summary judgment, with Plaintiffs arguing that UOCAVA and UMOVA are unconstitutional, and Defendants United States of America, Lloyd J. Austin, III Federal Voting Assistance Program, David Beirne,^[1]Scott Nago (“Nago”), and Glen Takahashi (“Takahashi”)^[2] (collectively, “Defendants”) arguing that UOCAVA and UMOVA survive rational basis review. For the following reasons, the Court GRANTS Defendants' cross-motions for summary judgment and joinder, ECF Nos. 140, 142, 144, and DENIES Plaintiffs' Motion for Summary Judgment. ECF No. 137. The Court rejects Plaintiffs' argument that the statutes are unconstitutional merely because they do not grant Plaintiffs a right given to others, particularly when Plaintiffs' fellow territorial residents lack such a right.

BACKGROUND

A. Factual History

1. Plaintiffs

Plaintiffs - all former Hawai‘i residents^[3] - allege that UOCAVA, UMOVA, and HAR § 3-177-600 preclude them from voting in Hawai‘i by absentee ballot for President and Hawaii's U.S. congressional delegation because they currently reside in Guam or the Virgin Islands. ECF No. 105 ¶¶ 1-2, 14-20.

Borja, a U.S. citizen born in Guam, was a Hawai‘i resident in 1990. ECF No. 138-2 ¶¶ 1, 3, 7; ECF No. 105 ¶ 15.a. He currently resides in Guam. ECF No. 138-2 ¶ 1. Schroeder is a U.S. citizen who was born in North Carolina. ECF No. 138-4 ¶¶ 1, 3. He lived in Hawai‘i from 1976 to 1984, then moved to Guam, where he currently resides. Id. ¶¶ 1, 5-7. R. Nagi, a U.S. citizen born in Guam, currently resides in the Virgin Islands. ECF No. 138-5 ¶ 1. He resided in Hawai‘i from 2002 to 2005. Id. ¶¶ 3-4. Rodriguez is a U.S. citizen who was born in Texas. ECF No. 138-6 ¶ 1. She lived in Hawai‘i from 1978 to 1994 and currently resides in Guam. Id. ¶¶ 1, 3. A U.S. citizen born in Illinois, L. Nagi was a resident of Hawai‘i from 2002 to 2005. ECF No. 138-7 ¶¶ 1, 3, 5. She currently lives in the Virgin Islands. Id. ¶ 1. Equally American has members, including Borja, Schroeder, R. Nagi, Rodriguez, and L. Nagi (collectively, the “Individual Plaintiffs”), who reside in Guam, the Virgin Islands, Puerto Rico, American Samoa, and the Northern Mariana Islands (“NMI”), and formerly resided in a state. ECF No. 138-8 ¶ 7.

2. UOCAVA, UMOVA, And HAR § 3-177-600

Enacted in 1986, UOCAVA's purpose was to “facilitate absentee voting by United States citizens, both military and civilian, who are overseas.” H.R. Rep. No. 99-765, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 2009, 2009. Overseas voters include absent uniformed services voters and those residing outside the United States who (1) are qualified to vote in the place they were last domiciled before leaving the United States and (2) who would be qualified to vote in the place last domiciled before leaving the United States but for their current residence outside the United States. See 52 U.S.C. § 20310(5)(B)-(C). “States” and the territorial use of “United States” include a state of the United States, the District of Columbia, Puerto Rico, Guam, the Virgin Islands, and American Samoa. See 52 U.S.C. § 20310(6) & (8). The NMI is excluded from these definitions. See id.

UMOVA authorizes U.S. citizens who are former Hawai‘i residents and living outside the United States to vote by absentee ballot in federal elections. HRS § 15D-1 to -18. Its purpose was “to ensure the ability of members of the military and other[] eligible voters who are overseas to participate in all elections for federal, state, and local offices.” ECF No. 143-4 at 1; S. Stand. Comm. Rep. No. 2450, https://www.capitol.hawaii.gov/session2012/commreports/HB461SD1 SSCR2450.HTM. UMOVA defines “United States” as “the several states, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.” HRS § 15D-2. While UMOVA does not itself distinguish between the NMI and other territories, through administrative rules, Hawai‘i allows former Hawai‘i citizens now residing in the NMI to vote absentee in federal elections like overseas voters by authorizing the issuance of ballot packages to voters covered by UOCAVA. See HAR § 3-177-600. Because UOCAVA excludes the NMI from the definition of “states” and territorial use of “United States,” see 52 U.S.C. § 20310(6) & (8), U.S. citizens residing in the NMI are treated as overseas voters and therefore able to vote absentee. See HAR § 3-177-600. 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 Hawai‘i and would have been eligible to vote in Hawai‘i before moving overseas. See HRS § 15D-2. As a result, certain U.S. citizens who have never resided in the United States can vote in Hawaii's federal elections while former Hawai‘i residents lose the right to participate in such elections if they move to Guam, the Virgin Islands, American Samoa, or Puerto Rico. See id.

Plaintiffs challenge the distinction in UOCAVA, UMOVA, and HAR § 3177-600 between U.S. citizens residing in the NMI or in a foreign country, with those residing in Guam, the Virgin Islands, American Samoa, or Puerto Rico. ECF No. 105 ¶¶ 2, 51, 62. Because Plaintiffs reside in Guam and the Virgin Islands, they are unable to vote for President or members of Congress. ECF No. 138-2 ¶ 9; ECF No. 138-4 ¶ 11; ECF No. 138-5 ¶ 14; ECF No. 138-6 ¶ 10; ECF No. 138-7 ¶ 9.

3. Stipulated Facts

The parties stipulate that the Individual Plaintiffs: are not current Hawai‘i residents; are not currently registered to vote in Hawai‘i; did not apply to register to vote absentee nor request an absentee ballot pursuant to UOCAVA or UMOVA; are not “overseas voters” or “covered voters” as defined by HRS § 15D-2; are not “absent uniformed services voters” or “overseas voters” as defined by 52 U.S.C. § 20310(1) and (5); seek to vote absentee in presidential and congressional elections in Hawai‘i; and do not seek to vote absentee in state or local elections in Hawai'i. ECF No. 136 ¶¶ 1-8, 14-15. Borja, Schroeder, and Rodriguez are registered to vote in Guam. Id. ¶¶ 9-10, 12. R. Nagi and L. Nagi are registered to vote in the Virgin Islands. Id. ¶¶ 11, 13.

4. Procedural History

Plaintiffs commenced this action on October 8, 2020. On October 29, 2020, they filed an Amended Complaint. ECF No. 39. Pursuant to the Stipulation Permitting Leave to Plaintiffs to File Second Amended Complaint and Order, see ECF No. 72, Plaintiffs filed a Second Amended Complaint (“SAC”) on December 18, 2020. ECF No. 73.

On January 14, 2021, the Federal Defendants filed a Motion to Dismiss for Lack of Subject-Matter Jurisdiction, see ECF No. 74, and were joined in part by the Hawai'i Defendants.^[4] ECF Nos. 78-80. The Court issued an Order Granting Federal Defendants' Motion to Dismiss for Lack of Subject-Matter Jurisdiction (“Dismissal Order”), concluding that Plaintiffs established an injury in fact and traceability but not redressability, and gave Plaintiffs leave to amend. ECF No. 102; see also Reeves v. Nago, __ F.Supp.3d, 2021 WL 1602397 (D. Haw. Apr. 23, 2021).

On May 14, 2021, Plaintiffs filed a Third Amended Complaint (“TAC”). ECF No. 105. The TAC asserts a single 42 U.S.C. § 1983 claim - UOCAVA and UMOVA violate the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments^[5] by protecting the voting rights of certain former Hawai‘i residents based on whether they live overseas or in specified territories. Id. at 40.

Plaintiffs pray for: (1) an order (a) declaring that UOCAVA, UMOVA, and HAR § 3-177-600 violate the Fifth Amendment, the Fourteenth Amendment, and § 1983 by allowing former Hawai‘i residents living in foreign countries or the NMI to vote absentee while disallowing those living in Puerto Rico, Guam, the Virgin Islands, or American Samoa from doing so, (b) striking and ordering unenforceable the inclusion of the “the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa” in UOCAVA's definition of “United States,” and (c) striking and ordering unenforceable the inclusion of “Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States” in UMOVA's definition of “United States”; (2) a preliminary and...