Am Samoa remains on IL law for overseas absentee voters

In a final decision dismissing a federal voting right lawsuit, a federal judge focused her decision, on American Samoa, which has “a unique relationship with the United States” and the reason why the territory remains on an Illinois state election law for overseas absentee voters.

US Judge Joan B. Gottschall more than two months ago ruled in the first summary judgement motion by the plaintiffs by dismissing the lawsuit. Gottscahll then sought comments and arguments in the second, and final part of the lawsuit, which focuses on the treatment of American Samoa under the Illinois Military Overseas Voter Empowerment Act (MOVE).

The law allows former residents of Illinois, who are registered voters to vote by absentee ballot in federal elections if they reside in American Samoa — but not other US territories. The plaintiffs, argued in the second judgment motion that the MOVE statute violates their equal protection rights by excluding former Illinois voters now living in Puerto Rico, Guam, and the U.S. Virgin Islands.

Additionally, the plaintiffs contend that Illinois’ MOVE and the federal Uniform and Overseas Citizen Absentee Voting Act (“UOCAVA”), infringe upon their substantive due process right to interstate travel.

The court disagreed and denied the plaintiffs’ motion for summary judgment in favor of the plaintiffs, who were hoping that a court ruling in their favor would allow them to vote by absentee in the Nov. 8 national elections for Congress and the US President.

While the MOVE statute mirrored the 1979 federal Overseas Citizens Voting Rights Act (OCVRA), which considered American Samoa a foreign country, Illinois never amended the MOVE law when the 1979 law was repealed by Congress and replaced with a new Uniform and Overseas Citizen Absentee Voting Act (UOCAVA) in 1986, according to the 18-page opinion and order issued last Friday.

And if the MOVE law was amended to reflect the new federal law in 1986, it would consider American Samoa a US territory and thereby former residents of Illinois residing in American Samoa would be prohibited from voting absentee for Illinois in federal elections.

“Under Illinois MOVE, former Illinois residents living in American Samoa may vote by absentee ballot. Had Illinois updated its election laws following the OCVRA’s repeal in 1986 to mirror the newly enacted UOCAVA, these residents of American Samoa would have lost their right to absentee vote,” Gottscahll wrote.

According to the judge, the court also found that Illinois — certainly at least until 1986 — had a legitimate state interest in treating American Samoa differently from Puerto Rico, Guam, and the US Virgin Islands.

For example, “American Samoa became a United States territory in 1900, ‘when the traditional leaders of the Samoan Islands of Tutuila and Aunu'u voluntarily ceded their sovereign authority to the United States Government’,” the judge said citing a statement from a federal case and a 1986 speech by an American Samoa official to a US based university.

However, in 1949, this nation of islands and coral atolls rebuffed the US Department of the Interior’s attempt to introduce Organic Act 4500, which sought to incorporate American Samoa into the United States in the same fashion as already had been achieved in Puerto Rico and the Virgin Islands, and soon would be achieved in Guam.

“American Samoa strives to preserve its traditional way of life, called fa’a Samoa, notwithstanding its growing ties with the United States,” she explained, citing a 2008 federal report. “American Samoa’s constitution protects the Samoan tradition of communal ownership of ancestral lands by large, extended families, and ‘American Samoans take pride in their unique political and cultural practices, and . . .[their] history free from conquest or involuntary annexation by foreign powers’.”

The judge further explained that federal law classifies American Samoa as an “outlying possession” of the United States and that people born in American Samoa are U.S. nationals but not U.S. citizens at birth.

Additionally, the US State Department manual categorizes American Samoa as an unincorporated territory and states that “the citizenship provisions of the [U.S.] Constitution do not apply to persons born there.”

“This basic understanding of the history of American Samoa — which illustrates that American Samoa has not followed the same path as Puerto Rico, Guam, and the USVI as concerns incorporation, citizenship, and cultural practices—leads the court to conclude that a rational basis supported Illinois’ decision with respect to Illinois MOVE to track the language of the OCVRA and to exclude American Samoa from its definition of ‘[t]erritorial limits of the United States’,” she said.

“At the time of the OCVRA’s enactment, the federal government viewed American Samoa more like a foreign country than as part of the United States’ territorial limits,” she said and noted the “practical effect of Illinois MOVE’s outdatedness is that it provides more generous voting rights to former Illinois residents” living in American Samoa.

“The underlying reality in this case is that Congress retains the right to dictate the terms of its relationship with the U.S. territories, and these terms sometimes shift and change depending on the individual territory and the historical context informing each relationship,” the judge said.

“...the court finds that American Samoa’s unique relationship with the United States rationally supports Illinois’ decision” to mirror the OCVRA going back to 1979 and it matters not that Illinois continues to do so almost 40 years later, she added.