Cases & Actions
Borja v. Nago
The brief, filed by the Election Law Clinic and Campaign Legal Center to the United States Court of Appeals for the Ninth Circuit, explains that the district court erred by applying the wrong legal standard.
STATUS: ACTIVE
UPDATED: May 8, 2023
ISSUES: Vote Denial
In an appeal from the U.S. District Court for Hawai’i, the United States Court of Appeals for the Ninth Circuit will examine Plaintiff’s claim that the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), 52 U.S.C. §§ 20301-20311, and Hawai’i’s Uniform Military and Overseas Voters Act (UMOVA), Haw. Rev. Stat. §§ 15D-1-18, are unconstitutional as applied to the Plaintiffs because they severely and unjustifiably burden the right to vote.
ELC and Campaign Legal Center are amici curiae in support of Plaintiffs-Appellants. In their brief, submitted to the Ninth Circuit on May 8, 2023, amici explain that the district court erred by applying the wrong legal standard. The appropriate standard for assessing the constitutionality of voting restrictions is Anderson-Burdick sliding scale scrutiny. Had the court used the correct standard, it would have found that UOCAVA and UMOVA impose severe burdens on voting, completely disenfranchising the plaintiffs in federal elections. This restriction, therefore, warrants heightened scrutiny akin to strict scrutiny, not the rational basis review employed by the lower court.
BACKGROUND
Under state and federal law, former residents of Hawaii can continue voting in the state’s federal elections by absentee ballot if they live in the Northern Mariana Islands (NMI) or a foreign country—but not if they live in Guam, the U.S. Virgin Islands, American Samoa, or Puerto Rico. Even though Guam and NMI have the same legal status as territories of the United States, Hawaii prohibits absentee voting from voters in Guam, but allows it from voters in the NMI.
Former residents of Hawaii living in Guam (the “Borja plaintiffs”) challenged the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and Hawaii’s Uniform Military and Overseas Voters Act (UMOVA) as unconstitutional disenfranchisement. The district court upheld the laws, holding that the plaintiffs, as territorial residents, had no fundamental rights to vote in federal elections nor in Hawaii, and they are not members of a suspect or quasi-suspect class. Applying deferential review, the court concluded that the laws were rational and therefore, constitutional. The plaintiffs appealed the decision to the 9th Circuit Court of Appeals. ELC and the Campaign Legal Center (CLC) filed an amicus brief in support of the Borja plaintiffs.