[00:00:02] Speaker 02: All right. [00:00:05] Speaker 02: Well, now here argument in the case of Borja versus Nagel. [00:00:11] Speaker 02: I believe you said Rettler Longmaid, is that correct? [00:00:15] Speaker 02: Writer Longmaid, Your Honor. [00:00:16] Speaker 02: I'm sorry. [00:00:17] Speaker 02: I apologize for the mispronunciation. [00:00:19] Speaker 02: Please proceed. [00:00:19] Speaker 02: Thank you. [00:00:20] Speaker 01: May it please the court, Parker Rettler Longmaid for plaintiffs appellants Vicente Borja et al. [00:00:25] Speaker 01: I'd like to reserve three minutes for rebuttal. [00:00:28] Speaker 01: All parties agree that through UOCAVA and UMOVA, Congress and Hawaii have chosen to define the people of the state to include certain former Hawaii residents. [00:00:38] Speaker 01: Article 1, Section 2 of the Constitution and the 17th Amendment to the Constitution provide that only the people of the states can vote in federal elections for House and Senate. [00:00:48] Speaker 01: So when former Hawaii residents vote in foreign countries, [00:00:51] Speaker 01: in Hawaii elections under Uokawa and Umova, they do so as the people of Hawaii. [00:00:57] Speaker 01: Indeed, the only thing that makes those voters the people of Hawaii is their former residence. [00:01:02] Speaker 01: It has nothing to do with where they currently live. [00:01:05] Speaker 01: That's why there's a constitutional problem here. [00:01:08] Speaker 01: Former Hawaii residents living in the U.S. [00:01:10] Speaker 01: territories are just as much the people of Hawaii as former Hawaii residents living in foreign countries. [00:01:17] Speaker 02: You ascribe this to the federal law. [00:01:21] Speaker 02: But in fact, the federal law doesn't mandate what happened. [00:01:25] Speaker 02: Wasn't that a decision by the state of Hawaii? [00:01:29] Speaker 01: Your Honor, I think Yocava and Umova both mandate what happened here. [00:01:32] Speaker 01: I think the best way to look at this is kind of a joint tortfeasor situation. [00:01:36] Speaker 01: There's a unitary harm. [00:01:38] Speaker 01: There's a sense it would be as if I spilled something in an aisle and you tripped and fell on it and you sued me and I said, go blame my colleague because he could have cleaned it up. [00:01:46] Speaker 02: Well, that's a cute analogy, and some people may think that members of the legislature are tortfeasors. [00:01:54] Speaker 02: I think the reality is that you've got two branches, two separate entities, two governments. [00:02:01] Speaker 02: You've got the federal government and you've got the government of the state of Hawaii. [00:02:06] Speaker 02: What the federal government enacted, at least by my reading, does not mandate what you're complaining about. [00:02:13] Speaker 01: What am I missing? [00:02:14] Speaker 01: The federal government has said that former Hawaii residents can vote if they move overseas but not to territories. [00:02:19] Speaker 01: Because they can, but assuming it's authorized by the state. [00:02:23] Speaker 01: Hawaii must follow that, at least must put in that provision because of the Supremacy Clause of the Constitution. [00:02:29] Speaker 01: And so now what the federal government is saying is because Hawaii hasn't done something else. [00:02:32] Speaker 01: It's pointing to Hawaii's inaction rather than Hawaii's action. [00:02:35] Speaker 01: and saying therefore Hawaii is responsible because it's done nothing. [00:02:38] Speaker 01: I think one way to look at this is to look at causation and redressability together and to look at the Simon case that the government centrally relies on for this argument. [00:02:46] Speaker 01: In the Simon case, there were indigent plaintiffs who didn't get hospital care that they wanted. [00:02:50] Speaker 01: They were challenging [00:02:51] Speaker 01: an IRS policy that they said, encourage or discourage this type of care. [00:02:55] Speaker 01: And what the court looked at is it said, it doesn't matter whether we require the IRS to reinstate this policy because the hospital is going to make its own decisions about whether to offer this care. [00:03:05] Speaker 02: That's a different context. [00:03:06] Speaker 02: Let me ask you this. [00:03:07] Speaker 02: If Hawaii were not involved at all, the government of Hawaii were not involved and they just had the federal legislation here, would you have a claim? [00:03:16] Speaker 02: I'm not sure how Hawaii could not be involved. [00:03:18] Speaker 02: Okay, I understand. [00:03:19] Speaker 02: Follow my question. [00:03:21] Speaker 02: If Hawaii were not involved, had taken no action, there was nothing ever contemplated by Hawaii, would there be a cause of action from your perspective based solely on the federally enacted law? [00:03:34] Speaker 01: There would, Your Honor. [00:03:35] Speaker 01: I'd like to point you as well to the excerpts of record page 113, which is where the district court addresses the causation question. [00:03:41] Speaker 01: And what the district court says is you have a Hawaii regulation that basically passes through the UOCAVA covered voter concept. [00:03:49] Speaker 01: And so the regulation believes 3-177-600D4. [00:03:53] Speaker 01: If a voter is covered by UOCAVA, then they can vote in Hawaii elections. [00:03:56] Speaker 01: So what the district court said is, look, [00:03:58] Speaker 01: If you attack just UOCAVA and we're right on the merits, which the court has to assume for standing purposes, and we're right on the merits, and you say now the former Hawaii residents living in the territories are covered and they can vote under UOCAVA, then all of a sudden all the Hawaii laws is like this, and all of a sudden these voters can vote. [00:04:14] Speaker 01: So you see that the redressability and causation are connected here. [00:04:18] Speaker 01: If you fix the federal problem, you fix the injury that we have here. [00:04:21] Speaker 01: So, and in any event, I would just point out that we are challenging both UOCAVA and UMOVA, so if the court does think, and we don't think the standing argument is a serious one, but if the court does think it is, you still have to address the challenge to UMOVA here. [00:04:35] Speaker 01: Let me ask you this. [00:04:37] Speaker 03: Why don't you just tell us why you disagree or why we should not follow Segovia, the Seventh Circuit's decision in Segovia on standing? [00:04:45] Speaker 01: I think segovia made the errors that we're describing right here is pointing to the inaction of the state. [00:04:50] Speaker 01: This is the state did all that it had to do under the supremacy clause when Congress set up you a cover and it said you have to give the right to former state residents who moved to foreign countries, but not the move to territories. [00:05:00] Speaker 01: So it had to do that under the Supremacy Clause. [00:05:03] Speaker 01: Then it did nothing else. [00:05:04] Speaker 01: And so now the federal government is pointing to inaction about a discriminatory line it's drawn. [00:05:08] Speaker 01: And I would just point out that this same type of theory would sanction racial discrimination, allow no standing to challenge that type of discrimination as well. [00:05:15] Speaker 01: It's a very aggressive standing theory. [00:05:17] Speaker 01: I was discussing with Judge Smith the Simon decision because the difference in the Simon decision is that if there were redress, if there were the type of relief that the plaintiffs asked for, it still would not redress the injury that the plaintiffs claim there. [00:05:29] Speaker 01: And in this case, for the reasons I just explained through the regulation, it would. [00:05:33] Speaker 01: Does UOCAVA prevent Hawaii from allowing the plaintiffs to vote absentee? [00:05:37] Speaker 01: It doesn't prevent them, Your Honor, but again I think the problem is the difference between action and inaction. [00:05:41] Speaker 01: Hawaii hasn't done anything in this respect. [00:05:44] Speaker 02: And by failing to act in your mind, it's an actionable failure. [00:05:49] Speaker 01: I think that, as I said, Your Honor, I think this is the best way to think about this is a joint tortfeasor type of situation. [00:05:55] Speaker 01: We've also said at the FEC versus Cruz Supreme Court decision from the last couple years, which admittedly was looking at federal regulation and federal statute, but looking at them and saying, this is one harm that's being caused by both of these things. [00:06:06] Speaker 01: I think that's the best analogy to look at it here. [00:06:08] Speaker 01: But as I was saying before, however you look at the standing question, you have to address the constitutional challenge to the harm. [00:06:14] Speaker 03: You don't need the federal government here? [00:06:15] Speaker 01: I don't think it's difficult to find that the federal government is a proper defendant here for all the reason. [00:06:20] Speaker 01: That's not my question. [00:06:22] Speaker 03: Do you need the federal government in this case in order to get the relief that you want? [00:06:25] Speaker 01: I don't think we do in the sense that if UMOVA is unconstitutional, then I... But there's an oddity here that I should point out, okay? [00:06:33] Speaker 01: Because when you go to the remedial analysis and you have to assume that we're correct on the merits for standing purposes, we don't know what Hawaii would do if [00:06:39] Speaker 03: Well, if we were to, you know, in a classical standing case, you don't get to the merits. [00:06:44] Speaker 03: You don't even assume anything about the merits. [00:06:45] Speaker 03: There's no jurisdiction. [00:06:47] Speaker 03: You just dismiss the case. [00:06:48] Speaker 01: Well, Your Honor, I respectfully disagree. [00:06:49] Speaker 01: I think Supreme Court precedent is clear that the Court has to assume that we're correct on our merits theory for standing purposes when analyzing standards. [00:06:56] Speaker 03: I won't argue the point with you, but I'm just curious whether or not you really need the feds. [00:07:02] Speaker 01: I don't think we need them, but I don't think it's difficult to find that they are correctly in the case. [00:07:07] Speaker 01: And what I was saying, Your Honor, is that the odd thing that arises when you get to the remedial question is that Hawaii has decided, and you can ask Hawaii, I think, when they stand up, what would Hawaii do if it knew that there was a constitutional infirmity here, which you have to ask for standing purposes? [00:07:23] Speaker 01: And presumably it would not extend the vote because it hasn't done that. [00:07:26] Speaker 01: So then how is that compatible with UOCAVA, which would continue to require under the Supremacy Clause that the vote be unequally extended? [00:07:31] Speaker 01: And again, assuming the merits of that position. [00:07:33] Speaker 04: Could we go to the equal protection challenge? [00:07:36] Speaker 04: Why shouldn't we follow the first and the second and the seventh circuits? [00:07:39] Speaker 04: Why should we create a circuit split here? [00:07:41] Speaker 01: So, Your Honor, I think the first, second, and seventh circuits are clearly wrong under established precedent. [00:07:46] Speaker 01: I would just point out that the first and second circuit decisions were litigated pro se, and then the seventh circuit uncritically looked at those decisions and just accepted what they said. [00:07:54] Speaker 01: The first piece of reasoning was that the right to vote was not fundamental. [00:07:58] Speaker 01: This is a misunderstanding, as we've said from Ninth Circuit case law, also from Supreme Court case law. [00:08:02] Speaker 01: Once extended, the right to vote is fundamental. [00:08:05] Speaker 01: For school board, for municipal utility revenue bonds, for the popular vote for president, which is not in the Constitution. [00:08:13] Speaker 02: You're talking about people that are within the jurisdiction. [00:08:16] Speaker 02: I don't think anybody questions that if you live in the state of Hawaii, all those rights are true. [00:08:21] Speaker 02: But you've got a situation here where people have left the state. [00:08:25] Speaker 02: And the question is whether the state is going to exercise its grace to extend the right to vote absentee. [00:08:32] Speaker 02: That's really the question. [00:08:34] Speaker 02: I don't find any case law that says [00:08:37] Speaker 02: that that is a mandatory obligation on their part for people who have left. [00:08:41] Speaker 02: They're here different. [00:08:42] Speaker 02: Why am I missing something? [00:08:44] Speaker 01: Your Honor, the state and the federal government have the power to decide in the first instance whether to extend the electorate to include former residents. [00:08:53] Speaker 01: But once they extend it to former residents, they must extend it to former residents with an equal hand, because the former residents become part of the electorate. [00:09:01] Speaker 01: Two points on that. [00:09:02] Speaker 01: First, [00:09:03] Speaker 01: No one is more a former resident, which is the only criterion we care about for this purpose, because they happen to live in Japan, say, or Paris or Guam. [00:09:11] Speaker 01: They're all equally former residents. [00:09:14] Speaker 02: Do I understand you to say that once somebody in this case lives in Hawaii, if Hawaii decides that someone who lives in Tibet [00:09:25] Speaker 02: has the right to vote absentee, that they have to extend that to everybody in the whole world, any other country, because they've extended it to the people that live in Tibet. [00:09:33] Speaker 02: Is that what you're saying? [00:09:35] Speaker 01: No, Your Honor. [00:09:35] Speaker 01: I think the point of clarification, which is it's a former residency criterion. [00:09:39] Speaker 01: It's not all people who are in Tibet. [00:09:41] Speaker 01: This court drew this distinction in Attorney General of Guam. [00:09:44] Speaker 01: This is 738F2 at 1019 to 1020. [00:09:47] Speaker 01: What the court was saying there was a challenge under the privileges and immunities clause on behalf of all residents of Guam, asking for the presidential vote. [00:09:54] Speaker 01: And the court distinguished OCVRA, which is the predecessor, essentially the same as UOCAVA here, and said under OCVRA was recognizing that that statute, UOCAVA, is constitutionally premised on former residents as an extension of or analogy to bona fide residents in the state. [00:10:11] Speaker 01: It has to be that way, and I think you should ask my colleague on the other side for the federal government whether it has to be that way, precisely because the 17th Amendment for Senate and Article 1, Section 2 for House of Representatives require the electorate to be the people of the state. [00:10:26] Speaker 04: There has to be a... So how do you define your single geographic area? [00:10:29] Speaker 04: Just all former residents of Hawaii? [00:10:31] Speaker 04: Is that how you define that? [00:10:33] Speaker 01: Yes, although it's not a geographic definition. [00:10:36] Speaker 01: Of course, the geographic as to Hawaii is current residents and former residents. [00:10:40] Speaker 01: And then once you once that's the electorate, the legislature cannot draw lines among the electorate on the basis of geography as Idaho Coalition for Bears and a number of other cases that one person one vote principle would say the same thing. [00:10:52] Speaker 01: So what the federal government in Hawaii are doing here is they're saying the Hawaii electorate, as it has to be under the Constitution, 17th Amendment, Article 1, Section 2, the people of the states. [00:11:01] Speaker 04: So you're saying someone that moves, if it's just all former residents of Hawaii, then let's say somebody moves to another state. [00:11:08] Speaker 04: then you're saying they should be able to vote in federal, presidential, senate, congressional elections in both Hawaii and in their state? [00:11:15] Speaker 04: I mean, how are you defining it, right? [00:11:17] Speaker 04: You're saying all former residents should be treated the same. [00:11:20] Speaker 01: No, Your Honor. [00:11:21] Speaker 01: As we explained in the brief, in that circumstance, excluding former state residents who moved to other states from the vote in Hawaii satisfies strict scrutiny for precisely that it is necessary to achieve the compelling objective of not allowing one person to vote twice. [00:11:35] Speaker 01: for the House or for senators in two different states or twice for president. [00:11:39] Speaker 01: That is, of course, a compelling interest in this country under democratic principles. [00:11:43] Speaker 01: It may even constitutionally be required for the reasons that Judge Smith and I were discussing in the Constitution itself with the people of the states. [00:11:51] Speaker 01: The key point here, I think, is that Congress and Hawaii, together, this one unitary harm, [00:11:56] Speaker 01: have decided to extend the vote to former residents. [00:11:58] Speaker 01: All parties agree that that was a constitutionally permissible choice. [00:12:01] Speaker 01: And again, I point to the Attorney General of Guam case. [00:12:03] Speaker 01: If that's constitutionally permissible, [00:12:05] Speaker 01: They have to extend the vote to those people with an even hand. [00:12:08] Speaker 02: I don't know if you want to do this, but you're at three minutes and ten seconds. [00:12:15] Speaker 03: So your claim is between non-residents, correct? [00:12:19] Speaker 03: The Equal Protection Analysis focuses on the non-residents. [00:12:22] Speaker 03: They're treating them differently. [00:12:23] Speaker 03: Those who go to Northern Mariana Islands get to vote. [00:12:27] Speaker 01: It's between former residents of Hawaii who are treated differently because of where they currently live. [00:12:32] Speaker 01: Correct. [00:12:32] Speaker 01: Versus those who may live in Guam. [00:12:34] Speaker 01: I mean in Puerto Rico. [00:12:36] Speaker 01: Puerto Rico versus let's say France. [00:12:38] Speaker 01: Right. [00:12:39] Speaker 01: And all those people are part of the former resident electorate versus the situation to go to Judge Smith's question with Tibet where [00:12:46] Speaker 01: There's no connection, I'd take your hypothetical, Your Honor, to be of the people who just happen to be in Tibet. [00:12:50] Speaker 01: May not even be constitutionally permissible to call them. [00:12:52] Speaker 04: But you're still doing line drawing, and you're saying some of the line drawing is okay. [00:12:56] Speaker 04: Your Honor, I... You can move to another state, you can treat them a certain way. [00:13:00] Speaker 04: Foreign resident moves to a foreign country, you can treat them a certain way. [00:13:02] Speaker 04: So you're still doing line drawing, so why isn't it acceptable here based on the history of CNMI and its increased sovereignty relative to the other territories for that to be [00:13:12] Speaker 04: and also acceptable line drawing. [00:13:14] Speaker 01: Your Honor, just to be clear, the government raises NMI as an issue. [00:13:17] Speaker 01: The main problem here is between the way that former residents of Hawaii moving to foreign countries are treated versus former Hawaii residents moving overseas. [00:13:25] Speaker 01: And the line drawing that occurs with respect to states, as I said, satisfies strict scrutiny and therefore is permissible. [00:13:30] Speaker 01: I'd like to reserve the remainder. [00:13:31] Speaker 03: Hold on, hold on, hold on. [00:13:32] Speaker 03: I have more questions for you. [00:13:34] Speaker 03: So the analysis that you apply here seems to be just a classic equal protection analysis. [00:13:41] Speaker 03: Is there a fundamental right? [00:13:42] Speaker 03: Is there a suspect class? [00:13:44] Speaker 03: And then apply the corresponding scrutiny. [00:13:49] Speaker 03: Why don't you apply in this particular instance of we're dealing with election laws, why don't we apply the Anderson-Burdick test? [00:13:58] Speaker 01: Your Honor, I think case, I think Anderson Burdick will get you to the same place, but I think case after case from the Supreme Court and this court show that the best way to look at this, as Your Honor said, is as an equal protection case when the right to vote. [00:14:08] Speaker 03: But why do you, I mean, why isn't, Anderson Burdick seems to pick this up. [00:14:13] Speaker 03: I mean, the claim, the fundamental harm that you're dealing with can be addressed through an Anderson Burdick analysis. [00:14:20] Speaker 03: And our case law seems to say that we apply an Anderson Burdick analysis in these kinds of cases. [00:14:25] Speaker 03: Now, I can't pinpoint a particular Anderson-Burde case that has dealt with this kind of non-resident situation, although there is the case of Green v. City of Tucson, which we really haven't discussed. [00:14:38] Speaker 01: Can I say this about Green v. City of Tucson, Your Honor? [00:14:40] Speaker 01: I think it supports this point about what the relevant electorate is, because in that case, they were looking at [00:14:45] Speaker 01: citizens of particular municipalities or counties, and whether they were differentially treated from citizens of other municipalities or counties because the surrounding towns or counties got to vote on municipal incorporation. [00:14:57] Speaker 01: And what was happening there was the citizens of Tortolita were saying, [00:15:01] Speaker 01: We're not treated as well as counties that are farther away from, say, big cities like Tucson in that case, where we're not going to have someone build a veto or request to incorporate. [00:15:10] Speaker 01: The reason that the court didn't apply Strix-Rootney there, and it was looking at the Strix-Rootney cases we've cited, Kramer, Cipriano, this court's cases, was because it was two different electorates. [00:15:21] Speaker 01: It was one city's electorate toward Alitas versus another city's. [00:15:24] Speaker 01: What we have in the case here is all former residents of Hawaii, they're all part of the same electorate because Congress and Hawaii have decided to make that choice. [00:15:32] Speaker 01: And this is a critical point, and I would urge you to ask Mr. Springer this question. [00:15:36] Speaker 01: Are former residents of Hawaii part of the people of Hawaii for constitutional purposes? [00:15:41] Speaker 02: Thank you. [00:15:42] Speaker 02: Oh, we're now going to hear from, I think who's going to go first, I suppose. [00:15:50] Speaker 02: We're gonna hear next from the federal defendants or the Hawaii defendants, which way are you doing? [00:15:55] Speaker 02: Federal? [00:15:55] Speaker 02: Let's start with you then. [00:16:01] Speaker 02: You're Mr. Springer, right? [00:16:03] Speaker 02: Yes, thank you, Your Honors. [00:16:05] Speaker 00: Good morning, Your Honors, and may it please the court, Brian Springer, on behalf of the federal government. [00:16:09] Speaker 00: I'd like to pick up the discussion where I think it left off, that Congress made an eminently reasonable decision in UOCAVA [00:16:16] Speaker 00: to allow absentee voting by people who move overseas. [00:16:20] Speaker 00: As every circuit to address the question has held, UOCAVA treats everyone who moves within the United States in the same way. [00:16:28] Speaker 00: People who move from Hawaii to California get to vote like their neighbors in California. [00:16:33] Speaker 00: People who move from Hawaii to Guam get to vote like their neighbors in Guam. [00:16:38] Speaker 00: As every circuit to address this issue has held, it's easy to conceive why Congress extended absentee voting to people who moved to foreign countries, because those people would otherwise lose the ability to vote in any US election, and why Congress extended absentee voting to people who moved to the Northern Mariana Islands in light of that territory's unique history and relationship with the United States. [00:17:02] Speaker 04: But why is it, it may have been the case in 1986 when UOCAVA was enacted, because at that point, [00:17:08] Speaker 04: that people in the Northern Mariana Islands didn't have a non-voting delegate to Congress, but as of 2008, they do. [00:17:14] Speaker 04: So what is the now basis to treat NMI differently? [00:17:18] Speaker 04: Now it's the same as Guam and Puerto Rico, et cetera, right? [00:17:21] Speaker 04: They have non-voting delegates to Congress. [00:17:24] Speaker 00: Your Honor, so it is correct that the Northern Mariana Islands now have a non-voting delegate in Congress, but there are other reasons to think that these territories are different. [00:17:32] Speaker 00: And I would just say that these are not monolithic entities, as the Supreme Court just emphasized in Vallejo Madero. [00:17:38] Speaker 00: that the territories have extremely different economic conditions, social circumstances, legal systems, and territorial autonomy. [00:17:46] Speaker 00: And I think here Congress could have conceivably thought that those who are in the Northern Mariana Islands are in a different situation because the Northern Mariana Islands voluntarily join the United States pursuant to a negotiated covenant that governs that relationship between the United States and that territory. [00:18:06] Speaker 02: You have a difference here between the Mariana Islands and Guam. [00:18:11] Speaker 02: And Yocaba gives the former residents of Hawaii who moved to the Mariana Islands a benefit that it doesn't give to the people who are in Guam. [00:18:20] Speaker 02: What role, if any, does that play in our determination of whether there's standing here? [00:18:26] Speaker 02: Don't the people of Guam have a standing argument because of that? [00:18:31] Speaker 00: Your Honor, I don't think that it figures into the standing question. [00:18:35] Speaker 00: As I think some of the discussion this morning was talking about, UOCAVA doesn't prevent anyone anywhere from voting. [00:18:42] Speaker 00: It sets a floor of certain people to which the state has to extend absentee voting. [00:18:49] Speaker 00: It doesn't prevent states from going beyond that and extending the vote to Guam and Puerto Rico and the other territories that are listed as part of the United States. [00:18:57] Speaker 02: From the UOCAVA's perspective, [00:18:59] Speaker 02: This is Hawaii's issue. [00:19:01] Speaker 02: If they want to extend it to people in Guam, no problem. [00:19:04] Speaker 00: Right? [00:19:05] Speaker 00: Your Honor, I think it's correct that Hawaii could have made the decision to extend this vote to the other territories if it had chose to do, and I would point the court to the Seventh Circuit's decision in Segovia, and in that case, Illinois had made a decision [00:19:20] Speaker 00: to extend the absentee voting both to the Northern Mariana Islands and to American Samoa as a decision that it made in and of itself. [00:19:28] Speaker 02: UOCAVA doesn't say that Hawaii can't grant the right to vote to the people in Guam, right? [00:19:35] Speaker 00: That's correct, Your Honor. [00:19:36] Speaker 00: And in fact, the district court in this case acknowledged that nothing in UOCAVA prevents Hawaii from making that decision. [00:19:43] Speaker 02: So from your perspective, [00:19:44] Speaker 02: because it really kind of gets down to standing at this point. [00:19:48] Speaker 02: If you can't trace to Yokava the damage that they're claiming, then how does the federal government get involved? [00:19:58] Speaker 02: As my colleague asked, what role does the federal government play? [00:20:02] Speaker 00: Your Honor, I think in terms of this case, if UOCAVA were repealed tomorrow, the plaintiffs would still be in the same situation. [00:20:10] Speaker 00: So their harm, the harm that they're talking about here is that they say they lack the ability to vote for Hawaii electors and Hawaii representatives and Hawaii elections. [00:20:19] Speaker 00: That's the claim, you know, the harm that they're claiming here. [00:20:22] Speaker 00: That's not traceable to UOCAVA, which just sets a floor and allows the states to go beyond that floor and extend the vote too. [00:20:29] Speaker 00: the other territories if it wishes to do so. [00:20:31] Speaker 00: You know, I think that is sort of the right way to be looking at the standing analysis here and that is what... You work together, don't they? [00:20:43] Speaker 00: the two laws your honor I don't think they work together it is correct that you will cover require states to extend absentee ballots to someone who moves outside the united states where that's defined to not include that the northern mariana islands but but they don't sort of you know there's no kind of specific working together other than the harm that they claim here is the injury that they claim is between those who are [00:21:11] Speaker 03: non-residents, one group who lives in northern Mariana Islands, and let's say another group who lives in Puerto Rico. [00:21:19] Speaker 00: Your Honor, the plaintiffs are specifically talking about a distinction between non-residents. [00:21:26] Speaker 00: And I actually think that that underscores why there's no equal protection problem here, because the Supreme Court's cases, particularly the case of Holt Civic Club, talk about the right to vote, the fundamental right to vote, the core of that right, being about people who reside in a particular jurisdiction. [00:21:42] Speaker 00: And these plaintiffs do not reside within Hawaii, which is where they're seeking the right to vote. [00:21:47] Speaker 00: and the right to vote. [00:21:48] Speaker 03: But the state of Hawaii has defined the electorate as encompassing those who may cast an absentee ballot, correct? [00:21:57] Speaker 00: Your Honor, I don't think it's right to think about the issue that way. [00:22:00] Speaker 00: I think that what's happening here is that absentee voting is being extended beyond what the minimum the Constitution requires is, and be extended to people who are not residents, and therefore that's not part of what the constitutional protection is. [00:22:15] Speaker 03: What's your take on whether or not [00:22:16] Speaker 03: The Anderson-Burdee analytical framework should apply here. [00:22:21] Speaker 00: she on our as week stated in our brief our view is that the anderson verdict framework just doesn't come into play here because that that that framework presupposes that there is a burden on the fundamental right to vote and here we don't have any burden there's no denial of the fundamental right to vote you'll cover is extending absentee ballots to people who do not reside within hawaii and don't you know the first instance extending the vote right [00:22:47] Speaker 03: the absentee right to vote if you live in the Northern Mariana Islands or someplace in Europe, correct? [00:22:53] Speaker 00: Your Honor, it is permitting people who move abroad or move to the Northern Mariana Islands to vote absentee. [00:22:59] Speaker 03: But if you move to the Virgin Islands, you can't vote absentee. [00:23:04] Speaker 00: That's correct, Your Honor, but people who live in the Virgin Islands do not have, you know, everyone in this case agrees that people who live in the Virgin Islands' territorial residents don't have a fundamental right. [00:23:14] Speaker 03: We're talking about former residents of Hawaii who Hawaii has defined as the right to, some have the right to vote and some don't have the right to vote, absentee, to Hawaii, in Hawaii. [00:23:25] Speaker 00: And Your Honor, the way that the cases have played out this analysis, particularly the Supreme Court's decision at Holt Civic Club, is that the geographical boundaries of the unit that's holding the election are what defines the fundamental right to vote. [00:23:38] Speaker 00: And I would just say here as well that plaintiffs aren't suggesting, particularly that the Anderson-Burdick framework applies, they're framing this as an equal protection challenge under, you know, these strands of [00:23:47] Speaker 03: under our case, under our case law at least, and certainly the Supreme Court has made some pretty, which the way I read the cases, I mean that the Anderson-Burdick and now for analytical framework should apply to all voting restrictions. [00:24:01] Speaker 00: Your Honor, again, I would point the court to Holt's Civic Club, because Holt's Civic Club is an example where, at first blush, the case may have seemed to implicate the right to vote, but the Supreme Court specifically went through an analysis and determined whether to apply a heightened scrutiny similar to what Anderson Burdick, you know, would suggest. [00:24:20] Speaker 03: I mean, you make it the same way under Anderson Burdick as you do under a classical equal protection analysis. [00:24:26] Speaker 00: Your Honor, there may be some similarities there. [00:24:28] Speaker 00: That's not how this case has sort of been presented up. [00:24:30] Speaker 03: And I think that at the end... As I read our case slide, it struck me kind of odd that you're asking us to apply a strict, or the plaintiffs are asking us to apply a strict equal protection analysis. [00:24:43] Speaker 03: And it just gave me some pause. [00:24:45] Speaker 03: That's all. [00:24:46] Speaker 02: What's your best argument that there's no strict scrutiny required in this case? [00:24:54] Speaker 00: So your honor, I think the best way to sort of frame the argument, again, I think that the Holt Civic Club decision and also this court's decision in green are very instructive on this point, that what plaintiffs are saying, I think everyone agrees here that territorial residents don't have a fundamental right to vote. [00:25:11] Speaker 00: for state electors and state representatives in a state where they used to live. [00:25:15] Speaker 00: So it follows that UOCAVA doesn't burden a fundamental right and therefore that strict scrutiny doesn't apply. [00:25:25] Speaker 02: that the plaintiffs would be in the same situation that they believe they are in now, is that correct? [00:25:31] Speaker 00: That's correct, Your Honor, because Hawaii is the one who has made the decision about where to extend absentee. [00:25:36] Speaker 02: And Hawaii, from your perspective, is the beginning and the end of the whole thing. [00:25:40] Speaker 02: They get to decide whether they're going to extend the franchise to former residents. [00:25:45] Speaker 00: It's not Yokava that determines that in this case, right? [00:25:49] Speaker 00: That's right that Yukawa sets the floor and Hawaii gets to make the decision and that's what the Seventh Circuit explained in Segovia. [00:25:56] Speaker 04: Does Hawaii have the same ability as Congress to treat the territories differently? [00:26:01] Speaker 04: What's the basis for that? [00:26:03] Speaker 00: Your Honor, I don't want to get into kind of the specifics of how to analyze the, you know, Hawaii law under Hawaii governing principles. [00:26:10] Speaker 00: I mean, I think it's okay to sort of draw on the idea that Congress has acted here to allow certain [00:26:16] Speaker 00: voting in certain ways, and that Congress has this plenary authority with respect to the territories that the Supreme Court has recognized in Valle o Madero, and that informs why the, you know, distinctions were drawn that were drawn here. [00:26:29] Speaker 04: Congress has the constitutional right to legislate with respect to the territories, so Hawaii is just following what Congress has done, right? [00:26:36] Speaker 00: Your Honor, I wouldn't describe it as Hawaii following what Congress has done, because Hawaii could have made a decision to extend absentee voting, excuse me, to the other territories if it had chose to do so. [00:26:47] Speaker 04: But we haven't identified what is it that gives Hawaii the authority to do this. [00:26:51] Speaker 04: They're just copying US Congress, which has the constitutional authority to legislate with respect to the territories. [00:26:57] Speaker 00: Your Honor, I think in terms of analyzing the constitutional issue here, [00:27:02] Speaker 00: it makes sense to draw on this background principle that Congress has very broad authority, as the Supreme Court just recognized in Bayo Madero, to legislate differently with respect to the territories based on these distinctions. [00:27:15] Speaker 04: So it wouldn't be speculative then to say that if the federal government took an action different than UOCAVA, then Hawaii would follow, right? [00:27:22] Speaker 04: Because it's Congress that has this constitutional authority to legislate with respect to the territories. [00:27:28] Speaker 04: And the states are just following Congress's lead. [00:27:30] Speaker 00: Your Honor, I don't know that it's right to say that, again, the state of Hawaii isn't prevented from going beyond what UOCAVA. [00:27:37] Speaker 00: UOCAVA could have set a different floor. [00:27:39] Speaker 00: It could have set the floor differently. [00:27:42] Speaker 00: And that would change sort of potentially what the states have to do because they're bound by federal law, the minimum of federal law. [00:27:48] Speaker 00: But they're allowed to go beyond that. [00:27:50] Speaker 00: And that's the reason that there's sort of no traceability to UOCAVA itself. [00:27:55] Speaker 02: UOCAVA sets the floor. [00:27:57] Speaker 02: Whether the state goes beyond it is entirely a state issue from your perspective. [00:28:02] Speaker 00: Your Honor, yes, the state has the ability to make that decision, and that's why the analysis sort of proceeded the way it did in the Seventh Circuit's decision in Segovia. [00:28:11] Speaker 02: Other questions by my colleagues? [00:28:13] Speaker 02: All right. [00:28:13] Speaker 00: Thank you, Your Honors. [00:28:14] Speaker 02: We ask that you affirm. [00:28:26] Speaker 05: Good morning. [00:28:27] Speaker 05: Good morning. [00:28:27] Speaker 05: May it please the court, Deputy Attorney General Jennifer Tran appearing on behalf of State Defendant Scott T. Nago, Chief Election Officer for the State of Hawaii. [00:28:37] Speaker 05: The state respectfully requests this court affirm the District Court's decision upholding the constitutionality of Yokava, Umova, and its accompanying administrative regulation. [00:28:47] Speaker 02: Council, do you agree with the government, the federal government's contention that if Yokava was [00:28:56] Speaker 02: abolished right now, that there would be no difference in the claim, successful or not, that the plaintiffs have dealing just with the state of Hawaii. [00:29:08] Speaker 05: I think we agree, Your Honor. [00:29:11] Speaker 05: That's because UMOBA itself does not extend absentee voting rights to former Hawaii residents living in any U.S. [00:29:19] Speaker 05: territory, but through UCOVA, it compels the state of Hawaii to extend it to former residents living in the Northern Mariana Islands. [00:29:27] Speaker 02: Which you did, right? [00:29:27] Speaker 02: Yes. [00:29:29] Speaker 02: Okay. [00:29:29] Speaker 02: Does the record reflect any discussion at the time that that [00:29:35] Speaker 02: that bill or bills were passed, that there might be an obligation to extend the absentee voting to other territories of the United States? [00:29:47] Speaker 05: I don't believe so, Your Honor. [00:29:48] Speaker 05: I believe the legislative history talks about the issues that former Hawaii residents had with getting absentee ballots overseas, and so that was the focus of the legislature. [00:30:01] Speaker 05: It defines overseas as [00:30:02] Speaker 05: not within the United States and not within the territories, but through the Hawaii Administrative Rules, which says that it has to provide a ballot to those covered under UOCAVA, [00:30:18] Speaker 05: That's what compels the state to do so. [00:30:20] Speaker 05: And our position is that it is directly traceable to both UMOVA and UCAVA because if, as the district court stated, if UCAVA extended the right to territory residents through UCAVA, the state would have to as well. [00:30:43] Speaker 04: Does Hawaii have the same ability as Congress to treat the territories differently? [00:30:48] Speaker 04: And if so, what is the basis for Hawaii to do that? [00:30:53] Speaker 05: That, I'm not too sure. [00:30:55] Speaker 05: I just, I have that when the legislature, when they, I believe they adopted the similar language to that of Yukawa, defining the United States and the territories. [00:31:09] Speaker 04: So the Hawaii legislature just followed the federal legislature, correct? [00:31:12] Speaker 05: Yes. [00:31:12] Speaker 05: I think it's different in how they word it, but they, UMOVA just [00:31:18] Speaker 05: quotes the United States as any territory or insular possession subject to the jurisdiction of the United States. [00:31:26] Speaker 04: So presumably if the federal legislature were to change, Hawaii would follow with its own state legislation. [00:31:32] Speaker 02: Your time's up, let me ask you. [00:31:34] Speaker 03: I just have one question. [00:31:34] Speaker 03: The only reason why you draw a distinction between those former Hawaii residents who live in the Northern Mariana Islands and those who say live like in the Virgin Islands is because you're just following what the federal framework. [00:31:48] Speaker 03: Yes, Your Honor. [00:31:49] Speaker 03: That's it. [00:31:49] Speaker 03: Yes, Your Honor. [00:31:51] Speaker 03: So the two go together, correct? [00:31:52] Speaker 05: Yes, that is the state's position, Your Honor. [00:31:54] Speaker 02: OK. [00:31:55] Speaker 02: Thank you. [00:31:55] Speaker 02: You vary a little bit from your colleague in the federal government who says that if Yokawa disappeared, [00:32:01] Speaker 02: you'd be in the same spot. [00:32:03] Speaker 05: Yes. [00:32:03] Speaker 02: All right. [00:32:04] Speaker 05: Thank you. [00:32:05] Speaker 02: Thank you. [00:32:05] Speaker 02: Very well. [00:32:07] Speaker 02: Okay. [00:32:07] Speaker 02: Thank you very much. [00:32:09] Speaker 02: All right. [00:32:09] Speaker 02: You don't have a lot of time left. [00:32:10] Speaker 02: We'll give you two minutes of rebuttal, okay? [00:32:12] Speaker 01: Thank you, Judge Smith. [00:32:14] Speaker 01: Judge Coe, you, I think, were asking a little bit about the authority of the federal government here, Section 5 of the 14th Amendment to remedy perceived equal protection violations. [00:32:21] Speaker 01: I think if you don't think you have enough information from the federal government about that, you could ask them for a supplemental brief on the constitutional basis. [00:32:27] Speaker 01: It's very clear in the legislative history. [00:32:28] Speaker 01: They were trying to remedy the differential treatment of former state residents in the military and government employees on the one hand versus former state residents who were private citizens and the Congress found that to be highly discriminatory is an equal protection problem. [00:32:41] Speaker 01: That's the basis for legislation. [00:32:43] Speaker 01: The federal government conceded to the Supreme Court in Valle de Madero that the equal protection guarantee with respect to fundamental rights or strict scrutiny applies just the same in the territories [00:32:51] Speaker 01: It had to. [00:32:52] Speaker 01: Rodriguez versus Popular Democratic Party, we know the equal protectionists of voting rights in Puerto Rico applies exactly the same as anywhere else. [00:32:58] Speaker 01: This court's decision in Charforos about school board elections, this exact context we cited, applying the equal protection guarantee. [00:33:05] Speaker 01: So there's no way that the government can draw these distinctions if this is a classic equal protection case. [00:33:10] Speaker 01: And Judge Pius, to your point, this is a classic equal protection case. [00:33:13] Speaker 01: It's easy to get distracted by the territories here. [00:33:15] Speaker 01: But what we're talking about is a constitutionally permissible choice. [00:33:18] Speaker 01: Again, I point you to Attorney General Guam and the legislative history here to define the population of a state to include former residents. [00:33:25] Speaker 02: Counsel, let me ask you this. [00:33:28] Speaker 02: You're a good lawyer, and you know your case as well, but let me just ask you this. [00:33:33] Speaker 02: What I'm understanding you to say is it doesn't matter what the first, second, and seventh circuit did. [00:33:38] Speaker 02: They're wrong. [00:33:39] Speaker 02: You should rule in a way that's contrary to them and set up a circuit split. [00:33:42] Speaker 01: Is that right? [00:33:43] Speaker 01: I am arguing that, Your Honor. [00:33:44] Speaker 01: I think those decisions are clearly wrong for the reasons we've explained in the brief. [00:33:48] Speaker 02: Which one is the most wrong and why? [00:33:50] Speaker 01: Well, Your Honor, they say there is no fundamental right to vote. [00:33:53] Speaker 01: That's just incorrect. [00:33:54] Speaker 01: Under Kramer, Cipriano, Charforos, all these decisions. [00:33:57] Speaker 03: Well, listen, I think I would just say that there's no constitutional [00:34:02] Speaker 01: I don't have a constitutional right, nor do any of you, I think. [00:34:06] Speaker 03: But once they extend the right, then you have classic equal protection. [00:34:10] Speaker 03: That's 100% right, Your Honor. [00:34:12] Speaker 01: So the decision has been made. [00:34:14] Speaker 04: Thank you. [00:34:15] Speaker 04: I guess, let's say we look at it as equal protection. [00:34:18] Speaker 04: The quasi-suspect class or the suspect class here, it's just that people have chosen to move to these four territories. [00:34:25] Speaker 01: No, Your Honor. [00:34:26] Speaker 01: So let's just take Kramer as an example. [00:34:28] Speaker 01: Whereas the Supreme Court said it's a 31-year-old man. [00:34:33] Speaker 01: in school board elections because under New York law at the time, he didn't own property or lease property or have a kid. [00:34:38] Speaker 01: I mean, he could have bought property or lease property. [00:34:40] Speaker 01: You can't take away the strict scrutiny overlay just because someone could make a choice to come into the favored group. [00:34:45] Speaker 01: So the problem here is, again, Congress and the state have extended the electorate as they must satisfy the 17th Amendment, Article 1, Section 2, to include in the people of the state, for every state, people who are former residents of that state. [00:35:00] Speaker 01: And once those former residents are people of the state, the legislature can't start drawing lines among them without satisfying strict scrutiny. [00:35:06] Speaker 01: And that's the problem in this case. [00:35:08] Speaker 01: And Holt Civic Club, which my friend on the other side says, this says there's no strict scrutiny applies. [00:35:13] Speaker 01: That's not what was going on in Holt Civic Club. [00:35:15] Speaker 01: There is a presumption that the Supreme Court has said that states can restrict the population, the electorate, to the people in bounds. [00:35:22] Speaker 01: But that presumption is gone here because Congress in Hawaii have decided to extend the electorate. [00:35:27] Speaker 02: Other questions about my colleague? [00:35:30] Speaker 02: All right. [00:35:30] Speaker 02: Thanks to you all. [00:35:31] Speaker 02: Very interesting case, very interesting argument. [00:35:34] Speaker 02: We will make a decision. [00:35:36] Speaker 02: The case just argued is submitted.