Election officials for the City of Chicago have offered an explanation as to how American Samoa ended up in a Illinois state law, which allows former residents of the state who are registered voters but living in American Samoa to vote by absentee in federal elections, but banned from absentee voting if they reside in the US territories of Guam, Puerto Rico, and the US Virgin Islands.

US District Court Judge Joan B. Gottschall held a hearing last month after dismissing in August this year a challenge filed last November at the federal court at the Northern District of Illinois, by six plaintiffs — all US citizens and former residents of Illinois — now living in Guam, Puerto Rico, and US Virgin Islands. The plaintiffs all serve in the US Armed Forces.

According to Illinois’ little-known law — if you are a former resident of Illinois, a US citizen, and you moved to American Samoa — you can vote absentee in American Samoa, in federal elections, i.e. US Presidential and congressional races.

The defendants in the case are both from Illinois State and the federal government that deals with voting issues.

The voting rights plaintiffs, which includes two organizations that promote voting rights in US territories, note that the lawsuit concerns the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and the Illinois statute implementing its requirements, known as the Illinois Military and Overseas Voter Empowerment (MOVE) law.

In dismissing the lawsuit in August, Gottschall scheduled a hearing last month and ordered that parties should prepare to discuss further proceedings regarding the plaintiffs’ due process contention that portions of Illinois MOVE are unconstitutional due to the statute’s treatment of American Samoa.

In its new motion filed early this month, plaintiffs requested the court grant summary judgment against the state defendants (referring to Illinois) and in favor of the plaintiffs because the individual plaintiffs, are denied the right to vote in federal elections in Illinois that is afforded to all other former Illinois residents residing overseas solely “because they each reside in certain disfavored territories excluded from overseas voting rights by state law.”

“This exclusion violates equal-protection principles as a matter of law under any level of scrutiny,” the plaintiffs said and argued that the MOVE law “lacks a rational basis” for authorizing former Illinois residents living in American Samoa to vote in federal elections while denying the same right to former Illinois residents living in Guam, Puerto Rico and the US Virgin Islands.

Last late week the Board of Election Commissioners for the City of Chicago, through its attorney James M. Scanlon, argued that the plaintiffs have failed to demonstrate that the Illinois statute violates either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Therefore, the Board of Election requests plaintiffs’ summary judgment be denied and that judgment be entered in favor of the Board of Election, said Scanlon, who’s court filings explained how American Samoa landed in the MOVE law.

Based on the explanation in Scanlon’s court filings, American Samoa ended up on the MOVE law under it’s provision called Territorial limits’ that was enacted in 1979, as part of the state law for overseas voters.

Therefore former Illinois residents taking up residence in American Samoa are eligible to receive an absentee ballot from Illinois.

Scanlon argued that it is evident from the face of both the OCVRA and the MOVE law, that the State of Illinois sought merely to comply with the federal law, but the State failed to keep up with the federal law when UOCAVA added American Samoa to the list of territories within the territory of the United States.

He further argued that the different treatment of American Samoa versus Puerto Rico, Guam and the Virgin Islands, under either UOCAVA or the Illinois statute “is not irrational”.

And if plaintiffs are granted the opportunity to vote in federal elections using an Illinois absentee ballot, Scanlon said the court would be creating the very “distinction of questionable fairness” by permitting former Illinois residents now living in Puerto Rico, Guam and the U.S. Virgin Islands to vote in federal elections, while residents of those territories who have not previously resided in Illinois will not enjoy that right.

“In short, there is rational justification for the Illinois statute’s treatment of former Illinois residents who later take up residency in Puerto Rico, Guam and the U.S. Virgin Islands versus those who later become residents in other countries and territories outside the United States, and there is no equal protection violation,” he said.