Over the last eight months, the Trump administration has launched an assault on voting rights designed to limit access to the ballot. Attorney General Jeff Sessions’ Justice Department has defended voter ID laws and state efforts to purge voters from the rolls, and the president’s voter fraud commission has peddled falsehoods to lay the groundwork for a rollback of voting rights laws. This month, the administration has urged a court to strip voting rights from an entire class of people. This latest gambit involves the rights of United States citizens who relocate from a state to a U.S. territory. Under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), states must allow citizens to vote by absentee ballot in federal elections when they relocate anywhere outside the U.S. The law is meant to be global, even cosmic: Citizens retain their right to vote absentee for federal offices if they move to a foreign country, a research station in Antarctica, or the International Space Station. But bizarrely, the statute does not require states to let citizens vote absentee if they move to four U.S. territories: Puerto Rico, the U.S. Virgin Islands, Guam, or American Samoa. It does compel states to let citizens vote absentee if they move to a fifth permanently inhabited territory, the Northern Mariana Islands.
In 2015, Illinois residents who relocated to several of these disfavored territories filed a lawsuit challenging this limitation as an equal protection violation. They argued that the UOCAVA arbitrarily limits their right to vote in federal elections. (U.S. territories do not receive full representation in Congress and may not vote for president.) By protecting the absentee voting rights of residents of the Northern Mariana Islands but not those who live in other U.S. territories, the plaintiffs argued, the UOCAVA irrationally discriminates against certain territorial residents in violation of the Fifth Amendment. The only solution is to extend absentee voting rights to residents of every U.S. territory.
The Justice Department began defending the UOCAVA during the Obama administration, and won at the district court level. It’s perfectly acceptable for the DOJ to defend a bad federal law—that’s its job—and the agency maintained its position on appeal under Sessions. But in September, the DOJ unexpectedly took an aggressive new stance. In a letter filed with the 7th U.S. Circuit Court of Appeals, the DOJ argued that, if UOCAVA infringes upon equal protection, the proper remedy is to strip absentee the voting rights of residents of the Northern Mariana Islands, not to extend them to all territorial residents.