State of Hawaii

Hawaii Overseas Resident Disenfranchisement Challenge

Borja v. Nago

Lawsuit filed on behalf of former Hawaii residents now residing in Guam and the U.S. Virgin Islands challenging a Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) provision and Hawaii Uniform Military and Overseas Voters Act (UMOVA) requirements that preclude former U.S. state residents from voting absentee for president in their former state if they are currently living in Guam, the U.S. Virgin Islands, American Samoa or Puerto Rico. The plaintiffs point out that former Hawaii residents may vote absentee for president if they currently reside in the Northern Mariana Islands, certain other U.S. territories or live abroad. Despite being both U.S. citizens and former Hawaii residents, the plaintiffs cannot vote absentee for president because they reside in either Guam or the U.S. Virgin Islands. In the complaint, the plaintiffs argue that “Former state residents of Hawaii living in Guam, the U.S. Virgin Islands, American Samoa, and Puerto Rico are disenfranchised and relegated to a status as second-class citizens in ways they would not have been had they moved to anywhere else on Earth.” The plaintiffs allege that the UOCAVA and UMOVA provisions violate the Equal Protection and Due Process Clauses under the Fifth and 14th Amendments and violate a federal law protecting the rights of those living in U.S. territories by treating “similarly situated former state residents differently based on where they reside overseas.” 

Oral argument was held on Aug. 12, 2022. On Sept. 6, 2022, a federal court denied the plaintiffs’ motion for summary judgment. The judge rejected the plaintiffs’ claims that the UOCAVA and UMOVA violate the Fifth and 14th Amendments, holding that the statutes do not infringe upon the right to vote. Additionally, the judge stated that “territorial residents have no right to vote in federal elections and U.S. citizens who move to certain territories likewise have no right to vote absentee in their former states of residence.” On Nov. 4, the plaintiffs appealed this decision to the 9th U.S. Circuit Court of Appeals.

STATUS: Oral argument in this case was heard on Feb. 12, 2024. The parties await a decision.

Case Documents

Case Documents (9th circuit)

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