FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICENTE TOPASNA BORJA; 

EDMUND FREDERICK 

SCHROEDER, Jr.; RAVINDER 

SINGH NAGI; PATRICIA ARROYO 

RODRIGUEZ; LAURA CASTILLO 

NAGI; RIGHT TO DEMOCRACY 

PROJECT, 

Plaintiffs-Appellants, 

 v. 

SCOTT T. NAGO, in his official 

capacity as Chief Election Officer for 

the Hawaii Office of Elections; 

UNITED STATES OF AMERICA; 

FEDERAL VOTING ASSISTANCE 

PROGRAM; DAVID BEIRNE, in his 

official capacity as Director of the 

Federal Voting Assistance Program; 

LLOYD J. AUSTIN III, in his official 

capacity as Secretary of Defense; 

GLEN TAKAHASHI, in his official 

capacity as Clerk of the City and 

County of Honolulu, 

Defendants-Appellees.

No. 22-16742 

D.C. No. 

1:20-cv-00433-

JAO-RT 

OPINION
2 BORJA V. NAGO

Appeal from the United States District Court

for the District of Hawaii

Jill Otake, District Judge, Presiding

Argued and Submitted February 12, 2024

Honolulu, Hawaii

Filed August 30, 2024

Before: RICHARD A. PAEZ, MILAN D. SMITH, JR., 

and LUCY H. KOH, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Dissent by Judge Richard A. Paez

SUMMARY*

Uniformed and Overseas Citizens Voting Rights Act

The panel affirmed the district court’s summary 

judgment in favor of federal and state officials in an action 

brought by Vicente Topasna Borja, a former resident of 

Hawaii who has since moved to Guam, and others alleging 

that federal and Hawaii state election laws—specifically, the 

federal Uniformed and Overseas Citizens Absentee Voting 

Act (UOCAVA) and Hawaii’s Uniform Military and 

Overseas Voters Act (UMOVA)—violate their right to equal 

protection by giving rise to an absentee voting regime in 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
BORJA V. NAGO 3

which former voting-eligible residents of Hawaii who 

permanently move abroad or to the Commonwealth of the 

Northern Mariana Islands (CNMI) retain their ability to vote 

in Hawaii’s federal elections by absentee ballot, whereas 

those who move to other U.S. Territories do not. 

The panel affirmed the district court’s holding that 

plaintiffs had Article III standing to challenge the 

enforcement of UOCAVA because they challenged their 

ineligibility for a federal benefit—the ability to vote in 

federal elections by absentee ballot—due to a discriminatory 

classification that privileges former voting-eligible residents 

of Hawaii who live abroad or in the CNMI over those who 

live in other U.S. Territories with permanent residents.

The panel held that rational basis review, not strict 

scrutiny, governed its review of UOCAVA and UMOVA’s 

overseas voting requirements. While UOCAVA and 

UMOVA discriminate between former residents based upon 

whether they move overseas or within the United States, they 

do not deprive residents in a geographically defined 

governmental unit (Hawaii) from voting in a unit wide 

election, nor do they dilute the voting power of qualified 

voters within Hawaii. Plaintiffs failed to provide any 

binding authority requiring the application of strict scrutiny 

to voting laws that deny the ability to vote in a unit wide 

election to those residing outside of that unit. Nor are 

individuals who move from Hawaii to Puerto Rico, Guam, 

the U.S. Virgin Islands, or American Samoa a suspect or 

quasi-suspect class that would trigger heightened scrutiny. 

The panel concluded that UOCAVA and UMOVA’s 

treatment of former voting-eligible residents of Hawaii who 

move to Puerto Rico, Guam, the U.S. Virgin Islands, and 

American Samoa satisfied rational basis review. Plaintiffs 
4 BORJA V. NAGO

failed to meet their burden to negate every conceivable basis 

which might support UOCAVA and UMOVA’s overseas 

voting classifications, nor did they provide any evidence that 

they were excluded from these laws’ overseas voting 

provisions because of animus towards them. 

Judge Paez dissented from the majority’s decision not to 

apply the Anderson-Burdick framework in evaluating 

plaintiffs’ constitutional challenge to UOCAVA and 

UMOVA. Under this framework, a court considering a 

challenge to an election law must weigh the character and 

magnitude of the asserted injury against the precise interests 

put forward by the State as justifications for the burden 

imposed by its rule, taking into consideration the extent to 

which those interests make it necessary to burden the 

plaintiff’s rights. Because the district court did not apply the 

Anderson-Burdick framework, Judge Paez would remand 

this case to the district court for further consideration under 

the proper legal standard.

COUNSEL

Parker A. Rider-Longmaid (argued), Shay Dvoretzky, 

Andrew Hanson, Geoffrey M. Wyatt, Hanaa Khan, and 

Steven Marcus, Skadden Arps Slate Meagher & Flom LLP, 

Washington, D.C.; Zachary Martin, Skadden Arps Slate 

Meagher & Flom LLP, Boston, Massachusetts; Jeremy 

Patashnik, Skadden Arps Slate Meagher & Flom LLP, New 

York, New York; Pamela L. Colon, Law Offices of Pamela 

Lynn Colon LLC, Christiansted, Virgin Islands; Neil C. 

Weare, Equally American Legal Defense and Education 

Fund, Washington, D.C.; Vanessa L. Williams, Law Office 
BORJA V. NAGO 5

of Vanessa L. Williams, Hagåtña, Guam; Anthony Quan Jr., 

The QK Group, Honolulu, Hawaii; for Plaintiffs-Appellants. 

Brian J. Springer (argued) and Michael Raab, Appellate 

Staff Attorneys; Clare E. Connors, United States Attorney; 

Brian M. Boynton, Principal Deputy Assistant Attorney 

General; Civil Division, United States Department of 

Justice, Washington, D.C.; Jennifer H. Tran (argued), Lori 

N. Tanigawa, and Jennifer H. Crum, Deputy Attorneys 

General; Kaliko'Onalani D. Fernandes, Deputy Solicitor; 

Anne E. Lopez, Attorney General of Hawaii; Office of the 

Hawaii Attorney General, Honolulu, Hawaii; Dana A. 

Barbata, Civil Chief, Office of the United States Attorney, 

Honolulu, Hawaii; Robert M. Kohn and Ernest H. Nomura, 

Deputies Corporation Counsel, Honolulu City and County 

Department of the Corporation Counsel, Honolulu, Hawaii; 

for Defendants-Appellees.

Danielle M. Lang, Jonathan M. Diaz and Nicole H. Hansen, 

Campaign Legal Center, Washington, D.C.; Ruth M. 

Greenwood and Nicholas O. Stephanopoulos, Election Law 

Clinic at Havard Law School, Cambridge, Massachusetts; 

for Amicus Curiae Campaign Legal Center.

Dwyer Arce, Kutak Rock LLP, Omaha, Nebraska; for 

Amicus Curiae Virgin Islands Bar Association.
6 BORJA V. NAGO

OPINION

M. SMITH, Circuit Judge:

Before 1975, Hawaii did not allow its former residents 

to continue voting by absentee ballot in its federal elections 

after they permanently moved from the state. Since then, 

however, federal law has required Hawaii to provide that 

right to its former voting-eligible residents who move 

outside of the United States. Today, under federal election 

law, the territorial United States includes Puerto Rico, 

Guam, the U.S. Virgin Islands, and American Samoa, but 

excludes the Commonwealth of the Northern Mariana 

Islands (CNMI), the only other U.S. Territory with 

permanent residents. As a result, former voting-eligible 

residents of Hawaii who permanently move abroad or to the 

CNMI retain their ability to vote in Hawaii’s federal 

elections by absentee ballot, whereas those who move to one 

of the other aforementioned Territories do not.

Plaintiff Vicente Topasna Borja is a former resident of 

Hawaii who has since moved to Guam. He and others like 

him argue that the federal and state laws giving rise to this 

absentee voting regime violate the U.S. Constitution’s 

guarantee of equal protection under the law, since they can 

no longer vote in Hawaii’s federal elections, while others 

who moved abroad or to the CNMI can do so. The district 

court held that Plaintiffs had Article III standing to challenge 

the enforcement of the referenced absentee voting laws but 

granted summary judgment to the Defendants on the merits. 

We affirm.
BORJA V. NAGO 7

FACTUAL BACKGROUND

There are at least fourteen Territories that the U.S. 

Congress governs pursuant to the Territory Clause of the 

U.S. Constitution, which authorizes Congress to “make all 

needful Rules and Regulations respecting the Territory or 

other Property belonging to the United States.” U.S. Const. 

art. IV, § 3, cl. 2. Only five of those Territories—Puerto 

Rico, Guam, the Virgin Islands, American Samoa, and the 

CNMI—have permanent residents. Spain ceded Puerto Rico 

and Guam to the United States at the conclusion of the 

Spanish-American War as a part of the Treaty of Paris of 

1898, and the United States purchased the Virgin Islands 

from Denmark in 1917. American Samoa became a 

Territory in 1900, after Great Britain and Germany withdrew 

their competing claims to the islands and Samoan chiefs 

ceded the islands to the United States. 

Only the most recently acquired Territory—the CNMI—

voluntarily joined the United States on negotiated terms. At 

first, the Northern Mariana Islands were “part of the Trust 

Territory of the Pacific Islands” that the United States 

administered in the aftermath of World War II “pursuant to 

a Trusteeship Agreement with the United Nations Security 

Council.” Mtoched v. Lynch, 786 F.3d 1210, 1213 (9th Cir. 

2015). While people in “other portions of the [United 

Nations] trust territories [ultimately] decided to [form] 

independent nations,” the people of the Northern Mariana 

Islands “elected to enter into a closer and more lasting 

relationship with the United States.” Id. After extensive 

negotiations, the Northern Mariana Islands and the United 

States in 1975 executed a covenant, which set forth the 

parameters of the new relationship between the polities. See

id. “After a period of transition, in 1986 the trusteeship 
8 BORJA V. NAGO

terminated,” and the CNMI officially became a U.S. 

Territory. Id.

Shortly before the CNMI became a Territory, Congress 

enacted the Uniformed and Overseas Citizens Absentee 

Voting Act (UOCAVA), 52 U.S.C. §§ 20301–11. The 

purpose of UOCAVA was to “consolidate[] and update[] 

relevant provisions” of a federal election law that Congress 

had enacted a decade earlier, the Overseas Citizens Voting 

Rights Act of 1975 (OCVRA), with “only minor substantive 

changes.” H.R. Rep. No. 99-765, at 6 (1986). Like 

OCVRA, UOCAVA requires each State of the United States 

to “permit absent . . . overseas voters to use absentee 

registration procedures and to vote by absentee ballot in . . . 

elections for Federal office.” 52 U.S.C. § 20302(a)(1); cf.

Pub. L. No. 94-203, 89 Stat. 1142, 1142–43 (1976) (repealed 

1986).

UOCAVA defines an “overseas voter” to include a 

“person who resides outside the United States and (but for 

such residence) would be qualified to vote in the last place 

in which the person was domiciled before leaving the United 

States.” 52 U.S.C. § 20310(5)(C). The Act in turn defines 

the “United States” to include “the several States, the District 

of Columbia, the Commonwealth of Puerto Rico, Guam, the 

Virgin Islands, and American Samoa.” Id. § 20310(8). 

UOCAVA does not mention the CNMI or the U.S. 

Territories lacking permanent residents, and Congress has 

never amended UOCAVA’s definition of the “United 

States” to include the CNMI, even though the CNMI has 

permanent residents and became a Territory shortly after 

Congress passed the law.

Several decades later, in 2012, the Hawaii Legislature 

enacted the Uniform Military and Overseas Voters Act
BORJA V. NAGO 9

(UMOVA), Haw. Rev. Stat. §§ 15D-1 to -18, in which 

Hawaii not only codified its existing obligation under 

UOCAVA to allow its former voting-eligible residents who 

“le[ft] the United States” to vote in Hawaii’s federal 

elections by absentee ballot, but also extended the allowance 

to Hawaii’s state and local elections. Haw. Rev. Stat. § 15D2; see id. §§ 15-D-3(2), -3(3). Unlike UOCAVA, UMOVA 

defines the “United States” to include “the several states, the 

District of Columbia, Puerto Rico, the United States Virgin 

Islands, and any territory or insular possession subject to the 

jurisdiction of the United States.” Id. § 15D-2 (emphasis 

added). However, state officials later promulgated an 

administrative rule to clarify that Hawaii continues to issue 

absentee “ballot packages” to voters covered by UOCAVA,

meaning that Hawaii still allows its former voting-eligible 

residents who moved to the CNMI to vote by absentee ballot 

in Hawaii’s federal elections. Haw. Admin. R. § 3-177-

600(d)(4) (hereinafter, referred to as part of UMOVA).

Vicente Topasna Borja is a U.S. citizen who was born in 

Guam in 1950. In 1990, after twenty-eight years of Navy 

service, Borja moved to Hawaii on a humanitarian 

reassignment so that his wife could receive cancer treatment. 

Borja and his wife later moved back to Guam on another 

humanitarian reassignment. Had he moved to the CNMI, he 

could have retained his ability to vote by absentee ballot in 

Hawaii federal elections, but because he moved back to 

Guam, state election officials in Hawaii have barred him 

from doing so. And because none of the Territories with 

permanent residents participate in federal elections for 

President, Vice President, Representatives, or Senators,

Borja argues he cannot meaningfully participate in any 

federal election at all, as Guam only sends a non-voting 

delegate to the House of Representatives. 48 U.S.C. § 1711. 
10 BORJA V. NAGO

Borja’s predicament is shared by many others who 

previously were eligible to vote in Hawaii’s federal elections

by virtue of their residence there but later moved to one of 

the U.S. Territories with permanent residents other than the 

CNMI.

PROCEDURAL HISTORY

Borja, four other former residents of Hawaii who 

currently reside in Guam or the U.S. Virgin Islands, and the 

Right to Democracy Project1 (whose members include 

former Hawaii residents living in Puerto Rico and American 

Samoa) filed suit against Scott Nago, in his official capacity 

as Hawaii’s Chief Election Officer; Glen Takahashi, in his 

official capacity as the Clerk of the City and County of 

Honolulu (together, the State Defendants);2 as well as the 

United States; Lloyd J. Austin III, in his official capacity as 

the Secretary of Defense; the Federal Voting Assistance 

Program (FVAP); and David Beirne, in his official capacity 

as FVAP’s Director (together, the Federal Defendants). 

Plaintiffs alleged that the Federal Defendants’ enforcement 

of UOCAVA and the State Defendants’ enforcement of 

UMOVA violate the U.S. Constitution’s guarantee of equal 

protection under the law because they authorize absentee 

voting in Hawaii’s federal elections by U.S. citizens who 

move from Hawaii to the CNMI or a foreign country, but not 

by U.S. citizens who move from Hawaii to Puerto Rico, 

Guam, the U.S. Virgin Islands, or American Samoa.

1 The district court proceedings referred to the Right to Democracy 

Project by its former name: Equally American Legal Defense and 

Education Fund. See Dkt. 30.

2 Plaintiffs also sued Kathy Kaohu, in her official capacity as the Clerk 

of the County of Maui, but voluntarily dismissed her before the case 

proceeded to summary judgment.
BORJA V. NAGO 11

After Plaintiffs filed their third amended complaint, the 

Federal Defendants moved to dismiss for lack of subject 

matter jurisdiction, arguing in part that Plaintiffs’ injuries are 

not traceable to their enforcement of UOCAVA (the federal 

law). While the district court acknowledged that nothing in 

UOCAVA prevents Hawaii from allowing Plaintiffs to vote 

in Hawaii’s federal elections by absentee ballot, the court 

determined that UOCAVA is still a source of Plaintiffs’ 

“unequal treatment” with respect to overseas voting because 

UOCAVA requires Hawaii to extend the ability to vote by 

absentee ballot in Hawaii’s federal elections to some former 

residents of Hawaii, i.e., those who move abroad or to the 

CNMI, but not to Plaintiffs. Therefore, the court held that 

Plaintiffs’ injury of “disparate treatment” was still traceable 

to the Federal Defendants’ enforcement of UOCAVA.

The parties subsequently cross-moved for summary 

judgment, which the district court granted in favor of the 

State and Federal Defendants. The district court reasoned 

that because “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,” Plaintiffs failed to identify a 

“fundamental right” of which they have been deprived. The 

court also explained that people “who move from a state to 

a territory are not a suspect or quasi-suspect class.” The 

court thus declined to apply strict scrutiny, concluding that 

rational basis review was appropriate. Applying that 

deferential standard, the district court held that UOCAVA 

and UMOVA “satisfy rational basis review and do not 

offend equal protection principles.” On September 6, 2022, 

the district court entered judgment in favor of Defendants. 

Plaintiffs timely appealed.
12 BORJA V. NAGO

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291.

Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 987 

(9th Cir. 2009). “We review de novo a district court’s 

determination whether a party has Article III standing.” 

Tucson v. City of Seattle, 91 F.4th 1318, 1324 (9th Cir. 2024) 

(cleaned up). “We review [a grant of] summary judgment 

de novo.” Sandoval v. County of Sonoma, 912 F.3d 509, 515 

(9th Cir. 2018).

ANALYSIS

I. Plaintiffs Have Article III Standing to Challenge the 

Enforcement of UOCAVA.

Plaintiffs and the Federal Defendants agree that 

Plaintiffs’ inability to vote in Hawaii’s federal elections is a 

cognizable injury-in-fact for the purpose of establishing 

Article III standing. They also agree that this concrete and 

particularized injury is fairly traceable to the State 

Defendants’ enforcement of Hawaii state election law, 

whereby the State Defendants deny Plaintiffs the ability to 

obtain absentee ballot packages to participate in Hawaii’s 

federal elections. 

What these parties dispute is whether Plaintiffs have 

suffered an injury-in-fact that is fairly traceable to the

challenged conduct of the Federal Defendants—i.e., their 

enforcement of UOCAVA. As the Federal Defendants 

correctly note, UOCAVA merely requires Hawaii to provide 

absentee ballot packages to its former voting-eligible 

residents who moved abroad or to the CNMI so that they 

may participate in Hawaii’s federal elections; UOCAVA

does not prevent Hawaii from extending that same right to 

Plaintiffs. Plaintiffs acknowledge that UOCAVA does not 
BORJA V. NAGO 13

prohibit Hawaii from extending absentee voting rights to 

them but maintain that UOCAVA’s enforcement injures 

them because it deprives them of the benefit of its overseas 

voting provisions while extending the same to others.

We agree with Plaintiffs that they have Article III 

standing to challenge the enforcement of UOCAVA. This 

lawsuit arises from Plaintiffs’ equal protection claim, in 

which they argue that they are being deprived the benefit of 

UOCAVA’s overseas voting provisions because of a 

“discriminatory classification” that privileges former votingeligible residents of Hawaii who live abroad or in the CNMI 

over those who live in the other U.S. Territories with 

permanent residents. The Supreme Court has long 

recognized that individuals have Article III standing to 

challenge their ineligibility for a federal benefit if they

contend that their ineligibility is due to unconstitutional 

discrimination. See Allen v. Wright, 468 U.S. 737, 757 n.22 

(1984), abrogated on other grounds by Lexmark Int’l, Inc. v. 

Static Control Components, Inc., 572 U.S. 118 (2014); see, 

e.g., Heckler v. Matthews, 465 U.S. 728, 739–40 & n.9 

(1984). That is precisely how Plaintiffs have framed their 

challenge to UOCAVA. The possibility that their claim of 

unconstitutional discrimination may ultimately fail on the 

merits has no bearing on whether they have Article III 

standing to receive that adjudication on the merits in the first 

place. See Fed. Election Comm’n v. Cruz, 596 U.S. 289, 298 

(2022) (“For standing purposes, we accept as valid the merits 

of [the plaintiffs’] legal claims . . . .”); Warth v. Seldin, 422 

U.S. 490, 500 (1975) (“[S]tanding in no way depends on the 

merits of the plaintiff’s contention that particular conduct is 

illegal . . . .”).

Our conclusion is consistent with that of two of our sister 

circuits, which, when faced with similar equal protection 
14 BORJA V. NAGO

challenges to UOCAVA, adjudicated the merits of those 

challenges. See Romeu v. Cohen, 265 F.3d 118, 124 (2d Cir. 

2001); Igartua De La Rosa v. United States, 32 F.3d 8, 10 

(1st Cir. 1994) (per curiam), cert. denied, 514 U.S. 1049 

(1995). The only circuit to have declined to make a merits

determination in a similar equal protection challenge to 

UOCAVA is the Seventh Circuit, which held that former 

residents of Illinois who moved to Puerto Rico, Guam, and 

the U.S. Virgin Islands lacked Article III standing to 

challenge UOCAVA’s enforcement because Illinois law

denied them the ability to vote absentee in Illinois’ federal 

elections regardless of UOCAVA’s enforcement. See 

Segovia v. United States, 880 F.3d 384, 388 (7th Cir.), cert. 

denied, 139 S. Ct. 320 (2018). Yet the Seventh Circuit did 

not recognize the well-established principle that individuals 

have Article III standing to challenge their ineligibility for a 

federal benefit if they contend their ineligibility is due to 

unconstitutional discrimination. In addition, neither of the

two authorities upon which the Seventh Circuit relied to 

justify its conclusion that Article III standing was lacking 

involved claims of unconstitutional discrimination. See 

Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38 (1976) 

(action for judicial review of agency action pursuant to 5 

U.S.C. § 702); DH2, Inc. v. U.S. S.E.C., 422 F.3d 591, 595 

(7th Cir. 2005) (action for judicial review of final orders of 

the Securities and Exchange Commission pursuant to 15 

U.S.C. § 78y). Here, the equal protection framing of 

Plaintiffs’ lawsuit is crucial to our analysis of whether 

Plaintiffs have Article III standing to challenge UOCAVA. 

Accordingly, the Seventh Circuit’s standing analysis in

Segovia, see 880 F.3d at 388–89, is unpersuasive.

It is true that the State Defendants in this case would 

deny Plaintiffs the ability to vote in federal elections by 
BORJA V. NAGO 15

absentee ballot regardless of UOCAVA’s enactment. See 

Haw. Rev. Stat. §§ 15D-2, -3(2), -3(3). But it is equally true 

that the only reason they offer ballot packages to its former 

residents who move to the CNMI is because of the Federal 

Defendants’ enforcement of UOCAVA. See Haw. Admin. 

R. § 3-177-600(d)(4) (“Ballot packages may generally be 

issued . . . [p]ursuant to a request by a voter covered under 

. . . [UOCAVA] . . . .”); see also Haw. Rev. Stat. § 15D-2 

(CNMI considered part of the United States under Hawaii 

state election law). Put differently, the State Defendants do 

not offer the same benefit to Plaintiffs precisely because 

UOCAVA does not require them to give Plaintiffs that 

benefit. Plaintiffs argue that this differential treatment with 

respect to overseas voting rights under federal law is because 

of unconstitutional discrimination baked into (i.e., traceable 

to) UOCAVA’s definition of what constitutes the territorial 

United States. The connection between the Federal 

Defendants’ enforcement of UOCAVA and the State 

Defendants’ differential treatment of Plaintiffs with respect 

to overseas voting rights can be drawn “without relying on 

‘speculation’ or ‘guesswork.’” Mendia v. Garcia, 768 F.3d 

1009, 1013 (9th Cir. 2014) (quoting Clapper v. Amnesty Int’l 

USA, 568 U.S. 398, 413–14 (2013)); see also Tex. Med. 

Ass’n v. U.S. Dep’t of Health & Hum. Servs., -- F.4th --, 2024 

WL 3633795, at *7 (5th Cir. Aug. 2, 2024). That is enough 

to satisfy Article III standing to challenge UOCAVA’s 

enforcement, see, e.g., Heckler, 465 U.S. at 739–41 & n.9, 

even if the claim of unconstitutional discrimination with 

respect to overseas voting rights may ultimately fail on the 

merits.

We therefore affirm the district court’s holding that 

Plaintiffs have Article III standing to challenge the 
16 BORJA V. NAGO

enforcement of UOCAVA (as well as UMOVA) and 

proceed to analyze the merits of their challenge.

II. Rational Basis Review, and Not Strict Scrutiny, 

Governs Our Review of UOCAVA and UMOVA’s 

Overseas Voting Provisions.

Plaintiffs argue that strict scrutiny governs our review of

UOCAVA and UMOVA because the Supreme Court’s 

decision in Dunn v. Blumstein, 405 U.S. 330, 336 (1972), 

requires the application of strict scrutiny to laws that 

selectively withhold the right to vote. Plaintiffs further argue 

that heightened scrutiny applies because these laws 

“discriminate against a politically powerless, suspect class.” 

We address each of these contentions in turn.

A. Dunn Does Not Require Us to Apply Strict 

Scrutiny to UOCAVA and UMOVA.

Plaintiffs concede that territorial citizens do not have a

freestanding constitutional right to vote for President, Vice 

President, or voting Members of Congress. Plaintiffs also 

admit that there is no “freestanding constitutional right for 

former residents of Hawaii to vote in Hawaii’s federal 

elections.” Nevertheless, Plaintiffs maintain that UOCAVA 

and UMOVA impinge on a personal right of theirs protected 

by the Constitution—and are subject to strict scrutiny—

because, as the Supreme Court made clear in Dunn, “a 

citizen has a constitutionally protected right to participate in 

elections on an equal basis with other citizens in the 

jurisdiction.” 405 U.S. at 336. In other words, Plaintiffs 

argue that because other former residents of Hawaii can 

participate in Hawaii’s federal elections, Plaintiffs must be 

afforded that same right under Dunn.
BORJA V. NAGO 17

We generally agree with Plaintiffs that U.S. citizens have 

a constitutionally protected right to participate in elections 

on an equal basis with other citizens in a particular 

jurisdiction. However, we disagree with Plaintiffs that such 

a principle applies here. In Dunn, the plaintiff was a resident

of Tennessee at the time he challenged a Tennessee law that 

prevented him from voting in upcoming statewide elections 

because he had not yet resided “for a year in the State and 

three months in the county.” Id. at 334. Here, by contrast, 

Plaintiffs are not residents of Hawaii. Dunn says nothing 

about how courts must review voting laws that restrict 

participation from individuals who are no longer physically 

resident within the relevant jurisdiction. Accordingly, Dunn

does not require us to apply strict scrutiny to UOCAVA and 

UMOVA.

This conclusion is consistent with our prior decision in 

Green v. City of Tucson, 340 F.3d 891 (9th Cir. 2003), in 

which we interpreted the scope of Dunn’s reach. The

plaintiffs in Green argued that an Arizona statute regulating 

how state residents in unincorporated communities could

vote on municipal incorporation violated the Equal 

Protection Clause. The statute required that, prior to voting 

on incorporation, an unincorporated community had to first 

obtain the consent of any incorporated cities located within 

six miles with a population of at least 5,000 people. Id. at 

894. The plaintiffs, who sought to incorporate their 

community, argued that this requirement unconstitutionally 

burdened their right to vote on municipal incorporation

“because it effectively prevent[ed] them from exercising that 

right without the prior consent of [other cities], while placing 

no such restriction on residents of [unincorporated 

communities in] nonurbanized areas.” Id. at 896.
18 BORJA V. NAGO

We agreed with the plaintiffs that, under Supreme Court 

precedent, their statutory right to vote on municipal 

incorporation was protected by the Equal Protection Clause. 

Id. at 898. However, we declined to apply strict scrutiny to 

the Arizona statute. Id. at 898. That was because we 

interpreted Dunn to trigger strict scrutiny in only two 

scenarios: (1) where a law “unreasonably deprive[s] some 

residents in a geographically defined governmental unit 

from voting in a unit wide election,” id. at 899 (citing Dunn, 

405 U.S. at 335–37); and (2) where a law “contravene[s] the 

principle of ‘one person, one vote’ by diluting the voting 

power of some qualified voters within the electoral unit,” id.

at 900. We found that neither situation was applicable to the 

challenged statute. Rather, we concluded that rational basis 

review applied because the statute only “discriminate[d] 

between different electoral units based on their proximity to 

existing municipalities, rather than between voters in any 

single electoral unit.” Id.

Our decision in Green forecloses Plaintiffs’ argument 

that Dunn and its progeny require us to apply strict scrutiny

UOCAVA and UMOVA. Despite Plaintiffs’ arguments to 

the contrary, these laws do not “deprive . . . residents in a 

geographically defined governmental unit”—i.e., Hawaii—

“from voting in a unit wide election”—i.e., Hawaii’s federal 

elections. Green, 340 F.3d at 899. Nor does UOCAVA and 

UMOVA’s exclusion of Plaintiffs “dilut[e] the voting power 

of . . . qualified voters within [Hawaii].” Id. at 900. Rather, 

these laws deprive Plaintiffs of the ability to vote in Hawaii’s 

federal elections based upon the common-sense principle

that once an individual moves elsewhere within the 

territorial United States, she has abandoned her right to vote 

in Hawaii-specific elections in favor of a right to vote in the 

elections that are specific to the jurisdiction within which she 
BORJA V. NAGO 19

has newly taken up residence. Cf. Oregon v. Mitchell, 400 

U.S. 112, 122 (1970) (“Surely no voter qualification was 

more important to the Framers than the geographical 

qualification embodied in the concept of congressional 

districts.”). While UOCAVA and UMOVA certainly 

discriminate between former residents based upon whether 

they move overseas or within the United States, they do not 

discriminate “between voters in any single electoral unit.” 

Green, 340 F.3d at 900.

Ultimately, Plaintiffs have failed to provide us with any

binding authority requiring us to apply strict scrutiny to 

voting laws that deny the ability to vote in a unit wide 

election to those residing outside of that unit. Cf. Dunn, 405 

U.S. at 334 (observing that the plaintiff in Dunn did “not 

challenge Tennessee’s power to restrict the vote to bona fide 

Tennessee residents”); Holt Civic Club v. City of 

Tuscaloosa, 439 U.S. 60, 68–69 (1978) (“[O]ur cases have 

uniformly recognized that a government unit may 

legitimately restrict the right to participate in its political 

processes to those who reside within its borders.”). In

Green, we clearly cabined the Supreme Court precedent 

upon which Plaintiffs rely to equal protection challenges 

brought by individuals who are unable to vote in unit wide 

elections for the unit within which those individuals are 

residing. Accordingly, we need not apply strict scrutiny to 

laws that do not authorize Plaintiffs to vote in Hawaii’s 

federal elections on account of Dunn because Plaintiffs no 

longer reside in Hawaii.

Plaintiffs disagree with this conclusion partly because 

they believe that the residential limiting principle we 

discerned in Green is inapplicable to their challenge. 

Specifically, Plaintiffs argue that the relevant “electorate” is 

not just those individuals residing within the “governmental 
20 BORJA V. NAGO

unit” of Hawaii; rather, the “electorate” of Hawaii now 

“comprises current and former Hawaii residents.” But that 

argument plainly misconstrues UOCAVA’s overseas voting 

provisions, and in doing so, fails to recognize how our 

federal system of government actually works.

Hawaii is a political unit with fixed geographic 

boundaries that exercises sovereignty in a manner consistent 

with our national Constitution. Hawaii, like every other state 

in the Union, participates in national governance by holding 

unit wide popular elections to appoint electors for President 

and Vice President and to select Senators and 

Representatives to represent the interests of the state and its 

people in Congress. In accordance with both common sense 

and our constitutional tradition, Hawaii has generally limited 

participation in those popular elections to its own residents. 

See generally U.S. Const. art. I, § 2, cl. 1 (“The House of 

Representatives shall be composed of Members chosen 

every second Year by the People of the several States . . . .” 

(emphasis added)); U.S. Const. art. I, § 2, cl. 3 

(“Representatives . . . shall be apportioned among the several 

States which may be included within this Union.”); U.S. 

Const. amend. XIV, § 1 (“All persons born or naturalized in 

the United States and subject to the jurisdiction thereof, are 

citizens of the State wherein they reside.” (emphasis 

added)); U.S. Const. amend. XVII (“The Senate of the

United States shall be composed of two Senators from each 

State, elected by the people thereof . . . .” (emphasis added)).

When Congress enacted UOCAVA and forced Hawaii to 

accept federal ballots from a small class of its former 

residents, Congress modestly redefined “the people” of 

Hawaii for the purpose of federal elections to include former 

voting-eligible residents of Hawaii who moved abroad but 
BORJA V. NAGO 21

retained their U.S. citizenship.3 Contrary to Plaintiffs’ 

assertion, UOCAVA did not redefine the electoral “unit” of 

Hawaii to encompass all its former voting-eligible residents

everywhere and then carveout exceptions at the expense of 

former residents who moved to other jurisdictions within the 

United States. Nothing about UOCAVA (or Hawaii’s 

implementation of it in UMOVA) has changed the basic 

constitutional reality that the political unit of Hawaii 

conducts Hawaii wide federal elections to represent the 

interests of Hawaii and its people in our institutions of 

federal government. 

It is undisputed that Plaintiffs do not reside in the 

“geographically defined governmental unit” of Hawaii. 

Green, 340 F.3d at 899. They want to vote in “unit wide 

election[s]” for Hawaii, but as our decision in Green makes 

abundantly clear, the Supreme Court’s voting qualifications 

cases do not entitle them to strict judicial scrutiny of laws 

that do not authorize them to vote there. After all, they have 

chosen to become part of the people of other jurisdictions 

within the United States, which have their own unit wide 

elections for participating in the institutions of the federal 

government. See, e.g., 48 U.S.C. § 1711 (“The territory of 

Guam and the territory of the Virgin Islands each shall be 

represented in the United States Congress by a nonvoting 

Delegate to the House of Representatives, elected as 

hereinafter provided.”). Accordingly, we reject Plaintiffs’ 

3 The CNMI did not become a U.S. Territory until shortly after Congress 

enacted UOCAVA. Accordingly, moving from Hawaii to the CNMI at 

the time UOCAVA was enacted meant moving abroad.
22 BORJA V. NAGO

argument that we must subject UOCAVA and UMOVA to 

strict scrutiny.4

B. Individuals Who Move from Hawaii to Puerto 

Rico, Guam, the U.S. Virgin Islands, or American 

Samoa Do Not Constitute a Suspect or QuasiSuspect Class That Would Trigger Heightened 

Scrutiny.

Having failed to show that they have a constitutionally 

protected right to participate in Hawaii’s federal elections, 

Plaintiffs are left to argue that UOCAVA and UMOVA deny 

them the ability to vote absentee in Hawaii’s federal 

elections on account of their membership in a suspect or 

quasi-suspect class. In Plaintiffs’ telling, these laws 

“discriminate” against them because they are “a politically 

powerless, suspect class,” thereby warranting the application 

of heightened scrutiny.

4 We also decline to subject UOCAVA and UMOVA to some form of 

heightened scrutiny under the Anderson/Burdick sliding-scale 

framework. Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. 

Takushi, 504 U.S. 428 (1992); see, e.g., Dudum v. Arntz, 640 F.3d 1098, 

1106 (9th Cir. 2011) (discussing Anderson/Burdick framework). 

Plaintiffs never asked the district court to apply the Anderson/Burdick

framework when they moved for summary judgment on their equal 

protection claim, instead raising this argument (albeit briefly) for the first 

time on appeal. “[W]e generally will not consider arguments raised for 

the first time on appeal,” and we decline to exercise our discretion to do 

so here. AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1213 (9th Cir. 

2020) (quoting In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 

2000)); see Armstrong v. Brown, 768 F.3d 975, 981–82 (9th Cir. 2014). 

This is especially warranted given that, at oral argument, Plaintiffs 

confirmed that “case after case from the Supreme Court and this court 

show that the best way to look at this” case is as a standard equal 

protection case, rather than as an Anderson/Burdick case.
BORJA V. NAGO 23

This argument is without merit. Individuals who move 

to a U.S. Territory, after having lived in Hawaii, do not bear 

the “traditional indicia” of a suspect or quasi-suspect class. 

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 

(1973). While Plaintiffs are certainly correct that many 

residents of U.S. Territories “have endured a long history of 

discrimination” on account of their place of birth, race, or 

ethnicity, that history does not define Plaintiffs as a class in 

this suit. Cf. United States v. Mayea-Pulido, 946 F.3d 1055, 

1063 n.6 (9th Cir. 2020) (recognizing that individuals 

included within an alleged class may suffer discrimination 

not “on the basis of the classifications at issue” in their equal 

protection challenge). Plaintiffs constitute a class in that 

they all once resided in Hawaii but then moved to Puerto 

Rico, Guam, the U.S. Virgin Islands, or American Samoa of

their own accord. However, Plaintiffs cannot be deemed 

members of a suspect or quasi-suspect class simply by virtue 

of their move to a U.S. Territory, and they have not shown 

that any of the “considerations in our usual test for 

determining whether heightened scrutiny applies” are 

present here. Id. at 1063.

No court of appeals to have addressed the question of 

whether the government may consider an individual’s 

residence in the U.S. Territories to determine whether she 

may take advantage of overseas voting provisions to 

participate in elections in her State of former residence has 

concluded that such classifications are subject to heightened 

scrutiny. See Segovia, 880 F.3d at 390; Igartua, 32 F.3d at

10; cf. Romeu, 265 F.3d at 124 (concluding that UOCAVA 

survived equal protection challenge “regardless whether [its] 

distinction is appropriately analyzed under rational basis 

review or intermediate scrutiny, or under some alternative 

analytic framework independent of the three-tier standard 
24 BORJA V. NAGO

that has been established in Equal Protection cases”). 

Today, we join this emerging consensus and apply rational 

basis review.5

III. UOCAVA and UMOVA’s Overseas Voting 

Provisions Survive Rational Basis Review.

“Rational basis review is highly deferential to the 

government, allowing any conceivable rational basis to 

suffice.” Erotic Serv. Provider Legal Educ. & Rsch. Project 

v. Gascon, 880 F.3d 450, 457 (9th Cir.), amended, 881 F.3d 

792 (9th Cir. 2018). Nevertheless, Plaintiffs still argue that 

the Federal and State Defendants’ enforcement of UOCAVA 

and UMOVA fails to survive that deferential standard

“because their discriminatory treatment of former state 

residents living in [certain] U.S. [T]erritories serves no 

legitimate purpose.” Under rational basis review, it is 

Plaintiffs’ burden “to negative every conceivable basis 

which might support” UOCAVA and UMOVA’s overseas 

voting classifications, “whether or not the basis has a 

foundation in the record.” Boardman v. Inslee, 978 F.3d 

1092, 1118 (9th Cir. 2020) (quoting Heller v. Doe, 509 U.S. 

312, 320–21 (1993)). We conclude that Plaintiffs have 

failed to do so.

We begin with Plaintiffs’ argument that it is irrational for 

UOCAVA and UMOVA to treat residents of the CNMI as 

overseas voters for the purpose of federal elections while

5 See also Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) 

(O’Connor, J. (ret.), sitting by designation) (declining to apply strict 

scrutiny in equal protection challenge brought by plaintiffs with felony 

convictions seeking the right to vote in Arizona elections, holding that

re-enfranchisement was a “statutory benefit,” rather than a fundamental 

right, that could not be conferred “in a discriminatory manner . . . that is 

not rationally related to a legitimate state interest”).
BORJA V. NAGO 25

failing to do the same for residents of Puerto Rico, Guam, 

the U.S. Virgin Islands, and American Samoa. While 

Plaintiffs are correct that the United States’s relationship 

with the CNMI has evolved a great deal since Congress 

enacted UOCAVA (for instance, the CNMI was not yet a 

U.S. Territory then), there are still aspects of the relationship 

today that conceivably justify the federal government

treating the CNMI more akin to a sovereign country than a 

Territory of the United States for the purpose of overseas 

voting. For instance, the covenant governing the CNMI’s 

consensual relationship with the United States continues to 

impose unique restrictions on the United States’s ability to 

enact new legislation governing the CNMI. See generally 

United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 

749, 752 (9th Cir. 1993). In addition, the full 

implementation of federal immigration law in the CNMI will 

not occur until December 31, 2029. See 48 U.S.C. 

§ 1806(a)(2). While Plaintiffs may ultimately disagree with 

Congress’s legislative judgment that moving to the CNMI is 

akin to moving to a foreign country for the purposes of 

overseas voting, rational basis review “does not allow us to 

substitute our personal notions of good public policy for 

those of Congress.” Schweiker v. Wilson, 450 U.S. 221, 234 

(1981). Accordingly, UOCAVA’s exclusion of the CNMI 

from the list of U.S. Territories that are a part of the United 

States satisfies rational basis review.

Next, we examine Plaintiffs’ argument that it is irrational 

for UOCAVA and UMOVA to create overseas voting rights 

for former residents of Hawaii who move to a foreign 

country while failing to do the same for those who move to 

Puerto Rico, Guam, the U.S. Virgin Islands, and American 

Samoa. While Plaintiffs may ultimately be correct that 

“former Hawaii residents living in [those Territories] have a 
26 BORJA V. NAGO

greater interest in federal elections than former Hawaii 

residents living in foreign countries because former state 

residents living in the territories are subject to the federal 

government’s direct control,” that observation fails to negate 

the several conceivable bases for justifying the differential 

treatment. For instance, in enacting UOCAVA, Congress 

could have reasonably determined that it was important to 

ensure that U.S. citizens living in foreign countries retained 

some opportunity to “participate in the election of 

governmental officials in the United States.” Romeu, 265 

F.3d at 124–25. Congress could have also reasonably 

determined that it did not need to do the same for U.S. 

citizens who move from a State to the U.S. Territories 

because they would still be eligible to participate in unit wide 

elections in their new homes. See id. at 125 (explaining that 

“citizens of a State who move to Puerto Rico may vote in 

local elections for officials of Puerto Rico’s government (as 

well as for the federal post of Resident Commissioner)”). As 

the Second Circuit observed in Romeu, the laws here 

effectively treat Plaintiffs “in the same manner as [they] treat 

citizens of a State who leave that State to establish residence 

in another State.” Id.

In failing to extend overseas voting rights to Plaintiffs, 

the Hawaii Legislature also could have reasonably 

determined that doing so would harm the interests of 

Hawaii’s own residents, who arguably have the greatest 

interest in federal elections conducted in Hawaii. This is 

because the Members of Congress chosen in Hawaii’s 

federal elections are tasked with representing the interests of 

Hawaii’s residents in Congress, and Plaintiffs are both no 

longer Hawaii residents and are otherwise represented 

(albeit by non-voting representatives) in Congress.

Accordingly, UOCAVA and UMOVA’s overseas voting 
BORJA V. NAGO 27

provisions, which benefit former residents of Hawaii who 

move outside of the United States and not Plaintiffs, satisfy

rational basis review.

Unable to negate every conceivable basis upon which 

Congress and the Hawaii Legislature could have relied to 

enact UOCAVA and UMOVA, Plaintiffs are left to argue

they were excluded from these laws’ overseas voting 

provisions because of animus towards them. See Romer v. 

Evans, 517 U.S. 620, 634 (1996); U.S. Dep’t of Agric. v. 

Moreno, 413 U.S. 528, 534 (1973). A plaintiff demonstrates 

the requisite animus by showing “that an ‘invidious 

discriminatory purpose was a motivating factor’ in the 

relevant decision.” Dep’t of Homeland Sec. v. Regents of the 

Univ. of Cal., 140 S. Ct. 1891, 1915 (2020) (quoting 

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 

266 (1977)). “Possible evidence includes disparate impact 

on a particular group, ‘departures from the normal 

procedural sequence,’ and ‘contemporary statements by 

members of the decisionmaking body.’” Id. (alteration 

omitted) (quoting Arlington Heights, 429 U.S. at 266–68).

Plaintiffs have failed to provide any evidence tending to 

show that Congress, in enacting UOCAVA, chose to 

privilege CNMI residents over residents of the other 

Territories because it harbored animus towards the latter. 

Nor have Plaintiffs provided any evidence tending to show 

that Congress or the Hawaii Legislature sought to cabin the 

benefit of their overseas voting provisions to those who 

move outside the United States because of a desire to harm 

those who stay within the United States by moving to one of 

the U.S. Territories with permanent residents. Accordingly, 

we agree with the district court that UOCAVA and 

UMOVA’s treatment of former voting-eligible residents of 
28 BORJA V. NAGO

Hawaii who move to Puerto Rico, Guam, the U.S. Virgin 

Islands, and American Samoa satisfies rational basis review.

CONCLUSION

We share Plaintiffs’ and many of our colleagues’ 

concern that the vast majority of “U.S. citizens residing in

the [T]erritories are not being afforded a meaningful voice 

in national governance.” Romeu, 265 F.3d at 136 (Walker, 

J., concurring). However, for the foregoing reasons, this 

lawsuit is not the proper vehicle to remedy that concern. 

Accordingly, we AFFIRM the district court’s final 

judgment in favor of the State and Federal Defendants.

PAEZ, Circuit Judge, dissenting:

Consider the following scenario: two identical 

individuals—Person A and Person B—are longtime 

residents of Hawaii. For various reasons, both individuals 

decide to move to territories of the United States, Person A 

to the Commonwealth of the Northern Mariana Islands 

(CNMI), and Person B to Guam, which sits just about 37 

miles southwest of the CNMI’s southernmost island.1 The 

twist, however, is that under the Uniformed and Overseas 

Citizens Absentee Voting Act (UOCAVA), 52 U.S.C. 15 

§§ 20301–11, and the Uniform Military and Overseas Voters 

Act (UMOVA), Haw. Rev. Stat. §§ 15D-1 to -18, Person A 

retains their right to vote in Hawaii, whereas Person B does 

not. Person B brings suit, viewing this distinction as 

arbitrary and violative of the Fourteenth Amendment’s 

1 See Rota Island, Pacific Islands Benthic Habitat Mapping Center, 

https://www.soest.hawaii.edu/pibhmc/cms/data-by-location/cnmiguam/rota-island/ (last viewed Aug. 23, 2024). 
BORJA V. NAGO 29

fundamental guarantee of equal protection with respect to 

voting rights. 

In my view, the central question in this case is not simply 

whether Person B’s challenge would be successful, but 

rather under which analytical framework we must examine 

their challenge. On this point, our caselaw is clear: we 

review constitutional challenges to laws that regulate 

elections under the Anderson-Burdick framework. As a 

consequence, we must apply Anderson-Burdick in such 

circumstances even if, as the majority suggests, the plaintiffs 

bring their challenge “as a standard Equal Protection case,

rather than as an Anderson/Burdick case.” Maj. Op. at 22

n.4. Otherwise, we risk depriving the franchise of the 

deference it is due. I therefore respectfully dissent from the 

majority’s decision not to apply the Anderson-Burdick

framework.2

* * *

The Anderson-Burdick framework is derived from two 

Supreme Court cases. See Anderson v. Celebrezze, 460 U.S. 

780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). As the 

Court explained in Burdick:

A court considering a challenge to a state 

election law must weigh “the character and 

magnitude of the asserted injury to the rights 

protected by the First and Fourteenth 

Amendments that the plaintiff seeks to 

vindicate” against “the precise interests put 

forward by the State as justifications for the 

2 I concur, however, in the majority’s determination that Plaintiffs have 

standing to challenge both UOCAVA and UMOVA.
30 BORJA V. NAGO

burden imposed by its rule,” taking into 

consideration “the extent to which those 

interests make it necessary to burden the 

plaintiff’s rights.”

Under this standard, the rigorousness of our 

inquiry into the propriety of a state election 

law depends upon the extent to which a 

challenged regulation burdens First and 

Fourteenth Amendment rights. Thus, as we 

have recognized when those rights are 

subjected to “severe” restrictions, the 

regulation must be “narrowly drawn to 

advance a state interest of compelling 

importance.” But when a state election law 

provision imposes only “reasonable, 

nondiscriminatory restrictions” upon the 

First and Fourteenth Amendment rights of 

voters, “the State’s important regulatory 

interests are generally sufficient to justify” 

the restrictions.

504 U.S. at 434 (citations omitted). 

The Court has since confirmed that Anderson-Burdick is 

the proper legal standard for evaluating challenges to 

election regulations under the First and Fourteenth 

Amendments. See Crawford v. Marion Cnty. Election Bd., 

553 U.S. 181, 190 (2008). Heeding that command, our court 

applies Anderson-Burdick when assessing such 

constitutional challenges to “laws that regulate elections.” 

Mecinas v. Hobbs, 30 F.4th 890, 904 (9th Cir. 2022) 

(quoting Ariz. Democratic Party v. Hobbs, 18 F.4th 1179, 
BORJA V. NAGO 31

1187 (9th Cir. 2021)).3 Indeed, with respect to voting rights 

in particular, our court has described Anderson-Burdick as 

“the appropriate standard of review for laws regulating the 

right to vote.” Pub. Integrity All., Inc. v. City of Tucson, 836 

F.3d 1019, 1024 (9th Cir. 2016) (en banc) (citing Burdick, 

504 U.S. 428). Here, because Plaintiffs challenge “a state 

election law,” Burdick, 504 U.S. at 434, that directly “affects 

the right to vote,” Igartua De La Rosa v. United States, 32 

F.3d 8, 10 n.2 (1st Cir. 1994),4 I would review their claim 

3 As the Supreme Court in Crawford recognized, the Court’s modern 

election cases have moved away from applying “litmus test” rules and 

“followed Anderson’s balancing approach.” 553 U.S. at 190; see also 

Gonzalez v. Arizona, 677 F.3d 383, 409–10 (9th Cir. 2012) (en banc), 

aff’d sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 

(2013) (citing Crawford, 553 U.S. at 189–90) (observing the same).

4 Igartua is one of three out-of-circuit cases to have directly considered 

the question we confront here. See 32 F.3d at 10–11; see also Romeu v. 

Cohen, 265 F.3d 118, 122–26 (2d Cir. 2001); Segovia v. United States, 

880 F.3d 384, 389–91 (7th Cir. 2018). The Igartua court only examined 

UOCAVA, ultimately applying rational basis review because, though 

UOCAVA “affects the right to vote,” it does not “infringe that right but 

rather limits a state’s ability to restrict it.” 32 F.3d at 10 n.2. Igartua is 

thus of limited significance here, where Plaintiffs challenge both 

UOCAVA and the implementation of that statute by Hawaii. 

More like this case is Romeu, which examined both UOCAVA and

New York’s derivative statute. There, the Second Circuit declined to 

select between “rational basis review or intermediate scrutiny, 

or . . . some alternative analytic framework independent of the three-tier 

standard that has been established in Equal Protection cases,” concluding 

that, under any such standard, “Congress may distinguish between those 

U.S. citizens formerly residing in a State who live outside the U.S., and 

those who live in the U.S. territories.” 265 F.3d at 124. In our circuit, 

selection of the appropriate standard of review in cases involving First 

and Fourteenth Amendment challenges to laws regulating the right to 
32 BORJA V. NAGO

under Anderson-Burdick. Cf. Nader v. Brewer, 531 F.3d 

1028, 1036 (9th Cir. 2008) (concluding that, under 

Anderson-Burdick, Arizona’s residential requirement for 

petition circulators created a “severe burden on [nonresident candidate] and his out-of-state supporters’ speech, 

voting and associational rights”).

The majority declines to apply Anderson-Burdick on the 

basis that “Plaintiffs never asked the district court to apply 

the Anderson/Burdick framework when they moved for 

summary judgment on their equal protection claim, instead 

raising this argument (albeit briefly) for the first time on 

appeal.”5 Maj. Op. at 22 n.4. Even so, however, “we are not 

bound by a party’s erroneous view of the law.” Flamingo 

Resort, Inc. v. United States, 664 F.2d 1387, 1391 n.5 (9th 

Cir. 1982). Moreover, identification of the proper legal 

standard under which to review this case is a “pure question 

of law and the [Government] will suffer no prejudice as a 

result of the failure to raise the issue in the trial court.” AMA 

Multimedia, LLC v. Wanat, 970 F.3d 1201, 1214 (9th Cir. 

2020) (quoting Raich v. Gonzales, 500 F.3d 850, 868 (9th 

Cir. 2007)). Indeed, Defendants did not suggest that 

vote occurs under Anderson-Burdick. See Pub. Integrity All., 836 F.3d 

at 1024.

Finally, Segovia examined only Illinois’s derivative statute under the 

traditional equal protection framework and concluded that rational basis 

review applied. 880 F.3d at 390. Again, given our court’s clear caselaw, 

Segovia is not persuasive. 

5 The majority suggests that, “at oral argument, Plaintiffs confirmed that 

‘case after case from the Supreme Court and this court show that the best 

way to look at this’ case is as a standard equal protection case, rather 

than as an Anderson/Burdick case.” Maj. Op. at 22 n.4. Of course, 

Plaintiffs prefaced this statement with “I think Anderson-Burdick would 

get you to the same place.” Oral Arg. at 14:00.
BORJA V. NAGO 33

Plaintiffs had forfeited the argument by not raising it in the 

district court; they instead disagreed with Plaintiffs on the 

merits.6 Thus, in keeping with our precedents, I would apply 

Anderson-Burdick to this case. 

Furthermore, because the district court did not apply 

Anderson-Burdick, I would remand this case for further 

consideration under the proper legal standard. See Enyart v. 

Nat’l Conf. of Bar Exam’rs, Inc., 630 F.3d 1153, 1159 (9th 

Cir. 2011); see also Gill v. Scholz, 962 F.3d 360, 366 (7th 

Cir. 2020) (reversing and remanding to allow the district 

court to apply Anderson-Burdick); Cowen v. Ga. Sec’y of 

State, 960 F.3d 1339, 1344 (11th Cir. 2020) (same). To be 

sure, the district court may ultimately agree with Igartua that 

UOCAVA does not sufficiently burden Plaintiffs’ 

fundamental rights so as to warrant exacting or strict 

scrutiny. Or the court may agree with Romeu that, regardless 

of the particular kind of scrutiny required to review 

UOCAVA and UMOVA, “Congress may distinguish 

between those U.S. citizens formerly residing in a State who 

live outside the U.S., and those who live in the U.S. 

territories.” 265 F.3d at 124; see also Chula Vista Citizens 

for Jobs & Fair Competition v. Norris, 782 F.3d 520, 531 

(9th Cir. 2015) (en banc) (considering “the State’s broad 

power to define its political community” as part of 

Anderson-Burdick’s second step (quoting Sugarman v. 

Dougall, 413 U.S. 634, 642–43 (1973))). In any case, 

Plaintiffs’ constitutional challenge to the denial of their right 

to equal protection with respect to voting rights would 

benefit from further consideration under the AndersonBurdick framework by the district court in the first instance. 

Cf. Planned Parenthood of Greater Wash. & N. Idaho v. U.S. 

6 See Fed. Appellees Br. at 29.
34 BORJA V. NAGO

Dep’t of Health & Hum. Servs., 946 F.3d 1100, 1110 (9th 

Cir. 2020) (“In general, an appellate court does not decide 

issues that the trial court did not decide.”). The precious 

right to vote certainly deserves that much. 

For the foregoing reasons, I respectfully dissent from the 

majority’s decision to affirm the district court’s judgment.