The common interpretation under the Insular Cases allows for this discrepancy, as well as further contradictions under state absentee laws, which list certain territories as legal for absentee voting but not others. For example, Illinois’s law adds American Samoa to its list of absentee areas, along with the Northern Mariana Islands and the states.
The plaintiffs in Segovia are former Illinois residents who live in the territories—like lead plaintiff Luis Segovia—and Cruz’s organization that represents both territory-born service members and transplants stationed in the territories. They argue that laws that disenfranchise residents—and citizens—of the territories violate the equal-protection clause of the Fourteenth Amendment and the due-process clause. While the gist of this case is to challenge a specific deficiency of absentee voting for people who move to the territories, Cruz sees it as an opportunity to challenge the basic disenfranchisement of territorial citizens.
“I was in Iraq with other service members who resided in various territories,” Cruz said. “During the election, everyone had to stop what they’re doing and go back to the forward-operating base for the election. People were being directed to go to a processing center where you’d cast your out-of-state ballot. We were stopped at the door and told,‘You have to go back to your unit.’ We were segregated from the rest of our service members, and our brothers and sisters in uniform.”
We the People founder and president Neil Weare was also born in Guam, and his organization works to file strategic lawsuits to expand voting rights and civil rights for residents of the territories. "I wanted to come up with a new approach, which was for each of the territories and D.C. to work together rather than each working on their own,” Weare said. “So I founded We the People Project to advocate for equal rights and representation for all the nearly 5 million U.S. citizens living in the territories and the District.”
That strategy focuses on “impact litigation,” which is designed not only to test key arguments in court, but to raise awareness of the issues at stake in the court of public opinion, a strategy used to great effect in civil-rights struggles by groups like the NAACP Legal Defense and Educational Fund and the American Civil Liberties Union. “Following in the footsteps of other civil-rights movements in recognizing that when you're marginalized politically, the court system can offer a more level playing field, as can public awareness,” Weare told me.
After the plaintiffs lost in the Illinois District Court, We the People Project considered more ways to both raise public awareness and continue to probe the legal system with an appeal. They found a way to merge both of those goals in CrowdJustice, a London-based website founded by former United Nations lawyer Julia Salasky in 2015, which allows people to crowdfund litigation. CrowdJustice has been successful in the United Kingdom, especially after it was used by several British residents and expats late last year to raise over £170,000 for a “People’s Challenge” to Brexit in the British high courts.