DC Voting Rights

[True Federalist (진정한 연방 주의자)]

UOCAVA acts under the premise that citizens of the United States who sojourn temporarily outside the United States retain any State citizenship they had previously acquired. However, the residents of Columbia are not outside the United States nor are they in possession of a previously attained State citizenship, so UOCAVA and the principles under which it was enacted do not apply.

The language of UOCAVA is quite clear.  It applies to those who reside outside the United States,  not just those who "sojourn temporarily".  Since you have previously claimed that the 14th Amendment restricts State citizenship to residents of a State, and UOCAVA applies only to those who do not reside in United States, how do you square UOCAVA with your understanding of the Constitution?

Since they haven't renounced their U.S. citizenship, their sojourn overseas is considered only temporary.  It might be a long temporary, but it is still temporary even if it lasts years.

If UOCAVA confers a continuation of State citizenship, why does it not apply to state elections, particularly to those electing the members of the legislative body with more members?   And why don't UOCAVA voters (indeed all persons, including aliens) remain under the jurisdiction of their former State of residence if they remove themselves outside the United States.

States are free to do so, and some do but are not required to by UOCAVA.  I imagine that the reason that no Federal mandate was required was primarily because providing for the various offices that States choose to have elected, even if one restricted the Federal mandate to just statewide offices, would make the Federal write-in absentee ballot required by UOCAVA to be accepted by all States as the primary means of compliance an unwieldy mess.

In Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001), the court ruled that Congress had the discretion to make a distinction between (former?) New York citizens who sojourned in San Juan, Puerto Rico and those who resided in Rome, Italy.  But a 2-1 majority of the court also offered the suggestion that it was in congressional authority to provide a way for US Citizens in Puerto Rico to participate in elections for President regardless whether they formerly resided in one of the 51 jurisdictions that choose presidential electors.

That's not the case.  Leval made his suggestion by himself, with Walker strongly opposed while Oakes was silent on the case.  In any case it had no bearing on the decision, and Leval's suggestion is pure obiter dictum.

As for the Voting Rights Act Amendments of 1970 which you bring up, I think that Oregon v. Mitchell was wrongly decided and that Harlan, as usual for that period of the court, had the correct opinion.  Still, even if one accepts Oregon v. Mitchell as correctly decided, I fail to see how asserting that Congress can make decisions concerning how long a residency is required to establish State citizenship and the circumstances under which an absence disestablishes State citizenship establishes that Congress has the power to make persons who have never been State citizens or residents into citizens of a State.

On the issue of residency requirements, Oregon v. Mitchell was an 8-1 decision.  The VRA does not suggest that someone who has moved to a different State remains a citizen of their former State for some period of time.  If you read the Stewart opinion in Oregon v. Mitchell you will see that it was acceptable to the court for reasons of preserving the right to vote in national elections by United States citizens, and not that of citizens of the several States.

And in doing so, Stewart expressed the opinion that it was precisely because Congress had the authority to preserve the right to vote in national elections by United States citizens who already had that right had they not moved that Congress could restrict the period of residency State laws required to effect a change in State citizenship and thereby of voting rights in that State, as well as the state they had moved out of if the move occurred too close to election day.  Indeed, Stewart stated that "The power that Congress has exercised in enacting § 202 is not a general power to prescribe qualifications for voters in either federal or state elections. It is confined to federal action against a particular problem clearly within the purview of congressional authority."

Not only that, but the opinions of Douglas and Brennan, in so far as they pertain to residency requirements, cite the equal protection provisions of the Fourteenth Amendment, again making reference thereby to State citizenship as the core issue.  Indeed, of the nine justices in Oregon v. Mitchell, only Black based his argument concerning the residency requirements in Federal elections on an broad power of Congress to set the qualifications of voters in Federal elections.  The other eight justices rejected that argument, and it is that broad power that was rejected 8-1 in Oregon v. Mitchell that would be needed for Congress to require that States allow persons who have no connection to a State the right to vote in elections conducted by that State, as would be the case if Congress were to require that Columbia residents with no prior Maryland connection be allowed to vote in Federal elections as if they were Maryland residents.

The denial of the right to vote was not an act of deliberation, but rather one of carelessness and omission.

Carelessness and omission?  It is quite apparent from the historical record that the impact of Congress taking jurisdiction upon the voting rights of those living in the District was well understood and indeed, it was used as an argument against Congress taking jurisdiction.  Clearly they understood what they were doing then and they did it with deliberation.

[True Federalist (진정한 연방 주의자)]

Who claimed that it applied to those who had renounced their US citizenship?  Strawman.

"sojourn" is defined as residing briefly or temporarily.  Congress could have set a time period, and they could have inquired as intent to return to the former State of residence.  They did neither.  Therefore, a United States citizen who "does not reside in the United States" does not reside in any State, and is not a State citizen under the 14th Amendment.  No inference can be made about their intent to move to the United States, whether to a former State of residence, and different State, Columbia, or some other territory of the United States.

Since the persons are not State citizens, then the only reason that they can vote in federal elections for a State is by virtue of their United States citizenship, and a political decision by Congress to permit them to vote.

Why do you claim that it applies to those who had renounced their State citizenship?

For persons who have not established residence in another State, the Constitution is silent as to whether such citizenship is lost.  However under the principles of Afroyim v. Rusk, 387 U.S. 253 (1967) and Vance v. Terrazas, 444 U.S. 252 (1980) it is clear that loss of State citizenship requires a positive act by that person and that under the 14th Amendment, the only positive Acts mentioned there are renouncing United States citizenship or establishing residence in another State.  The political decision that Congress has taken here to has been to rule that establishing residence in a territory of the United States is a positive act that removes State citizenship while establishing residence outside the United States does not.

If UOCAVA confers a continuation of State citizenship, why does it not apply to state elections, particularly to those electing the members of the legislative body with more members?   And why don't UOCAVA voters (indeed all persons, including aliens) remain under the jurisdiction of their former State of residence if they remove themselves outside the United States.

States are free to do so, and some do but are not required to by UOCAVA.  I imagine that the reason that no Federal mandate was required was primarily because providing for the various offices that States choose to have elected, even if one restricted the Federal mandate to just statewide offices, would make the Federal write-in absentee ballot required by UOCAVA to be accepted by all States as the primary means of compliance an unwieldy mess.

States are free to exclude some of their citizens from voting in their legislative elections based on where that person resides?  Or may they only exclude United States citizens who were former residents on the basis that they do not reside in the State, and are therefore not citizens of the State?

Absentee balloting, especially overseas absentee balloting requires extra effort on the part of the body conducting the election.  Congress has made the political decision that the level accommodation it requires States to provide to its overseas citizens under UOCAVA under the circumstances is appropriate.  It would be within the power of Congress under the 14th Amendment to require less or more of the States with respect to absentee voting provisions of State citizens.

In Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001), the court ruled that Congress had the discretion to make a distinction between (former?) New York citizens who sojourned in San Juan, Puerto Rico and those who resided in Rome, Italy.  But a 2-1 majority of the court also offered the suggestion that it was in congressional authority to provide a way for US Citizens in Puerto Rico to participate in elections for President regardless whether they formerly resided in one of the 51 jurisdictions that choose presidential electors.

That's not the case.  Leval made his suggestion by himself, with Walker strongly opposed while Oakes was silent on the case.  In any case it had no bearing on the decision, and Leval's suggestion is pure obiter dictum.

How come Leval wrote the court's opinion.  Since Walker was the chief judge and disagree vigorously with Leval, why not have Oakes write the courts opinion, and he and Walker write their own concurring opinions.

I can only suppose, but a likely possibility is that Leval was assigned to write the opinion, which Walker concurred with, but that when it was delivered, Walker discovered that Leval had added some ober dictum which he disagreed with.  Rather than rewrite a new opinion himself, he simply chose to point out what he disagreed with. 

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On the issue of residency requirements, Oregon v. Mitchell was an 8-1 decision.  The VRA does not suggest that someone who has moved to a different State remains a citizen of their former State for some period of time.  If you read the Stewart opinion in Oregon v. Mitchell you will see that it was acceptable to the court for reasons of preserving the right to vote in national elections by United States citizens, and not that of citizens of the several States.

And in doing so, Stewart expressed the opinion that it was precisely because Congress had the authority to preserve the right to vote in national elections by United States citizens who already had that right had they not moved that Congress could restrict the period of residency State laws required to effect a change in State citizenship and thereby of voting rights in that State, as well as the state they had moved out of if the move occurred too close to election day.  Indeed, Stewart stated that "The power that Congress has exercised in enacting § 202 is not a general power to prescribe qualifications for voters in either federal or state elections. It is confined to federal action against a particular problem clearly within the purview of congressional authority."

Not only that, but the opinions of Douglas and Brennan, in so far as they pertain to residency requirements, cite the equal protection provisions of the Fourteenth Amendment, again making reference thereby to State citizenship as the core issue.  Indeed, of the nine justices in Oregon v. Mitchell, only Black based his argument concerning the residency requirements in Federal elections on an broad power of Congress to set the qualifications of voters in Federal elections.  The other eight justices rejected that argument, and it is that broad power that was rejected 8-1 in Oregon v. Mitchell that would be needed for Congress to require that States allow persons who have no connection to a State the right to vote in elections conducted by that State, as would be the case if Congress were to require that Columbia residents with no prior Maryland connection be allowed to vote in Federal elections as if they were Maryland residents.

This is the syllabus for Douglas's opinion:

4. The right to vote in national elections is a privilege and immunity of national citizenship and the congressional judgment to ban durational residency requirements in presidential and vice-presidential elections is a manifestly permissible means of enforcing that privilege and immunity under 5 of the Fourteenth Amendment.

I see the reference to State citizenship where?

And here is Brennan's:

4. There is adequate constitutional basis for the residency provisions of the Act in 5 of the Fourteenth Amendment, as there is ample justification for the congressional findings that durational residence requirements abridge the right of free interstate migration and that such requirements are not reasonably related to any compelling state interests.

This doesn't sound like someone who would reject a Congressional grant of Maryland political citizenship to Columbia residents.

The whole of the Fourteen Amendment deals with citizenship both State and United States.  On further review, I'll concede that Douglas went with an opinion based on U.S. citizenship, so make that a 7-2 to a 8-1 opinion against your position.  Brennan's opinion is that durational residency requirements for establishing State citizenship violate the abridge the right of free interstate migration and that such requirements are not reasonably related to any compelling state interests. so my point there still stands.

[True Federalist (진정한 연방 주의자)]

Who claimed that it applied to those who had renounced their US citizenship?  Strawman.

"sojourn" is defined as residing briefly or temporarily.  Congress could have set a time period, and they could have inquired as intent to return to the former State of residence.  They did neither.  Therefore, a United States citizen who "does not reside in the United States" does not reside in any State, and is not a State citizen under the 14th Amendment.  No inference can be made about their intent to move to the United States, whether to a former State of residence, and different State, Columbia, or some other territory of the United States.

Since the persons are not State citizens, then the only reason that they can vote in federal elections for a State is by virtue of their United States citizenship, and a political decision by Congress to permit them to vote.

Why do you claim that it applies to those who had renounced their State citizenship?

You were the one who introduced the strawman argument of renunciation of United States citizenship.
So the question should be why you introduced a strawman argument?

You are are the one who is claiming that by virtue of the 14th Amendment, a person who is a State citizen loses that State citizenship by changing his residence to a location outside the State.

No that is not what I have claimed.  It is what you claim I have claimed. I mentioned United States citizenship because of its analogy to the issue of State citizenship.

What I have claimed that by virtue of the 14th Amendment, a person who is not a State citizen gains that State citizenship by changing his residence to a location inside the State.

While for persons who move from one State to another State, the effect of both what I claim and what you claim I have claimed is the same, because dual citizenship at the State level has not been recognized as a right.  However for persons who move outside the United States, it is not.

For persons who have not established residence in another State, the Constitution is silent as to whether such citizenship is lost.  However under the principles of Afroyim v. Rusk, 387 U.S. 253 (1967) and Vance v. Terrazas, 444 U.S. 252 (1980) it is clear that loss of State citizenship requires a positive act by that person and that under the 14th Amendment, the only positive Acts mentioned there are renouncing United States citizenship or establishing residence in another State.  The political decision that Congress has taken here to has been to rule that establishing residence in a territory of the United States is a positive act that removes State citizenship while establishing residence outside the United States does not.

If we were going to apply the principles of Afryom v Rusk or Vance v. Terrazas, then someone who moves from Maryland to Columbia could retain Maryland citizenship while acquiring Columbia citizenship.  The 14th Amendment says that a US citizen who is a resident of Indiana is a Indiana citizen.  It does not say that he is not an Illinois citizen.

Illinois could choose to grant an Indiana resident dual citizenship, but nothing in the 14th Amendment compels it to grant that Indiana resident dual citizenship, nor does Congress have the power to compel Illinois to so grant because both Illinois and Indiana are States.  Congress could choose to require that a State citizen who takes residence in the District or some other territory be allowed to maintain their State citizenship, but instead it has chosen to provide Territorial citizenship, which it holds as having equivalent status to State citizenship.

Since no one is required to live in the District or in a Territory, I don't see any denial of equal protection here.

So now you are are claiming that UOCAVA is acting on the basis of United States citizenship, and not on the basis of State citizenship?  Or perhaps that only Congress has the authority to enforce the 14th Amendment?  Or that Congress can make non-residents of a State a citizen of a State, but in this case State citizenship does not confer a right to equal protection?

No, that as is often the case when conflicting interests arise, a judgment must be made as to which interests are more important.  In this case, Congress, as its right under the 14th amendment, has judged which accommodations States must provide to those of its citizens who are temporarily outside the State and thus would suffer inconvenience if they were to have to return to that State to vote.

The whole of the Fourteen Amendment deals with citizenship both State and United States.  On further review, I'll concede that Douglas went with an opinion based on U.S. citizenship, so make that a 7-2 to a 8-1 opinion against your position.  Brennan's opinion is that durational residency requirements for establishing State citizenship violate the abridge the right of free interstate migration and that such requirements are not reasonably related to any compelling state interests. so my point there still stands.

The important issue with regard to Columbia is not the durational residency requirements for establishing voting rights, but rather the continued provision of voting privileges in a State of former residence.

As soon as one establishes a new residence in a State, one becomes a State citizen of that State.  Curbing durational residency requirement is simply protecting one's right to change their State citizenship freely through migration.

But in the case of retention of voting privileges in State A after one has already established residence in State B, must be on the basis of United States citizenship.

And how long a residence must occur in another location for that residence to be established and thereby a new State citizenship to be established?  The Fourteenth Amendment is silent on that durational issue.  Congress has chosen to make 30 days a uniform cutoff.

[True Federalist (진정한 연방 주의자)]

While for persons who move from one State to another State, the effect of both what I claim and what you claim I have claimed is the same, because dual citizenship at the State level has not been recognized as a right.  However for persons who move outside the United States, it is not.

So United States citizens who reside in Maryland and are therefore Maryland citizens, remain Maryland citizens if they move to the District of Columbia?

The constitution makes no absolute statements on the issue, thereby leaving it to Congress to adjudicate on the basis of its fourteen Amendment powers.

If we were going to apply the principles of Afryom v Rusk or Vance v. Terrazas, then someone who moves from Maryland to Columbia could retain Maryland citizenship while acquiring Columbia citizenship.  The 14th Amendment says that a US citizen who is a resident of Indiana is a Indiana citizen.  It does not say that he is not an Illinois citizen.

Illinois could choose to grant an Indiana resident dual citizenship, but nothing in the 14th Amendment compels it to grant that Indiana resident dual citizenship, nor does Congress have the power to compel Illinois to so grant because both Illinois and Indiana are States.  Congress could choose to require that a State citizen who takes residence in the District or some other territory be allowed to maintain their State citizenship, but instead it has chosen to provide Territorial citizenship, which it holds as having equivalent status to State citizenship.

Since no one is required to live in the District or in a Territory, I don't see any denial of equal protection here.

So it is prerogative of Congress to grant "Territorial citizenship" or "State citizenship" to US Citizens who reside outside a State?

In establishing Territorial self-rule, Congress has created Territorial citizenship which is its prerogative under Article IV Section 3.  Having done so, I do not see any mechanism under the Constitution by which Congress could force States to accept dual citizenship of ex-residents who accept Territorial citizenship.

So now you are are claiming that UOCAVA is acting on the basis of United States citizenship, and not on the basis of State citizenship?  Or perhaps that only Congress has the authority to enforce the 14th Amendment?  Or that Congress can make non-residents of a State a citizen of a State, but in this case State citizenship does not confer a right to equal protection?

No, that as is often the case when conflicting interests arise, a judgment must be made as to which interests are more important.  In this case, Congress, as its right under the 14th amendment, has judged which accommodations States must provide to those of its citizens who are temporarily outside the State and thus would suffer inconvenience if they were to have to return to that State to vote.

If someone moves from Maryland to Virginia, they are not temporarily outside Maryland, but inside Virginia.  This is true even if they work in Maryland, shop in Maryland, and spend a majority of their time in Maryland.  And the same is true if they were to reside in France.

The rule that Congress chose (where one would be qualified to vote but for extra-USA residence) is simply one that they have chosen.  They could have chosen the closest State, so that most US Citizens resident in Europe might vote in Maine, those in Canada would vote in the State to the south, etc.  Or they might have let the US Citizen choose their State for voting purposes.

I'll have to strongly disagree with that.  If Congress were to have such a power to create a State citizenship where no prior State citizenship existed, it could be used to influence elections, assuming that as a group overseas citizens of the United States differ from the political demographics of a particular State.

The important issue with regard to Columbia is not the durational residency requirements for establishing voting rights, but rather the continued provision of voting privileges in a State of former residence.

But in the case of retention of voting privileges in State A after one has already established residence in State B, must be on the basis of United States citizenship.

And how long a residence must occur in another location for that residence to be established and thereby a new State citizenship to be established?  The Fourteenth Amendment is silent on that durational issue.  Congress has chosen to make 30 days a uniform cutoff.

Since from the perspective of their former State of residence, they are temporarily sojourners in their new State of residence, couldn't Congress make the cutoff indefinite?

They could, provided that Congress did not establish a maximum time by which a residency in a State establishes State citizenship.  I see nothing under the Constitution that would enable Congress to require that States accept dual State citizenships.  Once a person establishes a new State citizenship, the State in which he formerly resided is under no obligation to continue to recognize him as a citizen of that State.