ConLaw Scholars, Insular Cases Amicus Brief

Case: 16-4240 Document: 33-1 Filed: 04/19/2017 Pages: 7 (1 of 37)
No. 16-4240
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
LUIS SEGOVIA, et al.,

Plaintiff-Appellants,
v.
BOARD OF ELECTION COMMISSIONERS

FOR THE CITY OF CHICAGO, et al.,
Defendant-Appellees.
On Appeal from the United States District Court

for the Northern District of Illinois, No. 15 C 10196
Before the Honorable Judge Joan B. Gottschall
MOTION OF SCHOLARS OF CONSTITUTIONAL LAW

AND LEGAL HISTORY FOR LEAVE TO FILE A BRIEF AS AMICUS
CURIAE IN SUPPORT OF NEITHER PARTY
KELLY P. DUNBAR ADRIEL I. CEPEDA DERIEUX

WILMER CUTLER PICKERING WILMER CUTLER PICKERING
HALE AND DORR LLP HALE AND DORR LLP
1875 Pennsylvania Avenue, NW 7 World Trade Center
Washington, DC 20006 250 Greenwich Street
(202) 663-6000 New York, NY 10007
(212) 230-8800
April 19, 2017

Pursuant to Federal Rule of Appellate Procedure 29(a), amici curiae scholars
of constitutional law and legal history respectfully move for leave to file the
attached brief amicus curiae in support of neither party.
INTEREST OF AMICI CURIAE
Amici curiae are professors of constitutional law and legal history who have
studied extensively the Supreme Courts early-twentieth-century decisions in the
Insular Cases, on which the district court below relied sua sponte in resolving
Appellants constitutional claims. Amici take no position on the ultimate outcome
of Appellants constitutional claims, but maintain a compelling interest in aiding
this Courts understanding of the Insular Cases, given their expertise and body of
scholarly research. Proper resolution of this case is a matter of concern to amici,
who have a professional interest in ensuring that the Court be accurately informed
as to the governing precedent and correct application regarding the territorial
incorporation doctrine commonly attributed to these decisions.
Amici curiae are: Christina Duffy Ponsa, George Welwood Murray
Professor of Legal History at Columbia Law School; Andrew Kent, Professor of
Law at Fordham University School of Law; Gary S. Lawson, Philip S. Beck
Professor of Law at Boston University School of Law; Sanford V. Levinson, W.
St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the
University of Texas School of Law; Bartholomew Sparrow, Professor of

Government at the University of Texas at Austin; and Stephen I. Vladeck,
Professor of Law at the University of Texas School of Law.
REASONS FOR GRANTING AMICUS PARTICIPATION
Although amici acknowledge this Circuits strict requirements governing
amicus participation, amici respectfully request the opportunity to file a brief in
this appeal because they offer an independent and otherwise unpresented
perspective on this case. Amici have written and edited various works about the
Insular Cases history and application to constitutional issues concerning the status
of U.S. territories and inhabitants, and they have studied those cases relevance to
the equal protection principles at issue in this case. As leading scholars in the
study of the United States relationship with its noncontiguous territories, amici
can provide a unique perspective that can assist the court of appeals in its
disposition of those constitutional questions. National Organization for Women,
Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000).
Moreover, amici respectfully submit that their brief will assist the Court by
presenting ideas, arguments, theories, insights, facts, or data that are not to be
found in the parties briefs. Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d
542, 545 (7th Cir. 2003). Of particular significance, none of the parties briefed
issues relating to the Insular Cases or the territorial incorporation doctrine to the
district court. Amici believe that the parties omission of any discussion of these
-2-
decisions or the principles for which they are understood to stand before the district
court was well-founded. As amici explain in the appended brief, resolution of the
questions presented in this case should be reached by reference to constitutional
provisions concerning the federal franchise and equal protection principlesnot by
application of the Insular Cases or the related doctrine of territorial incorporation.
Although Appellants have briefly touched on some of these issues in their brief
before this Court, amici respectfully submit that their collected works on the
Insular Cases, and on the evolution of the territorial incorporation doctrine those
cases purportedly set forth, will uniquely inform the Courts approach to resolving
whether or not those cases are relevant to the constitutional issues decided by the
district court below. 1
Appellants have consented to the filing of this amicus brief. The U.S.
Appellees have consented to the filing of this brief; the County Clerk for Rock
Island County has declined to consent. Appellee the Board of Election
Commissioners for the City of Chicago takes no position on amicis request.
1
While Appellants opening brief, filed on April 12, 2017, includes some
discussion of the Insular Cases, it does not discuss the irrelevance of the Insular
Cases to this case at any length. See Appellants Br. 25-29. In addition, because
amici take no position on the ultimate disposition of this case and in light of their
extensive academic background, their perspective on the Insular Cases is unique.
-3-
CONCLUSION
For these reasons, amici curiae respectfully request that this Court grant their
motion for leave to file the brief amici curiae submitted with this motion.
Respectfully submitted,
/s/ Adriel I. Cepeda Derieux

ADRIEL I. CEPEDA DERIEUX
Counsel of Record
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
(212) 230-8800
KELLY P. DUNBAR
HALE AND DORR LLP
1875 Avenue, NW
Washington, DC 20006
(202) 663-6000
April 19, 2017
-4-
CERTIFICATE OF COMPLIANCE
Under Federal Rule of Appellate Procedure 32(g), the undersigned hereby
certifies that this brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 27(d)(2)(A).
1. Exclusive of the exempted portions of the brief, as provided in Federal
Rule of Appellate Procedure 32(f), the brief contains 633 words.
2. The brief has been prepared in proportionally spaced typeface using
Microsoft Word 2016 in 14 point Times New Roman font. As permitted by
Federal Rule of Appellate Procedure 32(g)(1), the undersigned has relied upon the
word count feature of this word processing system in preparing this certificate.
/s/Adriel I. Cepeda Derieux

April 19, 2017

CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of April, I electronically filed the
foregoing with the Clerk of the Court for the U.S. Court of Appeals for the Seventh
Circuit using the appellate CM/ECF system. Counsel for all parties to the case are
registered CM/ECF users and will be served by the appellate CM/ECF system.

No. 16-4240
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
LUIS SEGOVIA, et al.,

Plaintiff-Appellants,
v.
BOARD OF ELECTION COMMISSIONERS

FOR THE CITY OF CHICAGO, et al.,
Defendant-Appellees.
On Appeal from the United States District Court

for the Northern District of Illinois, No. 15 C 10196
Before the Honorable Judge Joan B. Gottschall
BRIEF FOR AMICI CURIAE SCHOLARS OF CONSTITUTIONAL LAW

AND LEGAL HISTORY IN SUPPORT OF NEITHER PARTY
KELLY P. DUNBAR ADRIEL I. CEPEDA DERIEUX

WILMER CUTLER PICKERING WILMER CUTLER PICKERING
HALE AND DORR LLP HALE AND DORR LLP
1875 Pennsylvania Avenue, NW 7 WORLD TRADE CENTER
Washington, DC 20006 250 GREENWICH STREET
(202) 663-6000 NEW YORK, NY 10007
(212) 230-8800
April 19, 2017

$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT
Appellate Court No: 16-4240
Short Caption: Segovia v. Board of Elections Commissioners for the City of Chicago
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Christina Duffy Ponsa, Andrew Kent, Gary S. Lawson, Sanford V. Levinson, Bartholomew Sparrow,
Stephen I. Vladeck (collectively, "Scholars of Constitutional Law and Legal History")
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Wilmer Cutler Pickering Hale and Dorr LLP
(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and
None
ii) list any publicly held company that owns 10% or more of the partys or amicus stock:
None
Attorney's Signature: s/ Adriel I. Cepeda Derieux Date: 4/19/2017

Attorney's Printed Name: Adriel I. Cepeda Derieux
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No
Address: 7 World Trade Center, 250 Greenwich Street

New York, NY 10007
Phone Number: (212) 295-6303 Fax Number:
E-Mail Address: Adriel.CepedaDerieux@wilmerhale.com
rev. 01/ *$
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT
Appellate Court No: 16-4240
Short Caption: Segovia v. Board of Elections Commissioners for the City of Chicago
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Christina Duffy Ponsa, Andrew Kent, Gary S. Lawson, Sanford V. Levinson, Bartholomew Sparrow,
Stephen I. Vladeck (collectively, "Scholars of Constitutional Law and Legal History")
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Wilmer Cutler Pickering Hale and Dorr LLP
(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and
None
ii) list any publicly held company that owns 10% or more of the partys or amicus stock:
None
Attorney's Signature: s/ Kelly P. Dunbar Date: 4/19/2017

Attorney's Printed Name: Kelly P. Dunbar
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No
Address: 1801 Pennsylvania Avenue NW

Washington, D.C. 20006
Phone Number: (202) 663-6262 Fax Number:
E-Mail Address: Kelly.Dunbar@wilmerhale.com
rev. 01/ *$
TABLE OF CONTENTS
Page
CIRCUIT RULE 26.1 DISCLOSURE STATEMENTS ............................................i
TABLE OF AUTHORITIES .................................................................................... iv
INTEREST OF AMICI CURIAE ..............................................................................1
SUMMARY OF ARGUMENT .................................................................................2
ARGUMENT .............................................................................................................4
I. THE INSULAR CASES HAVE NOTHING TO DO WITH APPELLANTS

CONSTITUTIONAL CLAIMS ................................................................................4
II. THE TERRITORIAL INCORPORATION DOCTRINE ATTRIBUTED TO

THE INSULAR CASES IS UNPERSUASIVE AS A MATTER OF
CONSTITUTIONAL ANALYSIS AND OUGHT NOT BE EXPANDED ......................11
A. The Insular Cases And The Territorial Incorporation

Doctrine Are Constitutionally Infirm ..................................................12
B. The Insular Cases Rest On Antiquated Notions Of Racial

Inferiority That Ought Not Be Extended ............................................17
CONCLUSION ........................................................................................................21
- iii -
TABLE OF AUTHORITIES
CASES
Page(s)
Ballentine v. United States, 2006 WL 3298270 (D.V.I. 2006)................................17
Balzac v. Porto [sic] Rico, 258 U.S. 298 (1922) .................................................9, 15
Boumediene v. Bush, 553 U.S. 723 (2008) ..................................................11, 13, 17
Consejo de Salud Playa de Ponce v. Rullan, 586 F. Supp. 2d 22

(D.P.R. 2008) ...................................................................................................5
Davis v. Commonwealth Elections Communications, 844 F.3d 1087

(9th Cir. 2016) .................................................................................................5
Dooley v. United States, 183 U.S. 151 (1901) ........................................................... 9
Downes v. Bidwell, 182 U.S. 244 (1901) .....................................9, 13, 14, 15, 17, 18
Examining Board of Engineers v. Flores de Otero, 426 U.S. 572

(1976) .......................................................................................................10, 14
Huus v. New York & Puerto Rico Steamship Co., 182 U.S. 392 (1901) ................... 9
Igartua de la Rosa v. United States, 32 F.3d 8 (1st Cir. 1994) ................................. 7

Igartua de la Rosa v. United States, 417 F.3d 145 (1st Cir. 2005) ...............7, 16, 17
Late Corp. of the Church of Jesus Christ of Latter-Day Saints v.
United States, 136 U.S. 1 (1890) ..................................................................... 7
Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820) .........................................15
National Bank v. County of Yankton, 101 U.S. 129 (1880) ....................................... 7
Ocampo v. United States, 234 U.S. 91 (1914) ........................................................... 9

Rayphand v. Sablan, 95 F. Supp. 2d 1133 (D.N. Mar. I. 1999) ................................ 8
Reid v. Covert, 354 U.S. 1 (1957) ......................................................................11, 14

Torres v. Commonwealth of Puerto Rico, 442 U.S. 465 (1979)..............................11
- iv -
Tuaua v. United States, 951 F. Supp. 2d 88 (D.D.C. 2013) ...................................... 5

United States v. Gratiot, 39 U.S. (14 Pet.) 526 (1840) .............................................. 7
United States v. Lebrn-Caceres, 2016 WL 204447 (D.P.R. Jan. 15,
2016) ............................................................................................................2, 5
CONSTITUTIONS, STATUTES, AND RULES

U.S. Const.
amend. XVII ....................................................................................................6
art. I, 2, cl. 1 ..................................................................................................6
art. I, 8, cl. 1 ............................................................................................9, 14
art. I, 8, cl. 17 ..............................................................................................11
art. I, 9, cl. 5 ..................................................................................................9
art. II, 1, cl. 2.................................................................................................6
art. IV, 3, cl. 2 .......................................................................................11, 13
52 U.S.C. 20310 ......................................................................................................2
Fed. R. App. P. 29 ......................................................................................................1
OTHER AUTHORITIES
American Samoa and the Citizenship Clause, 130 Harv. L. Rev. 1680
(2017) .............................................................................................................14
Bikl, Henry Wolf, The Constitutional Power of Congress Over the
Territory of the United States, 49 Am. L. Register 11 (1901) ......................15
Burnett, Christina Duffy, A Convenient Constitution?
Extraterritoriality After Boumediene, 109 Colum. L. Rev. 973
(2009) .................................................................................................10, 15, 20
Burnett, Christina Duffy, Untied States: American Expansion and

Territorial Deannexation, 72 U. Chi. L. Rev. 797 (2005) ............7, 10, 11, 13
Fuentes-Rohwer, Luis, The Land That Democratic Theory Forgot,

83 Ind. L.J. 1525 (2008) ................................................................................12
Kent, Andrew, Boumediene, Munaf, and the Supreme Courts

Misreading of the Insular Cases, 97 Iowa L. Rev. 101 (2011) ....................... 9
v
Kent, Andrew, Citizenship and Protection, 82 Fordham L. Rev. 2115

(2014) .......................................................................................................16, 19
Lawson, Gary & Guy Seidman, The Constitution of Empire:

Territorial Expansion & American Legal History (2004).............................16
Lawson, Gary & Robert D. Sloane, The Constitutionality of

Decolonization by Associated Statehood: Puerto Ricos Legal
Status Reconsidered, 50 B.C. L. Rev. 1123 (2008).......................................16
Minow, Martha, The Enduring Burdens of the Universal and the
Different in the Insular Cases, in Reconsidering the Insular
Cases, the Past and Future of the American Empire vii (Gerald
L. Neuman & Tomiko Brown-Nagin eds., 2015)..........................................19
Rivera Ramos, Efrn, Puerto Ricos Political Status, in The Louisiana
Purchase and American Expansion, 1803-1898 (Sanford
Levinson & Bartholomew H. Sparrow eds., 2005) .................................19, 20
Sparrow, Bartholomew H., The Insular Cases and the Emergence of
American Empire (2006) .........................................................................14, 19
Torruella, Juan R., The Insular Cases: The Establishment of a Regime
of Political Apartheid, 29 U. Pa. J. Intl L. 283 (2007)...........................16, 19
Vladeck, Stephen I., Petty Offenses and Article III, 19 Green Bag 2d
67 (2015) ........................................................................................................12
vi
INTEREST OF AMICI CURIAE 1
Amici curiae are Christina Duffy Ponsa, George Welwood Murray Professor
of Legal History at Columbia Law School; Andrew Kent, Professor of Law at
Fordham University School of Law; Gary S. Lawson, Philip S. Beck Professor of
Law at Boston University School of Law; Sanford V. Levinson, W. St. John
Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University
of Texas School of Law; Bartholomew Sparrow, Professor of Government at the
University of Texas at Austin; and Stephen I. Vladeck, Professor of Law at the
University of Texas School of Law. Amici are scholars of constitutional law and
legal history who have studied extensively the constitutional implications of
American territorial expansion, including in the late nineteenth and early twentieth
centuries. Among other things, amici have written and edited collected works
about the Supreme Courts early-twentieth-century decisions in the so-called
Insular Cases, on which the district courts opinion below partly relied in
resolving Appellants constitutional claims.
Pursuant to Federal Rule of Appellate Procedure 29(a), counsel for amici
certifies that this separate brief in support of neither party is necessary because
1
Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), amici certify
that no partys counsel authored this brief in whole or in part, and that no one other
than amici and their counsel made a monetary contribution toward this briefs
preparation or submission.
-1-
amicibased on their academic expertise and scholarly researchhave unique
background and knowledge regarding the Insular Cases history and relevance to
the constitutional status of the U.S. territories. Although amici take no position on
the ultimate outcome of Appellants constitutional claims, amici have a strong
interest in aiding this Courts understanding of the Insular Cases.
SUMMARY OF ARGUMENT
In assessing the constitutionality of the Uniformed and Overseas Citizens
Absentee Voting Act (UOCAVA)s differential treatment of the Northern Mariana
Islands and other U.S. territories, 52 U.S.C. 20310(5)(C), 20310(8), the district
court turn[ed] to principles drawn from a series of Supreme Court decisions
called the Insular Cases that it deemed generally applicable to constitutional
challenges involving territories. SA30. Those generally applicable principles,
in the district courts view, include the territorial incorporation principlenamely,
that the U.S. Constitution does not apply in full to U.S. territories until such
time as the territory is incorporated into, or made a part of the United States by
Congress. Id. (quoting United States v. Lebrn-Caceres, 2016 WL 204447, at *7
(D.P.R. Jan. 15, 2016)).
Amici take no position on the ultimate legal merits of Appellants
constitutional claims, but amici strongly disagree with the district courts view that
the Insular Cases have any relevance to the proper disposition of this case. Those
-2-
decisionswhich concerned limited questions about the applicability of certain
federal laws and specific constitutional provisions in the U.S. territoriessimply
do not bear on the issue of first impression regarding the constitutionality of
selective enfranchisement between U.S. territories that the district court considered
and from which Appellants now appeal. SA30.
Amici submit this brief to explain why this Court should take care to decide
this case without reliance on the Insular Casesand, indeed, why the Court should
affirmatively reject the relevance of those decisions. Not only would reliance on
the Insular Cases run contrary to the Supreme Courts instruction, in more recent
decisions, that the Insular Cases should not be expansively construed, but as this
brief explains, those decisions in no way inform the applicability of the federal
right to vote to residents of the so-called unincorporated territories. Residents of
all U.S. territorieswhether incorporated or nothave historically lacked a
constitutionally based right to vote in federal elections. That result has nothing to
do with the Insular Cases, but instead follows from a straightforward interpretation
of the Constitutions text and structure. Consistent with that undisputed fact,
Appellants challenge is not based on their status as residents of unincorporated
territories, but rather, on their status as former residents of a State. Thus, whatever
generally applicable [principles], SA30, may be derived from the Insular Cases,
-3-
this Court should make clear that the decisions are irrelevant to the constitutional
issues in this case.
Moreover, the Supreme Courts instruction against any expansion of the
reasoning of the Insular Casesincluding the territorial incorporation doctrine,
of which they are considered emblematicis well-founded. As various jurists and
a recognized near-consensus of scholars have now recognized, the decisions rest
on unpersuasive reasoning inconsistent with original meaning, now well-settled
constitutional analysis, and present-day disapproval of antiquated imperialist and
racist norms. The deeply problematic reasoning of the Insular Cases is the product
of another age, and it has no place in modern jurisprudence even if (as amici
doubt) it had any validity in earlier times.
ARGUMENT
I. THE INSULAR CASES HAVE NOTHING TO DO WITH APPELLANTS

CONSTITUTIONAL CLAIMS
The Insular Cases held that the noncontiguous islands annexed at the turn of
the twentieth century were part of the United States for some purposes but not for
others. This holding is commonly understood to have meant that the Constitution
applies fully within States and incorporated territories, but that only certain
-4-
fundamental constitutional provisions apply in unincorporated territories. That
understanding of the Insular Casesthough persistent 2is deeply flawed.
Even given their broadest application, the Insular Cases did not establish a
framework for determining the entire Constitutions reach in the newly acquired
U.S. territories. Their scope was far narrower, as the decisions simply concerned
the reach of particular provisions of the Constitution and federal law in those
territorial holdings. And, as most relevant to this case, none of the Insular Cases
spoke to the application of the Constitutions voting provisions in the U.S.
territorieswhether or not those territories had been incorporated. Long before
the Insular Cases were decided, territories lacked voting representation in the
federal government; the Insular Cases did nothing to change that fact. The district
2
E.g., Davis v. Commonwealth Elections Commn, 844 F.3d 1087, 1095 (9th
Cir. 2016) (The Insular Cases held that [the] United States Constitution applies in
full to incorporated territories, but that elsewhere, absent congressional
extension, only fundamental constitutional rights apply[.]); United States v.
Lebrn-Caceres, 2016 WL 204447, at *7 (D.P.R. Jan. 15, 2016) (In this
framework, the Constitution does not apply in full to acquired territory until such
time as the territory is incorporated into, or made a part of the United States by
Congress.); Tuaua v. United States, 951 F. Supp. 2d 88, 94-95 (D.D.C. 2013) (In
an unincorporated territory, the Insular Cases held that only certain fundamental
constitutional rights are extended to its inhabitants.), affd, 788 F.3d 300 (D.C.
Cir. 2015); Consejo de Salud Playa de Ponce v. Rullan, 586 F. Supp. 2d 22, 25
(D.P.R. 2008) (Under the Insular Cases doctrine, only fundamental constitutional
rights extend to unincorporated United States territories, whereas in incorporated
territories all constitutional provisions are in force.).
-5-
courts contrary analysis was thus incorrect and should not be repeated by this
Court.
In assessing Appellants constitutional claims, the district court reasoned
that the Insular Cases supplied generally applicable [principles] governing
Appellants constitutional claims, SA30, and it separately stated that the current
voting situation in Puerto Rico, Guam, and the U.S. Virgin Islands is at least in part
grounded on the Insular Cases, SA21. Respectfully, those references
misapprehend the scope and meaning of the Insular Cases.
To start, the difference in the baseline voting rights of residents of the States
and territories is attributable to the texts of Article I, Section 2; the Seventeenth
Amendment; and Article II, Section 1 of the Constitutionall of which apply to
States, not to territories. 3 Under those constitutional provisions, States and their
residents enjoy a right to participate in federal elections, while residents of the
3
Under Article II, Section 1, Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the number of
Senators and Representatives to which the State may be entitled in the Congress.
U.S. Const. art. II, 1, cl. 2. Under the Seventeenth Amendment, [t]he Senate of
the United States shall be composed of two Senators from each State, elected by
the people thereof. And under Article I, Section 2, [t]he House of
Representatives shall be composed of Members chosen every second Year by the
People of the several States. Id. art. I, 2, cl. 1.
-6-
territories do not have the same access to the federal franchise.4 That difference is
a function of constitutional text referring to States, and not to territories of any
kind; it has nothing to do with the Insular Cases, and it certainly has nothing to do
with the distinction between incorporated and unincorporated territories originating
in those decisions.5 Residents of incorporated and unincorporated territories have
always been identically situated with respect to voting rights in federal elections
4
See, e.g., Igartua de la Rosa v. United States, 417 F.3d 145, 148 (1st Cir.
2005) (en banc) (That the franchise for choosing electors is confined to states
cannot be unconstitutional because it is what the Constitution itself provides.);
Igartua de la Rosa v. United States, 32 F.3d 8, 9 (1st Cir. 1994) (Pursuant to
Article II, therefore, only citizens residing in states can vote for electors and
thereby indirectly for the President.).
5
Indeed, the Supreme Court spoke in expansive terms about Congresss
plenary power over territories during the United States nineteenth-century
westward expansion, well before the Insular Cases. See, e.g., Late Corp. of the
Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42 (1890)
(The territory of Louisiana, when acquired from France became the absolute
property and domain of the United States, subject to such conditions as the
government, in its diplomatic negotiations, had seen fit to accept relating to the
rights of the people then inhabiting those territories.); National Bank v. County of
Yankton, 101 U.S. 129, 133 (1880) (All territory within the jurisdiction of the
United States not included in any State must necessarily be governed by or under
the authority of Congress.); United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537
(1840) (Congress has the same power over [U.S. territory] as over any other
property belonging to the United States; and this power is vested in Congress
without limitation; and has been considered the foundation upon which the
territorial governments rest.); see also Burnett, Untied States: American
Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 814-816, 875
(2005) ([T]he Insular Cases offered Congress no more latitude in governing
territories than it already enjoyed: Congress had always exercised plenary power
over territories[.]).
-7-
neither group has a guaranteed right to vote in a federal election under the
constitutional provisions cited above.6 Thus, whatever the present-day validity of
the Insular Cases, any distinction between the voting rights of residents of the
States and the territories in federal elections owes nothing to those decisions.7
Moreover, Appellants do not challenge discrimination against residents of
unincorporated territories as such. Rather, they challenge discrimination among
different groups of former State residents, with respect to a right they claim as
former State residents. The relevant theoretical locus in this case is thus not
6
Even though residents of territoriesincorporated or unincorporatedlack
the federal franchise under these constitutional provisions, that does not resolve
Appellants claims, which concern discrimination among former State residents
with respect to a right they assert on the basis of that former State residency.
7
In 1999, the U.S. District Court for the Northern Mariana Islands relied on
the Insular Cases to uphold, against an equal protection challenge, the
malapportionment of the Senate of the Commonwealth of the Northern Mariana
Islands (CNMI), which allocates the same number of senators to each of the
three municipalities comprising the CNMI despite their significantly different
population numbers (in a manner analogous to the U.S. Senate). See Rayphand v.
Sablan, 95 F. Supp. 2d 1133, 1139-1140 (D.N. Mar. I. 1999), affd mem., Torres v.
Sablan, 528 U.S. 1110 (2000). However, Rayphand does not contradict amicis
position. First, Rayphand concerned local voting mechanisms applicable in the
CNMI, not the federal franchise or voting rights claims of former residents of the
States based on that former residency. Second, respectfully, amici suggest that
Rayphand belongs to the catalogue of decisions that have given undue weight and
significance to the Insular Cases in reading them far too broadly. Compare id. at
1139 (The primary legal doctrine arising from those cases is that the extent to
which a territorys inhabitants are entitled to the protections afforded by the U.S.
Constitution is dependent upon the degree to which the territory has been
incorporated into the United States.), with infra pp. 10-12.
-8-
residence in an unincorporated territory, but former residence in a State. For this
reason too, the Insular Cases do not supply a coherent framework for the
resolution of Appellants constitutional claims. This Court should make clear the
irrelevance of that precedent in resolving those claims.
The district court was wrong to think the Insular Cases established a
comprehensive framework governing application of the Constitution to U.S.
territories even outside the context of the federal franchise. The scope of the cases
was far narrower. Early Insular canon generally concerned the interpretation of
constitutional provisions and federal statutes affecting the applicability of specific
tariff laws,8 while later Insular Cases addressed the application of constitutional
provisions principally related to criminal trials in territorial courts. 9 See, e.g.,
Kent, Boumediene, Munaf, and the Supreme Courts Misreading of the Insular
Cases, 97 Iowa L. Rev. 101, 108 (2011) (noting most well-known Insular Cases
8
See, e.g., Dooley v. United States, 183 U.S. 151, 156-157 (1901) (holding
duties on goods shipped to Puerto Rico did not violate Export Tax Clause, U.S.
Const. art. I, 9, cl. 5); Huus v. New York & Puerto Rico S.S. Co., 182 U.S. 392,
396-397 (1901) (holding vessels involved in trade between Puerto Rico and U.S.
ports engaged in domestic trade under federal tariff laws); Downes v. Bidwell,
182 U.S. 244, 287 (1901) (solo opinion of Brown, J.) (territories not part of phrase
the United States as found in Constitutions Uniformity Clause, U.S. Const. art.
I, 8, cl. 1).
9
See, e.g., Balzac v. Porto [sic] Rico, 258 U.S. 298, 305 (1922) (Sixth
Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United
States, 234 U.S. 91, 98 (1914) (Fifth Amendment grand jury clause inapplicable in
Philippines).
-9-
involved narrow legal issues concerning import and export tariffs and the use of
juries in criminal cases). None of the Insular Cases established a distinction
between territorial areas where a less-than-complete application of the
Constitution governs and territorial areas where the Constitution applies in full,
as the district court suggested. SA21. For that reason alone, the district courts
reference to the Insular Casesand, implicitly, to the doctrine of territorial
incorporationadded confusion to an already muddled area of law. Cf. Examining
Bd. of Engrs v. Flores de Otero, 426 U.S. 572, 599 (1976) (noting [t]he Courts
decisions respecting the rights of the inhabitants of Puerto Rico have been neither
unambiguous nor exactly uniform).
To be sure, over time the Insular Cases have been interpreted by some as
establishing that the Constitution applies in full within States and incorporated
territories, but that only fundamental constitutional provisions apply in
unincorporated territories. That view, however, overstate[s] the[] [cases]
holding. Burnett, A Convenient Constitution? Extraterritoriality After
Boumediene, 109 Colum. L. Rev. 973, 984 (2009). Indeed, that expansive reading
confuses matters, for the entire Constitution does not apply, as such, anywhere.
Some parts of it apply in some contexts; other parts in others. Burnett, Untied
States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797,
821 (2005). For example, parts of the Constitution, such as the Seat of
- 10 -
Government Clause, U.S. Const. art. I, 8, cl. 17, which grants Congress authority
over the District of Columbia, or the Territory Clause, art. IV, 3, cl. 2, have never
applied to the States altogether. See Burnett, 72 U. Chi. L. Rev. at 821. And other
constitutional provisions have been understood as inapplicable outside the States,
whether a territory was incorporated or not. See id. at 821 n.102.
Thus, as the Supreme Court has more recently explained, the real issue in
the Insular Cases was not whether the Constitution extended to [territories], but
which of its provisions were applicable by way of limitation upon the exercise of
executive and legislative power in dealing with new conditions and requirements.
Boumediene v. Bush, 553 U.S. 723, 758 (2008) (emphasis added). Under a proper
understanding of the Insular Cases, then, this Courts resolution of Appellants
constitutional claims should turn on the text, structure, and purposes of the relevant
constitutional provisions at issue, not the Insular Cases.
II. THE TERRITORIAL INCORPORATION DOCTRINE ATTRIBUTED TO THE

INSULAR CASES IS UNPERSUASIVE AS A MATTER OF CONSTITUTIONAL
ANALYSIS AND OUGHT NOT BE EXPANDED
There is a second reason this Court should take care not to extend the reach
of the Insular Cases: the Supreme Court has stated that neither the [Insular
Cases] nor their reasoning should be given any further expansion. Reid v. Covert,
354 U.S. 1, 14 (1957) (plurality opinion); see also Torres v. Commonwealth of
P.R., 442 U.S. 465, 475 (1979) (Brennan, J., concurring in the judgment)
- 11 -
(Whatever the validity of the [Insular] cases those cases are clearly not
authority for questioning the application of the Fourth Amendmentor any other
provision of the Bill of Rightsto the Commonwealth of Puerto Rico in the
1970s. (internal citations omitted)).
In amicis judgment, the Supreme Courts command not to expand the
Insular Cases application is well-founded. More than a hundred years after the
Court decided the early cases in the series, the decisions remain exceptionally
controversial. Vladeck, Petty Offenses and Article III, 19 Green Bag 2d 67, 76-77
(2015). Indeed, as amici explain below, even when properly understood, the
territorial incorporation doctrine established in the Insular Cases is unpersuasive as
a matter of constitutional first principles and it rests, at least in part, on archaic
notions of racial inferiority and imperial expansionism which courts and
commentators have emphatically repudiated. For those reasons among others, the
Insular Cases have nary a friend in the world, Fuentes-Rohwer, The Land That
Democratic Theory Forgot, 83 Ind. L.J. 1525, 1536 (2008), and they ought not be
given any expansive reading by this Court.
A. The Insular Cases And The Territorial Incorporation Doctrine

Are Constitutionally Infirm
This Court should heed the Supreme Courts admonition to resist further
extension of the Insular Cases because the territorial incorporation doctrine is
constitutionally infirm. The Constitutions single reference to Territor[ies], U.S.

- 12 -
Const. art. IV, 3, cl. 2, does not differentiate between incorporated and
unincorporated territorial lands. Until the Insular Cases, neither the Supreme
Court nor any other branch of government had even intimated that such a
distinction existed. See Burnett, 72 U. Chi. L. Rev. at 817-834 (discussing
Congresss accepted plenary power to govern U.S. territories in nineteenth century
and Supreme Courts expansive conception of the scope of this Congressional
discretion even before the Insular Cases). And as the Supreme Court itself
explained in Boumediene, the doctrines paramount constitutional vice is that the
distinction between incorporated and unincorporated territories lends itself to being
misconstrued (as has repeatedly occurred since its invention, and as the district
court did here) as a broad and generic license to the political branches to switch
the Constitution on or off at will, Boumediene, 553 U.S. at 765, by affording them
the discretion to decide whether or not to incorporate a territoryan outcome
that the Insular Cases did not sanction, see Part I, supra, and that the Supreme
Court has rejected, id. at 757-758.
Concern over the potential misuse inherent in this vague and unprecedented
doctrinal innovation was evident from the beginning, and carries throughout the
various, fractured opinions of members of the Court in the 1901 case of Downes v.
Bidwell, 182 U.S. 244 (1901), the most significant of the Insular Cases.
Examining Bd. of Engrs, 426 U.S. at 599 n.30. Downeswhich brought the
- 13 -
constitutional question of congressional authority over the U.S. overseas
territories into sharp reliefrequired the Court to determine whether recently
acquired Puerto Rico was part of the United States for purposes of the
Constitutions Uniformity Clause, U.S. Const. art. I, 8, cl. 1. Bartholomew H.
Sparrow, The Insular Cases and the Emergence of American Empire 80 (2006).
Writing for a deeply divided Court in an opinion no other Justice joined, Justice
Brown concluded that that clauses reference to the United States did not
encompass Puerto Rico. 10 And in a concurring opinion of lasting consequence
(which two Justices joined), Justice White concurred in the Courts judgment
based on the reasoning that Congress had not formally incorporated Puerto Rico
into the Union by legislative act, which rendered the island merely appurtenant [to
the United States] as [its] possession. Downes, 182 U.S. at 341-342. The
dissenters in Downes reacted to Justice Whites reasoning by noting that the idea of
territorial incorporation was both unheard of and incomprehensible. Great
10
Four Justices concurred in Justice Browns judgment, but not his reasoning.
See Downes, 182 U.S. at 287, 345 (White, J. and Gray, J. concurring in the
judgment). The remaining four Justices authored or joined vigorous dissents
[which] took the position that all the restraints of the Bill of Rights and of other
parts of the Constitution were applicable to the United States Government
wherever it acted. Reid, 354 U.S. at 13 n.24 (plurality opinion). In significant
ways, Downes was therefore consistent with other early Insular Cases, [m]any of
[which] were divisive even when decided, yielding close and fractured
decisions at a time with stronger norms of judicial cohesion than today. American
Samoa and the Citizenship Clause: A Study in Insular Cases Revisionism, 130
Harv. L. Rev. 1680, 1682 (2017).
- 14 -
stress is thrown upon the word incorporation, wrote Chief Justice Fuller, as if
possessed of some occult meaning, but I take it that the act under consideration
made Porto [sic] Rico, whatever its situation before, an organized territory of the
United States. Id. at 373 (Fuller, C.J., dissenting). Justice Harlan put it even
more pointedly: I am constrained to say that this idea of incorporation has some
occult meaning which my mind does not apprehend. It is enveloped in some
mystery which I am unable to unravel. Id. at 391 (Harlan, J., dissenting).
That newly minted distinctionbetween incorporated and
unincorporated territorieseventually commanded a majority of the Courts
votes in later Insular Cases. See Balzac v. Porto [sic] Rico, 258 U.S. 298, 305
(1922) ([T]he opinion of Mr. Justice White in Downes has become the
settled law of the court.). Nevertheless, even when accurately understood, the
distinction was not only unprecedented, Burnett, 109 Colum. L. Rev. at 982, but
constituted a significant departure from the Supreme Courts prior conception of
the Constitutions application to the territories. 11 As one amicus has explained,
11
See Downes, 182 U.S. at 359-369 (Fuller, C.J., dissenting) (citing numerous
Supreme Court decisions [f]rom Marbury v. Madison to the present day
establishing that constitutional limits apply with respect to the territories);
Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820) ([The United States]
is the name given to our great republic, which is composed of States and
territories.); Bikl, The Constitutional Power of Congress Over the Territory of
the United States, 49 Am. L. Register 11, 94 (1901) (noting shortly prior to
Downes that in no case in regard to jurisdiction within the territory of the United
- 15 -
there is nothing in the Constitution that even intimates that express constitutional
limitations on national power apply differently to different territories once that
territory is properly acquired. Lawson & Seidman, The Constitution of Empire:
Territorial Expansion & American Legal History 196-197 (2004). In part for that
reason, no current scholar, from any methodological perspective, [has] defend[ed]
The Insular Cases. Lawson & Sloane, The Constitutionality of Decolonization by
Associated Statehood: Puerto Ricos Legal Status Reconsidered, 50 B.C. L. Rev.
1123, 1146 (2008). The supposed constitutional justifications for the Insular
Cases unequal treatment of residents of unincorporated territories are certainly
not convincing today, if they ever were. Kent, Citizenship and Protection, 82
Fordham L. Rev. 2115, 2128 (2014).
In addition to lacking any anchor in constitutional text, structure, or history,
the territorial incorporation doctrine is in serious tension, if not at war, with the
foundational constitutional principle that the national government is one of
enumerated powers, to be exerted only for the limited objects defined in the
Constitution, as dissenting Justices in Downes first explained. Downes, 182 U.S.
States has a limitation of the power of Congress over personal or proprietary rights
been held inapplicable); see also Igartua de la Rosa, 417 F.3d at 163 (Torruella,
J., dissenting) (noting Insular Cases were unprecedented in American
jurisprudence and unsupported by the text of the Constitution); Torruella, The
Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J.
Intl L. 283, 286 (2007) ([T]he Insular Cases squarely contradicted long-
standing constitutional precedent.).
- 16 -
at 389 (Harlan, J., dissenting); see also id. at 364 (Fuller, C.J., dissenting) (noting
whatever the bounds of Congresss authority over the territories it did not
follow that [they] were not parts of the United States, and that the power of
Congress in general over them was unlimited). Again, as the Supreme Court
itself has recently acknowledged in explaining that the Insular Cases have often
been misconstrued, the Constitution grants Congress and the President the power
to acquire, dispose of, and govern territory, not the power to decide when and
where its terms apply. Boumediene, 553 U.S. at 765 (emphasis added).
The serious constitutional concerns with the territorial incorporation doctrine
provide a strong reason for this Court not to decide this case based on the Insular
Cases or any distinction between incorporated and unincorporated territories.
B. The Insular Cases Rest On Antiquated Notions Of Racial

Inferiority That Ought Not Be Extended
In addition to the profound constitutional problems with the Insular Cases
and the territorial incorporation doctrine, the decisions rest in important part on
turn-of-the-twentieth-century notions of racial inferiority and imperial governance.
See Igartua de la Rosa v. United States, 417 F.3d 145, 162 (1st Cir. 2005)
(Torruella, J., dissenting) (The[] [Insular Cases] are anchored on theories of
dubious legal or historical validity, contrived by academics interested in promoting
an expansionist agenda.); Ballentine v. United States, 2006 WL 3298270, at *4
(D.V.I. 2006) (describing cases as decided in a time of colonial expansion by the

- 17 -
United States into lands already occupied by non-white populations), affd, 486
F.3d 806 (3d Cir. 2007). For those reasons, as well, this Court should decline to
rely on the Insular Cases in deciding this case.
The Insular Cases reasoningand in particular, the reasoning that gave rise
to the territorial incorporation doctrinereflected turn-of-the-century imperial
fervor and the hesitation to admit into the Union supposedly uncivilized
members of alien races except as colonial subjects. Writing in Downes, for
example, Justice Brown suggested that differences of race raised grave
questions about the rights that ought to be afforded to territorial inhabitants. See
182 U.S. at 282, 287 (describing territorial inhabitants as alien races, differing
from us in many ways). Similarly, Justice White commented on the possibility of
acquiring island territories peopled with an uncivilized race, yet rich in soil
whose inhabitants were absolutely unfit to receive citizenship. Id. at 306.
Justice White quoted approvingly from treatise passages explaining that if the
conquered are a fierce, savage and restless people, the conqueror may govern
them with a tighter rein, so as to curb their impetuosity, and to keep them under
subjection. Id. at 302 (internal quotation marks omitted).
The dubiousand in many ways perniciousfoundations of the territorial
incorporation doctrine undoubtedly reflect that the most significant grouping of
Insular Cases reached the Supreme Court following the Nations unprecedented
- 18 -
accession of overseas territories after the Spanish-American War and, as an amicus
has explained, [a]lthough continental expansion had previously provoked
constitutional questions, never before had the United States added areas this
populated and this remote from American shores. Sparrow, The Insular Cases,
supra, at 4. Moreover, [w]hen the Supreme Court reached its judgments in the
Insular Cases, prevailing governmental attitudes presumed white supremacy and
approved of stigmatizing segregation. Minow, The Enduring Burdens of the
Universal and the Different in the Insular Cases, in Reconsidering the Insular
Cases, the Past and Future of the American Empire vii, vii (Neuman & Brown-
Nagin eds., 2015). As a result, the outcome [of the Insular Cases] was strongly
influenced by racially motivated biases and by colonial governance theories that
were contrary to American territorial practice and experience. Torruella, 29 U.
Pa. J. Intl L. at 286; see also Kent, 82 Fordham L. Rev. at 2128 (noting Supreme
Court offered frankly racist rationales in key Insular Cases).
The decisions in fact reflected many of the attitudes that permeated the
expansionist movement of the United States during the nineteenth century.
Rivera Ramos, Puerto Ricos Political Status, in The Louisiana Purchase and
American Expansion, 1803-1898, at 209 (Levinson & Sparrow eds., 2005); see
Sparrow, The Insular Cases, supra, at 10, 14, 57-63. That ideological outlook
included Manifest Destiny, Social Darwinism, the idea of the inequality of
- 19 -
peoples, and a racially grounded theory of democracy that viewed it as a privilege
of the Anglo-Saxon race. Rivera Ramos, Puerto Ricos Political Status, supra,
at 170. These concepts of inferior[ity] justified not treating [territorial
inhabitants] as equals, and the Insular Cases classification of some territories as
unincorporated owed much to racial and ethnic factors. Id. at 171, 174.
Put simply and at the risk of understatement, the racial and colonizing
aspects of the the Insular Cases rationales are now recognize[d] as illegitimate.
Burnett, 109 Colum. L. Rev. at 992. Such notions have no place in modern
jurisprudence, and courts have rightly repudiated these views in modern case law.
This Court should therefore take care not to expand the Insular Cases beyond their
specific facts or to give further vitality to decisions that by all accounts stand, in
inescapable part, for arcane and anachronistic views.
- 20 -
CONCLUSION
For those reasons, amici respectfully urge this Court not to apply the Insular
Cases in resolving Appellants constitutional challenges in this case.
Respectfully submitted.

Counsel of Record
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
(212) 230-8800
KELLY P. DUNBAR
HALE AND DORR LLP
1875 Avenue, NW
Washington, DC 20006
(202) 663-6000
April 19, 2017
- 21 -
Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that this
brief complies with the type-volume limitation of Circuit Rule 29.
1. In compliance with Circuit Rule 29, the brief contains 4793 words.
2. The brief complies with the typeface and type style requirements of
Fed. R. App. P. 32(a)(5) and 32(a)(6), respectively, because this brief has been
prepared in a proportionately spaced typeface using Microsoft Word 2010 in
Times New Roman 14-point font.

April 19, 2017

I hereby certify that on this 19th day of April, I electronically filed the
foregoing with the Clerk of the Court for the U.S. Court of Appeals for the Seventh
Circuit using the appellate CM/ECF system. Counsel for all parties to the case are
registered CM/ECF users and will be served by the appellate CM/ECF system.


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Case: 16-4240 Document: 33-1 Filed: 04/19/2017 Pages: 7 (1 of 37)

UNITED STATES COURT OF APPEALS

LUIS SEGOVIA, et al.,

BOARD OF ELECTION COMMISSIONERS

On Appeal from the United States District Court

MOTION OF SCHOLARS OF CONSTITUTIONAL LAW

KELLY P. DUNBAR ADRIEL I. CEPEDA DERIEUX

April 19, 2017

Pursuant to Federal Rule of Appellate Procedure 29(a), amici curiae scholars

attached brief amicus curiae in support of neither party.

INTEREST OF AMICI CURIAE

studied extensively the Supreme Courts early-twentieth-century decisions in the

Appellants constitutional claims. Amici take no position on the ultimate outcome

of Appellants constitutional claims, but maintain a compelling interest in aiding

scholarly research. Proper resolution of this case is a matter of concern to amici,

as to the governing precedent and correct application regarding the territorial

incorporation doctrine commonly attributed to these decisions.

Amici curiae are: Christina Duffy Ponsa, George Welwood Murray

Professor of Legal History at Columbia Law School; Andrew Kent, Professor of

Law at Fordham University School of Law; Gary S. Lawson, Philip S. Beck

Professor of Law at Boston University School of Law; Sanford V. Levinson, W.

University of Texas School of Law; Bartholomew Sparrow, Professor of

Government at the University of Texas at Austin; and Stephen I. Vladeck,

Professor of Law at the University of Texas School of Law.

REASONS FOR GRANTING AMICUS PARTICIPATION

Although amici acknowledge this Circuits strict requirements governing

amicus participation, amici respectfully request the opportunity to file a brief in

this appeal because they offer an independent and otherwise unpresented

disposition of those constitutional questions. National Organization for Women,

Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000).

questions presented in this case should be reached by reference to constitutional

provisions concerning the federal franchise and equal protection principlesnot by

application of the Insular Cases or the related doctrine of territorial incorporation.

district court below. 1

Island County has declined to consent. Appellee the Board of Election

Commissioners for the City of Chicago takes no position on amicis request.

/s/ Adriel I. Cepeda Derieux

April 19, 2017

Under Federal Rule of Appellate Procedure 32(g), the undersigned hereby

Appellate Procedure 27(d)(2)(A).

1. Exclusive of the exempted portions of the brief, as provided in Federal

Rule of Appellate Procedure 32(f), the brief contains 633 words.

2. The brief has been prepared in proportionally spaced typeface using

Microsoft Word 2016 in 14 point Times New Roman font. As permitted by

/s/Adriel I. Cepeda Derieux

April 19, 2017

/s/ Adriel I. Cepeda Derieux

UNITED STATES COURT OF APPEALS

LUIS SEGOVIA, et al.,

BOARD OF ELECTION COMMISSIONERS

On Appeal from the United States District Court

BRIEF FOR AMICI CURIAE SCHOLARS OF CONSTITUTIONAL LAW

KELLY P. DUNBAR ADRIEL I. CEPEDA DERIEUX

April 19, 2017

Appellate Court No: 16-4240

Stephen I. Vladeck (collectively, "Scholars of Constitutional Law and Legal History")

(3) If the party or amicus is a corporation:

Attorney's Signature: s/ Adriel I. Cepeda Derieux Date: 4/19/2017

Address: 7 World Trade Center, 250 Greenwich Street

Phone Number: (212) 295-6303 Fax Number:

E-Mail Address: Adriel.CepedaDerieux@wilmerhale.com

Appellate Court No: 16-4240

Stephen I. Vladeck (collectively, "Scholars of Constitutional Law and Legal History")

(3) If the party or amicus is a corporation: