A U.S. District Court judge dismissed this week the lawsuit of five losing V.I. candidates seeking to nullify last November’s general election, saying that even if the plaintiff’s claims are assumed to be true and taken in the best possible light, they fail to show actual harm and lack standing.
Congressional candidate Norma Pickard Samuel, V.I. Legislature candidates Wilma Marsh-Monsanto and Lawrence Olive, and St. Thomas Board of Elections candidates Diane Magras and Harriet Mercer, all of whom lost by overwhelming margins, sought last fall to have the elections overturned and a temporary restraining order to prevent the winners from taking office.
Their court filings allege an array of violations of federal and local law, but present no evidence of fraud or that any of the alleged irregularities would have changed the outcome of any of their contests.
Samuel came in fourth place for the single congressional seat with about 10 percent of the vote. Monsanto received 29 percent of the vote for V.I. Senator at Large, losing resoundingly to Sen. Craig Barshinger, who received 70 percent of the vote for that office.
Olive came in eighth place in the contest for seven V.I. Legislature seats and is only 65 votes short of winning a seat, making him the one plaintiff with any mathematical likelihood of winning if the vote tabulation were incorrect.
Mercer received 1,276 votes, almost 1,000 votes short of what she would need to overtake Lawrence Boschulte’s 2,273 votes and win a seat on the board. Magras did worse.
In December, U.S. District Judge Curtis Gomez denied their request for a temporary restraining order. Plaintiffs requested Gomez recuse himself, which he did.
Then in January, Judge Raymond Finch weighed in, also denying a TRO and partially dismissing the case.
Finch rejected outright the plaintiff’s argument that they were denied their constitutional right to equal protection under the law, saying the complaint and testimony were "bereft of any reference as to how they may have been treated differently than people who were similarly situated to them in the context of voting – or in any other way.”
"For example, they did not articulate how their right to vote was interfered with or impinged to such an extent that it amounted to a constitutional violation by not participating on an equal basis with other citizens, or how election officials treated them differently from other people," he wrote.
Finch affirmed that the losing candidates gave evidence of "a discrepancy in one polling place from the purview of two poll watchers." But he said "this allegation, however, does not specify what fraud has taken place," and "none of these allegations rise to the level of widespread fraud – fundamental unfairness – requiring the invalidation of an election. Plaintiffs have not, for example, even alleged that voting machine irregularities were so pervasive that they affected the outcome of the election or would have resulted in their election."
Finch rejected the losing candidates’ argument that the V.I. Election System violated the federal Help America Vote Act, saying that law does not create a private right to sue and "to the extent (their suit) is based on a violation of HAVA, has no likelihood of success on the merits."
He also rejected the argument that the candidates would suffer irreparable harm – a prerequisite for a temporary restraining order.
"This allegation of irreparable harm is based on systematic allegations of a compromised voting system, but plaintiffs do not elucidate how they were irreparably harmed or how such harm is imminent,” he wrote, continuing later in his order that the plaintiffs do not allege, for example, that because of faulty operation of the voting machines or some miscounting the plaintiffs would have been elected or “why whatever their injury is would be addressed by decertifying the election results."
On Thursday, Finch dismissed the rest of the case. In his memorandum opinion, Finch reiterated that the plaintiffs have not shown that they were personally injured. While the plaintiffs allege violations of several local and federal election laws, even if their allegations are accurate they "have not alleged facts demonstrating that the alleged irregularities rose to a constitutional level that affected the outcome of the election," Finch wrote.
