Senate candidate Raymond "Usie" Richards is contending that the St. Croix Board of Elections asked the wrong questions when it sought a legal opinion on how to judge ballots in which a voter picked both a party symbol and a non-party candidate.
After a recount of absentee ballots last week, Usie Richards was 15 votes behind Sen. Vargrave Richards for St. Croix’s last Senate seat. But Usie Richards challenged 56 ballots because of questions about which candidate had been voted for.
His challenge is based on "spoiled" ballots, where a voter marked the political party symbol on the ballot card but then chose names of candidates not in that party.
On Nov. 28, the St. Croix Board of Elections wrote the V.I. Attorney General’s Office seeking guidance on the issue.
Acting Attorney General Iva Swan prefaced his advice by saying the board should "endeavor to discern the intent of the voter, and if such intent can be divined, it should be given effect."
However, in response to specific questions about what to do when a voter picked both a party symbol and then additional candidates either in that party or not, Swan said it would be impossible for the board to determine intent, "and those ballots should be declared invalid or spoiled."
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On Dec. 3, in a letter to Dodson James, chairman of the St. Croix Board of Elections, Usie Richards said the opinion ought by the board "clearly misrepresents the challenges made by me…"
He pointed to sections of the Elections Reform Act of 1984 that discuss voter intent. Prior to 1984, paper ballots were used and, in instances where a vote for a party symbol and a non-party candidate was chosen, voter intent was applied.
But with the advent of voting machines the paper ballot statute was repealed, except when machines are not available or don’t work.
"It seems easy to ascertain that absentee ballots do not provide for the use of electronic voting machines and therefore the provisions of Act 4934 must take effect," Usie Richards wrote.
He said that in his opinion, the Act "sets forth the legislative guidelines for extracting ‘voter intent’ and determining valid or invalid ballots."
The issue of voter intent, Usie Richards wrote, wasn’t included in the board’s letter asking the attorney general's advice
Legal precedent, meanwhile, exists on such issues. In the mid-1980s case of Stapleton v. the Board of Elections, St. Thomas-St. John, in which the validity of paper ballots was questioned because of voters choosing a party symbol and then marking non-party candidates, the Third Circuit Court of Appeals ruled that "the election statute makes it clear that the intention of the voter is paramount and should be given effect when it can be ascertained."
Usie Richards urged the board to "execute its mandate" in accordance to the Third Circuit’s ruling.
After a recount of absentee ballots last week, Sen. Richards landed 137 votes compared to Usie Richards’122. The absentee ballots broke an election-night tie of 3,936 between the two men, who are cousins.
