After three nights of public testimony at the legislative building on St. Croix, Sen. Ronald E. Russell decided the 5th Constitutional Convention should get one more chance to address the concerns raised by the Department of Justice over language in the proposed V.I. Constitution before the legislature intercedes.
But Russell and several other senators and testifiers raised doubts that the convention delegates would be able to resolve the native rights controversy and produce an acceptable draft.
In 2010, the DOJ advised Congress that the constitution should be rejected, identifying nine sections of the document that conflicted with the U.S. Constitution and federal law. The most controversial is a section that stipulates that only native born Virgin Islanders can run for governor or lieutenant governor and that “ancestral virgin islanders” (those who had family in the territory in or prior to 1932) would be exempt from paying property tax.
The DOJ found that these provisions violated the 14th amendment, which guarantees all citizens equal treatment under the law.
The 5th Constitutional Convention has not convened in roughly two years to amend the document despite a resolution from the U.S. Congress to do so. This summer, Russell submitted a bill that would allow the legislature to bypass the convention and have a team of attorneys make the necessary revisions to the proposed constitution so it could be resubmitted.
The Committee of the Whole convened on St. Croix Friday night to hear testimony from the public on the issue. Several testifiers questioned whether the constitution was too flawed to be fixed.
Calling it a “declaration of discrimination,” Verdel L. Petersen said the native rights issue was too divisive, turning Virgin Island residents against each.
“Instead of healing wounds of the past, they opened fresh wounds,” she said. “Jim Crow days of the South are long gone, but it now seems that Jim Crow has returned to us in another form.”
She recommended the convention be reconvened and ordered to consider an earlier draft of the constitution that did not distinguish between native-born Virgin Islanders and those who emigrated from the States or abroad.
Edward L. Browne, an attorney, testified that he was sympathetic to outlining native rights, but that the constitution was the wrong place to do it. He argued that it would never pass Congress and would have a hard time even passing in the territory as native Virgin Islanders are in the minority.
He said that ultimately the issue of native rights should be addressed if and when the territory attained independence and was no longer bound by the rules of the U.S. Constitution.
Herb Schoenbohm, chairperson of the Republican Party, testified that the convention had gone beyond the scope of their mission and included issues that would be addressed through legislation. He said he would like to see a simple, flexible document that would lay out the basic form and function of government and little else.
“It shouldn’t legislate, and it legislates. It divides rather than unites, and it shouldn’t. It delves in status, and it shouldn’t,” he said.
He held out little hope of the current draft being fixed, saying that there “was too much toothpaste out of the tube.”
The most thoughtful defense of the native rights section came from Kurt Vialet, who testified that those provisions protect the children and grandchildren of Virgin Islanders.
Referencing the job losses across the territory, Vialet said that many native Virgin Islanders were being forced out of their homes and off-island interests were free to buy up their land. The property tax provision could ensure that some of the territory’s land stays in the hands of natives, he argued.
While stopping short of endorsing the constitution in its current form, Vialet said he opposed Senate involvement in the process and questioned why they were taking up the issue at this time.
“What the Senate needs to be concerned about right now is the closing of Hovensa, the LEAC, the 8 percent cut, unemployment, government employee layoffs, the collapse of the government employee retirement system. You guys have enough on your plate! Why do you want something else,” he said.
“Either you don’t want to deal with the issues that are confronting us right now, or you’re living in a different land.”
Russell was challenged several times during the evening to defend the timing of his bill, with some testifiers claiming it was an election-year ploy.
Russell vehemently denied that his bill was an election tactic and pointed out that he had been trying to get the 5th Constitutional Convention to reconvene since last year. He added that while the legislature did have a lot on its plate, it did not prevent them from addressing one more problem.
“The time is always right to do the right thing,” he said.
The only convention delegate to testify during the evening was Rena Brodhurst, publisher of the Avis, who voted against the current draft of the document and said she would not vote for any constitution that resembled the one currently being considered.
“I would avoid it very much like the plague,” she said.
She testified that while she would be considered a native Virgin Islander, she did not want that distinction if it denied rights to others.
“It is highly ridiculous for one group of black people to advocate discriminating against another group of black people,” she said.
She said she believed the convention should get one last chance to amend the document, but that if they could not do so within two weeks, the Senate should disband the group and try another tactic.
“Wasting too much time on this stalemate will not help the difficult situations that we face,” she concluded.
While Russell stated at the end of the evening that he would amend his bill to give the convention more time to address the DOJ concerns, he did not stipulate how much time or what he would do if they failed to finish within that timeframe.
Options include his proposed plan of having attorneys step in to finish the work, convening a 6th Constitutional Convention and having them start from scratch, or simply doing nothing.
During his testimony, Schoenbohm offered a novel fourth option. He said that the constitution written by the 2nd Constitutional Convention had been ratified by the voters, but for political reasons was never forwarded to the U.S. Congress for approval. He asked whether or not that ratification was still valid and if the territory could simply adopt that earlier constitution.
In closing, Russell applauded the testifiers, delegates, and Senators, saying their work, while contentious, was the very heart of democracy. He remained skeptical, however, that giving the 5th Constitution Convention more time would bear results.
“Are you willing to give it back to the same people, 20 people who voted for it, and tell them they have to change it and they’ll listen to you? Let’s be real about this,” he said.
“Now I don’t have a problem with that, but I don’t believe that they are going to change and I don’t think we will get the requisite two-thirds with the group that is there.”