The St. Thomas-St. John District Board of Elections affirmed Tuesday that Sen.-elect Kevin Rodriquez was certified as a winner of the Nov. 8 election, and that has not changed.
The board voted Tuesday to clarify its position on Rodriquez’s certification by issuing a press release explaining why Elections Supervisor Caroline Fawkes didn’t say his name during this week’s swearing-in ceremonies for the 32nd Legislature.
During Monday’s swearing-in, Fawkes took the stage briefly to confirm the certification of each candidate by the Joint Board of Elections, but only called the names of six out of the seven senators elected for St. Thomas-St. John. Elections board members said Tuesday during an emergency meeting on St. Thomas that Rodriquez should have been part of the roll call since he was elected last year and certified as a winner. Fawkes issued a statement Wednesday saying her decision was based on the Supreme Court order and him not being present on the platform
In a last-minute ruling Sunday night, the Virgin Islands Supreme Court said Rodriquez could not take the oath of office with the other senators Monday, despite a ruling issued on Jan. 5 by V.I. Superior Court Judge Kathleen Mackay who said that testimony from Rodriquez’s wife and several other witnesses showed that the senator-elect has lived in the U.S. Virgin Islands since 2013, meeting the residency requirement to run for Senate.
But the Supreme Court’s Sunday night ruling said Mackay couldn’t do that, using the rule of judicial estoppel, which precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings. The Superior Court had previously issued an injunction barring Rodriquez from taking office, which the Supreme Court has also upheld.
Throughout the court process the Board of Elections – which was named as a party in the suit brought by former senatorial candidate Janelle Sarauw – has said that it could not take any action on the matter because the suit and challenge to Rodriquez’s eligibility came after the Nov. 8 general election results were already certified. Fawkes’ decision not to say Rodriquez’s name Monday could give the impression that the board had actually decertified Rodriquez, and members said Tuesday they wanted to make sure voters understand that was not the case.
Meanwhile, Rodriquez is seeking to move the case to V.I. District Court and has lobbied Sen. Myron Jackson, the Legislature’s new president, to make a decision and have him seated.
“Although the Superior Court dismissed Ms. Sarauw’s case and dissolved the injunction … the V.I. Supreme Court entered a last minute decision, hours before I was to be sworn in, reinstating the injunction and remanding the case back to Superior Court,” Rodriquez said Monday in a letter delivered to Jackson. “But in footnote 15 of its opinion, the Supreme Court implied that the courts may no longer have jurisdiction over this case once the 32nd Legislature comes into existence.”
“Now that the 32nd Legislature has been sworn and seated,” Rodriquez’s letter continued, “the Superior Court no longer has jurisdiction to determine my eligibility as a senator of the Virgin Islands. The Revised Organic Act clearly provides the that Legislature – not the courts – shall be the sole judge of the elections and qualifications of its members.”
After Tuesday’s meeting, District Elections Board chair Arturo Watlington Jr. said that technically, the Supreme Court’s order does not prevent the Legislature from swearing in Rodriquez.
“The difference with a senator-elect is that the law says the Legislature determines the eligibility of its own members,” Watlington explained. “Now that they have been sworn in, they can be part of the remedy and either find him ineligible or not.”
Rodriquez’s suit asks the District Court for a definite answer to the question.
“While the Superior Court has ruled on certain matters, the nature of the controversy has changed since the 32nd Legislature convened on Monday January 9, 2017,” Rodriquez defense attorney Christopher Kroblin wrote in his filing Monday. “While the Superior Court ruled on its jurisdiction prior to the convening of the 32nd Legislature, it has not ruled on its jurisdiction once the Legislature has convened. Defendant Rodriquez seeks to present that question to this Honorable Court in the first instance.”
Meanwhile, a hearing in V.I. Superior Court, which now has to reconsider the case based on the Supreme Court’s decision, is scheduled for 10 a.m. Wednesday.