Senate Keeps Single V.I. Election Board

The V.I. Legislature voted Tuesday to amend a recent law unifying V.I. boards of elections to clear up problems that could get in the way of a planned special election to fill a St. Thomas/St. John district seat in the Legislature, in the wake of candidate Kevin Rodriquez being ruled ineligible to run.

Senate President Myron Jackson at Tuesday’s session (photo courtesy of the V.I. Legislature).

Sparks flew in the hearing, with Sen. Alicia “Chucky” Hansen complaining about how Senate President Myron Jackson was running the hearing. Hansen made numerous motions that Jackson shut down. On several occasions, Hansen shouted “point of order” and began to make a speech, to which Jackson would respond that a point of order is to question whether a rule of procedure is being violated and asking Hansen, “What is the rule that is being violated?”

When Hansen did not provide a rule that she claimed to be violated, Jackson would then say she was not recognized, which angered Hansen. She also complained that she was not given a sufficiently nice office.

Several senators got heated during and after the exchange. Hansen has a history of contentious behavior in the Senate and elsewhere. (See related links below)

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The bill, requested by members of the Legislature’s minority coalition, would originally have just repealed the law, enacted in June of 2016, unifying the two boards into a single board. The boards would have simply reverted to their prior status, with a seven member board in each district, which some minority members of the Legislature preferred.

But Attorney General Claude Walker urged senators to instead make minor changes to the law, to resolve the difficulties while retaining a single, unified board, and senators amended the bill to do so before approving the measure.

Senators also approved a $90,000 appropriation from any available funds to pay for an April 8 special election to fill the vacant St. Thomas/St. John seat in the Senate won by Rodriquez before the V.I. Supreme Court ruled he could not claim V.I. residency.

Rodriquez came in sixth in November’s election to fill seven St. Thomas/St.John legislative seats and the St. Thomas/St. John Board of Elections certified his candidacy and the final vote.

But in December, the eighth-place candidate, Janelle Sarauw, joined by a campaign worker, sued in V.I. Superior Court to stop Rodriquez from being seated, arguing that Rodriquez had asserted in court documents filed in 2016 that he was a bona fide resident of Tennessee and therefore could not meet the three-year V.I. residency requirement set by V.I. law.

The V.I. Supreme Court determined that in his bankruptcy petition, Rodriquez swore under penalty of perjury that he lived in Tennessee and had not lived in another state anytime during the preceding three years. It applied the doctrine of “judicial estoppel,” saying that Rodriquez’s claim under oath in one court prevented him from claiming the opposite in another court.

Rodriquez took the case to U.S. District Court, which dismissed the case, leaving the V.I. Supreme Court opinion barring Rodriquez in place. Gov. Kenneth Mapp then called a special election for the seat.

Walker testified Tuesday that the problems the District Court found in the law could be fixed by a minor amendment, changing the date and clarifying that the intent is for the existing, elected board members to now be the members of the unified board. As written, the law was unclear, speaking of a unified board beginning in 2017 but saying that the new board will be elected in staggered stages, starting in 2018.

He argued the phrase “beginning with the 2018 general election” in the law [Act 7892] referred not to the establishment of a single board in 2018, but instead to how elections will operate with the board starting with 2018.

Walker cited a 1929 Georgia court opinion and an 1956 New York opinion, both involving cases where the state legislatures abolished a commission, replacing it with a new entity, without explanation in the law of how or if the body was to function until the new entity came into place. In both cases, the courts found the members of the pre-existing entity continued to serve until the new entities and members were in place.

St. Thomas/St. John Board of Elections Chair Arturo Watlington Jr. argued vehemently the existing elected members could not be made to serve on a unified board because they were elected to a single board.

“None of the members elected in 2014 was elected to a single board,” Watlington said.

Unifying the boards means there would be only one chair, vice chair and so forth, diluting the perceived prestige of members in the separate boards.

Sen. Kurt Vialet suggested this is Watlington’s real objection, saying, “It is really simple. It is all about jurisdiction and who is king.”

Watlington also vehemently opposed unifying the boards when the Legislature considered the law in 2016. At the time, and again Tuesday, Watlington argued that concerns over infighting and inconsistent practices were not related to having two separate boards and that unifying the boards would not solve those problems.

Legislative legal counsel Augustin Ayala also testified that because the members were elected to separate boards, the Legislature could not unify the elections boards and make them members of a single board.

Neither Watlington nor Ayala cited a law or past court case that declared the Legislature could not do so.

Walker cited two court cases that appeared to indicate there is no legal barrier.

Sen. Janette Millin Young vehemently opposed amending the law. Millin Young also urged the Senate to ignore the Supreme Court and vote to seat Rodriquez, saying it was a matter of “separation of powers.”

Millin Young said she believes “from the bottom of my heart that this is a legislative matter.”

“We have allowed the judicial branch to weigh this matter back and forth, all the way to the Supreme Court of the Virgin Islands, and then to the District Court,” she said.

Under separation of powers, the Legislature enacts laws, the executive branch enforces and carries them out and the judicial branch interprets the laws, with final say on what they mean.

Supervisor of Elections Caroline Fawkes testified the election could be carried out for around $100,000 – less than the $140,000 proposed in one of the two bills under consideration. She did not weigh in on whether there should be one board or two, but said she did not object to either repealing or amending the law.

Fawkes asked the Senate to change the law regarding early voting to allow the supervisor of elections to set the dates, saying that the way the law is written constrains the election system too much.

Senators amended the appropriation bill, appropriating $90,000 for the April 8 special election “from any available source.”

Instead of repealing the law unifying the two boards, they approved a substitute bill that: 1) put off the unified board until July 31; 2) directed the St. Thomas/St. John board to carry out the April 8 special election; 3) stated the current board members would become members of the unified board, pending the next election, and 4) said all elected members of the territory’s election boards are to convene as a single board, elect officers and establish its own rules of operation by Aug. 1.

Neither bill nor the amendments addressed Fawkes’ concern about early voting.

Voting in favor of each bill and each amendment were Vialet, Jackson, Sens. Marvin Blyden, Jean Forde, Novelle Francis, Neville James, Nereida “Nellie” Rivera-O’Reilly, Sammuel Sanes and Brian Smith. Voting no on each bill and each amendment were Hansen, Millin Young, Sens. Tregenza Roach, Dwayne DeGraff and Positive Nelson.

Members of the governing majority all supported the bills while the minority caucus all voted in opposition. After the hearing, the minority senators issued a statement saying they did not see why the amount could be reduced to $90,000, “despite testimony from the supervisor of elections that such an election could cost as much as $140,000, which she later reduced to $100,000.” They also objected that there was no specific funding source and that the election was “unnecessary.”

“Our legal counsel has made it clear that the decision about the qualifications of senator elect to serve in the 32nd Legislature is a matter for the Legislature. So not only did they not respect our counsel and the integrity of our body, they now have us funding a special election which we do not need and in a time when we have no funding to do so,” Nelson said in the statement.

They also objected that the majority did not consider a minority resolution “to address the need for a 15th senator in a process to be overseen by the Legislature.”

Because the votes were not close, if Rodriquez had been seated and voted with the minority, the outcomes would have been unchanged. Currently no law specifies that 15 senators are required for the Legislature to act, or that the Legislature may not act on legislation if a vacancy occurs due to death or some other reason. The law does require a quorum of eight members to act and as many as 10 senators for some actions.

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