The V.I. Supreme Court rejected senatorial candidate Ivy Mose’s challenge to a recent V.I. law banning elections board members from running for other offices unless they resign their posts. Moses, a sitting member of the St. Thomas/St. John Board of Elections, filed papers in May of 2016 to run for a seat in the V.I. Legislature that year. Supervisor of Elections Caroline Fawkes disqualified her as a candidate based on a 2014 V.I. law saying a board of elections member may not run for another elected office while serving on the board.
As board members count votes and establish election procedures, senators enacted the law out of concern that a board member could be in the position of counting his or her own votes, creating at least the appearance of a conflict of interest.
The law says: “No member of a board of elections may be a candidate for any other public office during the term for which the member was elected. Any member of a board of election must resign his position on the board as a condition of seeking any other public office.”
Moses, joined by four members of the St. Thomas/St. John board and two members of the St. Croix board, challenged the decision in V.I. Superior Court, arguing the prohibition on running for high office while sitting on the body that counts votes violates the U.S. Constitution. The trial court rejected her challenge and declared her ineligible to run.
Ballots for the primary election had already been printed with her name on them, but Fawkes issued a notice that votes for Moses would not be counted because she was not eligible
In their appeal to the V.I. Supreme Court, Moses and the other parties to her suit argued in part that they had met the burden for a preliminary injunction preventing her being removed from the ballot. The V.I. Supreme Court found that argument had merit, but that she had agreed to the court consolidating the preliminary injunction and the actual case on its merits in one hearing. The Supreme Court found the Superior Court ruled against Moses in the actual case, making irrelevant a temporary injunction awaiting that same ruling.
Moses argued the prohibition on counting votes while running for office violated the Equal Protection Clause by treating election board members differently than others, and also violated the First Amendment by restricting her right to associate with others to advance her political beliefs. And she argued the V.I. attorney general was not allowed to represent the supervisor of elections.
The Supreme Court found against Moses on both these claims. Citing several circuit court cases, the justices said that to prove a violation of the Equal Protection Clause, Moses had to prove “similarly situated individuals were treated differently,” yet the board of elections members are not similarly situated to others.
“Unlike ordinary government employees, members of the boards of elections are expressly charged with overseeing all aspects of the primary and general elections conducted in the Virgin Islands and, unless judicial review is sought and obtained with respect to a particular matter, they possess the final word on all aspects of election administration,” they wrote.
They determined even a leave of absence would not necessarily cure this concern, because there “is
a risk that other members of the board, the supervisor of elections or other employees of the
election system may treat a sitting member of the board differently than other candidates.
Moreover, a board of elections member who returns to the board after losing an election to a
different office could still use his or her position on the board to retaliate against other candidates
or employees of the election system, such as the supervisor of elections and his or her deputies.”
While some of these concerns could even apply to running for the board of elections, that “conflict is unavoidable,” they determined.
Citing a 1982 U.S. Supreme Court case, Clements v. Fashing, the justices also found the restriction to Moses’ First Amendment freedom of association to be insignificant because she could still support another candidate and could resign to run for office if she chose.
Lastly, the court rejected Moses’ argument that Fawkes could not use the V.I. attorney general as legal counsel. The court cited a section of V.I. law that expressly says the V.I. attorney general can “represent the executive branch of the government of the United States Virgin Islands, and all departments, boards, commissions, agencies, instrumentalities or officers thereof,” and stated the “supervisor of elections is an officer of the government of the Virgin Islands.”