The special election was triggered in the wake of a back-and-forth between Kevin Rodriquez and Janelle Sarauw, who, at this point, have both been elected to fill the same St. Thomas-St. John District Senate seat. At a special meeting earlier this month, Elections board attorney Julita de Leon said that Rodriquez would first have to be decertified in order for Sarauw to sit, and by law, only the Legislature has the authority to make that happen.
Rodriquez came in sixth in the November general election and, at the time, the St. Thomas-St. John Board of Elections certified the final vote with him as the winner of the final senate seat.
But in December, Sarauw, the eighth place candidate, and 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 residency requirement set by V.I. law. An initial ruling from Superior Court Judge Kathleen Mackay was in favor of Rodriquez, but her ruling was overturned days later by the V.I. Supreme Court, which 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 filed to have the case moved to V.I. District Court and argued that the Revised Organic Act, the federal law that acts as a constitution for the territory, gives the Legislature final authority over who is qualified to sit. Rodriquez also sued the Legislature, requesting it seat him. While the Senate deferred to the courts, both Rodriquez’s and Sarauw’s suits were eventually dismissed, along with an appeal recently filed by Rodriquez that sought to stay the special election.
At last week’s Elections board meeting, de Leon said Gomez’s decision to dismiss Rodriquez’s suit is what is now holding up the certification of this month’s special election. Without any definitive ruling declaring him ineligible for the seat, Rodriquez technically is still a senator-elect, while Sarauw, who won the special election, remains in limbo, she said.
Meeting Monday on St. Thomas, three out of six Elections board members agreed, and voted not to certify the special election results. The vote came after some heavy back and forth between members who, on the other side, said the board was duty bound to certify the results.
“Nothing has changed,” board member Lydia Hendricks said. “We knew all of this was happening, we knew what the issues were and we still held the special election, knowing this could be a possibility in the end. It is our responsibility now to certify the results, otherwise we shouldn’t have held the special election in the first place.”
Board member Maurice Donovan, who made the motion not to certify, said the board was compelled by the governor to hold the special election and had to act, but cannot now go any further until the Legislature makes a move.
Donovan voted in favor of not certifying the election, along with board members Carla Joseph and Arturo Watlington Jr. Voting against the motion were Hendricks and Ivy K. Moses, while Alecia Wells abstained. Board member Diane Magras was absent.
In separate releases, the Senate’s majority and minority caucuses have also weighed in on the issue. While the minority is looking for another opinion from the Legislature’s legal counsel, the majority, in a recent release from Senate President Myron Jackson, said the Legislature chose to stay out of the Rodriquez matter because it would have pitted the Senate against the courts, violating the separation of powers doctrine.
“The Virgin Islands Supreme Court, the highest court of this Territory, held that Mr. Rodriquez is judicially estopped from asserting he was a resident of the Virgin Islands for at least three consecutive years preceding the general election,” Jackson said in his release. “The District Court of the Virgin Islands then concluded that no court, including the District Court, could force the 32nd Legislature to seat Mr. Rodriquez. Finally, the Third Circuit Court of Appeals denied Mr. Rodriquez’s request to stop the special election and later denied his request to stop the certification of the special election. Therefore, there is no impediment to the certifying the special election. The Board of Elections needs to do the job it is statutorily mandated to do, which is to certify the special election.”