U.S. Virgin Islands Constitutional Convention stalled in delegate election dispute over voting machine ballot design

The fifth attempt to adopt a constitution for the U.S. Virgin Islands has hit another snag that will likely delay the anticipated October 10th convening of a Constitutional Convention following a ruling by the U.S. Virgin Islands Supreme Court.

Last week the island high court reversed an earlier decision by Superior Court Judge James Carroll III to seat Harry Daniels, a resident of St. John, as a delegate following a disputed June election.  Confusing legislative language apportioning delegates from St. Thomas and St. John was at the heart of Daniels' electoral appeal.

The Constitutional Convention was originally slated to begin in July but was delayed by Judge Carroll while he considered Daniels' case.  The Supreme Court reversal of the decision to seat Daniels as a delegate drew stinging criticism from Justice Ive Arlington Swan in sharply worded dissent calling for a new election.

Writing for the court, Associate Justice Maria Cabret wrote, "In reaching our decision in this case, we are cognizant of the importance of the special election for delegates and the task the elected delegates have before them in drafting a constitution for the Virgin Islands."

Associate Justice Swan split with the other two members of the high court and provided Daniels with plenty of ammunition for his legal battle to serve as a delegate calling the actions of the Joint Board of Elections that conducted the special election an "abyss of illegality."

"In a democracy, a constitution is the paramount organizing document for a governmental structure.  Therefore, the selecting of representatives to write the constitution of the Virgin Islands is an auspicious occasion of the utmost importance.  Because of the Joint Board of Elections egregious statutory violations and callous disregard of our election laws, which were pervasive and extreme, and which caused the special election to be conducted with an illegal ballot that disenfranchised every voter in the St. Thomas-St. John District participating in that election, I dissent."

Justice Swan declared the Joint Board of Elections lacked authority to change the ballot design for the special election and further acted without a quorum.  The use of voting machines magnified the problem.  Justice Swan explained, "the voting machine would not have allowed any voting inconsistent with the illegal instructions….unlike irregularities affecting the results from a single polling place, the illegal instructions on the illegal ballot were pervasive and affected the entire election at all polling places."

Besides limiting the number of candidates from St. John, the disputed ballot also precluded write-in votes from St. John.  Although the Joint Election Board bore the brunt of Justice Swan's wrath, the voting machines themselves drew fire.

"It must not go unnoticed that the illegal ballot punished those voters who voted in a manner consistent with the law, because the voting machines did not register those voters' legal votes.  The voting machines were programmed to reject or preclude the voters' selection of candidates, even though the selections would have been legal."

"The election cast a long sinister cloud over the legitimacy of thirteen delegates to the convention.  An illegal ballot can only beget an illegal election.  The illegality in this case cannot be cured, nor can any action rectify the deficiencies, in the absence of a new election.  As the Virgin Islands marches unrelentingly towards greater self governance, there is no comfort or solace in knowing that thirteen delegates elected to write our constitution were selected by illegal ballots."

Calling the delegate special election a "debacle" Justice Swan said. "This is a case where pervasive irregularities have subverted the voters' will….The conclusion is inescapable that, had the ballot not unlawfully restricted the voters' choices, a different slate of winners and losers would have emerged."

Justice Swan was "dismayed and flabbergasted" at testimony from the Joint Board of Elections and complained about "unadulterated temerity and audacity" in the "illegal fiasco."

Meanwhile, the delay and controversy has delegates and legislators looking with increased interest at Stanford University's VICTORY proposal.  The Virgin Islands Constitutional Training and Ongoing Resources Institute is a grassroots/academic response to the four previous failed attempts to adopt a constitution.  VICTORY, developed by Virgin Islands political consultant Jabriel Ballentine, would provide direct training on constitutional law to delegates and conduct deliberative polling to provide input from an informed public.

Governor John de Jongh has not yet signed a legislative order to open the Constitutional Convention on October 10th and is expected to decline signing in the event of a federal appeal.  Daniels has signaled it is his intention to file such an appeal thus putting the start of the convention in limbo.