After more than 10 hours in Territorial Court Judge Ishmael Meyer's courtroom Wednesday, the Senate's seventh seat is still empty.
The court heard testimony in Sen. George Goodwin's lawsuit against the Board of Elections, contesting Sen. Lorraine Berry's victory claim for the seventh Senate seat after the absentee ballots were counted.
At issue was whether the 480 absentee ballots bearing no postmarks were legal. On Nov. 18, when the ballots were counted, Attorney General Iver Stridiron ruled the ballots were valid despite strong objections from two ballot "watchers," Sens.-elect Celestino White and Norma Samuel, who both testified Wednesday.
The hearing survived a motion to dismiss by Elections attorney Denise Counts at about 5:45 p.m. and continued until about 9 p.m. Meyers ruled that Goodwin's attorneys, Desmond Maynard and Shawn Maynard Hahnfeld, had met the burden of proof, and denied the motion.
Most of the day was taken up with testimony about what did or did not happen upstairs at No. 22 Crystal Gade as the votes were being challenged and counted. White, Samuel, and Goodwin's representatives Carla Joseph and Trevor Nick Friday, gave differing accounts of what really occurred. Goodwin also testified, acknowledging information his representatives had passed on to him as he was off-island Nov. 18.
Objections came at regular intervals from Elections attorneys Denise Counts and Kerry Drue, Berry's attorney Chad Messier, and Goodwin's attorneys Desmond Maynard and Shawn Maynard Hahnfeld, as the conflicting testimony continued.
White and Samuel maintained elections official ignored some of their challenges and placed the challenged ballots in with the acceptable ones. Under questioning from defense attorneys, White said there were "about 70," unacceptable votes, a figure he kept changing.
Samuel said as soon as she arrived at the Elections office, she "smelled a rat."
"I challenged all the 480 unpostmarked votes," she said. "I had threatened to take (the Election Board) to court if I lost the election, because they weren't following their own rules." Samuel finished the November election in sixth place just ahead of Goodwin and Berry.
Under questioning from Drue, White said he had encouraged Goodwin to sue the Elections Board, and had volunteered to be a witness, though he denied having "masterminded" the process.
"Isn't it true you want Goodwin, and not Berry, in the Senate?" Kerry asked.
"I don't get involved in Democrats' fights," White said.
Counts, in her motion for dismissal, cited the rights of the 554 voters who had cast absentee ballots. She said the voters could not be "disenfranchised for something that technically is not their fault."
She cited several cases backing up the legality of no postmarks, which the Post Office doesn't stamp. Virgin Islands Postmaster Louis Jackson testified the ballots aren't stamped as they are considered business return mail.
Mary Busenburg, a 30-year V.I. resident, took the stand for the defense early in the day. "I went to a lot of effort to get my absentee ballot," she said. "My vote is important to me, and I want it to count." She had filed an absentee ballot because she planned to be off-island Nov. 7.
Rita Brady, chairman of the St. Thomas-St. John Board of Elections, testified late in the day that all 554 votes had been counted, eight had been thrown out as "spoiled or invalid," and just 56 had been challenged, contradicting the testimony heard earlier. Brady said each challenged ballot was placed on a table behind her, and not "mixed up with the others," as contended by White and Samuel.
She said that at the conclusion of the counting, the 56 challenged ballots were gone over once again. She said 37 ballots were retained and 19 were thrown out.
The challengers had claimed many envelopes were unsealed. Brady disagreed. She said all the ballot mailing envelopes were sealed, and had been opened on the table in front of everybody. Sometimes the affidavit and/or ballot envelope inside had not been sealed, but Stridiron had ruled to accept those ballots, as long as the affidavits were properly signed.
The hearing will resume at 2 p.m. Thursday in Judge Meyer's courtroom. The judge said he had moved another case from Thursday's time slot in order to expedite the hearing which he said he hopes to conclude Thursday. If not, it will continue on Saturday.
The continuing hearing will shorten Berry's scheduled Finance Committee meeting Thursday, which is set to begin at 10 a.m. if a quorum is present and will end at 1 p.m.