The seventh senatorial seat in the district of St. Thomas-St. John belongs to Sen. Lorraine Berry. That's the ruling of Territorial Court Judge Ishmael Meyers who late Wednesday afternoon denied fellow Democrat Sen. George Goodwin's request to throw out absentee ballots used in the general election. The judge's order also dismisses Goodwin's complaint that questionable absentee ballots altered his chances of winning the election.
The ruling was handed down Wednesday afternoon, a week after Meyers heard two full days of testimony, primarily from Sens.-elect Celestino White and Norma Pickard Samuel, who challenged most of the absentee ballots on the grounds that the inner envelopes the ballots were contained in were unsealed when the absentees were counted 10 days after the Nov. 7 general election.
Meyers 17-page memorandum concluded that Goodwin has failed to show that any of the alleged irregularities complained of would change the outcome of the election, "Goodwin is not entitled to mandamus relief," Meyers wrote. "Goodwin has, at most, established that one of the ballots included in the absentee vote tabulation violated Section 665 (a) " of the V.I. Code. Meyers wrote that in determining whether Goodwin is entitled to relief, the court must address two questions:
– Whether the absentee voting irregularities complained of would require the invalidation of any of the absentee ballots, and;
– Whether the invalidation of those ballots would change the outcome of the election.
The court also found, based on the testimony provided last week, that there was no allegation of fraud, gross negligence or intentional wrongdoing. In addition, "aside from the inner envelopes not being sealed, there was substantial compliance with the essential requirements of Section 665 (a) of the Virgin Islands Code. Meyers ruled that despite the technical violations of Section 665 (a) cited in the testimony, the absentee ballots taken from unsealed inner envelopes, but sealed outer envelopes, substantially complied with absentee voting law, "and must therefore remain included in the election tabulation."
Meyers said that even if the court were to invalidate that one ballot, it would not change the outcome of the election, wherein Berry defeated Goodwin by 26 votes. Additionally, though not addressed at length in the judge's opinion, Goodwin also faced the question of whether his watchers at the absentee count, Nick Friday and Carla Joseph, possibly failed to challenge the ballot that Meyers has determined should be invalidated, would preclude him from raising challenges after the ballot has already been commingled with the ballots that were valid.
"It is not clear from the evidence presented at the hearing, whether Friday or Joseph, challenged any of the ballots that were removed from envelopes containing more than one ballot." Nevertheless, since invalidating the one ballot would not change the outcome of the election, Meyers said, he would not address whether Goodwin has stand to challenge the ballot.
"Because Goodwin has failed to establish that the absentee voting irregularities complained of would require the court to invalidate a sufficient number of ballots that would change the outcome of the election," Meyers said, "Goodwin's request for declaratory and injunctive relief will be denied."
The court also addressed the question of the cancelled postage that is not used when franked mailed, like the absentee ballots, are routed through the postal system. "While it is correct that 480 of the 554 ballots lack a postmark, that was because 242 were walk-in ballots, and the other 238 were in franked envelopes and, as a result, lacked a postmark….the inclusion of the absentee ballots without the postmarks in the election count did not violate absentee voting law. "
Berry's attorney, Chad Messier, said late Wednesday he was "happy and gratified" with Meyer's memorandum of opinion. Goodwin's attorney Desmond Maynard could not be reached for comment Wednesday night.
(Ed. note: An earlier Source article on the Goodwin lawsuit incorrectly stated that the Board of Elections' policy in past elections to accept the postage-paid envelopes had not been raised in last week's hearings by either side. In fact, that policy was established in the testimony of Elections Supervisor John Abramson.)
