Aug. 13, 2002 – A bill prohibiting campaigning after 2 a.m. on election days, enacted by legislative override of the governor's veto, has been ruled unconstitutional by District Judge Thomas K. Moore, according to Government House and other sources.
Moore issued the ruling from the bench last Wednesday, and his written opinion is to be released Tuesday.
In a release Monday afternoon, Gov. Charles W. Turnbull hailed the decision in a case brought in District Court by St. Thomas resident Hiram Abiff on behalf of himself, his wife, his son and the people of the Virgin Islands.
"The judge's ruling vindicates my veto of the provision," Turnbull said in the Government House release. "I stated that I supported the concept of restricting campaigning activities within a reasonable distance and reasonable times around polling places." He said he line-item vetoed the section of the bill setting the 2 a.m. cutoff for campaigning because it was unconstitutionally broad: "no phone calls, no distribution of fliers, no passing out of T-shirts and no public or private campaign activities."
The governor noted that Joint Board of Elections policy allows electioneering no closer than 1,000 feet from voting places during times the polls are open.
Abiff said on Monday night that the new measure would have meant that newspapers could not print editorials, talk show participants could not comment, and "you couldn't even have a house party" that went on later than 2 a.m. on an election eve.
"It's important for the people of the Virgin Islands to understand that they have rights under the constitution, and they can go to court to seek redress," Abiff, who had not been a public figure prior to filing the suit, said.
The electioneering cutoff would have taken away "our V.I. heritage," negating the accomplishments of "the people who sacrificed to give us the right to vote," he said. "It's also a custom for the Virgin Islands, because at the time we were transferred from the Danish, we didn't have the right to vote. It's part of our history, our government, to express our like or dislike for the government, or the government people, at election time."
Abiff, who said he is related by blood to Turnbull, also said, "I wanted to back up the governor, because he was looking out for the people."
The campaign restriction was potentially the least far-reaching of three provisions in the bill, which was passed by the Legislature last December, vetoed by the governor in January, and enacted by override of the veto on Jan. 30. The measure also reversed a requirement that V.I. government officials go on leave while campaigning for public office and gave the Board of Elections responsibility "for certifying the process to be used by any political party to select party officers and candidates for public office."
The bill was passed, vetoed and overridden without these other two provisions being spelled out specifically in its language, which cited the sections of the V.I. Code to be changed but did not state their content. Sen. Celestino A. White Sr., the sponsor, said after the override that the certifying power meant that the government was no longer responsible administratively or financially for conducting primaries as the means of selecting party candidates for office. For background, see "Loud protests to quiet changes in voting law".
Initially, Supervisor of Elections John Abramson Jr. told the parties that if they wanted to hold primaries, they would have to cover the costs. Democratic and Republican officials protested, and on April 24, Attorney General Iver Stridiron issued an opinion stating that this was not the case; as a result, the government will be conducting and paying for the primaries as usual in September. (See "Public money to fund primaries after all".)
In his opinion, Stridiron said the new law was overly vague. He said he had asked for a transcript of the legislative proceedings on the measure to help clarify matters but was told they had not been transcribed. "It is impossible to discern the legislative intent" when the Legislature "directed the Boards of Elections to 'certify the process,'" he wrote.
Abiff, meanwhile, said on Monday that he understands that when Moore's formal opinion is released on Tuesday, it is going to have "some reference to" the provision in his lawsuit about government employees who run for office. Abiff contended in his action that White's bill was in conflict with the federal Hatch Act, which prevents federal employees — and by extension, those whose salaries are federally funded — from soliciting, accepting and receiving political contributions, and from participating in partisan political activities while on duty.
White said after the override that V.I. law has similar prohibitions applicable to local government workers, and that it was up to administrators to see that their employees did not violate them.
After filing his suit in February, Abiff said the issue for him was that the ban "violates the law on freedom of speech, freedom of association and freedom of the press." He added, "It's a tradition in the Virgin Islands when election day comes to go down to the polls and scream your lungs out, and who win, win and who lose, lose."
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