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Daniel Election Appeal Undecided After Nine-Hour Hearing

July 27, 2007 — A temporary restraining order delaying the swearing in of delegates to the upcoming Constitutional Convention will be in effect for at least another two weeks, V.I. Superior Court Judge James S. Carroll III said Friday.
After a more than nine-hour hearing in Superior Court, Carroll said the extra time would give attorneys for St. John candidate Harry Daniel and the V.I. Joint Board of Elections to file post-trial memos in response to Friday's proceedings.
Once the documents have been submitted, Carroll will make a decision on whether revisions made by the board to the June 12 special-election ballot were in accordance with local law, and whether Daniel can be considered a delegate in the convention process.
Daniel's attorney, Clive Rivers, contended that his client placed eighth in the St. Thomas-St. John district race, but he also said Carroll could ultimately decide to throw out the June 12 results, triggering the need for a new special election.
Though the latter decision would be more expensive, it would still be appropriate, Rivers argued. He explained that the Legislature, in drafting rules and requirements governing the special-election process for the Constitutional Convention, intended that the 13 delegates elected from the St. Thomas- St. John district could be from either island, with a minimum of two candidates coming from St. John.
However, joint board members "clearly" went against the intent of the law when they approved the ballot revisions by placing a cap on the number of delegates from St. John and prohibiting residents from selecting more than two candidates from that island, Rivers added.
The revisions segregated St. Thomas and St. John delegates, forcing Daniel to run only against other candidates from St. John, instead of being considered as a part of the mix of delegates running from the St. Thomas-St. John district, Rivers said.
When called to the stand, St. Thomas-St. John District Board of Elections member Lorna A.C. Thomas agreed with Rivers' remarks, saying that board members were concerned that the original ballot — initially drafted and distributed at the end of May — placed St. John candidates at the bottom of a single column that also included candidates from St. Thomas.
With this configuration, she said, it would have been easier for residents to overlook the St. John candidates and vote only for those individuals from the island of St. Thomas.
The board's decision to revise the ballot was also made in accordance with past election ballots, where St. John candidates are placed in a separate and distinct column, she said. Thomas contended that the revisions reflected the board's interpretation of the law, which limits the amount of delegates elected from St. John to two.
"How does the board reconcile that, when the law states that 'no fewer' than two candidates should be elected from St. John?" Carroll asked after Thomas' testimony. "How can you make 'no fewer than' and 'no more than' mean the same thing?"
While the interpretation of the Constitutional Convention statute was one of the major arguments Friday, attorneys for the Joint Board of Elections contended that Daniel was aware of the revisions before the special election, but "did nothing" to contest the ballot. Offering a series of articles published in the V.I. Daily News between June 4 and June 7, Assistant Attorney General Aquannette Chinnery argued that Daniel had the opportunity to view the new ballot at least a week before the election, but did not voice his concerns to members of either district board.
Chinnery added that Daniel subsequently took out a paid advertisement in the same newspaper, marketing himself as a delegate from the island of St. John — a move consistent with the ballot revisions.
While on the stand, however, Daniel said he sent the advertisement in at least a week before the new revisions were approved. Still, Daniel's argument was diminished later in the hearing after he admitted to reading at least two of the Daily News articles outlining the ballot changes before voting in the election.
Earlier in the hearing, Daniel said he was only aware that the ballot had changed when he went to the polls on June 12.
Striking a balance in the courtroom, Carroll also agreed with Chinnery's argument, saying that Daniel had not contested the changes prior to the election, even though he had "ample notice" that revisions to the ballot had been approved.
Carroll also pointed out that Daniel followed proper procedure in contesting the ballot after the election, taking the matter to both district boards of elections before filing an appeal in Superior Court last week.
One issue left hanging, however, was whether the Joint Board's decision to revise the ballot was made legally. While on the stand, Supervisor of Elections John Abramson testified that eight members of the Joint Board would have been needed to form a quorum and approve any changes to the ballot.
Only seven board members voted to revise the ballot, he said, adding that he subsequently sent out a letter notifying board members about the situation. Abramson explained that he is mandated by law to "carry out" the board's decisions, and therefore proceeded to draft a new ballot.
Throughout the hearing, Abramson maintained that the original ballot, which he had drafted at the end of May, was correct and accurately reflected the intent of the law.
"The ballot should have stayed the same," he said.
At this point, it is still unclear as to how Carroll will rule. However, he said swearing in ceremonies for the Constitutional Convention candidates will not proceed until after Aug. 8, when all post-trial memos are due.
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