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New Special Election Could Resolve Daniel Dispute

Sept. 5, 2007 — Though the legal battle between St. John resident Harry Daniel and board of elections members remains unresolved, attorneys on both sides seem to agree on one thing: A new special election might be the best way to determine who gets a seat in the upcoming Constitutional Convention.
That conclusion was echoed Wednesday by a three-member panel of V.I. Supreme Court justices, who questioned whether the June 12 special election should be declared null and void since board of elections members are not authorized by law to make changes to the ballot. Associate Justice Ive A. Swan dominated the discussion and even put forth his own case, saying ballot revisions the board made before the election were illegal and impinged on voters' rights.
During a meeting in early June, members of the Joint Board of Elections unanimously approved a ballot redesign. Among other things, it split Constitutional Convention candidates running in the St. Thomas-St. John district into two separate columns. Instructions printed at the top of the ballot also instructed voters to select a maximum of 11 delegates from St. Thomas and "no more than" two delegates from St. John.
On Wednesday, Swan argued that only the elections supervisor has the authority to create and revise the ballot, which was issued in its original form at the end of May.
"The law does not say anything about interference by the board," Swan added. The ballot changes "clearly" prohibited voters from selecting more than two candidates from St. John, he said. Swan also said the joint board did not have a quorum of eight members when it approved the revisions.
"So we have to determine whether we're operating legally before we get to any of the other issues," he said. "If the ballot is illegal, then the election is illegal. So what is the remedy for an illegal election?"
A few weeks ago, it appeared that an answer had already been provided to the question. V.I. Superior Court Judge James S. Carroll III ordered board of elections members to re-certify the special-election results based on the number of votes each candidate received. In doing so, the board was prohibited from placing a cap on the number of delegates coming from St. John, Carroll said.
Striking a balance in the courtroom, Carroll also ruled that Daniel did know about the ballot changes at least a week before the election, but delayed in filing his appeal against the board. Ballot revisions were printed in local newspapers and broadcast on the radio, Carroll said, giving Daniel "adequate notice" that something new had happened.
In a subsequent meeting, St. Thomas-St. John District Board of Elections members voted to execute Carroll's order and seat Daniel as a candidate. A few days later, however, a majority of board members decided to reverse the decision, opting instead to appeal Carroll's ruling.
Elections' attorney Tamika Archer reiterated a portion of Carroll's decision Wednesday, saying Daniel should have challenged the ballot revisions as soon as possible. Because Daniel waited until after the election to file his challenge, he is now prohibited by federal law from contesting the results, she said.
Building on Archer's argument, district board attorney Terrlyn Smock said later in the hearing that elections members "substantially" complied with local law when it approved the ballot revisions. She also explained that Rivers has not yet been able to prove that Daniel would have won the election if board members had decided not to change the ballot.
"The voters selected their candidates based on the instructions provided by the board," Smock added. "They were not misled. Even if the board of elections made a mistake, it is not misleading if a resident goes to the polls and votes according to the instructions printed on the ballot."
Pausing a minute before responding, Swan described Smock's argument as "mind-boggling."
In Daniel's corner, Rivers contended that the board of elections had come before the Supreme Court with "unclean hands," and only decided to appeal Carroll's decision in an effort to give certain board members — who had also run as candidates in the June 12 election — another chance at winning a delegate seat.
Rivers also asked the court to overturn the portion of Carroll's ruling that found Daniel had delayed in filing his challenge against the board. Speaking after the hearing, Rivers explained that Daniel could be barred by federal law from filing any claims if the court decides to uphold the ruling in its entirety.
After the hearing, Rivers added that he had initially asked for a new special election.
"I heard the board's attorneys say today that they would be in favor of a new election," he said. "That was what we asked for from the start. If they had said that at the last hearing, we would have said, ‘OK, let's have a new election.’"
Speaking later, Daniel said that while a new election might be the more expensive remedy, it could also be the only way to settle the dispute.
"We'll see what the court says," he said. "But for now, I'm happy with the way it went today. I think we still came out on top."
Chief Justice Rhys S. Hodge said the panel would take the matter under consideration and issue a decision later.
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