Challenger Files Supreme Court Appeal to Ottley’s Candidacy

A challenge to Basil Ottley’s qualifications to be a candidate for lieutenant governor in Tuesday’s gubernatorial runoff was filed Friday in the Supreme Court of the U.S. Virgin Islands.

Ottley is the running mate of Delegate Donna Christensen, who is seeking to become the territory’s governor. Together the two finished second to former Lt. Gov. Kenneth Mapp and his running mate, Osbert Potter, in the Nov. 4 general election, but neither gained a majority so, under the V.I. Code, there must be a runoff, which is to be held Tuesday.

At issue in Friday’s appeal to the Supreme Court is the question of whether Ottley is a bona fide resident of the territory under the terms of the Revised Organic Act of 1954, as amended, which serves as the legal structure for government in the Virgin Islands. Under the act, a candidate for governor or lieutenant governor must be a bone fide resident of the territory for five years.

The appeal to the territory’s high court is the final act of a legal battle that began in July, when Moleto Smith, another candidate for lieutenant governor, filed suit in the V.I. Superior Court challenging Ottley’s candidacy. The court dismissed the case, citing lack of jurisdiction because the time limit for challenging a candidacy had passed.

V.I. voter Alan Haynes filed suit in August in U.S. District Court, but his challenge was rejected on the grounds that one individual voter lacks standing to remove a candidate from the ballot.

Haynes’ appeal to the Supreme Court was filed Friday.

According to the appeal, the Superior Court was wrong in relying on a deadline for challenging candidates set by the Legislature. Locally enacted statutes cannot supersede the Revised Organic Act, which contains no limit to when such a challenge can be filed, the appeal claims.

Haynes also maintains in the appeal that "bona fide resident" cannot be determined by where a person lives or maintains a residence. The Revised Organic Act does not specify what the term means so, according to the appeal, the court must look to Congress’s intent and understanding of the term, and cites portions of the Internal Revenue Code for guidance. According to that standard, for tax purposes a person is a resident if they spend 183 days (half a year) in the territory, does not possess a tax home outside the territory and does not have a closer connection to the U.S. than to the territory.

The appeal then cites Ottley’s employment in Washington, D.C., his residence and phone number in Maryland and the fact that he had a Maryland driver’s license.

The appeal seeks a preliminary and permanent injunction prohibiting Ottley from being on the ballot, from being elected to or holding the office of lieutenant governor. It names as defendants Ottley, the V.I. Joint Board of Elections, the Boards of Elections of the St. Croix District and of the St. Thomas/St. John District, Supervisor of Elections Caroline Fawkes and the Government of the Virgin Islands.

When the issue arose in the summer, the Christensen-Ottley campaign dismissed the charges in a sharply worded response, calling the charge "frivolous." In a statement, the campaign said:

– Ottley meets the residency/domicile residency requirements set out in Section 11 of the 1954 Revised Organic Act;
– Ottley has been eligible to vote in the last five years in the U.S. Virgin Islands and, in fact, has voted in a primary or general election or both every election year since 2008;
– Since first registering to vote in the U.S. Virgin Islands in 1984, Ottley has never voted or registered to vote anywhere else except the U.S. Virgin Islands;
– Ottley has owned and maintained his family home in St. Thomas for more than five years throughout that period. His home has not been rented out and has been available for his use, and has been used, throughout the period;
– Ottley meets every relevant definition of what constitutes a resident of the U.S. Virgin Islands, including that set out in the V.I. Code, which deals with “residence defined” for a registered voter;
– Ottley has been employed in a public service position with the Department of Interior for the last five years.

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