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Special Election Moving Forward Despite Lawsuit, Budget Constraints

Despite a new lawsuit that seeks to stay the upcoming special election and a tight budget that eliminates the option for early voting, St. Thomas-St. John District Elections Board members said Tuesday that they are still moving ahead with their preparations unless the courts tell them otherwise.

New Rodriquez Suit

Board members said during a meeting on St. Thomas that the April 8 special election is still on, though they will be “flexible” with their plans in case the federal courts make a ruling on a new suit filed by former senator-elect Kevin Rodriquez, whose district seat is now up for grabs.

Rodriquez came in sixth in November’s election to fill seven St. Thomas-St. John legislative seats and the St. Thomas-St. District John Board of Elections certified his candidacy and the final vote.

But in December, the eighth-place candidate, Janelle Sarauw, joined by a campaign worker, sued in V.I. Superior Court to stop Rodriquez from being seated, arguing that Rodriquez had asserted in court documents filed in 2016 that he was a bona fide resident of Tennessee and therefore could not meet the three-year V.I. residency requirement set by V.I. law. The initial ruling from Superior Court Judge Kathleen Mackay was in favor of Rodriquez, but her ruling was overturned days later by the V.I. Supreme Court, which determined that in his bankruptcy petition, Rodriquez swore under penalty of perjury that he lived in Tennessee and had not lived in another state anytime during the preceding three years.

It applied the doctrine of “judicial estoppel,” saying that Rodriquez’s claim under oath in one court prevented him from claiming the opposite in another court.

Rodriquez filed to have the case moved to V.I. District Court and argued that the Revised Organic Act, the federal law that acts as a constitution for the territory, gives the Legislature final authority over who is qualified to sit. Rodriquez also sued the Legislature, requesting it seat him.

The Legislature, through Senate President Myron Jackson, has twice said that it would not take on the matter, which U.S. District Court Judge Curtis Gomez said in his opinion should have shown Rodriquez that “a path to membership in the Legislature was not assured.”

Gomez dismissed both cases in February, which led Rodriquez to appeal the case to the Third Circuit. Rodriquez has also filed a motion to enjoin the Elections Board from moving forward with the special election until the case is settled.

“The central question arising out of these consolidated cases is whether a senator-elect may be excluded from the V.I. Legislature and have his election nullified by a special election, without the Legislature to which he was elected ever voting on whether he has met the standing qualifications for membership and, as a consequence, whether a vacancy in the Legislature in fact exists,” according to Rodriquez’s filing. “These are questions of first impression in the Virgin Islands.”

In a letter to the Elections Board, Rodriquez’s attorney Francis Jackson added that a special election “would cause Rodriquez irreparable harm because it would nullify his election – certified by the Board – as well as the votes of 4,134 electors.”

“The Court of Appeals should have an opportunity to review the novel, complex and important issues raised in his appeal before his election is nullified,” Jackson wrote.

At Tuesday’s meeting, Elections Supervisor Caroline Fawkes said not moving forward would cause the board to miss special election deadlines in the event that Rodriquez’s case is not heard or is dismissed before April 8. Fawkes said her staff plans to “be flexible” unless they hear otherwise from the courts.

Budget Issues

With the Rodriquez’s suit in the background, board members said Tuesday that one of their most immediate issues is a lack of funding, which affects everything from early voting to the inclusion of candidate photos on the special election ballot.

While putting the photos in is required by law, Fawkes said Tuesday that doing so would double the cost of the ballots, which is currently 48-cents. Fawkes recommended that enough ballots be printed to cover 30 percent of registered voters on St. Thomas-St. John and, without the photos, that would cost a little less than $4,000. With the photos, the total printing cost is close to $8,000.

Fawkes did present a sample ballot with pictures Tuesday for the board to approve, and members said they would try to comply with the law using a 2-inch-by-2-inch photo of each of the 13 candidates running for office, which they said they will ask to have submitted by Wednesday.

The tight budget and schedule has eliminated the early voting option and has made it difficult to keep open several polling places, including the site at Calabash Boom on St. John.

Despite opposition during Tuesday’s meeting from member Ivy Moses, who lives on St. John and said that voters on one side of the island could find it difficult to travel down to Julius Sprauve School in Cruz Bay to vote, board members said the number of voters that came to Calabash Boom to vote in the last election doesn’t justify keeping the polling site open.

Fawkes said that in terms of its budget, Elections has been asked to cut 10 percent for this fiscal year, which she said matches the Office of Management and Budget’s policy for all other departments and agencies. For the special election, the Legislature has appropriated $90,000, and Fawkes said her office was in receipt this week of a copy of the bill that made possible the funding.

Special Election Update

Fawkes said Tuesday that the special election process continues to move forward, with the only other issue being the date for the testing of the machines, which she said might be pushed back from March 22 to March 23 to allow for transport over to the St. John site.

Letters have been distributed to the Departments of Education, Planning and Natural Resources, Property and Procurement, and Police and to a local security firm to allow for the use of various polling sites, transportation and security, Fawkes said.

So far, polling places for the special election will include Bertha C. Boschulte Middle School, the Charles W. Turnbull Library, Charlotte Amalie High School, Addelita Cancryn Junior High and Gladys Abraham Elementary on St. Thomas, along with Julius Sprauve School on St. John.

Fawkes said her office plans to be distributing more updates about the election process and important dates as the election date gets closer. Voter registration, she added, has been progressing on St. Thomas, but is “stagnant” on St. John, with voters coming out in small numbers from time to time throughout the week.

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