Almost all special election votes have been counted, but the St. Thomas-St. John District Board of Elections might not be able to certify the results until the status of former senator elect Kevin Rodriquez has been officially settled, according to members.
“I know it sounds chaotic, it sounds like confusion, but that’s what happens,” District Board of Elections chair Arturo Watlington, Jr. said Tuesday at an emergency meeting on St. Thomas.
Rodriquez came in sixth in the November general election to fill seven St. Thomas-St. John legislative seats and the St. Thomas-St. John Board of Elections certified his candidacy and the final vote.
But in December, Janelle Sarauw, the eighth place candidate, and 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. An 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. While the Senate deferred to the courts, both Rodriquez’s and Sarauw’s suits were eventually dismissed, along with an appeal recently filed by Rodriquez that sought to stay the special election.
Gomez’s decision to dismiss Rodriquez’s suit is what is now holding up the certification of this month’s special election, according to District Board of Elections attorney Julita de Leon, who told members Tuesday that without any definitive ruling declaring him ineligible for the seat, Rodriquez technically is still a senator-elect, while Sarauw, who won the special election, remains in limbo.
“This is an usual situation in that Mr. Rodriquez was neither seated, nor was he decertified,” de Leon said. “So, he needs to either be seated or he needs to be decertified and this board cannot decertify him because the Legislature did not give the board that authority.”
And until the Legislature acts, the board is at a standstill in the certification process, she added. De Leon said the “only entity” who now has the authority to act is the Legislature, which either has to seat or decertify Rodriquez, or allow the board to decertify the November general election.
Watlington and other board members expressed frustration at the process, which they said is forcing them to essentially “certify eight people for seven district Senate seats.”
“These are the things that should have been worked out before we even got to this point,” board member Ivy K. Moses said. “This is a waste of everybody’s time, this is a waste of the taxpayers’ money, a waste of all the candidates’ time, energy and effort. This is ridiculous, totally ridiculous and I’m not going to continue sitting down here, acting like the professional board when everyone around us is doing whatever the hell they want to do. It doesn’t make sense.”
The board continued Tuesday afternoon with counting absentee ballots from the special election, which will continue into Wednesday. After the Tuesday count, Watlington said there were approximately 70 to 72 ballots left to go and after that, the board will decide “which direction it’s going to go in.”
Speaking after the meeting, Sarauw, who was in the audience Tuesday, said that in failing to certify the special election, the board continues to “pass the buck” onto the other branches. Sarauw said the board had the chance to address her allegations before the election was certified but “chose not to.”
“And if the Senate appropriates money for a special election, which they did, it means the seat is vacant,” she said. “What we’re doing is continuing to pass the buck.” Sarauw stated that members of the Senate’s majority have already reached out and offered congratulations and have begun to help in her transition process.
“We’re stalling the election, we’re stalling the democracy,” Sarauw added. “Now, it’s time to stop doing what’s best for party politics and start doing what’s best for the territory.”