Friday the Legislature will vote whether to approve a ballot initiative creating districts, electing more senators at-large and bypassing the Legislature to rearrange how senator’s office funds work. The Legislature cannot kill it. It can either enact it into law, leave it be and let it go on the ballot or craft an alternative ballot measure and put both on the ballot for Nov. 6.
If that ballot measure is enacted as is, it is likely to lead to lawsuits and a prolonged, messy, expensive soap opera of a court battle. For that reason, the Legislature should not enact it and voters should reject it. The Legislature should craft an alternative that addresses constitutional and practical concerns with the ballot measure and put it on the ballot. One solution would be a ballot measure that simply elected seven senators at-large and four for each district. Other ideas may work as well.
V.I. history and the rules for passing initiatives suggest the ballot measure is unlikely to pass, but it could. A majority of registered voters have to vote on the measure and a majority of those voting on it have to approve. Several past attempts at initiatives or recalls have been unsuccessful. If their are two measures, both are even less likely to pass. But a better crafted one might achieve many of the same goals without the mess.
Enacting a V.I. constitution would be the best way to deal with these questions. Five past attempts at a constitution failed, most recently due to the insistence in some quarters on measures that violated the U.S. Constitution’s Bill of Rights and several federal laws. But federal law gives the Legislature broad authority to set up any reasonable process to create a constitution. Senators could even write and pass one itself, so long as that document did not violate federal law or the U.S. Constitution. Creating new districts and new at large representation could be a part of that document. At the same time, a constitution could also create municipalities with different property tax systems, solving the problem of skyrocketing property values on St. John. Without that, federal law prevents the territory from having a different property tax rate on St. John.
But this ballot measure is here and must be addressed.
The civic group St. Croix Government Retirees Inc. and its president, Mary Moorhead, diligently worked to get signatures to get the measure on the ballot.
Currently, the territory elects 15 senators, with seven for St. Croix, seven for St. Thomas and one “at large” elected territory-wide, who is traditionally from St. John, although there is no legal requirement for that. The top seven vote-getters in each district are elected, so the final person to be seated may not actually be terribly popular.
No other U.S. territory or state has a similar system for electing legislators.
Under the proposal, the territory would be split into five districts; two on St. Croix; two on St. Thomas and one on St. John. There would still be 15 senators. The St. John district would have one senator and each of the St. Thomas and St. Croix districts would have two senators. Then three senators who reside on St. Croix and three who reside on St. Thomas would run at large, to be elected by all the voters of the Virgin Islands. This would mean six senators would be elected at large.
Only an at-large senator could be chosen to be president of the Legislature.
The initiative proposal also makes slight changes to senatorial allotments. Under current law, each senator has a base allotment of 2 percent of the Legislature’s budget – or $400,000 per year – for office expenses and personal assistants. Senate officers get additional amounts. The initiative proposal makes slight changes to the language of the current law to account for the changes in how senators would be elected and officers of the Legislature chosen. These office budget details seem more appropriate for legislation than a ballot measure.
In an op-ed, Moorhead said the goals were partly to diffuse the tension between districts by increasing at-large representation, and party to create what she called “checks and balances.”
“Our Initiative proposes to return check and balance to the Legislature of the Virgin Islands. It addresses a configuration of six at-large senators and nine district senators as the foundation of the continual resolution between at-large and district senators. Check and balance becomes the impetus that brings continual resolution to an agreement both parties can live with. This is accomplished because check and balance requires the passage of any measure by the Legislature to have the affirmative vote of a majority of at-large as well as district senators,” Moorhead wrote.
Checks and balances has historically referred to the concept that the three branches of government- executive, legislative and judicial- limit one another and check each from getting too powerful, rather than the apportionment of a legislature.
More importantly, the measure, as drafted, has already raised constitutional concerns that will spawn endless lawsuits. Yvonne Tharpes, the Legislature’s chief legal counsel, recently wrote an opinion saying in part that “the constitutional equal protection requirements for fair representations will not me met under this proposal,” and that it lacks any means for drawing the districts.
“It is not sufficient merely to declare that there are five districts and name them as St. Croix East, St. Croix West, St. Thomas East, St. Thomas West and St. John,” Tharpes wrote.
Republican member of the V.I. Board of Elections Jevon Williams issued a statement echoing those same constitutional concerns about “one person, one vote.” Williams said if the measure moves forward, as a member of the Board of Elections, he will request a review by the U.S. attorney for the territory and the Voting Section of the U.S. Department of Justice.
Electing seven senators at large with one seat reserved for a bona fide resident of St. John would achieve Moorhead’s goal of ensuring legislation is always approved by more than one district while sidestepping the constitutional concerns.
St. Johnians may object that they do not get a dedicated district representative this way, only an at-large seat reserved for a St. Johnian. But a St. John district will bring legal problems due to St. John’s small population. While the U.S. as a whole has unequal representation, with smaller states over-represented, it is a federation of many. By court precedent, its component states have to more or less achieve one person – one vote. For St. John with fewer than 4,000 residents to meet this rule in a territory with 100,000-plus residents, the Legislature would need 25 or more members. There may be more Virgin Islanders who want to shrink the Legislature than expand it. But that would be a solution.
Draft a second proposal to increase at large representation and place both measures on the ballot. If neither pass, finally act on a V.I. constitution.