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HomeNewsElections 2020Election 2020: Referendum is a Possible Road to USVI Constitution

Election 2020: Referendum is a Possible Road to USVI Constitution

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Voters in the general election in November may have the chance to weigh in on developing a constitution for the Virgin Islands through a question on the ballot asking whether a constitutional convention should be convened to adopt the Revised Organic Act as the territory’s governing law.

What happens if it passes? Does it mean those passages of federal law defining our government now will become a V.I. constitution? Is it likely to pass? Will it usher in another public struggle to establish different categories of Virgin Islanders with different levels of rights?

Its proponents say it will help avoid some of the issues that plagued past efforts at a V.I. constitution and hopefully lead to an uncontroversial document that codifies the existing government but can later be amended as needed. Some worry it may lead to another chaotic, acrimonious public spectacle like the one that failed in 2012.

What Proponents Say
Sen. Myron Jackson sponsored the legislation and the Legislature passed it unanimously in May as Act 8308.

“In our quest for self-determination, a constitution is critical for self-governance. Our status relationship to the United States is an act we must achieve,” Jackson said in May.

Over the decades, five constitutional conventions have met to develop a Virgin Islands Constitution but have been met with challenges.

Efforts in 1965, 1972, 1978, 1980 and 2012 all failed.

“Our attempts to have a constitution of our own have not met the constitutional requirements of the United States,” Jackson said at the time. “We can agree that over the last 66 years the Revised Organic Act of 1954 has defined our democratic government and relationship to the United States.”

Jackson urged the governor to sign the bill into law as an important step in the territory’s progress.

“At this present time in our history, we must have a working constitution that we can use to define our realities,” he said. “We want to pose the question to the people on whether they so choose to take this option to achieve the goal.”

Sen. Jackson told the Source he believed a V.I. Constitution to be an important step toward self-determination, and a useful tool for dealing with a variety of problems caused by the need to get congressional approval for almost any change in local governance.

“I do believe the next legislative body would do the right thing and call for a constitutional convention to adopt the Organic Act, or portions of it, and we will achieve a document that meets constitutional and sovereignty approval. And so, we would have a constitution to deal with our present status. And likewise, it may be a vehicle for our future engagement as relates to our status and our actions for self-determination,” Jackson said in a recent interview with the Source.

While some in the community would prefer to deal with the islands’ status in relation to the United States first, Jackson said he believes it “would allow us to deal with the pressing issues at hand without having to go to Congress.”

Jackson said how to select the convention delegates “is open for discussion,” but “my preference would be an elected group of residents.”

Once a constitution is established, then a referendum on the territory’s status could be approached, he suggested. Jackson said University of the Virgin Islands political science professor Malik Sekou proposed aiming for a referendum in 2027, the centennial of when the United States legislatively granted U.S. Virgin Islanders automatic U.S. citizenship.

Sen. Janelle Sarauw, a co-sponsor of the measure, said the referendum would give “a feel of the public sentiment, like a public opinion poll.”

She said the Revised Organic Act might be an uncontroversial compromise, allowing the territory to enact a constitution that keeps the government as it is but can be amended later.

“We had five conventions, and nothing came of it,” she said. “It is high time we had a constitution. … A lot of our issues stem from a colonialist standpoint. We were and are a colony.”

“The heart of a democracy is a constitution. … It is time we devise the heart of our democracy,” Sarauw said. “We cannot amend the Organic Act. We can’t delete a section. And it is outdated. With a constitution, we can amend it when we need to.”

What Federal Law Says
Federal law allows the Legislature of the Virgin Islands to “call constitutional conventions to draft, within the existing territorial-federal relationship, constitutions for the local self-government of the peoples of the Virgin Islands and Guam.”

But it also specifies any constitutions drafted that way has to be consistent with the supremacy of the U.S. Constitution, treaties and laws of the United States, relating to the territories. It must have a republican form of government with executive, legislative and judicial branches.

That same federal law is completely silent on what a constitutional convention is.

Sarauw said the Legislature’s Office of Legal Counsel has issued an opinion saying the Legislature must empower a separate entity and cannot, for example, designate itself or create a committee called the Constitutional Convention. Sen. Jackson, the bill’s sponsor, believes a convention must be elected.

But the law itself gives the Legislature authority and is silent about the details.

The constitutional convention that wrote the U.S. Constitution in 1787 was not elected. Its members were appointed by the 13 state legislatures.

The U.S. Constitution itself has a provision for a new constitutional provision that also does not call for an election of convention members. It appears to assume Congress will pick members, but it is not explicitly described.

There is no federal law controlling how constitutional convention members must be selected. Some have been proposed but none enacted. Some legal scholars believe Congress lacks the power to restrict the authority of a U.S. Constitutional Convention in any way and once convened, Pandora’s box is open and it could produce any sort of final document, subject to state approval.

The relevant part of Article V says Congress “on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments,” it says that if three-fourths of state legislatures approve the proposed amendments, they are enacted.

Article V says nothing about how Congress will staff the convention.

With no controlling law, it is not immediately obvious why the Legislature could not, for example, establish and appoint a convention, just as the 13 state legislatures did in 1787.

It could give it a specific mandate to vote up or down on a specific document, then put the document up for a public vote or even approve it itself. There is no federal or local law specifically prohibiting it.

At the same time, there is nothing in the law to say the Legislature cannot proceed as Jackson and Sarauw envision, and enact legislation calling for the election of a constitutional convention that had the authority to write whatever it wished.

What Will Happen with the USVI Referendum?
Gwen-Marie Moolenaar of the League of Women Voters told the Source the League has no formal position on the referendum but was dedicated to helping educate the public on it.

Several senators asked the League to help get the word out, going to the territory’s schools. “We thought it was a great idea because it fits so well with our mission,” Moolenaar said. But there has not been funding for an education program, so their efforts have been limited, she said.

On a personal level, Moolenaar said she thinks getting a constitution in place now, using the federal law as the template, is a good idea.

“We were getting a lot of push back from people who are against the concept of a constitution without addressing our status,” but she regards the status question as separate.

If the bill is passed, what happens next? Under federal law, a normal V.I. ballot referendum can be placed on the ballot if enough voters sign a petition requesting it. That type of referendum automatically becomes law if more than 50 percent of registered voters vote on the referendum and more than half of those who vote on it, vote in favor. That is a very high hurdle that has rarely, if ever, been met in the territory. There have been several unsuccessful efforts over the years.

Notably, back in 1993, the territory held a status referendum on whether voters wanted the U.S. Virgin Islands to remain a territory, be integrated into the Unites States or become independent. While more than 80 percent of those casting votes voted to remain a territory, the results were declared invalid because fewer than 50 percent of registered voters cast votes on the question.

But since this was placed on the ballot by legislation and not through the statutory referendum process, senators opted for an easier threshold.

The legislation only asks voters if they are “in favor of the Legislature enacting legislation to convene a constitutional convention to adopt the Revised Organic Act off [sic] the Virgin Islands, 68, Stat. 497 as the Constitution of the Virgin Islands,” and that the “Legislature is not required to take any action toward enacting a stature to convene a constitutional convention” unless a majority of voters in the election vote on the referendum and a majority of those who vote on it, vote in favor.

On the one hand, this may boost its chances because, unlike a voter-initiated referendum, it does not require a majority of registered voters to vote. On the other hand, it does not specifically mandate the Legislature to do anything. It only specifies when it is NOT mandated.

If it is passed and senators in the next Legislature are inclined to support it, they would then have to draft legislation and vote on it, with no certain content of that legislation, no timeline for action and no certain outcome of the votes. Then the governor would have to sign it. Then there would need to be funding for a convention. Then the convention would play out however it plays out. Then the document would go to the U.S. president and Congress, and the federal courts would get a chance to weigh in.

There are many “ifs.” But if they all line up: If the referendum passes and if the Senate enacts legislation creating a new constitutional convention, if that convention drafts a document that incorporates this proposal and if it passes it, then if the U.S. Department of Justice finds no issue and if the U.S. president forwards it to Congress and if Congress approves it, then the USVI will have a constitution.

But, as the ancient saying goes, “there’s many a slip ‘twixt cup and lip.”

The last constitutional convention fell apart due to President Barack Obama, the U.S. Department of Justice and Congress all objecting to provisions they determined violated federal laws and the U.S. Constitution’s equal protection provisions.

The most controversial sections said only native-born Virgin Islanders can run for governor or lieutenant governor and that “ancestral Virgin Islanders” (those who had family in the territory in or prior to 1932) would be exempt from property tax.

Congress even reconvened the constitutional convention as a “revision convention” with a mission to correct the illegal portions. But the members could not agree to do so, and so that effort died fruitlessly.

This referendum’s stated goal is to limit what the convention would consider, to sidestep those stumbling blocks and produce a legally sufficient constitution that Congress would be likely to approve. Whether that effort is successful depends on exactly what the Legislature writes into the enacting statute and what any new constitutional convention does next.

But with all the checks along the way, there is little to fear from starting down the road.

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