Federal judge won't block swearing-in

ST. THOMAS - A federal judge decided on Sunday to allow the territory to begin swearing-in its newest elected officials despite attempts to halt the process by five candidates who ran unsuccessfully during the General Election.

In a 19-page memorandum opinion, District Judge Raymond Finch ruled that the five candidates who are suing the V.I. Election System and its board members about a number of claimed deficiencies in the 2012 election cycle did not present enough evidence at a hearing last Friday to justify their request to stop the swearing-in ceremonies.

Plaintiffs Lawrence Olive, Wilma Marsh-Monsanto, Norma Pickard-Samuel, Harriet Mercer and Diane Magras had asked the court to intervene based on the argument that the process with which the candidates were elected was deeply flawed. The plaintiffs' amended complaint outlines concerns that the territory's 2012 primary and General Elections violated equal protection and due process rights and broke the federal Help America Vote Act and a number of local elections laws.

But the candidates were unable to convince Finch that they were likely to succeed on any of these counts, which is one of the conditions required for granting a preliminary injunction. They also did not convince the court that they would suffer irreparable harm without a restraining order, another prerequisite for granting such a request.

"This allegation of irreparable harm is based on systemic allegations of a compromised voting system, but Plaintiffs do not elucidate how they were irreparably harmed, or how such harm is imminent," the opinion states.

Mercer on Monday took issue with the judge's ruling, maintaining that she and her co-complainants had met the statutory burden of proof. Mercer said the plaintiffs likely will appeal Finch's decision on the restraining order.

"I think also the people of the Virgin Islands need to be watchful any way this proceeds," Mercer said.

In terms of evidence, Mercer also pointed to the tally sheets that elections officials used to determine the election results. Those documents were briefly mentioned at Friday's hearing, but whether they would become part of the case was left unresolved.

"I don't have any confidence in that part of the system," Mercer said.

Mercer and Magras both have raised questions about what they say are discrepancies between the vote-counts they were able to make in the weeks following the election and the counts later certified by the St. Thomas-St. John Board of Elections.

When the issue of obtaining the tally sheets came up on Friday, Finch asked St. Thomas-St. John Board Chairwoman Alecia Wells how long it would take to produce the sheets. Wells said it could take up to a couple of weeks as the Election System's St. Thomas office is in the middle of moving to a new location.

Magras has since filed a formal request for the documents, and Mercer said the plaintiffs would seek a court order to obtain them if necessary.

Wells said Monday she had received Magras' request and said she would look into the matter further with staff today.

"Of course, in the demand they said I have access to them," Wells said. "I don't have them."

Wells said Monday evening that she had not yet had a chance to review the opinion, and other board members contacted for this story did not return calls for comment.

Decertification

Finch's opinion also articulates the standard for decertifying an election in the Virgin Islands without making a ruling on the plaintiff's request to do so in this case.

"No Court should invalidate an election and order a new one unless where there is a finding of fraud or deprivation of rights which would implicate the Constitution of the United States, unless there is a clear statutory provision requiring it, or unless violations of the statutory scheme were pervasive enough to affect or change the result of the election," the opinion states, quoting from a 1993 District Court ruling.

The opinion also notes, citing a different case, that the court must consider "the extremely disruptive effect of election invalidation and the havoc it wreaks upon local political continuity."

Defense motion denied

Other parts of Finch's opinion bode better for the plaintiffs, including a section in which he denied a defense motion to dismiss the entire lawsuit.

"It shows our case is not dead in the water," Mercer said.

V.I. assistant attorneys general representing the Elections System had argued that the plaintiffs were barred from making a claim under the federal Help America Vote Act because all but one of them were local and not federal candidates. They similarly argued that the Help America Vote Act does not allow lawsuits about claims that originate from local election issues.

Finch disagreed, calling those arguments "misplaced."

"Any alleged deficiency in a HAVA claim would not rob the Court of subject matter jurisdiction in this case," he wrote.

Also, apart from any Help America Vote Act claims, the defense so far has failed to address the Constitutional issues associated with the plaintiffs' allegations, Finch wrote.

No further hearings had been scheduled in the case as of Monday.

- Contact reporter Lou Mattei at 714-9124 or email lmattei@dailynews.vi.

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