Judge hears complaints against election
Published: January 5, 2013
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ST. THOMAS - Uncertainty about the territory's 2012 election will last right up until the territory's first swearing-in ceremony on Monday.
District Judge Raymond Finch on Friday listened to almost four hours of arguments and testimony via teleconference about whether he should grant the request of five unsuccessful 2012 candidates to throw out the territory's certified election results and grant a new election on a single-page paper ballot.
At the end of the hearing, Finch gave the plaintiffs until Sunday to respond to the government's motion to dismiss their complaint in advance of his ruling, which he said he intends to issue prior to Monday's scheduled swearing-in of Board of Education members.
The hearing Friday survived a few unusual snags attributable to the fact that all five petitioners - Lawrence Olive, Wilma Marsh-Monsanto, Norma Pickard-Samuel, Harriet Mercer and Diane Magras - are representing themselves.
Marsh-Monsanto, who called St. Croix Board of Elections member Adelbert Bryan as the hearing's first witness, ran into several objections as she tried to elicit testimony from Bryan, first by asking him to "share your feelings on the matter of the 2012 election." Finch sustained two objections to such questions and after the third instructed Bryan to restrict his testimony to his experience with the board of elections and to stop short of stating his opinions on anything. Normally witnesses can offer only their opinions as evidence if the court first qualifies them as experts.
Bryan described being involved in a Joint Board of Elections committee on election reform that was dismantled shortly after it was selected. He also said voters were given a "completely different" paper ballot on Election Day than the sample ballot that had been posted prior to the election.
However, the plaintiffs' amended complaint does not make any allegations specifically related to either of these issues.
Marsh-Monsanto told the court she had "22 pages of laws that were broken" by the Elections System, but many of her and the other plaintiffs' questions revolved not around legal issues but on why elections officials had not responded to several written complaints made by the plaintiffs during the election cycle.
It was not until later in the hearing, when Olive questioned the next witness, St. Thomas-St. John Board Chairwoman Alecia Wells, that any direct testimony was given addressing whether election laws were violated.
Olive asked Wells whether she was aware of V.I. Act 7334, which requires that only voting machines compliant with the federal Help America Vote Act be used as "official voting systems or equipment" in the territory. He then asked her whether the machines used in the 2012 elections met this compliance requirement.
"No," Wells said.
Wells went on to explain that the board's decision to use the machines despite their non-compliance with the law was based on an opinion from V.I. Attorney General Vincent Frazer.
According to Wells, Frazer told the board the machines were OK to use because they were the same machines the territory has been using for more than 20 years and that nothing in federal law prevented their use.
Olive also posed questions to Wells regarding an issue that appeared in the Board of Elections section of the St. Thomas-St. John District ballot. According to Wells' testimony, the ballot made it impossible for voters to write-in a St. John-based candidate instead of voting for Wells, who won re-election to that seat.
"Yes, it should have been separated," Wells said.
Pickard-Samuel questioned Wells about issues that arose prior to the certification of the St. Thomas-St. John voting machines. Wells admitted there was a "malfunction" in the machines prior to certification, which she has publicly stated before, but she said this issue was fixed prior to the certification.
Magras later called two poll workers from Addelita Cancryn Junior High School who testified that, among other issues, their counts of voters entering the polling place did not match up with subsequent vote tallies.
Mercer added grievances about Frazer's handling of certain candidates' requests for an investigation of the election. Her statements arose again later in the hearing when Joint Board Chairman Rupert Ross Jr. testified that the board, too, forwarded a number of similar complaints to the attorney general for follow-up. Frazer has named a panel to investigate the election, but as of Friday had not made public any results from the probe.
"If he's not doing his job, the job has still got to be done," Mercer said.
Assistant Attorneys General Ariel Smith-Francois and Tamika Archer on Friday morning filed a brief - which later was re-captioned as a motion - arguing against the plaintiffs' restraining order request and their complaint.
Finch resisted attempts by Smith-Francois to voice the government's case, telling her early in the hearing that he could read her arguments in the brief that had been filed.
The brief makes four arguments against the plaintiffs' claims:
- The Help America Vote Act does not allow private citizens, as opposed to the U.S. Attorney General, to bring an action before the court. The brief notes that this issue has not been decided in the Third Circuit, but that other jurisdictions have rendered such opinions.
- There is no violation of the Help America Vote Act that would give the District Court jurisdiction over the local election.
- The candidates for local offices - Marsh-Monsanto, Mercer, Magras and Olive - have no standing to bring a challenge under the Help America Vote Act.
- The plaintiffs' claims are barred by the doctrine of laches, which, in part, prohibits unnecessary delay in bringing a case before the court. Archer argued the plaintiffs have aired concerns about the Elections System since at least September but only filed the lawsuit after they lost the election.
'Waste my time'
After the plaintiffs finished calling witnesses, Archer approached the podium and told the judge she intended to call two witnesses.
"What do you need them for?" Finch asked.
Archer responded that she intended to put on the government's case.
Finch said that he was "not going to sit here all afternoon" and that he intended to wrap up the hearing within five minutes.
"I've heard enough to make my decision, but if you want to, proceed," Finch said. "Go ahead - waste my time."
However, Finch did not rule on Friday and told the parties he intends to make a decision, at least on the restraining order request, in advance of Monday's swearing-in for the Board of Education.
- Contact reporter Lou Mattei at 714-9124 or email firstname.lastname@example.org.