I blogged earlier about the extraordinary dispute in the United States Virgin Islands, in which the Virgin Islands Supreme Court ordered a sitting senator off the ballot because it concluded she had committed a crime involving moral turpitude that rendered her disqualified for office. In response, the governor pardoned her, and an ensuing case in federal court resulted in an order to get her back on the ballot.
I thought that would end the matter.
The case has become even more surreal.
In a recent decision (PDF or decisions page), the Virgin Islands Supreme Court has decided to ignore the federal court order, concluding the federal court lacked jurisdiction to hear the case; and, further, has ordered Senator Alicia "Chucky" Hansen's name off the ballot, even though ballots have been printed, absentee ballots have been sent out, and early voting is underway.
The opinion is meandering, to say the least. It includes citations to the Rooker-Feldman doctrine, the Supremacy Clause's purported distinction between Article III and Article IV courts, exercises of supplemental jurisdiction, and in personam and in rem proceedings.
There's too much to unpack here, but I'll note three brief points.
First, it notes that Senator Hansen has the ability to petition as a write-in candidate. In U.S. Term Limits v. Thornton, the Supreme Court concluded that a bar on a candidate's name appearing on the ballot was overly burdensome when the only alternative was a write-in candidacy. That, the Court found, was effectively a bar and could not cure the congressional term limits rule that left a candidate's name on the ballot. Here, too, I think the court misses the mark by arguing that a write-in candidacy is a viable alternative.
Second, it rejects not just Purcell v. Gonzalez, but also the four Supreme Court decisions handed down in the last few weeks involving litigation in North Carolina, Ohio, Texas, and Wisconsin. In each, the Court restored the "status quo" prior to an upcoming election--in three cases, allowing a contested law to remain in effect, and in one case, continuing an injunction against a law that had been challenged. Here, the court attempts to distinguish theses on a lack of a record suggesting that there's a problem in altering the ballots--this, despite the fact that early voting is actually underway in the Virgin Islands.
Third, this is the first opportunity for a case to be appealed directly to the United States Supreme Court since a recently jurisdictional law took effect; previously, cases would be appealed from the Virgin Islands Supreme Court to the Third Circuit.
We'll see if anything comes from this case. But it might serve as a fifth instance of the Supreme Court stepping in this election season and addressing the preservation of the status quo.