Virgin Islands Supreme Court blocks "unqualified" candidate from ballot

Alicia "Chucky" Hansen didn't file income tax returns for a few elections. She was convicted of a few misdemeanors. She ran for legislative office in the Virgin Islands, won, and was seated. She was re-elected.

But when she tried to run again, the chair of the board of elections filed a petition to block her from obtaining ballot access. He claimed that her tax convictions were "crimes involving moral turpitude," which rendered her ineligible to run for office.

The Supreme Court of the Virgin Islands agreed and blocked Ms. Hansen from obtaining ballot access in Bryan v. Fawkes. (PDF)

The Revised Organic Act at issue provides, "The legislature shall be the sole judge of the elections and qualifications of its members." In one way, this is even more robust a power than that given the United States Congress; here, it uses the word "sole," a word the Court in Nixon v. United States (1993) found to be significant. There, in the context of impeachment, the House had the sole responsibility of impeachment, and the Senate had the sole responsibility of removal; the Court found that these textual commitments to other branches precluded judicial review.

Not so here. The Supreme Court of the Virgin Islands felt comfortable not only allowing the executive election official to adjudicate the qualifications of candidates for ballot access, but also in allowing itself to review that decision-making process, too.

I think this is flawed, and the better argument lies with the one I make in my forthcoming Indiana Law Journal piece, Scrutinizing Federal Electoral Qualifications.

I'll briefly mention some of the more curious arguments:

The Court notes that the 30th (and present) Legislature had no ability to adjudicate the qualifications of candidates for the 31st (next year's) Legislature. That isn't much of an answer at all: it might be the case that no one adjudicates the qualifications of candidates for the 31st Legislature until the voters choose them and they seek to be seated.

The Court explains that the Revised Organic Act gives election officials the power "of directing the administration" of elections, which means that "the power to determine whether a candidate meets the minimum qualifications for office so as to appear on a general election ballot is clearly not exclusive to the legislature." I suppose one could conflate the former power with the latter, but that's far from "clearly" established.

The Court notes that the legislature's power to evaluate the qualifications and returns of its own members is different from the power to review the qualifications of candidates. First, it would pretty much eviscerate the power of the legislature, because, presumably, all candidates on the ballot would be qualified and there wouldn't be anything left to review. Second, and relatedly, it gives the judiciary and the executive branches a power to review these candidates in advance, effectively usurping that power from the legislature.

It tracks a couple of state supreme court decisions that were deeply worried that the ballot might include some unqualified candidates--15 year olds or non-citizens or what not--and leave it to the voters and the legislature to review qualifications.

To insert a bit of snark: heaven forbid that a body other than the judiciary have the last word in interpreting what the law says!

There is, of course, recourse in these cases--simply not judicial recourse.

The Supreme Court in Roudebush v. Hartke (1972) affirmed that such a cramped understanding of the legislature's power cannot hold. There, a dispute arose during a recount in a Senate election. The parties disputed whether the state's election process could even include a recount, and the Court concluded it could. It emphasized, however, that it could only do so as long as it did not thwart Congress's power to review the qualifications, elections, and returns of its members. If Congress had the ability to independently review the recount process after it was complete, then its power was not thwarted.

I argue in my forthcoming article that excluding would-be candidates on the basis of qualifications effectively thwarts the legislature's power. After all, there's nothing left to review, because the candidate cannot present herself for the legislature for review--she cannot win the election because she cannot get on the ballot.

Even more dangerous to the legislature's power are the facts of this case. Twice already, Ms. Hansen has presented herself before the voters of the Virgin Islands and to the legislature. Twice, she has been elected and seated. A "crime involving moral turpitude" has a meaning, and perhaps even a meaning that the judiciary would like to reach in other cases similar to this one. (Ultimately, it did so.) But how the legislature interprets that crime is another matter. And as it has concluded that her misdemeanor tax convictions do not disqualify her, then its judgment should be respected.

There is much more to discuss throughout the opinion, but this post is long-winded enough. I highlight these facts to note the judiciary's approval of executive entanglement in the evaluation of the qualifications of prospective members of the legislature--executive interpretations that run contrary to the legislature's own conclusions. And that is significant, indeed.