In a formal opinion he issued this week, acting Attorney General Claude Walker told the St. Croix District Board of Elections that voters must be allowed to feed their own ballots into voting machines in the upcoming 2016 elections. Walker was responding to the board’s request for his interpretation of two major court cases affecting how ballots are processed: the 1968 U.S. District Court of the Virgin Islands case of Melchior v. Todman, and the 2014 V.I. Supreme Court case of Mapp v. Fawkes.
In his letter to St. Croix Board of Elections Chairwoman Liliana Belardo de O’Neal, Walker said the 1968 case no longer applies because the law it addressed was repealed. [AG Walker Letter]
But the Mapp v. Fawkes Supreme Court case held that the federal Help America Vote Act applies to the Virgin Islands and effectively requires the territory’s boards of elections to allow voters to run their ballots through the voting machines themselves, Walker wrote.
"HAVA imposes significant requirements on state election systems and ones such requirement is that voters must be afforded the opportunity to insert their ballots into the voting machines in order to be made aware of any overvotes or undervotes prior to casting their votes," Walker wrote.
When the Supreme Court issued its opinion, it overturned a Superior Court order. [Supreme Court Mapp Decision]
"In doing so, the Supreme Court ordered that the supervisor of elections and each of the elections boards provide voters in (that election) with the option to insert their ballot directly into the voting machines, so that they may exercise their right under HAVA to be advised of any overvotes or undervotes," Walker wrote.
"Therefore, in future elections, the board should verify that it is in compliance with all of HAVA’s mandates. Specifically, the board must allow voters to insert their ballots directly into the voting machines so that they may be advised of any overvotes or undervotes," he wrote.
The V.I. Supreme Court reversed a Nov. 1 Superior Court order holding that Virgin Islands voters do not have a right to feed their completed ballots into the DS200 vote tabulation machine, in a Nov. 14 decision.
Walker’s letter and the Supreme Court decision affect how the territory deals with problems in how new DS200 voting machines purchased before the 2014 elections operate.
The new DS200 vote tabulation machines improperly counts votes in cases where voters select on their paper ballots a party symbol to indicate straight-ticket voting and then also select candidates outside that party. The DS200 tabulating machines override the party symbol in the sections of the ballot where candidates outside of the party symbol are selected, giving the vote to the non-party candidates.
This works fine in most U.S. jurisdictions, with single-member districts, but creates a conflict in how to interpret voter intent and a conflict with V.I. law, when applied to V.I. legislative elections.
As a result, in 2014, the V.I. Joint Boards of Elections decided to run all ballots through the tabulators, to avoid the issue, having voters put the ballots in a ballot bin to be counted later.
Gov. Kenneth Mapp, then a candidate for governor, and resident Janelle Sarauw filed suit, demanding voters be allowed to place their ballots through the tabulating machine.
When Superior Court Judge Kathleen Mackay dismissed the suit on Nov. 1, 2014, she said there is no right in V.I. law to correct spoiled ballots or to run them through tabulators.
The 2014 general election had already been held and voters did not feed the ballots through the tabulators. But there was a runoff election in the governor’s race and the Joint Boards of Elections decided to allow residents to run their own ballots through during the runoff election.
In Mapp v. Fawkes, the justices say the question is still relevant because the Joint Boards could make a different decision and there will be future elections where the question will be relevant.
While the Superior Court found no V.I. law gives a voter the opportunity to correct a ballot, the federal Help America Vote Act applies to the territory and does mandate voters have a chance to correct a ballot, wrote the justices in Mapp v. Fawkes.
While the justices "share the Superior Court’s concern that the DS200 … may not tabulate votes correctly," they say Mapp and Sarauw do not seek to have the results of any election decided solely by tabulating all votes with the DS200 but only to let voters feed their own ballots so they can know if they over or under-voted.
The court opined the problem could have been addressed with less drastic measures, such as counting just the party-symbol ballots after the election and adjusting the results accordingly.
"The election officials in this case have provided no explanation as to why it was necessary to prevent in excess of 25,000 voters who cast ballots on Nov. 4, 2014, from exercising their rights … for the sole purpose of making it easier to tabulate the less than 150 straight-ticket ballots that were received," the justices wrote.
The issue with the voting machines remains unresolved and may plague the 2016 elections. But if the number of affected ballots is small, it may be fairly simple to address the issue with a manual recount, as the Supreme Court suggested.
