A second federal judge has dismissed calls for a temporary restraining order from five losing candidates to prevent the swearing-in of the winning candidates, but the court rejected for now a motion to dismiss their lawsuit altogether.
Congressional candidate Norma Pickard Samuel, V.I. Legislature candidates Wilma Marsh-Monsanto and Lawrence Olive, and St. Thomas Board of Elections candidates Diane Magras and Harriet Mercer, all of whom lost by overwhelming margins, are seeking to have the elections overturned and a temporary restraining order to prevent the winners from taking office.
Their court filings allege an array of violations of federal and local law, but present no evidence of fraud or that any of the alleged irregularities would have changed the outcome of any of their contests.
Samuel came in fourth place for the single congressional seat, with about 10 percent of the vote. Monsanto received 29 percent of the vote for V.I. Senator at Large, losing resoundingly to Sen. Craig Barshinger, who received 70 percent of the vote for that office.
Olive came in eighth place in the contest for seven V.I. Legislature seats and is only 65 votes short of winning a seat, making him the one plaintiff with any mathematical likelihood of winning if the vote tabulation were incorrect.
Mercer received 1,276 votes, almost 1,000 votes short of what she would need to overtake Lawrence Boschulte’s 2,273 votes and win a seat on the board. Magras did worse.
On Dec. 28, U.S. District Judge Curtis Gomez issued an order denying the request for a temporary restraining order, writing the plaintiffs "have not alleged specific facts showing that they would face immediate and irreparable injury." Gomez filed an amended order Jan. 2, also denying the request for a restraining order.
The plaintiffs filed a motion the same day asserting Gomez to be biased, because his sister, Judy Gomez, is an assistant V.I. attorney general, and her employer, the V.I. Department of Justice, is investigating the election. The plaintiffs also cite rulings by Gomez in a court case concerning the eligibility for office of Sen. Alicia "Chucky" Hansen and another concerning recent government pay cuts with which they disagree as evidence of bias.
The court reassigned the case to Judge Raymond Finch that same day.
On Jan. 6, Samuel filed a motion with the federal court online document system asking the court to reconsider its rejection of the temporary restraining order, saying: "Finch will be more neutral and more prone to provide due process and equal protection of all applicable laws.”
That same day, Finch filed his order again dismissing the request for a temporary restraining order.
In his order, Finch said "the sole purpose of an injunction is to preserve the status quo pending a trial on the merits," but that the court has no jurisdiction to prevent swearing in candidates who won, and the only relief the court could provide would be to decertify the entire election, "which would not preserve the status quo."
Finch rejected outright the plaintiff’s argument that they were denied their constitutional right to equal protection under the law, saying the complaint and testimony were "bereft of any reference as to how they may have been treated differently than people who were similarly situated to them in the context of voting – or in any other way. For example, they did not articulate how their right to vote was interfered with or impinged to such an extent that it amounted to a constitutional violation by not participating on an equal basis with other citizens, or how election officials treated them differently from other people."
Finch affirmed that the losing candidates gave evidence of "a discrepancy in one polling place, from the purview of two poll watchers." But he said "this allegation, however, does not specify what fraud has taken place," and "none of these allegations rise to the level of widespread fraud – fundamental unfairness – requiring the invalidation of an election. Plaintiffs have not, for example, even alleged that voting machine irregularities were so pervasive that they affected the outcome of the election or would have resulted in their election."
Finch rejected the losing candidates’ argument that the V.I. Election System violated the federal Help America Vote Act, saying that law does not create a private right to sue and "to the extent (their suit) is based on a violation of HAVA, has no likelihood of success on the merits."
He also rejected the argument that the candidates would suffer irreparable harm – a prerequisite for a temporary restraining order.
"This allegation of irreparable harm is based on systematic allegations of a compromised voting system, but plaintiffs do not elucidate how they were irreparably harmed or how such harm is imminent,” he wrote, continuing later in his order that the plaintiffs do not allege, for example, that because of faulty operation of the voting machines or some miscounting the plaintiffs would have been elected or “why whatever their injury is would be addressed by decertifying the election results."
Finch also criticized the timing of the lawsuit, saying that while the plaintiffs sent letters critical of voting machine testing before the election, their complaint was not filed with the court until Dec. 11, and their amended complaint not until Dec. 21, after election results were certified.
He cited a U.S. Fourth Circuit case which concluded the "failure to require pre-election adjudication would permit, if not encourage, parties who could raise a claim to delay and gamble upon receiving a favorable decision of the electorate and then, upon losing, seek to undo the ballot results in a court action."
Although Finch appeared to reject the plaintiffs’ arguments, he did not dismiss the case entirely, as the V.I. Joint Board of Elections and other defendants requested.
He said the plaintiffs "cannot meet their burden of demonstrating that they are likely to succeed on the merits of their Equal Protection and Due Process Clause claims, their HAVA claims or any local law claims," and therefore he must deny the request for a restraining order. But he rejected the defendant’s call for the case to be dismissed outright, saying their court filings focused only on the HAVA claims and "did not address the constitutional issues."
