The V.I. Supreme Court once again knocked Sen. Alicia "Chucky" Hansen off the ballot for the St. Croix Senate race, in an opinion issued Friday evening, even though early voting began on Tuesday.
The court ordered Supervisor of Elections Caroline Fawkes to "immediately recall all ballots with Hansen’s name and replace them with ballots omitting her as a candidate, or to otherwise remove Hansen’s name from the ballot, such as by covering her name with an adhesive sticker." [Supreme Court Hansen Order]
St. Croix Board of Elections Chair Adelbert Bryan sued earlier this year to force Hansen off the ballot, arguing Hansen’s three convictions for willful failure to file income tax were crimes of "moral turpitude," rendering her ineligible to serve. The V.I. Supreme Court ruled her ineligible in late August. Gov. John deJongh Jr. then pardoned Hansen, saying her candidacy should be judged by the voters.
DeJongh also petitioned the V.I. Supreme Court to rehear the case, and that court declined.
Hansen herself and a group of St. Croix voters separately brought suit to have Hansen returned to the ballot. U.S. District Judge Wilma Lewis issued orders directing Supervisor of Elections Caroline Fawkes to put Hansen back on the ballot. (See Related Links below)
Bryan filed a motion to remand the case to V.I. Superior Court and seeking Fawkes be held in contempt of court for not following the Supreme Court’s pre-pardon order, and instead following the federal court’s post-pardon order. Bryan argued, among many other things, that his motions were grounded entirely in local law, without a federal question and so should be heard by local courts. He also moved to have the pre-pardon local court order to have Hansen removed from the ballot enforced.
Bryan’s attorney, Emile Henderson III, argued the Superior Court is required to enforce the Supreme Court’s previous order to take Hansen off the ballot, and said the governor’s pardon did not change that, even though it restored Hansen’s civil rights.
Instead, they argued Hansen was not eligible at the time she filed her papers so the papers were defective.
Attorneys for Fawkes and Hansen both argued that V.I. law gives candidates three days to file corrected papers. Henderson responded that the law only gives an automatic right to correct defects in the nominating papers, not eligibility. Hansen was ineligible at the time she filed because of the later Supreme Court decision saying she was ineligible, according to Henderson. The pardon may restore Hansen’s civil rights going forward, but not at the time the papers were filed, Henderson said. Because she was not eligible at the time, the papers are defective. Because the question is not about the papers but about eligibility, there is no right to correct them.
Brady ruled against Bryan.
Friday’s Supreme Court opinion overturns Brady’s decision and finds that Hansen did not have an automatic right to appeal, and that the District Court erred in its opinion ordering Hansen back onto the ballot.
Bryan also asked that Fawkes be held in contempt of court for following the District Court’s order to place Hansen back on the ballot, instead of Superior Court’s order to keep her off.
"Courts have not spoken with a single voice as to whether the issuance of two conflicting orders by two separate courts, in which one court’s order cannot be followed without violating the other court’s order, serves as a valid defense to the imposition of sanctions, whether for contempt or otherwise," Chief Justice Rhys Hodge wrote for the Court. But the Superior Court did not address Bryan’s claims of collusion between Fawkes and Hansen, Hodge wrote.
The court ordered the case remanded to Superior Court "to make the factual findings and legal conclusions necessary to determine whether Fawkes should be held in contempt."
Hodge said disputes between district courts and state supreme courts have an automatic right of appeal to the U.S. Supreme Court and this case may well end up there.
Justice Maria Cabret wrote a separate opinion, partially concurring and partially dissenting. Cabret said she agreed with the legal reasoning of the majority up to the point of ordering the change to the ballot so late in the process, after voting has begun.
"So even though a month ago I would have joined the majority in again ordering that Hansen be removed from the ballot, I cannot do so now at the risk of disenfranchising those voters who have already cast a ballot for Hansen," Cabret said.