This is the first of a two-part series.
It may indeed take some magic to avoid the pitfalls of previous attempts, but supporters of the move to establish yet another Constitutional Convention are hoping the sixth time proves the charm.
A bill calling for a convention to start work in 2023 and conclude by 2024 cleared the first committee hurdle last week.
Back in 1976, Congress passed Public Law 94-584, giving the Virgin Islands the authority to establish a territorial constitution, similar to state constitutions. Over the ensuing 45 years, there have been numerous attempts, marked by contentious debates over native rights and leading to several draft documents rejected by V.I. voters and/or by the federal government.
After a bitter convention in 1980, it was more than 25 years before the next attempt. The Fifth Constitutional Convention convened in 2007 and completed work in 2009, resulting in a draft document that then-Gov. John de Jongh Jr. said was so flawed it took a court ruling to get him to transmit it to Washington. It bounced back quickly. In February 2010, Congress and President Barack Obama returned the draft with a critique and recommendations for changes from the U.S. Department of Justice.
Some of their concerns were suggestions for improvements; others pointed out serious conflicts between the proposed local law and existing federal laws – including equal protection statutes – which appear to make the last draft constitution unworkable.
In response to the federal memorandum of objections, the Fifth Constitutional Convention took a second look, but it was no more successful than the first. In October 2012, three days before the deadline to make the suggested fixes, the convention deadlocked on a vote of 13 to 13.
Despite the difficulties, proponents continue to push for a constitution, arguing it is a way to help cement self-governance.
“It increases the level of sovereignty,” Sen. Janelle Sarauw told the Source. She and Sen. Genevieve Whitaker co-sponsored the bill to establish a sixth convention.
In lieu of a locally written constitution, the Virgin Islands still operates under the Revised 1954 Organic Act, a document laying out the design of local government. It was passed by Congress, and only Congress – not V.I. residents – can amend it. If and when the territory wants changes, it has to petition Congress to make them.
That’s not only politically and philosophically challenging, it can have practical implications too.
For example, said Sarauw, the Legislature has been limited in its options for operating during the Covid-19 pandemic. Office and constituent work can be accomplished from home. Committees can hold meetings virtually. But under the Organic Act, “we cannot meet electronically for sessions” of the full Legislature.
That has not proven a big problem, she added, but it does illustrate the point that the system is more cumbersome under the Organic Act than it would be with a territorial Constitution.
“We should no longer rely on the Organic Act,” said Whitaker, who got her first taste of convention work as a staffer with the Fifth Constitutional Convention. As a senator, she wanted to introduce legislation to reconvene the convention as a quick way of reviving the effort but was told that the deadline for it had passed. Instead, she has co-sponsored the current proposal.
What’s in the bill?
The proposal calls for a 15-member convention, a significant paring down from other conventions which were sometimes criticized for being unwieldy and costly. Sarauw said she did not know the size of each, but they tended to go from 30 to about 50 members. The 2007-2009 convention had 30 delegates.
“A lot of hands were in the pot,” she said, referencing the adage that too many cooks spoil the broth.
In a nod toward cost-containment, the bill calls for a team of three lawyers to work with the convention “pro bono.” One would be appointed by the governor, one by the Legislature, and one by the V.I. Bar Association. It is not clear whether these appointees would be volunteering their services or being paid by the entities that appointed them.
But in another section, the bill gives the convention the power to hire staff and supplies and to contract for other legal services as well as technical and researcher services “as it considers necessary.”
It appropriates a total of $300,000 from “available funds” in the V.I. treasury. In the first year, the convention is to use $100,000 for operations and $50,000 for educating the public about the work. In the second year, when supposedly the draft will be completed and a referendum on the document is in the works, the split is flipped: $50,000 for operations and $100,000 for education.
The proposal contemplates some costs being absorbed by existing government entities.
There is no separate appropriation to the Elections Office for managing the election of the 15 convention delegates, which is to take place in November 2022, presumably during the General Election.
A delegate who is also a government employee would get no money from the Constitutional Convention, but the local government would be required to continue to pay them at the regular rate. (While the person campaigned for election, they would be on leave without pay.) Delegates employed by the private sector – if their regular pay were halted or reduced – would be compensated by the Convention at a rate of $50 per day or partial day of service.
Any resident may run for delegate, provided they file a petition with the Elections Office signed by a minimum of 50 supporters who are qualified voters.
The original bill calls for five delegates to be elected from St. Croix, five from the district of St. Thomas-St. John and five elected at large. But Sarauw said that in response to public testimony at the committee hearing, she would amend that provision to a seven-to-seven split and one delegate elected from St. John.
Sarauw said she expects that the bill will eventually get unanimous support. So far, however, it’s been an uphill slog.
It was introduced in July. It took “way longer” to get an airing than Sarauw had expected, “and it was disappointing.”
She said she had to ask several times before it was finally assigned to a committee, landing in the Committee on Government Operations and Consumer Protection, which took testimony on the bill last week. It will next go to Rules, and Sarauw said it should then be considered by the Committee of the Whole (that is, the full-body sitting as a committee rather than in session.)
“There was some internal politics” involved in the relatively slow process, she said but added that the COVID-19 pandemic was also a distraction. “Some of us place emphasis on different things.”
So far, at least, the delays don’t seem to pose a threat to implementation – if the bill passes.
Supervisor of Elections Caroline Fawkes told the Source Friday that her office needs about six months lead time to prepare for a special election, “but we could do it in four.” So, “November is fine. … We’ll be prepared to handle it.”
That’s if it happens. “We don’t get too worked up (about a special election) until it becomes law,” she said.
(Next: considering the federal objections)