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. [Supreme Court Mapp Decision]
Despite reversing a lower court order and establishing a different interpretation of V.I. law, the decision appears to have no immediate effect on the conduct of the 2014 elections.
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, 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, the Joint Boards 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.
Gubernatorial candidate Kenneth Mapp 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, she said there is no right in V.I. law to correct spoiled ballots or to run them through tabulators.
The Nov. 4 general election was already held and voters did not feed the ballots through the tabulators. However, no gubernatorial candidate got more than 50 percent of the vote, so there will be a runoff election Nov. 18.
The Joint Boards of Elections has decided to allow residents to run their own ballots through during the runoff election. In the opinion, 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.
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 November 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.
