The court has denied Supervisor of Elections Caroline Fawkes’ motion for a temporary restraining order in her lawsuit against the Board of Elections but has set an evidentiary hearing for Monday on her request for a preliminary injunction — the day before the Nov. 5 General Election.
At issue in the case is whether the board overrode Fawkes’ authority when it voted at a meeting Sept. 4 to place Delegate to Congress candidate Ida Smith on the Nov. 5 ballot after Fawkes had disqualified her based on residency requirements. Besides the temporary restraining order, or TRO, Fawkes is seeking a preliminary injunction, permanent injunction and declaratory relief.
On Thursday, V.I. Superior Court Judge Yvette Ross Edwards denied the request for a TRO, writing that Fawkes would not be irreparably harmed without one, which is the most significant of four determining factors the court must consider when weighing a TRO or preliminary injunction ruling. It also would not be in the public interest, when early voting was already underway when Fawkes filed her complaint on Oct. 17, and with the General Election just days away, she said.
“The public interest factor is particularly weighty in the case,” the order states, noting that early voting began Oct. 14 — more than a month after Fawkes knew Smith’s name was added to the ballot — but she did not file her verified complaint until Oct. 17, her motion until Oct. 28, and supporting documents for the complaint until Oct. 29. Early voting ended Oct. 28, “by which time thousands of Virgin Islanders had already exercised their right to vote,” it says.
“To halt the voting process before the court can determine the merits of issuing a preliminary injunction when so many have already cast their ballots would create voter confusion and diminish voter confidence in the electoral process,” the order states. “Had there been an earlier filing, the public interest factor may not have weighed as heavily against the issuance of a restraining order. There would have been minimal disruption of the voting process, leaving sufficient time to address changes to the ballot, if any, without disenfranchising anyone. However, that did not occur here.”
As for whether Fawkes “has shown a reasonable probability of success on the merits” of her case, possibly so, the judge said in weighing another of the factors the court must consider.
While the Board of Elections, represented by the Attorney General’s Office, alleges Fawkes did not have the legal capacity to file suit in the first place because she is subject to the direction of the board, and has asked that the case be dismissed, V.I. Code does authorize her to disqualify candidates, the order notes.
“Relative to the review and acceptance of nomination petitions, [V.I. Code] notably states, ‘If the Supervisor determines that a candidate for election or nomination does not meet the qualifications established by law for the office, then [she] shall disqualify such candidate and delete the candidate’s name from the ballot if the ballots have not been printed,’” the order said.
However, the sections governing Fawkes’ powers are qualified by another “which extends the BOE’s direction, control, and supervision of the Supervisor of Elections to all duties vested in [her] ‘by this title,’” it said.
“If the Court finds that the statutory language places all duties and responsibilities of the Supervisor of Elections under the direction, supervision, and control of the BOE, then the Court’s analysis ends there. However, if, as Fawkes appears to argue, there are some responsibilities outside of the supervisory authority of the Board, including Fawkes’ ability to determine the eligibility of nominees for offices, then the Court must consider whether Fawkes has the right to petition the Court to protect her statutory rights from the overreaching of her supervisors. This consideration goes directly to Fawkes’ capacity to sue,” Ross Edwards wrote.
Additionally, the board’s consideration of Smith’s qualifications and placement on the ballot “is beyond the authority granted to the boards of elections under the Revised Organic Act of 1954 or the statutory authority of the Board granted by the Legislature,” the order states. “The language in Sections 411 and 412 appears to preclude the Court from finding an intent in the Legislature that the Board is also vested to conduct hearings on eligibility decisions made by the Supervisor of Elections, absent expressed authority.”
As for the fourth factor — whether a TRO would cause “greater harm” to the nonmovant, in this case the BOE and precluding it from overriding Fawkes — “neither party has presented significant arguments on this factor that would allow the court to make such a finding,” Edwards wrote.
“Each of the factors, when considered under the sliding scale standard, do not weigh in favor of granting a temporary restraining order,” she concluded. “Fawkes has not shown immediate and irreparable injury, nor has she made a strong showing of meritorious claims. Moreover, public interest concerns outweigh disrupting the voting process with a TRO. However, the denial of a TRO does not eliminate the need for a hearing on the request for a preliminary injunction.”
That hearing is scheduled for 10 a.m. Monday in Courtroom 214 of the V.I. Superior Court on St. Croix.