Virgin Islands Supreme Court blocks "unqualified" candidate from ballot

Alicia "Chucky" Hansen didn't file income tax returns for a few elections. She was convicted of a few misdemeanors. She ran for legislative office in the Virgin Islands, won, and was seated. She was re-elected.

But when she tried to run again, the chair of the board of elections filed a petition to block her from obtaining ballot access. He claimed that her tax convictions were "crimes involving moral turpitude," which rendered her ineligible to run for office.

The Supreme Court of the Virgin Islands agreed and blocked Ms. Hansen from obtaining ballot access in Bryan v. Fawkes. (PDF)

The Revised Organic Act at issue provides, "The legislature shall be the sole judge of the elections and qualifications of its members." In one way, this is even more robust a power than that given the United States Congress; here, it uses the word "sole," a word the Court in Nixon v. United States (1993) found to be significant. There, in the context of impeachment, the House had the sole responsibility of impeachment, and the Senate had the sole responsibility of removal; the Court found that these textual commitments to other branches precluded judicial review.

Not so here. The Supreme Court of the Virgin Islands felt comfortable not only allowing the executive election official to adjudicate the qualifications of candidates for ballot access, but also in allowing itself to review that decision-making process, too.

I think this is flawed, and the better argument lies with the one I make in my forthcoming Indiana Law Journal piece, Scrutinizing Federal Electoral Qualifications.

I'll briefly mention some of the more curious arguments:

The Court notes that the 30th (and present) Legislature had no ability to adjudicate the qualifications of candidates for the 31st (next year's) Legislature. That isn't much of an answer at all: it might be the case that no one adjudicates the qualifications of candidates for the 31st Legislature until the voters choose them and they seek to be seated.

The Court explains that the Revised Organic Act gives election officials the power "of directing the administration" of elections, which means that "the power to determine whether a candidate meets the minimum qualifications for office so as to appear on a general election ballot is clearly not exclusive to the legislature." I suppose one could conflate the former power with the latter, but that's far from "clearly" established.

The Court notes that the legislature's power to evaluate the qualifications and returns of its own members is different from the power to review the qualifications of candidates. First, it would pretty much eviscerate the power of the legislature, because, presumably, all candidates on the ballot would be qualified and there wouldn't be anything left to review. Second, and relatedly, it gives the judiciary and the executive branches a power to review these candidates in advance, effectively usurping that power from the legislature.

It tracks a couple of state supreme court decisions that were deeply worried that the ballot might include some unqualified candidates--15 year olds or non-citizens or what not--and leave it to the voters and the legislature to review qualifications.

To insert a bit of snark: heaven forbid that a body other than the judiciary have the last word in interpreting what the law says!

There is, of course, recourse in these cases--simply not judicial recourse.

The Supreme Court in Roudebush v. Hartke (1972) affirmed that such a cramped understanding of the legislature's power cannot hold. There, a dispute arose during a recount in a Senate election. The parties disputed whether the state's election process could even include a recount, and the Court concluded it could. It emphasized, however, that it could only do so as long as it did not thwart Congress's power to review the qualifications, elections, and returns of its members. If Congress had the ability to independently review the recount process after it was complete, then its power was not thwarted.

I argue in my forthcoming article that excluding would-be candidates on the basis of qualifications effectively thwarts the legislature's power. After all, there's nothing left to review, because the candidate cannot present herself for the legislature for review--she cannot win the election because she cannot get on the ballot.

Even more dangerous to the legislature's power are the facts of this case. Twice already, Ms. Hansen has presented herself before the voters of the Virgin Islands and to the legislature. Twice, she has been elected and seated. A "crime involving moral turpitude" has a meaning, and perhaps even a meaning that the judiciary would like to reach in other cases similar to this one. (Ultimately, it did so.) But how the legislature interprets that crime is another matter. And as it has concluded that her misdemeanor tax convictions do not disqualify her, then its judgment should be respected.

There is much more to discuss throughout the opinion, but this post is long-winded enough. I highlight these facts to note the judiciary's approval of executive entanglement in the evaluation of the qualifications of prospective members of the legislature--executive interpretations that run contrary to the legislature's own conclusions. And that is significant, indeed.

Fictional Attorney of the Month: Lionel Hutz

Phil Hartman voiced the recurring role of Springfield attorney Lionel Hutz in The Simpsons. A simple man, Hutz represented all the stereotypes of a small-town personal injury attorney--quick to talk and slow to understand. He's literally an ambulance chaser.

In one episode, for instance, he negotiates the terms of the trial with the devil, securing bathroom breaks every half-hour while the devil gets to select the members of the jury. In another, he encourages the Simpson family that despite the medical crisis facing their son, "You can ching, ching, ching, cash in on this tragedy!" When meeting with his client, he confesses, "The state bar forbids me from promising you a big cash settlement. But just between you and me, I promise you a big cash settlement. My fee is fifty percent."

The role was retired upon Mr. Hartman's death in 1998. But the amusing dry delivery and series of humorous courtroom-related scenes qualifies Hutz as the fictional attorney of the month.

The contraceptive mandate and the risk of hyperbole in Supreme Court dissents

From Wheaton College v. Burwell, No. 13A1284, July 3, 2014 (Sotomayor, J., dissenting) (PDF):

If the Government cannot require organizations to attest to their views by way of a simple self-certification form and notify their third-party administrators of their claimed exemption, how can it ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work? The self-certification form is the least intrusive way for the Government to administer the accommodation.

From the Centers for Medicare and Medicaid Services, "Women’s Preventive Services Coverage and Non-Profit Religious Organizations," August 22, 2014:

In August 2014, in light of the Supreme Court’s recent interim order in a case involving Wheaton College, interim final regulations were published to establish another option for an eligible organization to avail itself of the accommodation. Under the interim final regulations, an eligible organization may notify the Department of Health and Human Services (HHS) in writing of its religious objection to contraception coverage. HHS will then notify the insurer for an insured health plan, or the Department of Labor will notify the TPA for a self-insured plan, that the organization objects to providing contraception coverage and that the insurer or TPA is responsible for providing enrollees in the health plan separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan. Regardless of whether the eligible organization self-certifies in accordance with the July 2013 final rules, or provides notice to HHS in accordance with the August 2014 IFR, the obligations of insurers and/or TPAs regarding providing or arranging separate payments for contraceptive services are the same, as discussed in this Fact Sheet. The interim final rule solicits comments but is effective on date of publication in the Federal Register.