ST. CROIX — Attorney General-nominee Gordon Rhea recently issued a legal opinion upon request from the Virgin Islands Board of Elections that concludes aspirant Ida Smith meets the qualifications to seek candidacy for the office of delegate to Congress, according to the legal opinion.
Rhea, in his legal opinion dated September 3, also concluded that local election laws codified in Title 18 of the Virgin Islands Code apply to the disqualification of a candidate for delegate to Congress.
The Board of Elections voted 8 to 0 during a special meeting on August 28 to delay approval of general election ballots until today pending legal advice on the disputed delegate to Congress position. The Board of Elections is scheduled to meet at 4 p.m. today to render a decision on Smith’s disqualification as a candidate for the office of delegate to Congress, as well as to approve the general election ballots for each district.
READ MORE: “Elections delays ballot approval pending legal advice on disputed delegate to Congress candidacy”
The board heard from Smith and Supervisor of Elections Caroline Fawkes during an emergency meeting on August 26. The board voted at that time to wait for more information before deciding whether to uphold Smith’s disqualification.
READ MORE: “Board of Elections delays decision on Ida Smith’s candidacy; meeting marred by confusing motions”
Supervisor of Elections Caroline Fawkes said during the August 26 meeting that she disqualified Smith as a candidate for the office of delegate to Congress after a search of her voting record in New York revealed she was an active registered voter up until she canceled her registration in the state on July 24. Fawkes, who said she shared all disqualification letters with the board on June 26, pointed out that no U.S. citizen can be registered in two states or territories at the same time.
Smith, in an August 19 email, requested that the Board of Elections vacate her disqualification, and that the cancellation of her voter’s registration be reinstated. Smith noted that Fawkes indicated to her in writing that the reason for her disqualification was based on residency. She suggested Fawkes used the media to say the disqualification was based on dual voter’s registration.
Rhea, in his legal opinion, responded to two questions from the Board of Elections outlined in an August 29 letter from board chair Alecia Wells. The board asked whether Smith meets the qualifications to seek candidacy for the office of delegate to Congress. The board also asked which laws apply in disqualifying a candidate for delegate to Congress.
Rhea noted in his legal opinion that eligible candidates for the office of delegate to Congress as outlined in Title 48 of the United States Code as well as in the House Qualifications Clause set forth in Article 1, Section 2, Clause 2 of the U.S. Constitution must meet three requirements. Those requirements include the candidate being at least 25 years old, a U.S. citizen for at least seven years, and an inhabitant of the state or territory in which they were elected. He noted a fourth requirement found in the U.S. Code that calls for the candidate for the office of delegate to Congress to not be a candidate for any other office on the election date is unique to the U.S. Code and is not included in the Constitution.
Although residency is listed as a condition of eligibility in the federal laws mentioned above, Rhea noted that the House Qualifications Clause in the Constitution has been interpreted to require that only the age and citizenship qualifications be met at the time the candidate is sworn into office, and not at the time of the election. He noted that the Supreme Court has established that the qualification requirements in the House Qualifications Clause are exclusive and cannot be supplemented by Congress or states. In Powell v. McCormack, Rhea noted that the court ruled that a candidate who meets the constitutional requirements for being a member of the House of Representatives may not be denied a seat if properly elected.
While these basic requirements are solidified by federal law, Rhea noted that the U.S. Code allows territories to apply local laws to elect the delegate to Congress. He pointed out that per 48 U.S. Code, Section 1714, “the legislature of each territory may determine the order of names on the ballot for election of delegate, the method by which a special election to fill a vacancy in the office of delegate shall be conducted, the method by which ties between candidates for the office of delegate shall be resolved, and all other matters of local application pertaining to the election and the office of delegate not otherwise expressly provided for herein.”
Title 18 of the Virgin Islands Code addresses elections in the territory, Rhea noted. He indicated that Title 18, Chapter 2 of the VI Code provides the provisions for administering the federal act establishing the delegate to Congress. Specifically, he noted that Title 18 VI Code, Section 21 states, “candidates for the office of delegate to the House of Representatives shall be nominated under the pertinent provisions of this title.”
Unlike the residency requirements for appointment to Legislature of the Virgin Islands, which expressly state “no person is eligible to be a senator from a legislative district unless he has been a bona fide resident of the particular district for at least three consecutive years preceding the date of his election,” Rhea noted that the residency requirements for the delegate to Congress are not as exact. Instead, he said the territory must refer to the House Qualifications Clause, which states a representative must be an inhabitant of the state in which they were elected at the time of election. Rhea noted that to require additional qualifications, including minimum length of residency, would be unconstitutional.
Rhea concluded that Smith does meet the qualifications to seek candidacy for the office of delegate to Congress.
“As long as an aspirant is at least 25 years old, a citizen of the United States for at least seven years, and an inhabitant of the territory from which they seek election, they meet the basic requirements to be a candidate for the House of Representatives,” Rhea wrote in his legal opinion.
Editor's Note: This article has been updated to clarify Rhea is the attorney general nominee.
