Six months ago, a three-person titling board turned a small, grassroots effort to reapportion the V.I. Legislature into a potential ballot issue.

Now, one of those board members — the Legislature’s legal counsel, no less — is pointing to serious flaws in the initiative and encouraging senators to think twice before voting on the measure by Oct. 31.

The change in tone by Legislature Legal Counsel Yvonne Tharpes indeed came as a surprise to V.I. Attorney General Claude Walker, who also sat on the titling board.

In a statement Thursday to The Daily News, Walker insisted Tharpes was “conflicted,” considering she voted in favor of titling the initiative on a ballot in April.

“How can you vote for something and then opine on the legality of it afterwards?” Walker asked. “She could have voted against it or abstained. All of the issues that she raised in her opinion were addressed during the all-night hearing that we had [in April].”

The Daily News reached out to Tharpes on Thursday but was informed by her staff that all questions regarding the matter be deferred to Senate President Myron Jackson.

Jackson told The Daily News that he did not know why Tharpes initially voted in favor of titling the initiative and now questions its legality.

“That’s a question I can’t answer,” he said. “I asked for an opinion on the matter and that’s what she provided. Is that part of the titling board’s responsibilities, to determine the constitutionality of the initiative? I can’t answer that.”

Initiative

The initiative in question is being pushed by the St. Croix Government Retirees Inc., and aims to reconfigure the Legislature by increasing the number of electoral districts in the territory from two to five.

Specifically, St. Croix and St. Thomas would be divided into two districts — i.e., St. Croix east and St. Croix west — and St. John would be its own district.

The St. Croix and St. Thomas districts would each have two senators, while St. John would have one.

Together, these nine “district” senators would serve two-year terms.

The number of at-large senators would increase from one to six, three of whom are required to be residents of St. Croix, and the other three required to be residents of St. Thomas.

Together, these six at-large senators would serve four-year terms.

Proponents of the measure argue the new setup will enhance representation and accountability, giving the territory a more equitable ratio of at-large and district senators akin to a bicameral legislature.

“Checks and balance are fundamental to the republican form of government,” said Mary Moorhead, of the St. Croix Government Retirees Inc. “The current apportionment or structure of our Legislature is void of this essential principle of the republican form of government intended by the Constitution of the United States. One at-large senator checking 14 district senators is a mockery of the system advocated by the Founding Fathers.”

The initiative, after passing through the titling board in April, had 180 days to gather more than 2,000 signatures of support in each district.

It surpassed the threshold earlier this month.

The Legislature is now holding three public hearings to address the issue.

If approved by senators, the initiative becomes law. If rejected, it would then be placed on the November ballot along with an alternative option conceived by the Legislature.

Jackson said this alternative is still “to be determined.”

If a majority of voters territory-wide vote on the initiative and a majority equally vote in favor of it, the initiative becomes law and will come to fruition by the 2020 election cycle.

According to Supervisor of Elections Caroline Fawkes, if the measure is rejected by the Legislature, absentee voters can either respond to the new ballot measure via email, mail or personal calls.

A press release will be sent out to inform early voters to return and receive the separate ballot initiative, she said.

Logistically, ballots can either be printed by the pre-established contractor or printed locally via the Property and Procurement Department, she added.

Fawkes, the third member of the titling board, could not be reached Thursday.

Legal problems

On Wednesday, during a Committee of the Whole session on St. John, Tharpes briefly summarized a 32-page memo she penned to Jackson, in which she lays out areas of concern with the reapportionment initiative.

According to Tharpes, the proposal is grossly “incomplete,” with text addressing too little of the subject matter to carry out the proposal, particularly in terms of its redistricting plan.

“Absent from the measure is any map depicting or delineating how the districts are to be drawn, their boundaries, a description of where they begin and where they end,” said Tharpes, in her memo. “It is not sufficient to merely declare that there are five districts.”

Tharpes insisted that the proposers of the initiative cannot arbitrarily divide the territory and that the U.S. Constitution, the Revised Organic Act of 1954 and other federal laws limit where lines can be drawn.

She said it is unclear what criteria was used to determine the boundaries in the initiative and added that, due to a “drafting error,” the residency requirements for district and at-large senators were repealed.

Another problem, she said, involved potential “vote dilution,” given that voters on St. John will have their own district senator.

“The proposed St. John district will have even less than its 4,000-plus population under the 2010 census,” Tharpes said, in the memo. “Assuming that each of the other four proposed districts has a population of 26,000, it would appear that the vote of each resident of St. John would be worth at least 300 times the value of the vote of each citizen in the four, two-member districts.”

Tharpes said such a setup would be unconstitutional as per the Equal Protection Clause and the notion that each person’s vote should be given equal weight in the election of representatives.

Walker, insisting these issues were brought to the titling board’s attention in April, continued to question why Tharpes was suddenly voicing her dissatisfaction now, especially when she could have abstained from voting or convened another meeting of the board.

Moreover, he told The Daily News that most of her findings could easily be knocked down, including the issue of voter dilution.

“How do you explain Montana?” Walker asked. “Montana has two senators and so does Pennsylvania, but there’s less people in Montana than there is in Philadelphia — we don’t even have to get to the rest of the state. How do you explain that? This is how democracy is.”

Legislative pushback

While V.I. lawmakers have expressed openness to the concept of reapportionment, the initiative of the St. Croix Retirees Inc., has left them deeply skeptical.

Indeed, Jackson said there appeared to be “unanimous disapproval” by senators present at Wednesday’s legislative session.

As for himself, Jackson said, “it doesn’t work for me.”

“Many who may have signed onto the initiative did not fully understand the dynamics to which the apportionment is structured,” Jackson said. “We need some clarity and I think the advocates for the initiative are disenfranchising the people of the Virgin Islands.”

Sen. Janelle Sarauw said the initiative was likely born out of emotions, particularly after last year’s hurricanes when residents claimed to not see their senators anywhere.

“After the storms, people were angry and shaken and they wanted government to respond immediately. So, the question came up: where are the senators?” she said. “But in a disaster, who’s really in charge — it’s the V.I. Emergency Territorial Management Agency and the governor. We play a more supportive role. So, I think it’s an insult to the members of this body to claim we didn’t do anything.”

Sarauw echoed Jackson in suggesting those who signed onto the initiative may not have been aware of its full ramifications.

She said any response to government and its rules cannot always be an emotional response, but rather should be one of objective thinking.

“To simplify our districts between east and west when our populations are centered in the middle of the island — where is the line of demarcation?” Sarauw asked. “Public policy should never be an emotional response to government.”

Sen. Positive Nelson took aim at Mario Moorhead, a proponent of the initiative who spoke at Wednesday’s session and repeatedly claimed the measure was a way of fulfilling the Revised Organic Act of 1954 that the federal government pushed for the territory.

“Let’s be realistic — this is a black community. Do you really believe a Congress of 1954 would have given a colonial territory of the United States the power to be free and exalt our self-government to the level of being almost independent — I don’t think so,” Nelson said. “This is causing more confusion than help. This is a very bland document that doesn’t speak to anything but the way we are elected and only speaks to empowering some portion of the electorate to some degree.”

The second legislative hearing is scheduled to take place Monday at 6:30 p.m. at Ottley Legislative Hall on St. Thomas, and the third Tuesday at 6 p.m. at the V.I. Cardiac Center on St. Croix.

— Contact A.J. Rao at 340-714-9104 or email ajrao@dailynews.vi.

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