The Superior Court's November 1, 2014 oral order holding that Virgin Islands voters do not have a right to feed their completed ballots into the DS200 vote tabulation machine is reversed. The Superior Court's order had denied the injunctive and declaratory relief against elections officials sought by Kenneth Mapp and Janelle Sarauw. Mapp and Sarauw filed suit after the Joint Board of Elections decided that during the November 4, 2014 general election, voters would not submit their completed ballots directly into the DS200-which would have then informed the voter if they had overvoted by selecting too many candidates for a given office, or undervoted by selecting too few and allowed the voter to correct any errors-but instead would place their ballots in a storage bin for elections officials to assort and submit to the DS200 later. The Joint Board did this because of a fear that the machine would miscount those ballots where a voter cast a “straight-ticket ballot” by marking a party symbol-which has the effect of casting a vote for every candidate of that party in each race-but went on to also mark individual candidates of a different party, thus appearing to cast more votes for a particular office than is allowed. Because there will be a run-off election for Governor on November 18, 2014, the fact that the general election has already occurred does not render this case moot. Nor does the Joint Board's statement through counsel that it has decided to allow voters to submit their ballots directly to the DS200 in the run-off election, since the Joint Board maintains that its previous decision did not violate the law and it could change its decision again at any time before the election. And while the Superior Court held that no provision of the Virgin Islands Code grants voters the right to submit their ballots directly to the DS200, the federal Help America Vote Act (“HAVA”)-which Congress expressly made applicable to the Virgin Islands-mandates that the Territory's voting system “provide the voter with the opportunity to correct the ballot before the ballot is cast and counted.” 52 U.S.C. § 21081(A)(iii)(III). HAVA has also been implemented by the Virgin Islands Legislature, which provided in Act No. 7334 that voting machines and equipment must comply with HAVA, thus providing Mapp and Sarauw the right to seek a judicial remedy in Virgin Islands courts for the denial of their federal statutory right to submit their ballots directly to the DS200, as it is presumed that the Legislature will not create a right without a remedy. Furthermore, even if the Joint Board's concern that the DS200 would miscount straight-ticket ballots proves correct, there has been no explanation of why it was necessary to prevent all voters who cast ballots on November 4, 2014-totaling more than 25,000-from exercising their rights under federal law for the sole purpose of making it easier to count the less than 150 straight-ticket ballots that were cast when elections officials could have simply allowed voters to submit their ballots to the DS200 and then performed a hand count of the straight-ticket ballots if necessary. Therefore, because HAVA gives voters the right to feed their ballots into the DS200 in order to alert them of an overvote or undervote, the Superior Court's November 1, 2014 oral order is reversed and the case is remanded to the Superior Court to enter judgment in favor of Mapp and Sarauw.
Supreme Court Of The Virgin Islands