Caso Islas Virgenes

DENYING U.S. CITIZENS

A RIGHT TO VOTE?

A Primer in Racism of the 1910’s

U.S. Citizens from the U.S. Virgin Islands

can work for the Commander in Chief,

they just cannot vote for him.

In each War and Conflict, U.S. Citizens from the Virgin Islands serving in the

United States Armed Forces are deployed to serve, protect and even die for the security

and freedom of the United States of America. Except, these war heroes have NO Rights to Vote.

UNCLE SAM

A caricature of the inhabitants

of the New Territory” showing

the new U.S. Citizens as

“pickaninnies” and unfit

for

Constitutional Voting Rights.

The Klu Klux Klan marched on

Washington, DC after

President Woodrow Wilson

instituted segregation in DC

and fired black government workers.

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDSDIVISION OF ST. CROIX

Bevron Goodwin, individually, and on behalf )of all other persons born-in and residing )in the U.S. Virgin Islands, ) Civil No. 435 /2011

)Plaintiff, )

)v. ) ACTION FOR DAMAGES

) and EQUITABLE RELIEFElection System of the U.S Virgin Islands )and John Abramson, Jr., in his official capacity, )as Supervisor of Elections )

)Defendants. ) JURY TRIAL DEMANDED

_____________________________________ )

AMENDED COMPLAINT

COMES NOW the Plaintiff, Bevron Goodwin, by and through his undersigned

counsel, J. Russell Pate, Esquire, of The Pate Law Firm, and hereby files his Complaint

against the Defendants. In support thereof, the Plaintiff alleges as follows:

1. This Court has jurisdiction pursuant to 4 V.I.C. §76(a).

2. Plaintiff is a resident of the U.S. Virgin Islands.

3. Defendant Election System of the Virgin Islands is an agency and instrumentality of

the U.S. Virgin Islands government.

4. Defendant John Abramson, Jr., is a resident of the Virgin Islands and acts as the

Supervisor of Elections for the Election System of the Virgin Islands

5. Venue is appropriate in this forum since the wrongful acts which are the basis of this

action arise within this District.

6. The Court has the ability to determine and declare the rights of the parties and to

make a ruling on declaratory judgment and equitable relief.THE PATE

LAW FIRM

Royal Dane MallP.O. Box 890

STT, VI 00804340.777-5270

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GENERAL ALLEGATIONS

7. In the United States, a country founded on the principles of equality and democracy,

there is no right so sacred and hallowed as the fundamental right that each citizen

has the right to vote for elected representatives in their local and federal government

and that these same citizens shall have the ability to run for elected office for each

area of government which exercises control over their locale. Only when a person

from the voting public is elected will the peoples’ will be done, that the government

may be, as stated by our great Emancipator: “[A] government of the people, by the

people, for the people.”

8. It is understood that the Constitution of the United States is an evolving document, a

charter of progress towards liberty, democracy, and equality. However, at the

signing of the Constitution, it only provided the right to vote for white landowning

men. The voting rights for women and those of African, Asian, and Native American

descent only came after monumental efforts for equality. The Voting Rights Act of

1965 provided more equal enfranchisement, however, over fifty years later, citizens

under the United States’ flag are still denied the right to vote for federal

representatives and run for federal office.1

9. The United States Virgin Islands is a Territory of the United States of America.

10. United States Virgin Islanders are purportedly citizens of the United States of

America, yet they are denied the full application of the Constitution of the United

States, in particular, the essential right to vote at all levels of government, which

1 “History has seen a continuing expansion of the scope of the right of suffrage in this country.The right to vote freely for the candidate of one’s choice is the essence of a democratic society, and anyrestrictions on that right strike at the heart of a representative government.” Reynold v. Sims, 377 U.S. 533,555 (1964).

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includes the ability to vote for U.S. President, House, and Senate representatives,

who have power over governance of the islands, and the fundamental right and

ability to run for these respective federal offices to make sure the needs of their voter

constituency are adequately represented.2

11. U.S. Virgin Islanders are subject to, and governed by, federal law via various

agencies of the executive branch of the federal government, but U.S. Virgin

Islanders have no elective say in electing the President, who is the chief of the

executive branch.3

12.U.S. Virgin Islanders are also subject to federal law via the judicial branch of the U.S.

government, but U.S. Virgin Islanders have no elective say in electing the President4

of the United States of America who exercises the nomination power over Supreme

Court Justices, Third Circuit Judges, and also all federal judges for the District of the

Virgin Islands – these jurists ultimately determine the interpretation of federal and

local law in the U.S. Virgin Islands. Further, Virgin Islanders have no elected say in

2 Igartúa v. United States, 626 F.3d 592, 615 (1st Cir 2010)(Torruella, dissenting) (“TheConstitution is not an instrument that can be picked at, or chosen from, at random. The principledimplementation of the Constitution requires that it be honored in its totality, and in an integrated way. Cf.Colgrove v. Battin, 413 U.S. 149, 187, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973) (Marshall and Stewart,dissenting) ("The Constitution is, in the end, a unitary, cohesive document and every time any piece of itis ignored or interpreted away in the name of expedience, the entire fragile endeavor of constitutionalgovernment is made that much more insecure.")).3 See, Albert H. Howe, editor, The Insular Cases: The Records, Briefs, and Arguments of Counselin the Insular Cases of the October Term, 1900, in the Supreme Court of United States including theAppendixes Thereto (Gov. Printing Office. Washington. 1901 at p.134)(“You have officers in theTerritories. All of them are required to take an oath or affirmation to support the Constitution. How canthey support the Constitution unless by respecting and enforcing its principles and provisions? What is theConstitution of the United States? Is not its very first principle that all within its influence andcomprehension shall be represented in the Legislature which it establishes, with not only the right ofdebate and the right to vote in both Houses of Congress, but a right to partake in the choice of thePresident and Vice-President?”)4 See, Ballentine v. USA, Civ. No. 1999-130, 2001 U.S. Dist. LEXIS 16856 (DVI)(Moore, T.)(“A key aspect of this diminished citizenship is that citizens residing in the Virgin Islands have no voicein formulating Congressional legislation or in electing the executive whose agencies and programsdirectly affect our lives.”).

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the Senate which holds confirmation power of judges in the District Court of the

Virgin Islands.

13.U.S. Virgin Islanders are further subject to Selective Service registration and many

Virgin Islanders serve, and have served, honorably in the U.S. military; some have

shed blood in battle and others gave their lives for the United States of America and

their home, the U.S. Virgin Islands. Although our veterans served in the military

under the President, as their Commander and Chief, they have no ability to vote for

the President and no ability to run for President.

14.Many Virgin Islanders desired to vote in the 2008 elections, and were aggrieved and

distraught that as U.S. citizens they could not participate in such an historic election

which resulted in this Country’s first President of African descent.

15.The reason Virgin Islanders were denied the right to vote and the right to run for

federal office is due to the prejudiced, racist, and bigoted rationale of a number of

dated Supreme Court cases known as the Insular Cases.5 Of course, these cases

were not written by the Supreme Court in a vacuum;6 they were a product of the

5 See, De La Rosa v USA, 417 F.3d 145, 163 (1st Cir. 2005)(Torruella, dissenting) (“The racismwhich caused the relegation of the Negro to a status of inferiority was applied to the overseas possessionsof the United States.”); See also, Ballentine v. USA, Civ. No. 1999-130, 2001 U.S. Dist. LEXIS 16856(DVI) (Moore, T) (“Not surprisingly, the Insular Cases have been, and continue to be, severely criticizedas being founded on racial and ethnic prejudices that violate the very essence and foundation of oursystem of government as embodied in the Declaration of Independence and repeated in such documentsas the Gettysburg Address and Civil Rights law.”)(citations omitted).6 U.S. House of Representative, Blacks Americans in Congress: 1870-2007 (Gov. Printing Office,Washington, D.C., 2008 at p.171)(“Segregation and disfranchisement seemed viable – even rational –alternatives to mounting racial violence in the South. Federal incation mirrored public complacency. Inthis social context, congressional inertia and a series of devastating Supreme Court rules were broadlyreflective of an American public that was not receptive to the concept of a multiracial society. Thepassivity of the federal government on the issue of disfranchisement enabled and encouraged the southernstates [to discrimination.]”)

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accepted attitude in the nineteenth and early twentieth centuries that all persons not

of pure white-skinned European pedigree were an inferior race.7

16.These dated Insular Cases shock the conscience of the modern public. The cases

closely resemble the faulty racist, sexist, and xenophobic reasoning of such

abominable case as Dred Scott v. Sandford, 60 U.S. 393 (1857), Minor v.

Happersett, 88 U.S. 162 (1874), Pace v. Alabama, 106 U.S. 583 (1883), Plessy v.

Ferguson, 163 U.S. 537 (1896), Cumming v. Richmond County Board of Education,

175 U.S. 528 (1899), Giles v. Harris, 189 U.S. 475 (1903), Gong Lum v. Rice, 275

U.S. 78 (1927), and Korematsu v. United States, 323 U.S. 214 (1944).8

7 For example, the importance of white skin, see:In re Saito, 62. F. 126,127 (D. Mass 1884)(“[T] color of the skin is considered the most important

criterion for the distinction of race, and it lies at the foundation of the classification which scientists haveadopted […] [T]hey have been classified as the white, black, yellow, red, and brown races.”);

In re Halladjian, et al. 174 F. 834 (D. Mass 1909)(“[A]pplicants [for naturalization] may now, asalways, be naturalized if they are white, and may not be naturalized if they are not white.”);

In re Alverto, 198 F. 688 (E.D. Penn. 1912)(Denying naturalization petition on basis of race,stating: “The petitioner is, ethnologically speaking, one-fourth of the white race and three-fourths of thebrown race.”)

See also, oral argument of Albion Tourgee before the Supreme Court in Plessy v. Ferguson,where he stated: “How much would it be worth to a young man entering upon the practice of law, to beregarded as a white man rather than a colored one? Six-sevenths (6/7th) of the population are white.Nineteen-twentieths (19/20th) of the property of the country is owned by white people. Ninety-ninehundredths (99/100th) of the business opportunities are in the control of white people. These propositionsare rendered even more startling by the intensity of feeling which excludes the colored man from thefriendship and companionship of the white man. Under these conditions is it possible to conclude that thereputation of being white is not property? Indeed, is it not the most valuable sort of property, being themaster-key that unlocks the golden door of opportunity?”8 It does not take a scholar to know the Insular Cases are racist and wrong. However, a scholarlypublication is available, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal(1985), written by the now First Circuit Justice, the Honorable Juan R. Torruella. The book sets out inpainstaking detail how and why the Insular Cases are utterly irreconcilable with the Constitutional andprinciples and ideals of the Founding Fathers.

Further, see, America’s Virgin Islands: A History of Human Rights and Wrongs, Boyer, WilliamW. (2010 2d Ed at P.101 for discussion on Insular Cases). Boyer’s book is the most currentcomprehensive history of unequal treatment and racism imposed on the U.S. Virgin Islands by the federalgovernment. Counsel will be happy to provide the Court with these books.

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17.The Spirit of the Constitution and the principles and ideals of the Founding Fathers

held that voting is indisputably one of the most fundamental and sacred rights of a

citizen of the United States.9

18.It must be recognized that the Supreme Court that decided the Insular Cases was

the exact same court which upheld the racist holding of Plessy v. Ferguson, 163 U.S.

537 (1896). 10 The briefs and oral arguments of the Insular Cases before the

Supreme Court make over fifty-five (55) citations to the authority of the abominable

9 Bartlett v. Strickland, 129 S. Ct. 1231, 1240 (2009)(plurality)("Passage of the Voting Rights Actof 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek toexercise one of the most fundamental rights of our citizens: the right to vote");

Cal. Democratic Party v. Jones, 530 U.S. 567, FN5 (2000)(Addressing the "fundamental right ofcitizens to cast a meaningful vote for the candidate of their choice.”);

Burson v. Freeman, 504 U.S. 191, 214 (1992)(“Voting is one of the most fundamental andcherished liberties in our democratic system of government.”);

Mobile v. Bolden, 446 U.S. 55 (1980)(the Fifteenth Amendment guards against "purposefullydiscriminatory denial or abridgment by government of the freedom to vote").

Evans v. Cornman, 398 U.S. 419, 422 (1970)(“The right to vote, as the citizen’s link to his lawsand government, is protective of all fundamental rights and privileges.”);

Fortson v. Morris, 385 U.S. 231, 250 (1966)(“A vote […] is the sacred and most importantinstrument of democracy and of freedom.”) Reynolds v. Sims, 377 U.S. 533, 555 (1964)(“The right to votefreely for the candidate of one’s choice is the essence of a democratic society, and any restrictions on thatright strike at the heard of representative government.");

Wesberry v. Sanders, 376 U.S. 1, 17 (1964)(Black, H.)(“No right is more precious in a freecountry than that of having a voice in the election of those who make the laws under which, as goodcitizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.Our Constitution leaves no room for classification of people in a way that unnecessarily abridges thisright.");

Ayers-Schaffner v. Distefano, 37 F.3d 726, 731 (1st Cir. 1994)(“It bears repeating that the rightto vote is one of the most important and cherished constitutional rights […] we cannot conceive of agovernmental interest sufficiently strong to limit the right to vote to only a portion of the qualifiedelectorate.”); See also, De La Rosa v. USA, 417 F.3d 145, 169 (Torruella, dissenting)(listing string cites)

George F. Edmunds, a U.S. Senator and lawyer, who was “justly regarded as the greatest livingexpounders of the Constitution” at the time of the Insular Cases, harshly criticized the Insular Casesstating, “[Elective representation by voting] has been, during the whole period of our national existenceuntil now, considered to be axiomatic – the rock on which the edifice of just liberty and order shouldstand indestructible.” Albert H. Howe, editor, The Insular Cases: The Records, Briefs, and Arguments ofCounsel in the Insular Cases of the October Term, 1900, in the Supreme Court of United States includingthe Appendixes Thereto (Gov. Printing Office. Washington. 1901) citing to George F. Edmunds, TheInsular Cases, North American Review. No. DXXXVII, August 1901.10 Justice Harlan was the lone dissent in Plessy.

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Dred Scott case. 11 The majority of the Supreme Court then adopted the erroneous

rationale of Plessy and Dred Scott – that blacks are inferior – and applied this to the

Insular Cases to withhold any potential voting rights for future U.S. jurisdictions

which would be non-white majorities.

19.Just as Brown v. Board of Education overruled Plessy, the Insular Cases should be

properly overruled as an unconstitutional application of power to Congress, with

Justice Harlan’s dissent in Downes v. Bidwell, 182 U.S. 244, (1901) held as the

correct, less racist, and most importantly, Constitutional approach. Justice Harlan

stated:

[W]e are now informed that Congress possesses powers outside of the

Constitution, and may deal with new territory acquired by treaty or conquest, in

the same manner as other nations have been accustomed to act with respect to

territories acquired by them. In my opinion, Congress has no existence and can

exercise no authority outside of the Constitution. Still less is it true that Congress

can deal with new territories just as other nations have done or may do with their

new territories. This nation is under the control of a written constitution, the

supreme law of the land and the only source of the powers which our

Government, or any branch or officer of it, may exert at any time or at any place.

Monarchical and despotic governments,12 unrestrained by written constitutions,

may do with newly acquired territories what this Government may not do

consistently with our fundamental law. To say otherwise is to concede that

Congress may, by action taken outside of the Constitution, engraft upon our

republican institutions a colonial system such as exists under monarchical

governments. Surely such a result was never contemplated by the fathers of the

Constitution. If that instrument had contained a word suggesting the possibility of

a result of that character it would never have been adopted by the People of the

United States. The idea that this country may acquire territories anywhere upon

11 See, Albert H. Howe, editor, The Insular Cases: The Records, Briefs, and Arguments of Counselin the Insular Cases of the October Term, 1900, in the Supreme Court of United States including theAppendixes Thereto (Gov. Printing Office. Washington. 1901)12 Also, compare Harlan’s dissent with the greatest living Constitutional scholar at the time of theUnited States’ purchase of the Virgin Islands, George F. Edmunds, a U.S. Senator and lawyer – he likenCongressional rule without elected representation to despotism. “[H]owever benevolent and wise, aCongress in which they could have no vote, and whose power over their lives, liberties, fortunes andhappiness was restrained by no constitutional barrier [is simply] a conclave of despots.” George F.Edmunds, The Insular Cases, North American Review. No. DXXXVII, August 1901.

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the earth, by conquest or treaty, and hold them as mere colonies or provinces --

the people inhabiting them to enjoy only such rights as Congress chooses to

accord to them -- is wholly inconsistent with the spirit and genius as well as with

the words of the Constitution.

Id. at 380. See also, De La Rosa v. U.S., 417 F.3d 145, 163 (1st Cir.

2005)(Torruella, dissenting, citing to Justice Harlan).

Chief Justice Fuller also opposed Congressional power outside the Constitution

identifying the exact Pandora’s Box that would occur with an unconstitutional application

of unequal rights:

The Fifteenth Amendment declares that "the right of citizens of the United States

to vote shall not be denied or abridged by the United States or by any State on

account of race, color, or previous condition of servitude." Where does that

prohibition on the United States especially apply if not in the territories?

The government of the United States is the government ordained by the

Constitution, and possesses the powers conferred by the Constitution. […] The

powers of the legislature are defined and limited; and that those limits may not be

mistaken or forgotten, the Constitution is written. To what purpose are powers

limited, and to what purpose is that limitation committed to writing, if these

limits may at any time, be passed by those intended to be restrained?

The power of the United States to acquire territory by conquest, by treaty, or by

discovery and occupation, is not disputed [however] the source of national power

in this country is the Constitution of the United States; and the government, as to

our internal affairs, possesses no inherent sovereign power not derived from that

instrument, and inconsistent with its letter and spirit.

That [majority’s] theory [incorrectly] assumes that the Constitution created a

government empowered to acquire countries throughout the world, to be

governed by different rules than those obtaining in the original States and

territories, and substitutes for the present system of republican government, a

system of domination over distant provinces in the exercise of unrestricted power.

Downes v. Bidwell, 182 U.S. 244, 347-373 (1901)(Fuller, dissenting).

Justice Black highlights that Congressional power outside the Constitution is not only a

“grave concern” but a “dangerous doctrine” which would “undermine the basis of our

Government:”

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These cases raise basic Constitutional issues of the utmost concern. The United

States is entirely a creature of the Constitution. Its power and authority have no

other source. It can only act in accordance with all the limitations imposed by the

Constitution.

When the Government reaches out to punish a citizen who is abroad, the shield

which the Bill of Rights and other parts of the Constitution provide to protect his

life and liberty should not be stripped away just because he happens to be in

another land. This is not a novel concept. To the contrary, it is as old as

government. It was recognized long before Paul successfully invoked his right as

a Roman citizen to be tried in strict accordance with Roman law.

The rights and liberties which citizens of our country enjoy are not protected by

custom and tradition alone, they have been jealously preserved from the

encroachments of Government by express provisions of our written Constitution.

This Court and other federal courts have held or asserted that various

constitutional limitations apply to the Government when it acts outside the

continental United States. While it has been suggested that only those

constitutional rights which are "fundamental" protect Americans abroad, we can

find no warrant, in logic or otherwise, for picking and choosing among the

remarkable collection of "Thou shalt nots" which were explicitly fastened on all

departments and agencies of the Federal Government by the Constitution and its

Amendments.

The concept that the Bill of Rights and other constitutional protections against

arbitrary government are inoperative when they become inconvenient or when

expediency dictates otherwise is a very dangerous doctrine and if allowed to

flourish would destroy the benefit of a written Constitution and undermine the

basis of our Government.

Reid v. Covert, 354 U.S. 1, 3-14 (1957); See also, Torres v. Puerto Rico, 442 U.S.

465, 476 (1979)(Justice Brennan citing to Justice Black in Reid.)

20. The correct interpretation is that citizens of the United States living in the U.S. Virgin

Island deserve every right and privilege that is afforded to any other U.S. citizens

under the Constitution. Any status as “second-class citizenship” is unconstitutional.

Returning full circle to Justice Harlan’s dissent:

The Constitution is not to be obeyed or disobeyed as the circumstances of a

particular crisis in our history may suggest the one or the other course to be

pursued. The People have decreed that it shall be the supreme law of the land at

all times. When the acquisition of territory becomes complete, by cession, the

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Constitution necessarily becomes the supreme law of such new territory, and no

power exists in any Department of the Government to make "concessions" that

are inconsistent with its provisions. The authority to make such concessions

implies the existence in Congress of power to declare that constitutional

provisions may be ignored under special or embarrassing circumstances. No such

dispensing power exists in any branch of our Government.

The Constitution is supreme over every foot of territory, wherever situated, under

the jurisdiction of the United States, and its full operation cannot be stayed by

any branch of the Government in order to meet what some may suppose to be

extraordinary emergencies. If the Constitution is in force in any territory, it is in

force there for every purpose embraced by the objects for which the Government

was ordained. Its authority cannot be displaced by concessions.

The meaning of the Constitution cannot depend upon accidental circumstances.

We cannot violate the Constitution in order to serve particular interests in our

own or in foreign lands. Even this court, with its tremendous power, must heed

the mandate of the Constitution. No one in official station, to whatever

department of the Government he belongs, can disobey its commands without

violating the obligation of the oath he has taken. By whomsoever and wherever

power is exercised in the name and under the authority of the United States, or of

any branch of its Government, the validity or invalidity of that which is done

must be determined by the Constitution.

Downes v. Bidwell, 182 U.S. 244, 384 (1901) (Harlan, dissenting)13

13 Justice Harlan’s dissent in Hawaii v. Mankichi, 190 U.S. 197, 227 (1903) should also be held asgood law after Brown v. Board of Education. Like Cassandra’s warning, Justice Harlan’s dissent wasignored. Yet, the passage of nearly 100 years has proven Justice Harlan’s prediction tragically true!Justice Harlan’s correct interpretation of the supreme power of the Constitution is:

“In my opinion, the Constitution of the United States became the supreme law of Hawaiiimmediately upon the acquisition by the United States of complete sovereignty over the Hawaiian Islands,and without any act of Congress formally extending the Constitution to those Islands. [The Court today]place[s] Congress above the Constitution [and holds] the will of Congress, not the Constitution, is thesupreme law of the land only for certain peoples and territories under our jurisdiction. It mean[s] that theUnited States may acquire territory by cession, conquest or treaty, and that Congress may exercisesovereign dominion over it, outside of and in violation of the Constitution, and under regulations thatcould not be applied to the organized Territories of the United States and their inhabitants.”

“[I]f the principles now announced should become firmly established, the time may not be fardistant when […] the United States will acquire territories […] whose inhabitants will be […] controlledas Congress may see fit, not as the Constitution requires, nor as the people governed may wish. Thus willbe engrafted upon our republican institutions, controlled by the supreme law of a written Constitution, acolonial system entirely foreign to the genius of our Government and abhorrent to the principles thatunderlie and pervade the Constitution. We will have two governments over the peoples subject to thejurisdiction of the United States, one, existing under a written Constitution, creating a government withauthority to exercise only powers expressly granted and such as are necessary and appropriate to carryinto effect those so granted; the other, existing outside of the written Constitution, in virtue of an

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Justice Frankfurter’s words best describe how the Insular Cases should be treated:

[These] case[s] represent, historically, and jurisprudencely, an episode of the

dead past about as unrelated of the world of today as the one-hoss-shay is to the

latest jet airplane.

Kinsella v. Krueger, 351 U.S. 470, 482 (1956)(Frankfurter, “Reservation”).

21.The Insular Cases, in sum, are in total diametrical opposition to our Constitution,

which provides for the equal protection of all races, and, further, the principal that

enfranchisement is the foundation of our personality liberties, civil rights, and our

democratic system. Using the imperialistic and racist Insular Cases, U.S. citizens in

the Virgin Islands have been conferred a second class, Jim Crow status.14

unwritten law to be declared from time to time by Congress, which is itself only a creature of thatinstrument.”14 See, Igartúa v. United States, 626 F.3d 592, 612 & 638 (1st Cir 2010)(Torruella, dissenting)(“This is a most unfortunate and denigrating predicament for citizens who for more than one hundredyears have been branded with a stigma of inferiority […] Allowing the creation of a second class of U.Scitizens on a permanent, or even indefinite, basis is not a proper exercise of the power of Congress underthe Territorial Clause.” Citing U.S. Const. amend. XIV).; John Adams Hyman, the Reconstruction blackCongressman from North Carolina in 1875 – 1877 stated: “If the negro is a man, he is entitled to all therights and privileges of any other man. There can be no grades of citizenship under the American flag.”U.S. House of Representative, Blacks Americans in Congress: 1870-2007 (Gov. Printing Office,Washington, D.C., 2008 at p.133)

See also, Albert H. Howe, editor, The Insular Cases: The Records, Briefs, and Arguments ofCounsel in the Insular Cases of the October Term, 1900, in the Supreme Court of United States includingthe Appendixes Thereto (Gov. Printing Office. Washington. 1901 at p.562)(“The case of Dred Scottsimply held that the negro was so low in the scale of humanity that the States could not, by conferringfreedom upon him, make him capable of becoming a citizen of the United States in the broad or passivesense. He was, therefore, neither citizen nor subject, but a being who, under the Constitution, wassomething different and apart from the rest of humanity.”); Id. at p. 606 (“[B]ecause all women and allminors everywhere and all the men living in the Territories and having no representation and no right tovote, are all subjects.”)

See also, The Negro in Chicago: A Study of Race Relations and a Race Riot. By ChicagoCommission on Race Relations. (Univ. of Chicago Press 1922 at p.xxiii)(“The relation of whites andNegroes in the United States is our most grave and perplexing domestic problem. Many white Americans,while technically recognizing Negroes as citizens, cannot bring themselves to feel that they shouldparticipate in government as freely as other citizens.”)

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22.Just as the courts have struck down the racist principle of separate but equal in

Plessy v. Ferguson, Jim Crow laws, and interracial marriage bans,15 so too the racist

and bigoted denial of fundamental voting rights to U.S. citizens residing in the United

States Virgin Islands from electing the President or members of Congress, as well

as the ability to run for these federal offices must be struck down as this present

system is not in accord with the fundamental principles of democracy found in the

Constitution.

COUNT I

VIOLATION OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS

AS APPLIED VIA THE REVISED ORGANIC ACT 16

PRIMA FACIE RACIAL DISCRIMINATION

23. By 1901 the United States Congress had purged itself of the last black 17

Congressman of the Reconstruction Era after the Civil War.

24. In 1913, Woodrow Wilson assumed the office of President of the United States.

President Wilson openly supported the Ku Klux Klan and implemented segregation

and Jim Crow policies of his native Virginia in Washington D.C.18

15 Most descriptive of the racism of the time is that President Obama’s parents could have beenarrested for their union. President Obama was born in 1961, yet marriage between blacks and whites wasnot held to be legal by the Supreme Court until 1967 in Loving v. Virginia, 388 U.S. 1. (1967).16 See, Bernhardt v. Bernhardt, 51 V.I. 341, FN4 (2009); See also, United States v. Hyde, 37 F.3d116, 123, 30 V.I. 475 (3d Cir. 1994).17 For the sake of continuity the term “black” will be used for Americans of African descent. To be“black” has historically been a white construct, in that a person may be considered “black” simply by the“one-drop” theory of non-white blood. Homer Adolph Plessy, the plaintiff in Plessy v. Ferguson, wasone-eighth black and seven-eighths white, and born a free person, yet under a Louisiana law enacted in1890, he was classified as black. To present, President Obama is half-white, half-black, yet due to thehistory of discrimination in the United States, he is referred to as “black” since he would have beenincluded in various segregation and Jim Crow laws.18 See, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War toWorld War II. Blackman, Douglas, A. at p.357-9 (2009)(Pulitzer Prize Winner)(“The election in 1912 ofWoodrow Wilson, an openly white supremacist Democrat from Virginia, precipitated a dramatic

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25.After President Wilson’s promotion

of the Ku Klux Klan, they openly

marched in Washington, DC., as a

public demonstration of power.

26.President Wilson idealized the

antebellum South and demonized

black political participation, calling

the Reconstruction era of African

American governance in the states

“an extraordinary carnival of public

crime,” while the removal of black

political activity was “by nature, the

inevitable ascendancy of the

whites.”19

expansion of Jim Crow restrictions on African Americans. His administration largely introduced toWashington D.C., the demeaning southern traditions of racially segregated work spaces, office buildings,and restrooms. Wilson strongly backed the demands of southern leaders that their states be left alone todeal with issues of race and black voting […] ensuring there would be no challenge to the raft of lawspassed to disenfranchise African Americans.”

Further, one of President Wilson’s best friends from his university days was Thomas Dixon, theauthor behind the racist movie The Birth of a Nation. President Wilson held showing of the movie at theWhite house for members of his cabinets, elected officials, and justices of the Supreme Court. The Birthof a Nation included extensive quotations from Woodrow Wilson's History of the American People, suchas, “The white men were roused by a mere instinct of self-preservation… until at least there had sprunginto existence a great Ku Klux Klan, a veritable empire of the South, to protect the Southern country.” TheKu Klux Klan soared in popularity thanks to the endorsement of the President of the United States.

See also, U.S. House of Representative, Blacks Americans in Congress: 1870-2007 (Gov.Printing Office, Washington, D.C., 2008 at p.172-3(“President Wilson introduced bills to segregate thefederal civil service, the military and public transportation in Washington, DC. Having solidified absolutecontrol over race issues in the South, southern members of Congress were sufficiently emboldened toprod Congress to enforce nationalized racial apartheid. [S]egregation was tacitly encouraged and widelypracticed.”19 See, articles from The Chicago Defender circa 1915 and 1918 attached as Exhibits A.

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27.By the time the Virgin Islands was purchased in 1917, there was not one black

representative in Congress, the federal Judiciary, and of course, the President or his

Executive Cabinet. It was a government of white males with a lone white

Congresswoman from Montana.20

28.President Wilson and the Congress of one hundred years ago knew that extending

constitutionally mandated voting rights to U.S. Virgin Islanders would result in the

first majority black jurisdiction capable of electing Congressional representatives21 –

elected officials which represented their voters – i.e., black Congressmen and black

Senators. This was a terrifying idea to an all-white federal government. 22

20 Congress’ own historical book admits to its invidious and outrageous discrimination: “Afterwinning the right to participate in the American experiment of self-government, African Americans weresystemically and ruthlessly excluded from it: From 1901 to 1929, there were no blacks in the federallegislature. This era was defined by a long war on African Americans participation in state and federalpolitics, waged by means of southern laws, Jim Crow segregation, and tacit federal assent. Congressresponded to civil rights measures with ambivalence or outright hostility” U.S. House of Representative,Blacks Americans in Congress: 1870-2007 (Gov. Printing Office, Washington, D.C., 2008 at p.2 & 3)21 See, Pollard v. U.S., 326 F.3d 397, 404, 45 V.I. 672, 697 (3d Cir. 2003) (“The Virgin Islands isthe only United States jurisdiction […] which has a black majority.”)

See, Census of the Virgin Islands of the United States, Eugene F. Hartley, Dept. of Commerce(Gov. Printing Office, Washington D.C. 1918 at p.44)(“The total population of the Virgin Islands of theUnited States in 1917 is 7.4 per cent white, 74.9 per cent negros, and 17.5 per cent of mixed white andnegro blood. No census of the Virgin Islands prior to that of 1917 was inquiry made as to the color or raceof the people.” Further at p.62 the federal report looked at the racial demographics of those who couldvote: “Inquiry into males of voting age. Total numbers of males 21 years of age and over […] of such11.4 per cent are white, 73.6 per cent are negro, and 11.8 per cent are mixed, and 0.4 per cent are of allother races.”)

See, Theodoor de Booy & John T. Farris, The Virgin Islands, Our New Possessions (Philadelphia& London, J.B. Lippincott Co, 1918 at pp. 71, 144, and 201)(“Fully ninety per cent of the total populationof St. Thomas is negro. St. John has a population ninety-nine per cent colored. St. Croix supports apopulation where fully ninety-five per cent are colored”).22 In Congress Rep. Thomas Spight of Mississippi objected to any ability of blacks to vote:“[N]egros and of mixed blood have nothing in common with us and centuries cannot assimilate them…They can never be clothed with the rights of American citizenship. Congressman Champ Clark ofMissouri echoed the same sentiment regarding Hawaiians, “How can we endure our shame, when aChinese Senator from Hawai’i, with his pig-tail handing down his back, with his pagan joss in hand, shallrise from his curule chair and in pidgin English proceed to chop logic with George Frisbie Hoar or HenryCabot Lodge. In the Senate, Albert Beveridge of Indiana stated, “God has not been preparing theEnglish-speaking and Teutonic peoples for a thousand years for nothing but vain […] self-admiration. No[…] He has made us adept in government that we may administer government among the savage and

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Thus, citizens of the U.S. Virgin Islands were denied the right to vote, the right to run

for office, and the right of Electoral College.

29.As an example of the public and government sentiment against allowing

Constitutionally mandated elective representation in the federal government in non-

white majorities, see political cartoon on the next page from the Philadelphia Inquirer

in 1900. The Virgin Islands, a true jurisdiction comprised of a majority of persons of

African descent was soon to join this racist hyperbole.

servile peoples.” See, 33 Cong. Reg. 2105 (1900); 33 Cong. Reg. 3616 and 56 Cong., 1st Sess. Pp 704-12(1900). “Innumerable racist slanders were uttered on the House and Senate floors with virtual impunityfrom 1890 through the 1920s.” For example, Congressman James Kimble Vardaman of Mississippi said,“To educate the negro is to spoil a good field hand.” Congressman James Thomas Heflin stated, “[theright to vote] is “an inherent right for the white man and a privilege with the Negro.” U.S. House ofRepresentative, Blacks Americans in Congress: 1870-2007 (Gov. Printing Office, Washington, D.C.,2008 at p.181). Congressman Tillman stated: “My democracy means white supremacy.” Id at 158.Tillman also stated: “The action of President Roosevelt in entertaining that nigger [Booker T. Washington]will necessitate our killing a thousand niggers in the South before they learn their place again.” Morris,Edmund, Theodore Rex, (Random House 2002).

This attitude of racism was evident even in the most open-minded and liberal of the federalgovernment officials sent down to govern the U.S. Virgin Islands. In 1937, a federal government official,Hamilton Cochran, after living on St. Thomas for two years, wrote a book called, These are the VirginIslands. He states: “The slow rise to power has naturally enhanced the negro’s pride and ego to a pointwhere he actually believes that he should be permitted to rule his own islands according to his own ideas[…] it will be evidently be a long time before the negro is considered qualified to work out his owndestiny unaided by the white man’s brains and money” P.56-57. (Prentice-Hall, New York).

Further, see, America’s Virgin Islands: A History of Human Rights and Wrongs, Boyer, WilliamW. (2010 2d Ed at P.118)(Where Navy appointed Southern “white-supremacists” to govern the VirginIslands. In 1922, Navy Governor Sumner E.W. Kittelle wrote to President Warren Harding, “I cannot toostrongly urge that there be no change made in the organic law until a full generation has elapsed […] andabove all the white element must remain in the lead and in supreme control.”); Willocks, Harold W.L.,The Umbilical Cord: the History of the United States Virgin Islands from Pre-Columbian Era to thePresent (1995 2d ed. at pp. 263 & 282)(Describing that the “Navy and Marines brought with them thepractice of overt racism.” and quoting Gov. Kittle’s statements in his annual report, “[I]t would be a sorryday for the Virgin Islands if any governmental authority should ever come to rest upon the shoulders ofthese professional malcontents [local black civil rights leaders.])”

Further, see, Theodoor de Booy & John T. Farris, The Virgin Islands, Our New Possessions(Philadelphia & London, J.B. Lippincott Co, 1918 at pp. 71)(“The St. Thomian negroes are far morepolite than any other negros in the West Indies; they do not seem to wish to be on a footing of equalitywith their white fellow citizens.”)

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30.Further President Roosevelt moved to stack the Supreme Court specifically to

uphold the racist Insular Cases because at a 5-4 plurality the judicial constitutional

fiat of the High Court would be undone by new Justice who could look past race and

properly apply the true purpose of the Constitution – that the Constitution was

superior to Congress and that all jurisdictions under the United States flag are to

have the ability to vote for representatives at every level of government rule.23

31.To present, the right to vote has been continually and purposefully denied as the U.S.

Virgin Islands would still be the first majority black jurisdiction.24

32. Though racism was the evil bar that prevented rightful enfranchisement of U.S.

Virgin Islands – and that evil cloud still remains today – the political reality is now

that party-politics will never allow the U.S. Virgin Islands to have congressional

representation because of the perceived disparate impact it will have on the

Republican Party.

33. The Republican Party is nearly non-existent in the Virgin Islands. Republicans will

never allow enfranchisement of the U.S. Virgin Islands because of the likely addition

of Virgin Islands’ Democrats in Congress and the Senate (and perhaps President,

one day).

34.The U.S. Virgin Islands have been trapped in political limbo for nearly one hundred

years by the opinions of the same racist Supreme Court that created “separate but

23 See, Hon. Gustavo A. Gelpi, The Insular Cases: A Comparative Historical Study of Puerto Rico,Hawai’I, and the Philippines. The Federal Lawyer (March/April 2011 at p.23)(“President Rooseveltclearly favored the Court’s imperialist groundwork. The initial Insular Cases , however, were decided bya 5-4 plurality. When Justice Horace Gray retired, it became paramount for Roosevelt to fill the vacancywith a candidate who would uphold the Court’s precedent. Oliver Wendell Homes was his man. Lettersto and from Roosevelt to the U.S. senator from Massachusetts, Henry Cabot Lodge, are evidence ofHolmes’ commitment to the Insular Cases as a condition of his appointment. Holmes joined the Court in1902 and voted consistently in support of the doctrine.”)24 The District of Columbia is, however, very close to becoming a majority black jurisdiction.

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equal” in Plessy v. Ferguson. However, while the courts have endeavored to

dismantle and reverse the vestiges of racism, nothing has been done about the

United States Virgin Islands racist disenfranchisement.25

35.Further, with no Congressional representation, there is no political remedy.

U.S. Virgin Islanders have no ability to elect legislators to change this

disenfranchisement, and there exists no incentive for Republicans to move for a

Constitutional Amendment. 26 The Virgin Islands are then left in constant and

continuing violation of the most fundamental Constitutional right – elected

representation.27

25 History does repeat itself. Slaves were purportedly free after the Civil War in 1865, yet for thenext 100 years a type of “neo-slavery” was practiced by segregation, disenfranchisement, and the unequaland unfair application of petty laws like vagrancy, disorderly conduct, and disturbing the peace. Blackshad entered a second age of slavery. See, Slavery by Another Name: The Re-Enslavement of BlackAmericans from the Civil War to World War II. Blackman, Douglas, A. (2009)(Non-Fiction PulitzerPrize Winner).

In U.S. Virgin Island the federal government used to the denial of Constitutional rights, such asthe deprivation of jury trials, to curtail advocates for enfranchisement and representative government.Civil Rights heroes, such as such as George E. Audain, editor of the St. Thomas Mail Notes, D.Hamilton Jackson, editor of the St. Croix The Herald, Ralph de Chabert editor of the St. Croix Tribune,and Rothschild Francis, editor of the St. Thomas Emancipator were charged with criminal libel and jailedwithout the fundamental right of a jury trial. See, Francis v. Williams, District Judge, 1 V.I. 567, 11 F.2d860 (3d Cir. 1924). See also, Willocks, Harold W.L., The Umbilical Cord: the History of the UnitedStates Virgin Islands from Pre-Columbian Era to the Present (1995 2d ed. at pp. 264-7, 285);Boyer, William W., America’s Virgin Islands: A History of Human Rights and Wrongs, (2010 2dEd)(Pages 128 – 138, detailing the struggles of early civil rights leaders); See last, articles from TheChicago Defender circa 1923 and 1925 attached as Exhibits B.

Now the U.S. Virgin Islands borders on 100 years of disenfranchisement, a type of “neo-slavery” via status as second-class citizens.26 Like Puerto Rico, the U.S. Virgin Islands exist in a state of continuing unconstitutional limbo.See, De La Rosa, 229 F.3d 80, 89 (Torruella, J)(“The United States citizens residing in Puerto Rico arecaught in an untenable Catch-22. The national disenfranchisement of these citizens ensures that they willnever be able, through the political processes, to rectify the denial of their civil rights in those verypolitical processes.”)27 Igartúa v. United States, 626 F.3d 592, 614 (1st Cir 2010)(Torruella, dissenting)(“The suggestionthat [this needs] a political remedy rather than a judicial remedy [is] ironic given that it is precisely thelack of political representation that is the central issue in this case. It is this lack of any political power bythese disenfranchised U.S. citizens, and the cat and mouse games that have been played with them by theUnited States government, including its courts, that have resulted in their interminable unequalcondition.”) Torruella continues to extrapolate that this reasoning would mean that Brown v. Board was

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36.The Plaintiff is a United States citizen and a resident of the United States Virgin

Islands.

37. The Plaintiff is over the age of 18 and yet has no ability to vote for the President of

the United States of American, or the House and Senate members which govern him.

38. The Plaintiff also has no ability to run for a representative position in the United

States’ House or Senate, which rule and regulate his locale.

39. The Plaintiff desires to run for a House or Senate position and further to vote for the

United States President and House and Senate representatives which rule and

regulate his locale.

40.He, along with all other eligible U.S. citizens residing in the U.S. Virgin Islands, have

been denied the right to vote, the right to run for office, and the right to participate in

the Electoral College, due to the prejudices and racism of nearly a century ago.

This racism has continued unmitigated, with no implementation of a Constitutional

representation in the federal government or any political indication in the foreseeable

future that this will change.

COUNT TWO

INJUNCTIVE RELIEF

PROHIBITING REMOVAL FROM THE SUPERIOR COURT

ARTICLE IV FEDERAL COURTS ARE NOT CONSTITUTIONALLY INDEPENDENT

41. This case should not be removed because the federal judges of the Virgin Islands

are not protected with life-tenure and judicial independence. The federal judges of

the Virgin Islands are Article I judges, presiding over Article IV courts, appointed for

not the way to overturn Plessy v. Ferguson, but instead African-Americans should have lobbied theirwhite Congressional representatives for justice!

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only ten (10) years, and thus only are vested in preserving the power of the

Executive and the Legislative branches to secure there re-appointment.28

42.Honorable Thomas K. Moore, who advocated for equal treatment for U.S. Virgin

Islanders, was not reappointed to another term because he did not conform to the

expectations of federal executive and congressional power.29

43.Further, this case should not be heard by a judge in which the people of the Virgin

Islands have no elected say in the executive who appoints the judge to the Territory

and no elected say in the senate who confirms this nomination.

44. Treating federal judges in the District of the Virgin Islands as second-class judges

represents an unconstitutional violation of the “separation of powers.”

COUNT THREE

DECLARATORY RELIEF

MANDATING A SYSTEM OF ENFRANCHISEMENT ORTHE IMPLEMENTATION OF ELECTORAL COLLEGE

45.This Court has the power of declaratory judgment. The Court should not shrink from

this duty no matter how monumental the task. If courts only enforced easily

remediated civil rights violations but not difficult breaches of fundamental

28 USA v. Pollard, 209 F. Supp. 2d 525, 543 (DVI 2002)(Moore)(“I touch on one last point ofdouble discrimination by Congress against the Virgin Islands and its residents. In 1966, Congress madethe federal district court of Puerto Rico an Article III court whose judges serving during good behaviorbut left the District Court of the Virgin Islands as an Article IV court whose judges now serve ten-yearterms. This is double discrimination because Congress not only treats the Virgin Islands differently fromall the Sates but also treats it differently from our fellow unincorporated territory of Puerto Rico, adifferent treatment for which there is absolutely no conceivable rational basis. […] The District Court ofthe Virgin Islands nevertheless remains an Article IV court whose judges are without the guarantees ofjudicial independence.”)29 A comparison can be made between Judge Moore and the early newspaper editors who printedand published the unequal treatment of the U.S. Virgin Islands for all to read. The newspaper editors wereharassed, jailed, and some deported. Judge Moore, through a more civil means, but just as invidious anddiscriminatory, was unceremoniously relieved of his position of judgeship.

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constitutional rights, then Brown v. Board of Education and its progeny would have

been dismissed as too difficult.30

46.Whether it is individual voters or Electoral College, the fact remains that the U.S.

Virgin Islands are being denied the most basic and fundamental Constitutional right

– the right to vote – and the Court must act to correct this injustice as politicians

have failed to do so for nearly the past one hundred years. It is undisputable that

the Virgin Islands was denied enfranchisement due to the racist, xenophobic, and

discriminatory attitudes which permeated society in 1917 when an all-white

President, Congress, Supreme Court, and federal judiciary governed America.31

30 See, De La Rosa, 417 F.3d 145, 160 (1st Cir. 2005)(Torreulla, dissenting)(“The difficulty,complexity, or length of the process required for the United States to comply with the law of the land isirrelevant, as it has never been a test for redressability of a wrong. Cf. Brown v. Bd. of Educ., 349 U.S.249 (1955)(ordering racial desegregation of schools occur “with all deliberate speed.”)31 See, Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2520 (2009)(C.Thomas, dissenting)(“By 1872, the legislative and executive branches […] were once again firmly inthe control of white[s…], who resorted to a variety of tactics, including fraud, intimidation, and violence,to take away the vote from blacks [….] A soon-to-be victorious mayoral candidate in Wilmington, NorthCarolina, for example, urged white voters in an 1898 election-eve speech: "Go to the polls tomorrow andif you find the negro out voting, tell him to leave the polls, and if he refuses kill him; shoot him down inhis tracks." S. Tolnay & E. Beck, A Festival of Violence: An Analysis of Southern Lynchings, 1882-1930,p 67 (1995). This campaign of violence eventually was supplemented, and in part replaced, by moresubtle methods engineered to deny blacks the right to vote. Literacy tests were particularly effective […]because prior to the Civil War, most of the slave States made it a crime to teach Negroes how to read orwrite. Literacy tests were unfairly administered; whites were given easy questions, and blacks were givenmore difficult questions, such as the number of bubbles in a soap bar, the news contained in a copy of thePeking Daily, the meaning of obscure passages in state constitutions, and the definition of terms such ashabeas corpus.")(internal citations and quotation marks omitted).

See also, U.S. House of Representative, Blacks Americans in Congress: 1870-2007 (Gov.Printing Office, Washington, D.C., 2008 at p.157, 159)(“Poll taxes, were hugely successful at excludingblacks. Additional registration laws required documents many votes did not possess.” The effectivenessof disenfranchisement cannot be overstated. In 1896 before literacy, poll tax, and property qualificationsthere were 130,000 registered black voters in Louisiana. By 1904 there were only 1,300 registered blackvoters.)

See also, article from The Chicago Defender circa 1920 about black man lynched for attemptingto vote, attached as Exhibit C; “Between 1901 and 1929, more than 1,200 blacks were lynched in theSouth.” U.S. House of Representative, Blacks Americans in Congress: 1870-2007 (Gov. Printing Office,Washington, D.C., 2008 at p.176

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47.From 1901 through 1929, Congress had not one black representative. Black

representation in Congress was negligible until the Civil Rights Act of 1964.

Currently there are 535 seats in Congress, yet only 19 seats are held by blacks.

Despite being 13% of the United States population, black Congressional

representation is only 3.5% of Congress.

48.There is no Congressional will to reverse the racially motivated refusal to extend

enfranchisement to the U.S. Virgin Islands. Congress is not so benevolent to cede

its unconstitutional powers; it enjoys them too much. Republicans will never agree to

a plan which would seat Virgin Islands’ Democrats in Congress. This is no surprise,

as politicians are not tasked with doing justice but with securing their re-election. The

task of justice rests solely in the hands of the courts. Only the Court can cut the

Gordian knot of political deadlock and free U.S. citizens in the United States Virgin

Islands from the “stigma of inferiority” that continues the disenfranchisement that

began with the implementation of Jim Crow.32

49.Like Plessy, it is the courts that created the ignominious Insular Cases. The damage

done by Plessy would be engrained in society for fifty-six (58) years before the same

High Court corrected itself with Brown v. Board of Education. Local courts then

32 See, De La Rosa v. USA, 417 F.3d 145, 160 (1st Cir. 2005) (Torreulla, dissenting) (“Consideringthat justice and equity are the hand-maidens of law, I believe it is the duty of this court to exercise itsequitable power under Declaratory Judgment […] This is of the very essence of judicial duty.”)

Igartúa v. United States, 626 F.3d 592, 613 (1st Cir 2010)(Torruella, dissenting)(“[M]oreegregious is the fact that it is this judiciary that has mechanically parroted the [racist] underpinnings [of]unequal treatment of persons because of the color of their skin or other irrelevant reasons, was then themodus operandi of governments, and […] societies in general. [T]he continued enforcement of these rulesby the courts is today an outdated anachronism. Such actions […] only serve to tarnish our judicialsystem as the standard-bearer of the best values to which our Nation aspires. Allowing these antiquatedrules to remain in place, long after the unequal treatment of American citizens has becomeconstitutionally, morally and culturally unacceptable in the rest of our Nation, is an intolerable state ofaffairs which cannot be excused by hiding behind any theory of law.

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spent the next fifteen (15) years enforcing hundreds of declaratory orders to

discontinue the invidious practices of discrimination. 33 The United States Virgin

Islands approaches one hundred (100) years of racial discrimination and it is the

courts alone who can overturn the racist and tortured rationale of the Insular Cases.

50.Lastly, one of the greatest institutions of the United States of America is its

commitment to Rule of Law. No person, corporation, or even government, is above

the Law. The United States is just another party, to be treated no higher than a

private citizen. 34 When the United States or any government entity violates the law

– in this case the Constitution – it is sanctioned just as any private citizen. That is

our greatest triumph as a “[A] government of the people, by the people, for the

people.”

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for:

A. The Court apply strict scrutiny for unequal treatment due to racial discrimination;

B. Award Plaintiff equitable relief that the Election System of the U.S Virgin Islands

develop a procedure for the U.S. Virgin Islands, or citizens of the U.S. Virgin

Islands, to vote for the U.S President, to register to run for U.S. President, and to

register to run for Congressional office in House and Senate positions and to

33 Igartúa v. United States, 626 F.3d 592, 613 (1st Cir 2010)(Torruella, dissenting)(“At the root ofthis problem is the unacceptable role of the courts. Their complicity in the perpetuation of this outcome isunconscionable. As in the case of racial segregation it is the courts that are responsible for the creation ofthis inequality. Furthermore, it is the courts that have clothed this noxious condition in a mantle of legalrespectability.”)34 See, De La Rosa v. USA, 417 F.3d 145, 183 (1st Cir. 2005)(Torreulla, dissenting) (“The UnitedStates is just another party in this case, as it is in thousands that are heard [in] courts throughout the nation.It has not higher standing than any other party, and is entitled to no higher privilege than private citizens.It is precisely because the courts of the United States are perceived by the world at large as upholdingthese high standards of impartiality [….]”

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vote for those running for Congressional office, House and Senate positions, and

that those elected to represent the United States Virgin Islands be presented to

Congress to be seated accordingly.

C. Award Plaintiff damages in an amount to be shown at trial;

D. Award Plaintiff reasonable attorney’s fees and costs;

E. Award Plaintiff pre - and post-judgment interest;

F. Grant to Plaintiff such additional relief as the Court deems just and proper.

JURY DEMAND

Plaintiff hereby demands a trial by jury of all issues triable by a jury.

Respectfully submitted,

DATED: September 29, 2011

________________________________J. RUSSELL B. PATE, ESQUIRE.THE PATE LAW FIRM

Royal Dane Mall, 2nd Fl. - P.O. Box 890St. Thomas , VI 00804340.777-5270 Office340.777-5266 FaxV.I. Bar No: 1124

Attorney for the Plaintiff

"The rational and peacable instrument of reform,the suffrage of the people."

~Thomas Jefferson, The Jeffersonian Cyclopedia,John P. Foley, ed. (New York: Funk & WagnallsCompany, 1900), p. 842.

"A share in the sovereignty of the state, which isexercised by the citizens at large, in voting atelections is one of the most important rights of thesubject, and in a republic ought to stand foremostin the estimation of the law."

Alexander Hamilton, The Papers of AlexanderHamilton, Harold C. Syrett, ed. (New York,Columbia University Press, 1962), Vol III, pp. 544-545.

A

A

B

C



)Plaintiff, )




_____________________________________ )

PLAINTIFF’S MOTION FOR DECLARATORY JUDGMENT

COMES NOW the Plaintiff, Bervon Goodwin, by and through undersigned

counsel, J. Russell B. Pate, Esquire of The Pate Law Firm, and hereby submits in

accordance with FED. R. CIV. P. 57 and 5 V.I.C. § 1261, et seq., this motion for

declaratory judgment on plaintiff’s unconstitutional and racist deprivation of the right to

vote.

The plaintiff requests that this Honorable Court issue a declaratory judgment on

the racist deprivation of the right to vote and Order that the Election System of the U.S.

Virgin Islands take certain measures to enfranchise the United States citizens residing

in the U.S. Virgin Islands. To accomplish that objective, the Board of Elections should

place on the November 2012 ballots those running for President of the United States,

those running for two Senate seats in the United States Senate and those running for a

seat in the United States House of Representatives and that the Board of Elections

develop regulations to meet this Order of the Court.

Bevron v. V.I. Elections SystemCivil No. SX-11-CV-435Plaintiff’s Motion for Declaratory JudgmentPage 2 of 14

PROCEDURAL HISTORY AND BACKGROUND

Plaintiff Bevron Goodwin filed this civil action against the only body politic in the

Territory with jurisdiction over elections, the Elections System of the U.S. Virgin Islands,

suable through its Board, and against its Supervisor John Abramson, Jr., in his official

capacity (collectively “Defendants”). Plaintiff filed this action for himself and in order to

benefit all United States citizens residing in the Territory. The Amended Complaint was

filed on October 3, 2011 and Defendants timely answered it. Both documents are

incorporated herein by reference.

STANDARD OF REVIEW

The Court is empowered to grant declaratory relief provided that an actual

controversy exists between the parties. “Courts of record within their respective

jurisdiction shall have power to declare rights, status, and other legal relations whether

or not further relief is or could be claimed.” 5 V.I.C. § 1261, et seq. See also,

Companion Assurance Co. v. Alliance Assurance Co., 21 V.I. 34, 585 F. Supp. 1382,

(D.V.I. 1984).

In determining whether a justiciable controversy for which the court can grant

declaratory relief exists, the question in each case is whether the facts alleged, under all

the circumstances, show that there is a substantial controversy between parties having

adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment. Id. The purpose of declaratory judgment under Virgin Islands law

is remedial. The “purpose [of declaratory judgment] is to settle and to afford relief from

uncertainty and insecurity with respect to rights, status and other legal relations; and is


to be liberally construed and administered.” 5 V.I.C. §1270.

DISCUSSION

The right to vote is one of the most sacred rights a U.S. citizen possesses and

that this right should not be denied to U.S. Citizens residing in the U.S. Virgin Islands.

Thus the plaintiff sets forth this undisputed statement of facts.

1) The Spirit of the U.S. Constitution and the principles and ideals of the

founding fathers held that voting is indisputably one of the most

fundamental and sacred rights of a citizen of the United States. Am.

Compl. ¶ 17; Ans. ¶ 17.

2) Defendants agree that citizens of the United States living in the U.S.

Virgin Islands deserve every right and privilege that is afforded to any

other U.S. citizen under the Constitution. Ans. ¶¶18-22.

3) In the United States, a country founded on the principles of equality and

democracy, there is no right so sacred and hallowed as the fundamental

right that each citizen has the right to vote for elected representatives in

their local and federal government and that these same citizens shall

have the ability to run for elected office for each area of government

which exercises control over their locale. Am. Compl. ¶ 7; Ans. ¶¶ 7-13.

4) Only when a person from the voting public is elected will the peoples’ will

be done, that the government may be, as stated by our great

emancipator: “[a] government of the people, by the people, for the

people.” Am. Compl. ¶ 7; Ans. ¶¶ 7-13.

5) The voting rights act of 1965 provided more equal enfranchisement,

however, over fifty years later, citizens under the United States’ flag are

still denied the right to vote for federal representatives and run for federal

office. Am. Compl. ¶ 8; Ans. ¶¶ 7-13.

6) United States Virgin Islanders are purportedly citizens of the United

States of America, yet they are denied the full application of the

Constitution of the United States, in particular, the essential right to vote

at all levels of government, which includes the ability to vote for the U.S.

president, house, and senate representatives, who have power over

governance of the islands, and the fundamental right and ability to run for

these respective federal offices to make sure the needs of their voter


constituency are adequately represented. Am. Compl. ¶ 10; Ans. ¶¶ 7-

13.

7) U.S. Virgin Islanders are further subject to selective service registration

and many virgin islanders serve, and have served, honorably in the U.S.

Military; some have shed blood in battle and others gave their lives for the

United States of America and their home, the U.S. Virgin Islands.

Although our veterans served in the military under the president, as their

commander and chief, they have no ability to vote for the president and

no ability to run for president. Am. Compl. ¶ 10; Ans. ¶¶ 7-13.

8) U.S. Virgin Islanders are also subject to federal law via the judicial branch

of the U.S. government, but U.S. Virgin Islanders have no elective say in

electing the president of the United States of America who exercises the

nomination power over supreme court justices, third circuit judges, and

also all federal judges for the district of the Virgin Islands – these jurists

ultimately determine the interpretation of federal and local law in the U.S.

Virgin Islands. Further, Virgin Islanders have no elected say in the senate

which holds confirmation power of judges in the district court of the Virgin

Islands. Am. Compl. ¶ 12; Ans. ¶¶ 7-13.

9) The fact remains that the U.S. Virgin Islands are being denied the most

basic and fundamental Constitutional right – the right to vote. Am. Compl.

¶ 46; Ans. ¶ 46.

10) U.S. Attorney General Eric Holder stated that every citizen in the U.S.

must have the right to vote and U.S. Department of Justice must protect

that right, saying:

“In 1965 when President Johnson signed the landmark VotingRights Act into law, he proclaimed, ‘The right to vote is the basicright without whical all others are meaningless.’ Today, asAttorney General, I have the privilege and the solemn duty ofenforcing this law. For all Americans, protectin this right, ensuringmeaningful access, combating discrimination must be viewed notonly as a legal issue but as a moral imperative. I want to put thiscountry on the course that Lyndon Johnson set so that we don’texclude people from having the right to vote, but expand the wayin which people have the right to cast their ballots.”

See, Exhibits A, Huffington Post of December 14, 2011 andLos Angeles Times of January 16, 2012.


11) Plaintiff is U.S. Citizen and resident of the Virgin Islands. Am. Compl. ¶

2.1

12) The Mission Statement of the V.I. Board of Elections is:

“To provide American citizens in the Virgin Islands with the mechanism toexercise their right to vote according to the United States Constitution.”

See, www.vivote.gov (emphasis supplied).

13) It is the duty of both the Supervisor of Elections and the Board of

Elections to uphold the U.S. Constitution. Title 18 V.I.C. §4.

14) Since it became a U.S. Territory, the disenfranchisement of U.S. citizens

in the residing the U.S. Virgin Islands has been deliberately and

systematically denied on the basis of race. This discrimination has never

been ameliorated despite the liberal enfranchisement of women, non-

whites, the poor, and other minority groups. (see e.g. Am. Compl. ¶¶ 15-

21, 23-28, 30-31, 34).

Essentially, there are no issues of disputed fact. The only issue at law is whether the

Election System of the Virgin Islands has a statutory duty under Virgin Islands law to

apply the United States Constitution and correct historical racism and discrimination.

The Court should find the answer to this question as, “Yes.”

a) Discrimination from 1917 should be reversed and the U.S. Virgin Islands

should be enfranchised.

Plaintiff’s claim for declaratory relief is in the nature of a Constitutional violation,

namely that he is denied the right to vote for the President of the United States, that he

is denied the right to run for and vote for the federal offices of the U.S. Congress and

1 In 1917, the federal government was not concerned about the race of individuals but thecollective racial voting demographic of the U.S. Virgin Islands. That demographic was, by far, amajority of persons of African descent. The federal government expected that a majority blackjurisdiction would elect Congressional representatives that would also be black. Thus, the racialanimus was against blacks, but the effect was to deprive all races the right to vote. See, Am. Compl.¶ 28, 29 and 31. Nonetheless, the Plaintiff is an African-American, West Indian, born in the U.S.Virgin Islands.


the U.S. Senate. The Elections System of the Virgin Islands is the body politic

responsible for elections in the Territory and does not include a ballot for voting for the

President of the U.S. and Congressional representatives. That is clear from the

Amended Complaint. Plaintiff alleges specifically that he is continually and purposefully

denied the right to vote. See Am.Compl. ¶ 31, 37-40. The Defendants do not deny that

they do not place on the ballot an option for voting for the President, nor do they deny

that they have not advised or promulgated any rules or procedures for such a vote.

These voting ballot omissions are the wrongdoing.

The Fifteenth Amendment and the Voting Rights Acts claims fall under a “totality

of the circumstances” test to determine such a violation. See Old Person v. Brown 312

F.3d 1036, (9th Cir. 2002), cert. den. (2003) 540 U.S. 1016 (2003); Dillard v Baldwin

County Comm'rs, 376 F.3d 1260, (11th Cir. 2004) (employing a totality of circumstances

inquiry); Jordan v Greenwood 599 F. Supp. 397 (N.D. Miss. 1984) (restoring a "results"

standard, which focuses judicial inquiry on objective factors concerning "totality of the

circumstances" bearing on present ability of minorities to participate effectively in

political process when assessing voting rights violation on the basis of race).

To prove that insidious racism of the early 1900s conspired to deprive the U.S.

Virgin Islands of Constitutional representation in the federal government, the Plaintiff

has set forth numerous pages of facts in his Amended Complaint (see e.g. ¶¶ 15-21,

23-28, 30-31, 34). The judicial inquiry then is to the objective factors Plaintiff has set

forth in the Amended Complaint concerning the totality of the circumstances bearing on

the Plaintiff’s ability (and those similarly situated) to participate effectively in the political


process of electing the U.S. President and Congressional representatives.

Plaintiff submits that the totality of the circumstances, against which the Defendants has

not argued, would lead this Court’s judicial inquiry to a finding of racial discrimination in

the voting rights of Plaintiff and those similarly situated and that this Honorable Court

would issue a Declaratory Order mandating the Elections Systems take certain steps

“with all deliberate speed” to all U.S. citizens residing in the Virgin Islands to vote for the

United States President, Senators, and a Congressional representative.

The Elections System of the Virgin Islands has the power and ability to carry out

the relief requested, i.e. to promulgate procedures for voting and placing names on a

ballot. Virgin Islands Code at Title 18 V.I.C. § 4 sets forth the duties of the Supervisor of

Elections. In pertinent part, Section 4(b) of Title 18 of the Virgin Islands Code provides:

(b) The Supervisor of Elections, subject to the direction, control andsupervision of the boards of elections, shall exercise all powers granted to,and perform all duties vested in him by this title, including the duty to:

(1) determine, in accordance with the provisions of this title, the forms ofnomination petitions and papers, expense accounts and all other forms andrecords, the forms of which he is required to determine under the provisionsof this title, and furnish or make them available in the manner provided bythis title;

(2) certify to the boards of elections, for primaries and elections, the namesof candidates for all public and territorial offices and membership on partycommittees;

(3) receive, and determine, as provided in this title, the sufficiency ofnomination petitions, certificates and papers of candidates for all public andterritorial offices and membership on party committees;

(4) receive from the Deputies of each election district the reports of theresults of primaries and elections in their respective districts, determine whichcandidates have been nominated or elected at large, and notify suchcandidates of their nomination or election, as provided in this title;


(5) prepare and furnish to the boards of elections the cards and binders forthe registration of electors, the voter's certificates and all other papers,supplies and equipment necessary for the registration of electors and for theconduct and determination of the results of primaries and elections; and, afterconsultation with the boards and with the approval of the boards, prepare andfurnish the format of the ballot as it will appear on the electronic votingmachine, sample ballots and instructions for voters to be used at primariesand elections;

(6) prepare, receive applications for, and distribute, in the manner providedby this title, absentee ballots and envelopes;

(7) assist and advise the boards of elections in the preparation andissuance of such rules and regulations, not inconsistent with law, as theboards of elections deem necessary for the guidance of the boards ofelections and election officers, and their employees and assistants in theconduct of registration, enrollment, primaries and elections to the end that theadministration of the election process shall be uniform throughout the VirginIslands;

(8) prepare for the review and approval of the joint boards the annualbudget for the boards;

(9) prepare and publish at least twice in all local newspapers of generalcirculation in the Virgin Islands prior to June 15 of each election year acalendar of election year events listing all pertinent dates and filing deadlinescontained in this title; and

(10) prepare and distribute to each candidate certified pursuant to section420 of this title, at least 15 days prior to each general election, a list of thequalified electors of each district for which the candidate is seeking office,which list shall be organized by polling districts and voting precincts withinthose districts. At large candidates shall receive a complete list of all qualifiedelectors, organized in the manner above set forth.

(11) prepare and furnish replacements of the Certificate of RegistrationCards provided for in section 100(e) of this title to duly registered voters, andto prepare and promulgate rules and regulations for reimbursement of theadministrative expenses associated with provision of such replacementcards. All fees collected pursuant to such regulations shall be deposited inthe Virgin Islands Voter Identification and Registration Fund.

(emphasis supplied). It is also worth noting at this juncture the Mission Statement of the

Elections Systems of the Virgin Islands states as follows: “To provide American citizens


in the Virgin Islands with the mechanism to exercise their right to vote according to the

United States Constitution.” See, www.vivote.gov (emphasis supplied).

The terms “according to the United States Constitution” (see Mission Statement)

and “not inconsistent with law” (18 V.I.C. §4(b)(7)) necessarily include compliance with

the United States Constitution, the Fifteenth Amendment and the statutory the Voting

Rights Act. There is no other party than the Elections System of the Virgin Islands,

which has authority to amend voting ballots and create the procedure to carry out

elections posited by Plaintiff and to supply United States citizens in the Virgin Islands

with the mechanism to exercise their right to vote according to the United States

Constitution. A denial of the right to vote based on race or color is a violation under the

governing act of the Defendants. Indeed, under the governing act, the Elections

System of the Virgin Islands should be bringing this case, or at least not opposing it, as

it is their duty to ensure Virgin Islanders are not denied the right to vote.2

b) This Court has the Authority to Rule on Constitutional Violations.

This case is about the wrongful denial of the most sacred right a U.S. Citizen

possesses – the right to vote for his or her leaders – in violation of the Fifteenth

Amendment of the Constitution and the Congressional statute passed pursuant the

Fifteenth Amendment, known as the Voting Rights Act. Essentially, this is a

Constitutional violation case. Courts have authority to rule on such cases. Indeed, only

2 Regarding this issue, the Defendants agree, but perhaps not their counsel. The Supervisor ofElections John Abrahamson has publicly stated: “We should be up on arms being treated assecond-class citizens, fighting the social, economic and political forces that precluded bringing thisvestige of colonialism to an end. I think this [lawsuit] long overdue in the territory […] I have read[the Complaint] extensively. I think the action is good.” News articles are attached as Exhibits B.


the judiciary can determine constitutionality of an act, omission or law. Not only can the

judiciary rule, but they must not shirk the responsibility to do so.3 Therefore any

contention that the Court cannot rule in this matter, or that this is a matter solely for

Congress, is simply wrong.

Indeed, in Reid v. Covert, 354 U.S. 1, 3-14 (1957), Justice Black highlights that

Congressional power outside the Constitution is not only a “grave concern” but a

“dangerous doctrine” which would “undermine the basis of our Government:”

The rights and liberties which citizens of our country enjoy are not

protected by custom and tradition alone, they have been jealously

preserved from the encroachments of Government by express provisions

of our written Constitution.




constitutional rights which are "fundamental" protect Americans abroad,

we can find no warrant, in logic or otherwise, for picking and choosing

among the remarkable collection of "Thou shalt nots" which were explicitly

fastened on all departments and agencies of the Federal Government by

the Constitution and its Amendments.

The concept that the Bill of Rights and other constitutional protections

against arbitrary government are inoperative when they become

inconvenient or when expediency dictates otherwise is a very dangerous

doctrine and if allowed to flourish would destroy the benefit of a written

Constitution and undermine the basis of our Government.

Reid v. Covert, 354 U.S. 1, 3-14 (1957); See also, Torres v. Puerto Rico,

442 U.S. 465, 476 (1979)(Justice Brennan citing to Justice Black in Reid.)

3 See, De La Rosa, 417 F.3d 145, 160 (1st Cir. 2005)(Torreulla, dissenting)(“The difficulty,complexity, or length of the process required for the United States to comply with the law of the landis irrelevant, as it has never been a test for redressability of a wrong. Cf. Brown v. Bd. of Educ., 349U.S. 249 (1955)(ordering racial desegregation of schools occur “with all deliberate speed.”)


This case is a Fifteenth Amendment and Voting Rights Act case where the

United States and in turn the Elections System of the Virgin Islands have denied United

States citizens the right to vote on account of race or color. It is not simply about the

procedural matter of electing a President. This is a matter of enfranchising citizens

denied elected representations due to the racism of an all-white federal government in

1917.4 See Am.Compl. ¶ 27-28, 46. The Fifteenth Amendment of the U.S. Constitution

provides “The right of citizens of the United States to vote shall not be denied or

abridged by the United States or by any state on account of race, color, or previous

condition of servitude.” The Fifteenth Amendment makes clear that the right to vote is

granted to citizens of the United States and that right cannot be denied or abridged by

the United States on account of race, color or previous condition of servitude.

Therefore, the United States cannot deny citizens of the United States – irregardless of

its status as an “unincorporated” Territory – the right to vote on account of race, color or

previous servitude. Any such denial or abridgment would be a violation of the Fifteenth

Amendment.

There should be some discussion of “unincorporated” because this legal term of

art seems to be the talismanic catchphrase for justifying discrimination. The Complaint

thoroughly details that the word “unincorporated” is a legal fiction created by Congress

and the U.S. Supreme Court to create an inferior disenfranchised second-class

4 It would take twelve years, in 1929, before African-American Oscar Stanton De Priest couldwin a Congressional seat from Illinois in the House of Representatives. It would be twenty years, in1937, before the first person of color, William H. Hastie, wore the black robe of a judge. However, itwould take forty-nine years, in 1966, before an African-American would serve on the PresidentialCabinet.


citizenry.5 (See Amended Complaint ¶¶17-31). The fiction of “unincorporated” was

created in the same racist rubric of “separate but equal.” The idea of a second-class

citizenry in unincorporated territories is not in congruence with the Constitution. Justice

Harlan – the only dissenting judge in the now infamous case Plessy v. Ferguson –

made it painstakingly clear that a second-class citizenry was unconstitutional.6

Unfortunately, his logic of fairness and Constitutional equality fell on deaf ears as his

peers needed a novel idea to escape the Constitution. An all-white early nineteenth

century government had no intention of enfranchising millions of new non-white citizens

in the Philippines, Puerto Rico, and the North Mariana Islands.7 Plessy v. Ferguson’s

“separate but equal” provided the perfect starting point. If non-whites could be

5 “With the creation of the new category of ‘unincorporated’ territories, the United States couldnow hold its island acquisitions at arm’s length, apart from the [Constitution, thus allowing] thedevelopment of the United States into an international power, like Great Britain, France, Germany,Russia, and Japan, each with its dependent territories or colonies. There can be little doubt that theInsular Cases lead to ‘empire’ if […] if we mean the extension of U.S. sovereignty over personswithout voice in their annexation and without representation in their subsequent government.”Sparrow, Bartholomew, The Insular Cases and the Emergence of American Empire. Univ. Press ofKansas (2006) pp. 215, 219.6 “Harlan could hardly have opposed the government’s position more fundamentally andforcefully. Harlan pointed to the phrase, “We the People” in the Preamble of the Constitution, and toChief Justice Marshall’s opinion in Martin v. Hunter’s Lessee (1816) and McCulloch v. Maryland(1819), where Marshall had in each emphasized that the United States was composed of theAmerican people and not the states. Harlan argued that the U.S. Constitution, not congressionallegislation and not political expedience, was the ultimate law of the land stating ‘Congress has noexistence and can exercise no authority outside the Constitution. [Further,] the Tenth Amendment’sguarantee that powers not enumerated in the Constitution ‘are reserved to the States respectively, orthe People’ would seem to mean that the U.S. citizens of the island territories are entitled to thereserved powers under the Constitution.” Sparrow, Bartholomew, The Insular Cases and theEmergence of American Empire. Univ. Press of Kansas (2006) pp. 97, 223.7 “The nine justices on the Supreme Court deciding the Insular Cases lived in a white-dominated, racially divided United States. Furthermore, most white Americans and political elites didnot want the new islands and their inhabitants to become full members of the American politicalsociety. Race, repeatedly came up as a topic in the debates over the annexation of the UnitedStates’ new island territories. Race, most white Americans believed […] that Caucasians wereinnately superior, and that they were responsible for civilization in the world [and] that inferior raceswere destined to be overwhelmed or even to disappear.” Sparrow, Bartholomew, The Insular Casesand the Emergence of American Empire. Univ. Press of Kansas (2006) pp. 57-58.


separated from whites, surely non-whites could be separated from an all-white

government. Thus, the idea of “unincorporated” was coined by the Supreme Court to

effect the same purpose of “separate but equal” – to relegate blacks to a second-class

non-voting citizenry. Herculean efforts of brave civil rights leaders finally reversed

Plessy v. Ferguson and relegated the decision to accompany a small litany of other

racist decisions. (See Second Amended Complaint ¶15). Now an anachronism, the

flawed and racist concept of “unincorporated” from the Insular Tariff Cases should join

Plessy v. Ferguson’s “separate but equal” in the rubbish-bin of time.

Plaintiff has alleged that the denial of the right of to vote in the Territory stems

directly from the racist and discriminatory factors. These allegations have not been

argued or even denied by Defendants. see e.g.2d Am. Compl. ¶¶ 15-21, 23-28, 30-31,

34; Ans. see e.g. ¶¶ 15-21, 23-28, 30-31, 34). They can be accepted as true by this

Court for purposes of this motion and the Court may make judicial inquiry into the

totality of the circumstances to determine the discriminatory violation. Of note is the

helpful Fifteenth Amendment analysis by Chief Justice Fuller:

The Fifteenth Amendment declares that "the right of citizens of the United

States to vote shall not be denied or abridged by the United States or by

any State on account of race, color, or previous condition of servitude."

Where does that prohibition on the United States especially apply if

not in the territories?


Constitution, and possesses the powers conferred by the Constitution.

[…] The powers of the legislature are defined and limited; and that those

limits may not be mistaken or forgotten, the Constitution is written. To

what purpose are powers limited, and to what purpose is that limitation

committed to writing, if these limits may at any time, be passed by those

intended to be restrained?


The power of the United States to acquire territory by conquest, by treaty,

or by discovery and occupation, is not disputed [however] the source of

national power in this country is the Constitution of the United States; and

the government, as to our internal affairs, possesses no inherent

sovereign power not derived from that instrument, and inconsistent with

its letter and spirit.

That [majority’s] theory [incorrectly] assumes that the Constitution created

a government empowered to acquire countries throughout the world, to

be governed by different rules than those obtaining in the original States

and territories, and substitutes for the present system of republican

government, a system of domination over distant provinces in the

exercise of unrestricted power.

Downes v. Bidwell, 182 U.S. 244, 347-373 (1901) (Fuller,

dissenting)(emphasis supplied).

CONCLUSION

A finding of Declaratory Judgment for the Plaintiff would be appropriate

considering the overwhelming evidence of racial discrimination which violates the letter

and spirit of the Fifteenth Amendment. A proposed order is attached.


DATED: June 25, 2012 ____________________________J. RUSSELL B. PATE, ESQUIRETHE PATE LAW FIRM )V.I. Bar No: 1124)Royal Dane Mall, 2

ndFl. - P.O. Box 890

St. Thomas USVI 00804340.777-5270 [email protected] for Plaintiff

CERTIFICATE OF SERVICEI hereby certify that on this the 25th day of June, 2012, I served the foregoing PLAINTIFF’S

MOTION FOR DECLARATORY JUDGMENT upon defendant’s counsel via U.S. Post:

Carol Thomas-Jacobs, Esq.Department of JusticeAttorney General’s OfficeGERS BuildingSt. Thomas, U.S. Virgin Islands, 00802 _________________________



)Plaintiff, )




_____________________________________ )

ORDER

This matter is before the Court on Plaintiff’s Motion for Declaratory Judgment. The Court

having reviewed said motion, its opposition, and being aware of the premises, it is hereby:

ORDERED that the Plaintiff’s Motion for Declaratory Judgment is hereby GRANTED; and

it is further

ORDERED that the Election System of the U.S. Virgin Islands shall develop a procedure

by which citizen of the U.S. Virgin Islands may vote for the U.S President, register to run for U.S.

President, register to run for Congressional office in House and Senate positions and vote for

those running for Congressional office “with all deliberate speed.1”

IT IS SO ORDERED THIS ____ DAY OF ________________, 2012.

_________________________________ATTEST: HONORABLE HAROLD W.L. WILLOCKSVENETIA H. VELAZQUEZ, ESQ. Judge of the Superior Court

Clerk of the Court of the U.S. Virgin Islands

By: _____________________Deputy Clerk

1 See, Order by Chief Justice Earl Warren in Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955)

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01:21:27p,m. 07-13-2012 7122

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS . ... .. .............. .. ..... ................. DIVISION..OF-ST....CROIX.—...........................................

Bevron Goodwin, individually, and on behalf) of all other persons born-in and residing ) in the U.S. Virgin Islands, )

)

Plaintiff, ) )

V. )

)

Election System of the U.S. Virgin Islands, ) and John Abramson, Jr., in his official ) capacity as Supervisor of Elections, )

)

Defendants. )

CIVIL NO. 435/2011

ACTION FOR DAMAGES and EQUITABLE RELIEF

JURY TRIAL DEMANDED

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT AND DEFENDANT'S MOTION TO DISMISS

Defendants, Election System of the U.S. Virgin Islands and John Abramson, Jr., in his

official capacity as Supervisor of Elections, by and through their undersigned counsel, hereby

oppose Plaintiff's motion for declaratory judgment and request that the Court dismiss this case.

I. BACKGROUND

Plaintiff filed an amended complaint in October 2011. The three-count Amended

Complaint is the operating complaint.' In his Amended Complaint, Plaintiff alleges that United

States Virgin Islanders "are purportedly citizens of the United States of America, yet they are

denied the full application of the Constitution of the United States, in particular, the essential

right to vote at all levels of government, which includes the ability to vote for U.S. President,

House and Senate Representatives." Am. Compi. ¶ 10. Plaintiff further alleges that Virgin

Islanders are "denied the right to vote and run for federal office due to the prejudiced, racist and

'Although Plaintiff purports to bring the action on "behalf of all other persons born-in and residing in the U.S. Virgin Islands", this is not a class action as Plaintiff has not followed any of the requirements set forth in Rule 23 of the Federal Rule of Civil Procedure which governs class actions. Thus, Plaintiff is the only plaintiff in this action.

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bigoted rationale of a number of dated Supreme Court cases known as the Insular Cases." Am.

Compl, 115, Plaintiff also contends that "citizens of the United States living in the U.S. Virgin

Islands deserve every right and privilege that is afforded to any other U.S. Citizen under the

Constitution." Am. Compi. 120.

In Count I of the Amended Complaint titled "VIOLATION OF THE FOURTEENTH

AND FIFTEETH AMENDMENTS AS APPLIED TO THE REVISED ORGANIC ACT -

PRIMA FACIE RACIAL DISCRIMINATION" Plaintiff alleges that as a United States citizen

and resident of the Virgin Islands he has been denied the right to vote for, and to run for,

President of the United States of America, the House of Representative or the Senate, due to the

prejudices and racism of nearly a century ago. Am. Compl. ¶J 36-40. Nowhere in Count I does

Plaintiff allege what is his race or that the named Defendants, the Election System of the U.S.

Virgin Islands and John Abrahamsen, Jr., as the Supervisor of Elections, have discriminated

against him in any manner.

In Count II titled "INJUNCTIVE RELIEF - PROHIBITING REMOVAL FROM THE

SUPERIOR COURT - ARTICLE IV FEDERAL COURTS ARE NOT CONSTITUTIONALLY

INDEPENDENT" Plaintiff alleges that his action "should not be removed because the federal

judges of the Virgin Islands are not protected with life-tenure and judicial independence." Am.

Compi. ¶ 41. Plaintiff further argues in his cothplaint that "this case should not be heard by a

judge in which the people of the Virgin Islands have no elected say in the executive who

appoints the judge of the Territory and no elected say in the senate who confirm this

nomination." Am. Compi. ¶ 43. Plaintiff then concludes with the statement that "{t]reating

federal judges in the District of the Virgin Islands as second-class judges represents an

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Bevron Goodwin v. Election System & John Abramson Sup. Ct. Civil No, 506/2011 Reply to Opposition to Mot for SJ Page 3 of 16

unconstitutional violation of the 'separation of powers." Again, nowhere in Count II has

Plaintiff alleged any wrongdoing on the part of Defendants.

In Count III titled "DECLARATORY RELIEF - MANDATING A SYSTEM OF

ENFRANCHISMENT OR THE IMPLEMENTATION OF THE ELECTORAL COLLEGE"

Plaintiff asks the court to "correct the injustice" in Virgin Islanders being denied the fundamental

right to vote. Plaintiff asks the Court to take corrective action "as the politicians have failed to

do so for nearly the past one hundred years." Am. Compl. ¶ 46. Plaintiff pleads that as the

"United States Virgin Islands approaches one hundred (100) years of racial discrimination.. .it is

the courts alone who can overturn the racist and tortured rationale of the Insular Cases." Am.

Compl. ¶ 46. Again, nowhere in Count III has Plaintiff alleged any wrongdoing on the part of

Defendants.

In his prayer for relief, Plaintiff asks the Court to direct the Election System of the U.S.

Virgin Islands to "develop a procedure for the U.S. Virgin Islands, or citizens of the U.S. Virgin

Islands, to vote for the U.S. President, to register to run for U.S. President, and to register to run

for Congressional office in the House and Senate position, and to vote for those running for

Congressional office, House and Senate positions, and that those elected to represent the United

States Virgin Islands be presented to Congress to be seated accordingly." Plaintiff failed to set

forth in his complaint any law, statute, rule or regulation which gives Defendants the authority to

do as Plaintiff requests.

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2. STANDARD FOR MOTION TO DISMISS

"A motion to dismiss pursuant to Rule 12(b)(6) may be granted only if, accepting all

well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to

Plaintiff, Plaintiff is not entitled to relief." Robles v. HOVENSA, L.L.C., 49 V.I. 491,494 (Sup.

Ct, 2008) (quoting Maio v. Aetna. Inc., 221 F. 3d 472 481-82 (3d Cir, 2000). However, in order

to survive a motion to dismiss a complaint must contain sufficient factual allegations which are

sufficient to state a claim to relief that is plausible on its face. "A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)

(quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 556, 570, (2007)). "Factual allegations

must be enough to raise the right to relief above the speculative level" and a "plaintiffs

obligation to provide the basis for his entitlement of relief requires more than labels and

conclusions and a formulaic recitation of the element of a cause of action will not do." Twombly,

550 U.S. at 555. Courts "are not bound to accept as true a legal conclusion couched as a factual

allegation." j, (quoting Papasan v. Allain, 478 U.S. 2565 286 (1986)). In fact, "[l]egal

conclusions, deductions or opinions couched as factual allegations are not given a presumption

of truthfulness." Govt. Guarantee Fund v. Hyatt Corp., 955 F. Supp. 441,448 (D.V.I. 1997). For

the reasons set forth below, Plaintiffs complaint fails to state a plausible claim against the

Defendants.

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(1) Plaintiff has failed to allege any wrongdoing on the part of Defendants

In the caption of the Amended Complaint, Plaintiff has named the Election System of the Virgin

Islands and the Supervisor of Elections as Defendants. In the body of the complaint the named

defendants are mentioned as follows:

2. Defendant Elections System of the Virgin Island is an agency and instrumentality of the U.S. Virgin Islands government.

3. Defendant John Abramson, Jr., is a resident of the Virgin Islands and acts as the Supervisor of Elections for the Elections Systems of the Virgin Islands.

Am. Compi. 112-3. Defendants are not mentioned in any other paragraphs in the complaint and

Plaintiff has not pled any allegations of wrongdoing by Defendants. Nowhere in Plaintiff's

complaint has he alleged that Defendants failed to perform an act that they had a duty to perform.

It is patently obvious that Plaintiff has failed to state any claim against Defendants in his

complaint.

In his motion for declaratory judgment, Plaintiff claims that paragraphs 31 and 37-40 of

his Amended Complaint specifically alleges that he is continually and purposefully denied the

right to vote. See P1's Mot. at 6. In his complaint, Plaintiff does not allege that he has been

denied the right to vote because of the actions of the Defendants in this lawsuit. In fact, in the

Amended Complaint, Plaintiff specifically alleges that "[t]he reason Virgin Islanders were

denied the right to vote and the right to run for federal office is due to the prejudiced, racist and

bigoted rationale of a number of dated Supreme Court cases known as the Insular cases." Am.

Compl. 115. In paragraph 28 of the Amended Complaint, Plaintiff notes that "President Wilson

and Congress of one hundred years ago knew that extending constitutionally mandated voting

rights to U.S. Virgin Islanders would result in the first majority black jurisdiction capable of

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Bevron Goodwin v. Election System & John Abramson Sup. Ct. Civil No. 506/2011 Reply to Opposition to Mot for SJ Page 7 of 16

Plaintiff claims in his motion "[t]his is a matter of enfranchising citizens denied elected

representations due to the racism of an all-white federal government." Plaintiff's contention in

his motion does not save his complaint from dismissal for even persons who sue as citizens must

allege a particularized injury to have standing to obtain relief. Schlesinger v. Reservists Comm. to

Stop the War, 418 U.S. 208, 228 (1974). Courts repeatedly held that general allegations that the

law is not being followed by government officials are insufficient to confer standing to sue and

that a taxpayer cannot use the court as a forum in which to air his generalized grievances about

the conduct of government or the allocation of power. Ballentine v. United States, 464 F. 3d.

806, 814 (3d Cir. 2007); Julien v. Government of the Virgin Islands, 961 F. Supp. 852, 865

(D,V.I, 1997). The proposition that all statutory provisions are enforceable by any citizen

simply because citizens are the ultimate beneficiaries of those provisions has long been rejected

by the highest courts in the nation. See, Exparte Levitt, 58 S.Ct. 1(1937); Schlesinger, 418 U.S.

at 227; Valley Forge Christian College v. Americans Unitedfor Separation of Church and State,

454 U.S. 464 (1982); Americans Unitedfor the Separation of Church and State v. Reagan, 786

F. 2d 195, 200 (3d Cir. 1986)(noting a citizen does not acquire standing based up his right to

require that government be administered in accordance with the law). Thus, a person bringing an

action must show concrete particularized injury in order to establish standing.

To bring a claim for racial discrimination Plaintiff has to allege his race and specifically

assert that he is being denied the right to vote because of his race. it is insufficient for him to

merely allege "racism against ajurisdiction."

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(3) Defendants do not have the power to enforce the remedy Plaintiff seeks.

In his payer for relief, Plaintiff asks the Court to direct the Election System of the U.S.

Virgin Islands to "develop a procedure for the U.S. Virgin Islands, or citizens of the U.S. Virgin

Islands to vote for the U.S. President, to register to run for U.S. President, and to register to run

for Congressional office in the House and Senate position and to vote for those running for

Congressional office, House and Senate positions, and that those elected to represent the United

States Virgin Islands be presented to Congress to be seated accordingly." Am. Compl, at pages

23-24. Neither the Elections Systems nor John Abramson has the authority to carry out the relief

Plaintiff is requesting. The Supervisor of Election is subject to the direction, control and

supervision of the boards of elections. 18 V.I.C. § 4(b). The duties of the Supervisor of Elections

are set forth in 18 V.I.C. § 4. Governmental entities only have such powers as are granted to

them by statute. 2 Since the of President of the United States and representatives to the House

and Senate in Congress are federal offices, and the Virgin Islands is a Territory only, Congress

has the power to direct the territorial government to institute procedures in the Virgin Islands so

as to allow residents to vote for President of the United States and other Congressional offices.

See e.g. P.L. 92-271 and 18 V.I.C. § 21. Thus, the Court has no authority to order Defendants to

perform duties that they have no statutory authority to perform.

Plaintiff nonetheless contends in his motion that the V.I. Election System and John

Abramson have the authority to place the candidates for the President of the United States and,

presumably, for Congress on local ballots and promulgate procedures for voting for these offices.

P1. Mot. at page 7. Perhaps once that is done the votes cast by voters in the Virgin Islands for

2 See 18 V.LC, § 4 for duties of the Supervisor of Elections and 18 V.I.C. § 47 for Board of Elections.

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the President will be counted in the presidential election, and once Virgin Islands representatives

for Congress are selected by Virgin islands residents, the Virgin Islands representatives will have

full voting powers as representatives from other states. This is fictional. The Election System of

the Virgin Islands and John Abramson have no power to change federal law. The President of the

United States and representatives to the House and Senate in Congress are federal offices

controlled by federal, not local, law. The Virgin Islands is a Territory and only Congress has the

power to direct the territorial government to institute procedures in the Virgin Islands so as to

allow residents to vote for President of the United States and other Congressional offices. See

e.g. P.L. 92-271 and 18 V.I.C. § 21, It was only after Congress allowed for a nonvoting Virgin

Islands Delegate to the United States House of Representatives, in 1972, that the local statutory

provisions were enacted to enforce or give effect to federal law. Accordingly, the Court has no

authority to order Defendants to perform duties that they have no statutory authority to perform.

(4) Although the Superior Court has the authority to rule on constitutional violations, it has no authority to overrule Supreme Court cases or re-write the Constitution or federal law.

In Court III, Plaintiff urges the Court to "overturn the racist and tortured rationale of the

Insular Cases" and declare that U.S. citizens residing in the Virgin Islands have the right to

participate in election for the President of the United States and to elect voting members of

Congress in the House of Representative and in the Senate as is afforded to any other U.S.

citizens.3 Although Plaintiff's request is well-intentioned and laudable, and Defendants do not

Am. Compl at 49. Nine Supreme Court cases decided in 1901 make up the core Insular Cases: DeL/ma v. B/dwell, 182 U.S. 1 (1901); Goetze v. United States, 182 U.S. 221 (1901); Grossman v. United States, 182 U.S. 221 (1902); Dooley v. United States, 182 U.S. 222 (1901) (Dooley 1); Armstrong v, United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392 (1901);

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disagree with his ultimate objective, legal precedent, binding on this Court, has held that U.S.

citizens residing in the Virgin Islands do not have the constitutional right to vote in a presidential

election. The Superior Court is bound by, and must follow, the decisions in the Insular Cases by

the Supreme Court of the United States. Only the Supreme Court has the "prerogative of

overruling its own decisions." Rodriguez de QuUas v. Shearson/American Exp., Inc., 490 U.S.

477, 484, (U.S. 1989).

Courts in this jurisdiction have held that the Virgin Islands, which was purchased from

Denmark in 1917, is an unincorporated territory of the Virgin Islands and not a State. Smith v.

Government of the Virgin Islands, 375 F. 2d 714 (3d Cir. 1967). The Third Circuit has held that

United States citizens residing in the Virgin Islands have no constitutional right to vote in

presidential elections because the Constitution of the United States provides for the President to

be elected through a vote of presidential electors chosen by the states, and the Virgin Islands is

not a state but an unincorporated territory of the United States. Ballentine v. United States, 464

F. 3d. 806, 810 (3d Cir. 2007). In Ballentine, the Third Circuit held that "[tjthe Constitution

does not grant the right to vote for President and Vice President to individual citizens, but to

"Electors" appointed by 'each State.' Those electors, in turn, are selected in 'such manner' as

the legislature of each state 'may direct." Id. (internal citations omitted.) See also Bush v. Gore,

Dooley v. United States, 183 U.S. 151 (1901) (Dooley II); and Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901). A second set of cases, decided between 1903 and 1914, further developed the Insular Cases: Hawaii v. Mankichi, 190 U.S. 197 (1903); Gonzales v. Williams, 192 U.S. 1(1994); Kepner v. United States, 195 U.S. 100 (1904); JJorr v. United States, 195 U.S. 138 (1904); Mendezona v. United Stares, 195 U.S. 158(1904); Rassmussen v. United States, 197 U.S. 516 (1905); Trono v. United States, 199 U.S. 521 (1905); Grafton v. United States, 206 U.S. 333 (1907); Kent v. Porto Rico, 207 U.S. 113 (1907); Kopel v. Bingham, 211 U.S. 468 (1909); Dowdell v. UnitedStates, 221 U.S. 325 (1911); Ochoa v. Hernandez, 230 U.S. 139 (1913); Ocampo v. United States, 234 U.S. 91(1914). Balzac v. Porto Rico, 258 U.S. 298 (1922). See Ballentine v. U.S. 2001 WL 1242571, 5 (D.V.I 2001) (Moore J.) listing the Insular cases.

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531 U.S. 98, 104 (noting that the "individual citizen has no federal constitutional right to vote for

electors for the President of the United States unless and until the state legislature chooses a

statewide election as the means to implement its power to appoint members of the Electoral

College.")

Article II of the United States Constitution provides in pertinent part that:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress...

U. S. Const. Art. II § 1, ci 2 (emphasis added). In addition, the Twelfth Amendment provides for

the Electors to "meet in their respective states and vote by ballot for President and Vice-

President," The Twelfth Amendment further provides that the person having the greatest number

of votes for President shall be the President; however, if no person has the majority of the

electors, the House of Representatives must choose by ballot the President where the "votes shall

be taken by states, the representation from each state having one vote." U.S. Const. Am. XII

(emphasis added). The only non-state that is allowed to vote in the Presidential Election is the

District of Columbia. This was made possible by the Twenty-Third Amendment to the

Constitution which provides that the District of Columbia shall appoint "a number of electors for

President and Vice President equal to the whole number of Senators and Representatives in

Congress to which the District would be entitled if it were a State, but in no event more than the

least populous State." There is no similar Constitutional amendment for the territories.

Thus, as an unincorporated territory of the United States, the Virgin Islands is "subject to

Congress' broad power under Article 1V, Section 3, Clause 2 4 of the United States Constitution

' Article IV, Section 3, Clause 2 of the U.S. Constitution provided that:

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to govern territories." i3luebeard's Castle, Inc. v, Government of the Virgin Islands, 321 F. 3d

394, 397 (3d Cir. 2003). The Virgin Islands is not a state and Congress has not amended the

Constitution to allow the Virgin Islands and other territories to appoint electors. In fact, Courts

addressing this issue have consistently held that U.S. citizens residing in territories have no

constitutional right to vote for the President in a presidential election. Igartua-De La Rosa v.

Us., 417 F. 3d 145, 147 (1st Cir. 2005) cert. denied, 126 S. Ct. 1569 (U.S. 2006) (holding that

"[t]he franchise for choosing electors is confined to 'states' and cannot be 'unconstitutional'

because it is what the Constitution itself provides."); Igartua Dc La Rosa v. U.S. 32 F. 3d 8 (Vt

Cir. 1994) (holding that Puerto Rico residents have no right to vote in presidential elections since

Puerto Rico is not a state and is not entitled to presidential electors under Article II of the

Constitution.); Attorney General of Territory of Guam v. United States, 787 F. 2d 1017, 1019

(9th Cir. I 984)("The right to vote in presidential elections under Article II inheres not in citizens

but in states... .Since Guam concededly is not a state, it can have no electors and Plaintiffs cannot

exercise individual votes in a presidential election. There is no constitutional violation."); Romeu

v. Cohen, 265 F. 3d 118, 123 (2 Cir, 2001) (noting that U.S. citizens who are residents of

Puerto Rico and other U.S. territories, have not received the right to vote for presidential electors

because the process set out in U.S. Const. Art. II § I for the appointment of electors is limited to

"States" and does not include territories,)

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be construed as to Prejudice and Claims of the United States, or of any particular State.

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Whether or not the Virgin Islands residents should have the right to vote in presidential

elections and to elect voting representatives for Congress arguably rest in the political process

and not the Courts. The Ninth Circuit in the Attorney General of Guam explained as follows:

A constitutional amendment would be required to permit [residents of Guam] to Vote in a presidential election. The District of Columbia experience illustrates this point, for American citizens on Guam are not the first American citizens not residing in states to complain about their inability to vote in presidential elections. Until the passage of the twenty-third amendment to the Constitution, American citizens who lived in the District of Columbia could not participate in presidential elections.

Attorney General of Territory of Guam, 738 F.2d at 1019. It appears that absent a change in the

status of the Virgin Islands from an unincorporated territory to a state, an amendment to the

Constitution of the United States allowing territories to appoint electors for President and Vice

President or a decision by the Supreme Court overruling the Insular Cases, the Court must

follow existing controlling precedent.

In his motion, however, Plaintiff passionately argues the Superior Court should not "shirk

the responsibility" to find that it is a violation of the Fifteenth Amendment and the Voting Rights

Act for Virgin Islands residents to be denied the right to vote for the President of the United

States and be fully represented in Congress. Plaintiff urges the Court to ignore binding legal

precedent which held that U.S. citizens residing in the Virgin Islands do not have the

constitutional right to vote in a presidential election. The Superior Court, however, is bound by

and must follow the decisions in the Insular Cases by the Supreme Court of the United States for

only the Supreme Court has the "prerogative of overruling its own decisions." Rodriguez de

Qujjas v. Shearson/American Exp., Inc., (supra). Thus, although this Court can decide

constitutional issues, it cannot overrule Supreme Court cases or re-write federal law.

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(5) Count II is not a Cause of Action and, therefore, no Relief can be Granted.

In Count II of the Amended Complaint, Plaintiff asks the Court to prohibit removal from

the Superior Court to the District Court because "this case should not be heard by ajudge in

which the people of the Virgin Islands have no elected say in the executive who appoints the

judge of the Territory and no elected say in the senate who confirmed this nomination." Am.

Compi 143. First, removal has not been requested in this case. Thus, the issue of whether the

case should be removed to the District Court is not properly before the Court and there is no case

or controversy on this issue. Second, the bases for removal are set forth in statute. See Title 28

U.S.C. § 1441. The reason advanced by Plaintiff for non-removal of the case is not a legitimate

basis for granting or denying removal where it has been requested. Third, whether or not a case

should or should not be removed is not a cause of action but a procedural matter. It is evident

that Plaintiff has failed to state a claim in Count II and it should be summarily dismissed.

Conicusion

It is evident that Plaintiff has failed to state a plausible claim against Defendants. Plaintiff

should not be given an opportunity to amend his complaint. Any amendment would be futile as

the law in this jurisdiction is clear. The United States Virgin Islands is a Territory, and as an

unincorporated territory of the United States, the Virgin Islands is "subject to Congress' broad

powers under Article IV, Section 3, Clause 2 of the United States Constitution to govern

territories. "Bluebeards Castle, 321 F. 3d at 397. It is well established that the process outlined

in U.S. Const. Art. II § 1 for the appointment of electors is limited to states and does not include

territories. The Virgin Islands is not a state and the Constitution does not allow the Virgin

Islands and other territories to appoint electors. In other words, U.S. citizens residing in

3407731425 01:27:02 p.m. 07-13-2012 21/22


territories have no constitutional right to vote for the President in a presidential election and the

fact that the franchise for choosing electors is confined to 'states' is not unconstitutional because

it is what the Constitution itself requires. No further amendments to the complaint can change

these well-established legal holdings.

Defendants are not against the ultimate objectives that Plaintiff's seeks, which

Defendants believe are important rights and reflects the desires of Virgin Islanders. Defendants,

however, disagree with Plaintiff that they have the capacity and authority to grant Plaintiff the

relief he seeks. It is through the political process, not the courts, by which change must come.

Wherefore, for the foregoing reasons and the arguments set forth herein, Defendants

request that the Court dismiss Plaintiff's complaint.

DATED: July 13, 2012 RESPECTFULLY SUBMITTED

VINCENT F. FRAZER., ESQ. ATTORNEY GENERAL

By: AROL THOMAS-JACOBS, ESQ,

ERIKA SCOTT, ESQ. Assistant Attorneys General V.1. Department of Justice 116040 Castle Coakley Christiansted St. Croix V.I. 00820

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CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that on the 13 th day of July, 2012, a true and exact copy of

the foregoing Opposition and Motion was served by first class mail, postage prepaid, and

facsimile to:

J. Russell B. Pate, Esquire THE PATE LAW FIRM Royal Dane Mall, 2" Floor P.O. Box 890 St. Thomas, V.I. 00804 (340) 777-5266

r4i


CIVIL - JURY DIVISION

DATE OF SESSION Monday, July 16, 2012

JUDGE PRESIDING Hon. Harold W. L. Willocks

COURTROOM NO ______203_____

COURT REPORTER _____________________ ATTY. GEN. ________________

CASE NO. PLAINTIFF DEFENDANT ORRESPONDENT

ACTION ATTY. FORPLAINTIFF

ATTY. FORDEFENDANT

REMARKS

CALENDAR OF CIVIL - JURY CASES

CLERK ____________________

EVENT

AMENDED CASES

**** 9:00 am****SX-11-CV-0000435 BEVRON GOODWIN ELECTION SYSTEM OF

THE VIRGIN ISLANDSJURYHEARING

1 DAMAGES - CIVIL

PREPARED BY JANEEN MARANDA 7/12/2012

TITLE: COURT CLERK II

Page 1 of 1

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01:2000p.m. 07-13-2012 2/22

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS .... ...................... ........... DIVISION-OF ..ST....CROIX.................................... ......... -


)

Plaintiff, ) )

V. )

)


)

Defendants. )

CIVIL NO. 435/2011


JURY TRIAL DEMANDED

DEFENDANTS' ANSWER TO COMPLAINT

COME NOW Election System of the Virgin Islands and John Abramson, Jr., in his

official capacity as Supervisor of Elections, and for their answer to Plaintiff's Amended

Complaint state as follows:

1. Defendants deny the allegations set forth in paragraph 1.

2. Defendants are without knowledge or information sufficient to form a belief as to

the truth or falsity of the allegations set forth in paragraph 2.

3. Defendants admit the allegations set forth in paragraph 3.


5. Defendants deny the allegations set forth in paragraph 5.

6. Defendants deny that this Court has the authority to determine and declare the

rights of the parties as it relates to the subject matter of Plaintiff's complaint.

7-13. Defendants admit the allegations set forth in paragraphs 7-13.

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01:20:18 p.m. 07-13-2012 3/22



15-16, Defendants are without knowledge or information sufficient to form a belief as to

the truth or falsity of the allegations set forth in paragraphs 15-16.


18-22. Paragraphs 18-22 contains legal arguments or legal conclusions to which no

response is required at this time. Defendants, however, admit that citizens of the

United States living in the U.S. Virgin Islands deserve every right and privilege

that is afforded to any other U.S. citizen under the Constitution.

COUNT I VIOLATION OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS

AS APPLIED VIA THE REVISED ORGANIC ACT

PRIMA FACIE RACIAL DISCRIMINATION



24. Defendants admit that in 1913 Woodrow Wilson assumed the office of the

President of the United States. Defendants are without knowledge or information

sufficient to form a belief as to the truth or falsity of the allegations set forth in

paragraph 24.

25-27. Defendants are without knowledge or information sufficient to form a belief as to


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01:20:36p.m. 07-13-2012 4122

28. Defendants admit that persons born in the Virgin Islands who are citizens of the

United States and other citizens of the Unites States who reside in the Virgin

Islands are denied the right to vote for President of the United States, to run for

office and the right of the Electoral College. Defendants are without knowledge

as to the truth or falsity of the remaining allegations set forth in paragraph 28.



30. Defendants admit that all jurisdictions under the United States flag should have

the ability to vote for representatives at every level of government rule.

Defendants are without knowledge or information sufficient to form a belief as to

the truth or falsity of the remaining allegations set forth in paragraph 30.

31-40, Defendants are without knowledge or information sufficient to form a belief as to


COUNT 2

INJUNCTIVE RELIEF

PROHIBITING FROM REMOVAL FROM THE SUPERIOR COURT ARTICLE IV FEDERAL COURTS ARE NOT CONSTITUTIONALLY INDEPENDENT

41. Defendants admit that the federal judges of the Virgin Islands are Article I judges,

presiding over Article IV courts and are appointed for only ten (10) years.

Defendants are without knowledge or information sufficient to form a belief as to

the truth or falsity of the remaining allegations set forth in paragraph 41.



3407731425 01:20:58 p.m. 07-13-2012 5/22

COUNT THREE - .......... .... ......................... .................- ....------••••-DE...LARATORYRLIEF..............................................

MANDATING A SYSTEM OF ENFRANCHISEMENT OR THE IMPLEMENTATION OF THE ELECTORTAL COLLEGE

45. Defendants admit that generally the Court has the power of declaratory judgment;

however, Defendants deny that the Court has the power to grant the remedy

requested by Plaintiff. Defendants are without knowledge or information

sufficient to form a belief as to the truth or falsity of the remaining

allegations set forth in paragraph 45.

46. Defendants admit that U.S. Virgin Islands are being denied their full

constitutional right to vote. Defendants are without knowledge or information

sufficient to form a belief as to the truth or falsity of the remaining allegations set

forth in paragraph 46,



DEFENSES

1. Plaintiff has failed to state a claim against Defendants.

2. This Court lacks subject matter jurisdiction over the claims set forth in Plaintiff's

complaint.

3. This Court has no power to grant the remedy requested by Plaintiff.

4. Plaintiff is not entitled to a jury trial against Defendants.

5. Plaintiff has filed to join an indispensable party.

6. Plaintiff's complaint raises non-justiciable political questions.

3407731425 01:21:15p.m. 07-13-2012 6122

DATED: July 13, 2012 RESPECTFULLY SUBMITTED

VINCENT F. FRAZER, ESQ. ATTORNEY GENERAL

By: CAROLThOMAS-JACOBS, ESQ. ERJKA SCOTT, ESQ. Assistant Attorneys General V.I. Department of Justice #6040 Castle Coakley Christiansted St. Croix V.I. 00820


IT IS HEREBY CERTIFIED that on the 1 3th day of July, 2012, a true and exact copy of

the foregoing Answer was served by first class mail, postage prepaid, and facsimile to:

J. Russell B. Pate, Esquire THE PATE LAW FIRM Royal Dane Mall, 2 d Floor P.O. Box 890 St. Thomas, V.I. 00804 (340) 777-5266

I rion 0

MA—



)Plaintiff, )




_____________________________________ )

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

COMES NOW the Plaintiff, Bevron Goodwin, via undersigned counsel, J. Russell

B. Pate, Esquire, of The Pate Law Firm, and opposes the Defendants’ motion to

dismiss.

BACKGROUND

Defendants move for dismissal of this case – which pursues the fundamental

right to vote – under three main arguments: (1) Defendants have engaged in no

wrongdoing, (2) Defendants have no power to enforce the remedy sought by Plaintiff,

and (3) this Court has no authority to overrule the Supreme Court of the United States.

Plaintiff will address these arguments in sequence.

STANDARD OF REVIEW

The Plaintiff agrees with the cases cited by Defendants for the standard of review

for a motion to dismiss as a recent V.I. Supreme Court case cites to Iqbal, Twombly and

the V.I. Superior Court case Robles. See, Brady v. Cintron, 55 V.I. 802, 831-32 (2011).

Bevron v. Election System of the V.I., et al., Civil No. SX-11-CV-435PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISSPage 2 of 13

DISCUSSION

The Defendants’ motion to dismiss should be denied because Plaintiff has

properly “set forth facts that articulate a facially plausible claim.” Smith v. V.I. Hous.

Auth., Civil No. 09-cv-11, 2011 U.S. Dist. LEXIS 19409 (D.V.I., Jan. 28, 2011)(Finch, J.)

As a preliminary matter, it should not escape notice that the Defendants agree with

Plaintiff that the right to vote is one of the most sacred rights a U.S. citizen possesses

and that this right should not be denied to U.S. Citizens residing in the U.S. Virgin

Islands.1 Nonetheless, the Defendants filed a motion seeking dismissal of the entire

case and therefore any judicial remedy of the grave constitutional infringement denying

U.S. citizens in the Virgin Islands the right to vote. For the reasons elaborated more fully

below, the motion to dismiss should be denied.

A. The unconstitutional wrongdoing by the Election System of the

U.S. Virgin Islands.

The Government’s first technical argument is that the complaint does not spell

out an allegation of wrongdoing against them. This must fail as it is merely places form

before substance. Plaintiff’s claim is in the nature of a Constitutional violation, namely:

(1) that he is denied the right to vote for the President of the United States and the

ability to seek election to said office, and (2) that he is denied the right vote for federal

offices of the U.S. Congress and the U.S. Senate or to seek election to those respective

positions. The Election System of the Virgin Islands is the only body politic responsible

1The Plaintiff would note the admissions of a party-opponent, John Abrahamson, the Supervisor of

Elections, when speaking with the Virgin Islands Daily News and Avis, stated: “We should be up on armsbeing treated as second-class citizens, fighting the social, economic and political forces that precludedbringing this vestige of colonialism to an end. I think this [lawsuit] is long overdue in the territory […]I have read [the Complaint] extensively. I think the action is good.” News articles are attached asExhibits A.


for elections in the Territory. However, it does not include a ballot for voting for the

President of the United States, U.S. Senators, or a full Congressional representative.

Plaintiff alleges specifically that he is continually and purposefully denied the right to

vote. See 2d Am.Compl. ¶ 31, 37-40. The allegation of this denial of the fundamental

right to vote is against the entity charged with running elections, i.e., the Election

System of the U.S. Virgin Islands, inclusive of its Supervisor and Board. The

Defendants do not deny there is no ballot option for voting for the President, Senators,

or a Congressperson, nor do they deny that they have not advised or promulgated any

rules or procedures for such a vote. These omissions are the “wrongdoing.”

Even assuming arguendo, that the allegation of wrongdoing is not apparent from

the Second Amended Complaint, whether the wronging was committed by the

Defendants in violation of the U.S. Constitution and Title 18 of the Virgin Islands Code is

clearly a matter of fact for a trier of fact to determine and therefore not appropriate for a

motion to dismiss. Nevertheless, if the Court should agree with the Defendants on this

point, the appropriate remedy would be to permit an amendment to the pleading rather

than the more draconian measure of dismissal.

B. The Defendant’s power to act and provide remedy.

The Defendants’ second argument that the Election System is powerless to carry

out the relief requested (i.e. to promulgate procedures for voting and placing names on

a ballot). This argument defies logic as well as the enabling statute for the Election

System. On this point, Title 18 V.I.C. § 4 sets forth the duties of the Supervisor of

Elections. In pertinent part, Section 4(b) of Title 18 of the Virgin Islands Code provides:


(b) The Supervisor of Elections, subject to the direction, control andsupervision of the boards of elections, shall exercise all powers granted to,and perform all duties vested in him by this title, including the duty to:

(1) determine, in accordance with the provisions of this title, the forms ofnomination petitions and papers, expense accounts and all other forms andrecords, the forms of which he is required to determine under the provisionsof this title, and furnish or make them available in the manner provided bythis title;

(2) certify to the boards of elections, for primaries and elections, the namesof candidates for all public and territorial offices and membership on partycommittees;

(3) receive, and determine, as provided in this title, the sufficiency ofnomination petitions, certificates and papers of candidates for all public andterritorial offices and membership on party committees;

(4) receive from the Deputies of each election district the reports of theresults of primaries and elections in their respective districts, determine whichcandidates have been nominated or elected at large, and notify suchcandidates of their nomination or election, as provided in this title;

(5) prepare and furnish to the boards of elections the cards and binders forthe registration of electors, the voter's certificates and all other papers,supplies and equipment necessary for the registration of electors and for theconduct and determination of the results of primaries and elections; and, afterconsultation with the boards and with the approval of the boards, prepare andfurnish the format of the ballot as it will appear on the electronic votingmachine, sample ballots and instructions for voters to be used at primariesand elections;

(6) prepare, receive applications for, and distribute, in the manner providedby this title, absentee ballots and envelopes;

(7) assist and advise the boards of elections in the preparation andissuance of such rules and regulations, not inconsistent with law, as theboards of elections deem necessary for the guidance of the boards ofelections and election officers, and their employees and assistants in theconduct of registration, enrollment, primaries and elections to the end that theadministration of the election process shall be uniform throughout the VirginIslands;

(8) prepare for the review and approval of the joint boards the annualbudget for the boards;

(9) prepare and publish at least twice in all local newspapers of generalcirculation in the Virgin Islands prior to June 15 of each election year acalendar of election year events listing all pertinent dates and filing deadlinescontained in this title; and


(10) prepare and distribute to each candidate certified pursuant to section420 of this title, at least 15 days prior to each general election, a list of thequalified electors of each district for which the candidate is seeking office,which list shall be organized by polling districts and voting precincts withinthose districts. At large candidates shall receive a complete list of all qualifiedelectors, organized in the manner above set forth.

(11) prepare and furnish replacements of the Certificate of RegistrationCards provided for in section 100(e) of this title to duly registered voters, andto prepare and promulgate rules and regulations for reimbursement of theadministrative expenses associated with provision of such replacementcards. All fees collected pursuant to such regulations shall be deposited inthe Virgin Islands Voter Identification and Registration Fund.

(emphasis added). It is also worth noting at this juncture the Mission Statement of the

Election System of the V.I. provides as follows: “To provide American citizens in the

Virgin Islands with the mechanism to exercise their right to vote according to the United

States Constitution.” See, www.vivote.gov (emphasis supplied).

The terms “according to the United States Constitution” (See, Mission Statement)

and “not inconsistent with law” (See, 18 V.I.C. §4(b)(7)) necessarily include compliance

with the Fifteenth Amendment and its statutory counterpart the Voting Rights Act.

Thus, no other party than the Election System, inclusive of its Supervisor and Board,

has authority to amend V.I. ballots and create the procedures to carry out elections

posited by Plaintiff and to supply “American citizens in the Virgin Islands with the

mechanism to exercise their right to vote according to the United States Constitution.”

Therefore, a denial of the right to vote based on race or color is a violation under the

governing act of the Election System and they are not without authority to act. Indeed, it

could be argued that the Election System should be bringing this case, or at least not

opposing it, as it is their duty to ensure Virgin Islanders are not denied the right to vote.


If, however, the Defendants’ contention is that another party should be joined to

the case, then they should file a Motion for Joinder, as a motion to dismiss is

inappropriate if that is the reason. Moreover, if the Court finds that a party must be

joined, again dismissal is not appropriate; the Court must make steps to join a

necessary party. See Fed.R.Civ.P. 19(a)(2)(“Joinder by Court Order.) If a person has

not been joined as required, the court must order that the person be made a party. A

person who refuses to join as a plaintiff may be made either a defendant or, in a proper

case, an involuntary plaintiff.”) In either event, dismissal in favor of the Defendants is

not warranted.

Given the foregoing factual issues, the Government’s motion to dismiss should

be denied.

C. This Court has the Authority to Rule on Constitutional Violations.

This case is about the wrongful denial of the most sacred right a citizen of the

United States possesses – the right to vote for his or her leaders. This denial is in

violation of the Fifteenth Amendment of the Constitution and the Congressional statute

passed pursuant the Fifteenth Amendment, known as the Voting Rights Act. Since this

is a racial discrimination case regarding voting rights, the standard of review is strict

scrutiny. See, Page v. Bartels, 248 F.3d 175 (3d Cir. 2001)(“[S]trict scrutiny under the

Fourteenth Amendment's Equal Protection Clause [applies] if race is the predominant

factor in the drawing of district lines. [Further,] such a redistricting scheme may also

violate the Fifteenth Amendment, at least if done with the purpose of depriving a racial

minority group of the right to vote.)(Citations and quotations omitted).


Courts have authority to rule on such cases. Indeed, only the judiciary can

determine constitutionality of an act, omission or law. Not only can the judiciary rule, but

they must not shirk the responsibility to do so.2 Therefore any contention by Defendants

that the Court cannot rule in this matter, or that this is a matter solely for Congress, is

simply wrong.3

Indeed, in Reid v. Covert, 354 U.S. 1, 3-14 (1957), Justice Black highlights that

Congressional power outside the Constitution is not only a “grave concern” but a

“dangerous doctrine” which would “undermine the basis of our Government:”

The rights and liberties which citizens of our country enjoy are not protected

by custom and tradition alone, they have been jealously preserved from the

encroachments of Government by express provisions of our written

Constitution.




constitutional rights which are "fundamental" protect Americans abroad, we

can find no warrant, in logic or otherwise, for picking and choosing among the

remarkable collection of "Thou shalt nots" which were explicitly fastened on

all departments and agencies of the Federal Government by the Constitution

and its Amendments.

The concept that the Bill of Rights and other constitutional protections against

arbitrary government are inoperative when they become inconvenient or

when expediency dictates otherwise is a very dangerous doctrine and if

2See, De La Rosa, 417 F.3d 145, 160 (1st Cir. 2005)(Torreulla, dissenting)( (“Considering that

justice and equity are the hand-maidens of law, I believe it is the duty of this court to exercise its equitablepower under Declaratory Judgment […] This is of the very essence of judicial duty. The difficulty,complexity, or length of the process required for the United States to comply with the law of the land isirrelevant, as it has never been a test for redressability of a wrong. Cf. Brown v. Bd. of Educ., 349 U.S.249 (1955)(ordering racial desegregation of schools occur “with all deliberate speed.”)3

Japan Whaling Assoc. v. American Cetacean Soc., 478 U.S. 221, 230 (1986)([T]he courts havethe authority to construe treaties and executive agreements, and it goes without saying that interpretingcongressional legislation is a recurring and accepted task for the federal courts. But under theConstitution, one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk thisresponsibility merely because our decision may have significant political overtones. We conclude,therefore, that the present cases present a justiciable controversy, and turn to the merits of petitioners'arguments.)


allowed to flourish would destroy the benefit of a written Constitution and

undermine the basis of our Government.

Reid v. Covert, 354 U.S. 1, 3-14 (1957); See also, Torres v. Puerto Rico, 442

U.S. 465, 476 (1979)(Justice Brennan citing to Justice Black in Reid.)

The Government spends considerable time in arguing that various amendments

of the U.S. Constitution do not support Plaintiff’s claim for a right to vote for the

President of the United States. However, the Defendants do not mention the primary

amendment at issue here – the Fifteenth Amendment. The Fifteenth Amendment of the

U.S. Constitution provides “The right of citizens of the United States to vote shall not be

denied or abridged by the United States or by any state on account of race, color, or

previous condition of servitude.” The Fifteenth Amendment makes clear that the right to

vote is granted to citizens of the United States and that right cannot be denied or

abridged by the United States on account of race, color or previous condition of

servitude. Therefore, the United States cannot deny citizens of the United States in the

Territory the right to vote on account of race, color or previous servitude. Any such

denial or abridgment would be a violation of the Fifteenth Amendment.

Plaintiff has alleged that the denial of the right of to vote in the Territory stems

directly from the racist and discriminatory factors acknowledged by the United State

Congress to be prevalent in 1917.4 This discriminatory treatment has continued,

4Congress’ own historical book admits to its invidious and outrageous discrimination: “After

winning the right to participate in the American experiment of self-government, African Americans weresystemically and ruthlessly excluded from it: From 1901 to 1929, there were no blacks in the federallegislature. This era was defined by a long war on African Americans participation in state and federalpolitics, waged by means of southern laws, Jim Crow segregation, and tacit federal assent. Congressresponded to civil rights measures with ambivalence or outright hostility” U.S. House of Representatives,Blacks Americans in Congress: 1870-2007 (Gov. Printing Office, Washington, D.C., 2008 at p.2 & 3)

See also, U.S. House of Representative, Blacks Americans in Congress: 1870-2007 (Gov.Printing Office, Washington, D.C., 2008 at p.172-3(“President Wilson introduced bills to segregate thefederal civil service, the military and public transportation in Washington, DC. Having solidified absolute


unabated and unrectified to the present day due to the inaction of the Election System

of the Virgin Islands. These allegations of racism have not been denied by Defendants.

See e.g. 2d Am. Compl. ¶¶ 15-21, 23-28, 30-31, 34; Ans. see e.g. ¶¶ 15-21, 23-28, 30-

31, 34). They can be accepted as true by this Court for purposes of this motion and the

Court may make judicial inquiry into the totality of the circumstances under a standard

of strict scrutiny to determine the discriminatory violation and the appropriate local

remedy. The Court should make a Fifteenth Amendment inquiry recalling the words of

Chief Justice Fuller:

The Fifteenth Amendment declares that "the right of citizens of the United

States to vote shall not be denied or abridged by the United States or by

any State on account of race, color, or previous condition of servitude."Where does that prohibition on the United States especially apply if

not in the territories?


Constitution, and possesses the powers conferred by the Constitution.

[…] The powers of the legislature are defined and limited; and that those

limits may not be mistaken or forgotten, the Constitution is written. To

what purpose are powers limited, and to what purpose is that limitation

committed to writing, if these limits may at any time, be passed by those

intended to be restrained?

The power of the United States to acquire territory by conquest, by treaty,

or by discovery and occupation, is not disputed [however] the source of

national power in this country is the Constitution of the United States; and

the government, as to our internal affairs, possesses no inherent

sovereign power not derived from that instrument, and inconsistent with

its letter and spirit.

That [majority’s] theory [incorrectly] assumes that the Constitution created

a government empowered to acquire countries throughout the world, to

be governed by different rules than those obtaining in the original States

and territories, and substitutes for the present system of republican

control over race issues in the South, southern members of Congress were sufficiently emboldened toprod Congress to enforce nationalized racial apartheid. [S]egregation was tacitly encouraged and widelypracticed.”


government, a system of domination over distant provinces in the

exercise of unrestricted power.

Downes v. Bidwell, 182 U.S. 244, 347-373 (1901) (Fuller,

dissenting)(emphasis supplied).

This case is a Fifteenth Amendment and Voting Rights Act case where the U.S.,

and in turn through its inaction, the Election System of the Virgin Islands have denied

U.S. citizens the right to vote on account of race or color. It is not about the procedural

mechanics of electing a President. This case is about correcting nearly a century of

entrenched wrongdoing and enfranchising citizens who were denied elected

representation due to the racism of an all-white federal government in 1917.5 See 2d

Am.Compl. ¶ 27-28, 46. The Government argues that this Court has no power to

challenge a rule based upon insidious racism. That is incorrect. Though rarely done –

and in extraordinary circumstances – some inferior courts have challenged the U.S.

Supreme Court – and prevailed.

In 1952 a little known trial court in New Castle, Delaware, found that segregation

of schools discriminated on the bases of race despite the fact that segregation was

5 It would take twelve years, in 1929, before African-American Oscar Stanton De Priest could win aCongressional seat from Illinois in the House of Representatives. It would be twenty years, in 1937,before the first person of color, William H. Hastie, wore the black robe of a judge. However, it would takeforty-nine years, in 1966, before an African-American would serve on the Presidential Cabinet.

See also, McNeil, Genna R., Groundwork: Charles Hamilton Houston and the Struggle for CivilRights. Univ. of Pennsylvania Press (1983). In the Forward at page xvi and xvii, Judge A. LeonHigginbotham, Jr., describes the racism prevalent in the federal government in the early 1900s:“Woodrow Wilson had no qualms about the plight of blacks. A black newspaper, The New York Age,warned that Wilson, ‘both by inheritance and absorption… has most of the prejudices of the narrowesttype of southern white people against the Negro.’ Princeton University, of which Woodrow Wilson waspresident from 1900 to 1910, was the only major northern school that excluded Negro students.Moreover, as governor of New Jersey from 1911 to 1912, his ‘progressivism’ did not embrace the Negro.Wilson’s ‘New Freedom’ had been ‘all for the white man and little for the Negro.’ Wilson had not visitedany colored school, church, or gathering of colored people or any nature whatever. During hisadministration there was a steady expansion of segregation in the federal department building inWashington. The Congress was not better. It had down nothing to protect civil rights during Republicanadministrations and did nothing under Wilson.”


constitutionally sanctioned by the Supreme Court of the United States in Plessy v.

Ferguson, 163 U.S. 537, 16 S. Ct. 1138 (1896). The trial judge was Collins J. Seitz; he

would later become a justice on the United States Court of Appeals for the Third Circuit.

In Belton v. Gebhart, 87 A.2d 862 (Del. Ch. 1952) Judge Seitz ordered injunctive relief

to end to the public school segregation in Delaware. By an artful opinion, Judge Seitz

provided a local remedy that was in opposition to federally accepted racial

discrimination as endorsed by the Supreme Court and thus, also, the Constitution at the

time. Judge Seitz did acknowledge that a final rejection of Plessy must come from the

nation’s highest court, yet that did not stop the Court from providing an appropriate local

remedy in the interim.

I do not believe a lower court can reject a principle of United States

constitutional law which has been adopted by fair implication by the highest

court of the land. I believe the "separate but equal" doctrine in education

should be rejected, but I also believe its rejection must come from that court.

Id at 865.

Judge Seitz’s opinion was the lone decision to directly challenge Supreme Court

precedent. His opinion was affirmed by the Supreme Court of Delaware in Gebhart v.

Belton, 91 A.2d 137 (Del. 1952). The case reached the Supreme Court of the United

States bundled with cases from Virginia, Kansas and the District of Columbia. The

eventual decision in Brown v. Board of Education, 347 U.S. 483 (1954) reversed all the

consolidated cases except Judge Seitz’s case. Considering the unique local

circumstances in the case sub judice, the insidious racism of the past exerted upon the

Virgin Islands, and the deprivation of the most fundamental right, voting, continuing

unabated to the present day, this Court has the same power to act locally and to issue


relief in conformity with the Plaintiff’s prayer. Granting dismissal for the Defendants

would be inappropriate considering the overwhelming evidence of racial discrimination

which violates the letter and spirit of the Fifteenth Amendment.6 However, issuing

injunctive relief would break the ice in which the Virgin Islands have been frozen in for

nearly a century, reviving the American principal of democracy in its purist form, a

“government of the people, by the people, for the people.”

CONCLUSION

The foregoing establishes that Plaintiff’s claims are plausible and a remedy can

be provided.7 The Election System of the U.S. Virgin Islands has the power – and the

duty – to tally votes for presidential candidates and to send those votes to Washington,

D.C. Further, the Election System of the U.S. Virgin Islands can establish procedures

for the election of a Congressperson and two U.S. Senators. Those duly elected may be

sent to Washington, D.C., to be seated appropriately in the House and Senate.

A proposed order is attached.


DATED: September 4, 2012 ____________________________J. RUSSELL B. PATE, ESQUIRETHE PATE LAW FIRM )V.I. Bar No: 1124)

6Igartúa v. United States, 626 F.3d 592, 613 (1st Cir 2010)(Torruella, dissenting)(“At the root of

this problem is the unacceptable role of the courts. Their complicity in the perpetuation of this outcome isunconscionable. As in the case of racial segregation it is the courts that are responsible for the creation ofthis inequality. Furthermore, it is the courts that have clothed this noxious condition in a mantle of legalrespectability. [M]ore egregious is the fact that it is this judiciary that has mechanically parroted the [racist]underpinnings [of] unequal treatment of persons because of the color of their skin or other irrelevantreasons, was then the modus operandi of governments, and […] societies in general. [T]he continuedenforcement of these rules by the courts is today an outdated anachronism. Such actions […] only serveto tarnish our judicial system as the standard-bearer of the best values to which our Nation aspires.Allowing these antiquated rules to remain in place, long after the unequal treatment of American citizenshas become constitutionally, morally and culturally unacceptable in the rest of our Nation, is an intolerablestate of affairs which cannot be excused by hiding behind any theory of law. .”);7

Plaintiff respectfully withdraws Count II without conceding the merits.


Royal Dane Mall, 2nd Fl. - P.O. Box 890St. Thomas USVI 00804340.777-5270 [email protected]

Attorney for Plaintiff

CERTIFICATE OF SERVICEI hereby certify that on this the 4th day of September, 2012, I served the foregoing PLAINTIFF’S

OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS upon defendant’s counsel via U.S. Post:

Carol Thomas-Jacobs, Esq.Department of JusticeAttorney General’s OfficeGERS BuildingSt. Thomas, U.S. Virgin Islands, 00802 _________________________



)Plaintiff, )




_____________________________________ )

NOTICE OF COMPLIANCE WITH COURT’S ORAL ORDER ANDPLAINTIFF’S INFORMATION MOTION

COMES NOW the Plaintiff, Bevron Goodwin, via undersigned counsel, J. Russell

B. Pate, Esquire, of The Pate Law Firm, and provides this informational motion per the

Court’s oral order of July 16, 2012.

BACKGROUND

Near the conclusion of the hearing before this Court on July 16, 2012 the Court

asked counsel if Ballentine v. United States, Civ. No. 1999-130 (D.V.I.) raised the claim

of a Fifteenth Amendment violation. Counsel stated, hesitantly, that he did not believe

so because his tried to draft the Complaint in this matter sub judice not to allege any

claims presented by Ballentine.

DISCUSSION

Three opinions were written in the Ballentine case. An opinion by District of the

Virgin Islands Judge Thomas Moore as 2001 U.S. Dist. LEXIS 16856 (D.V.I. Oct. 15,

2001), an opinion by District of New Jersey Judge Anne Thompson, 2006 U.S. Dist.

Bevron v. V.I. Elections System, et al., Civil No. SX-11-CV-435NOTICE OF COMPLIANCE WITH COURT’S ORAL ORDER ANDPLAINTIFF’S INFORMATION MOTION

Page 2 of 5

LEXIS 96631 (D.V.I., Sept. 21, 2006) and an opinion by the Third Circuit in 486 F.3d

806; 48 V.I. 1059 (2007). None of these three opinions address any argument

concerning racial discrimination as a Fifteenth Amendment violation. The Thompson

and Third Circuit opinions fail to mention the Fifteenth Amendment at all. Judge Moore

does mention the Fifteenth Amendment tangentially by quoting language from other

cases that held the Fifteenth Amended applies to the Virgin Islands, yet Judge Moore

does not discuss or analyze any claim by the Plaintiff for a violation of the Fifteenth

Amendment due to racial discrimination. See, 2001 U.S. Dist. LEXIS 16856 at FN2, *14

and *17 (D.V.I. Oct. 15, 2001). In sum, the Ballentine opinions did not address a

Fifteenth Amendment claim for racial discrimination.

This Court is uniquely positioned to evaluate the Fifteenth Amendment claim.

The Plaintiff’s Second Amended Complaint thoroughly exposes the Virgin Islands and

its citizens – citizen of the United States – were denied the fundamental right to vote

due to deep-rooted racism of 1917. This Court has the power to work around the

Insular Tariff Cases because the Insular Tariff Cases did not address the deprivation of

the right to vote for new citizens in the Territories –because, in part, the racism of that

epoch made laughable any pause for deliberation that a “territory peopled by savages”

(i.e. those of non-Caucasian blood) would be given a right to vote. See, Dorr v. United

States, 195 U.S. 138, 148 (1904).1

1 The nine justices on the Supreme Court deciding the Insular Cases lived in a white-dominated, racially divided United States. Furthermore, most white American and political elites didnot want the new islands and their inhabitants to become full members of the American politicalsociety. Race, thus, repeatedly came up as a topic in the debates over the annexation the UnitedStates’ new territories. Race, most white Americans believed, was intrinsically and ineluctablyconnected to the quality of American culture. Yet […] why the cases even came up before the


Page 3 of 5

The Insular Tariff Cases were about what was important to the new imperial

masters – money. The cases, in fact, deal with carpet-bagging white businessmen in

the recently acquired Territories and white industrial monopolists in the United States.

The key issue of money hinged on whether tariffs on sugar would apply to Cuba, Puerto

Rico and the Philippines now that they were under the flag of the United States.2 If,

yes, tariffs did apply, the old sugar monopoly in the United States would continue to

profit without competition and if, no, then the new landowners in the Territories would be

substantially enriched.3 History has borne out that tariffs do apply even though the

Territories were a part of the United States, giving a short-lived victory to U.S.

monopolies while creating a long-lasting second-class citizenry under the U.S. flag in

the U.S. Territories.

The Insular Tariff Cases are inapposite to be considered precedent because

they deal with money and tariffs and the cases never fully discussed and analyzed

issues of race, racism, fundamental voting rights, or the Fifteen Amendment, and thus

Supreme Court […] was the role of the tariff. Sparrow, Bartholomew, The Insular Cases and theEmergence of American Empire. Univ. Press of Kansas (2006) p. 57-9.

See also, FN 5 from Plaintiff’s Opposition to Defendant’s Motion to Dismiss, regarding theentrenched racism of the federal government in the early twentieth century.2 “To better understand the tariff issue, however, we also need to look at the sugar industry. Sugarwas by far the United States’ single largest import at the time: sugar imports amounted to $100million in 1900. [T]he Supreme Court’s decision in the first set of Insular Cases of 1901 were notsimply about race, naval strategy, or even duties being imposed on Puerto Rican oranges – of, forthat matter, on coffee, tobacco, or other goods. Rather the Court’s decision had particularimplications for the sugar industry: sugar was the cargo being shipped by De Lima & Co., and theprohibition of duties on trade between the insular territory and the state would be especiallyprofitable to the Sugar Trust [monopoly]. And Coudert Brothers, counsel for De Lima & Co., had theAmerican Sugar Refining Company as a client.” Sparrow, Bartholomew, The Insular Cases and theEmergence of American Empire. Univ. Press of Kansas (2006) p. 71, 76.3 The Insular Tariff Cases allowed American businesses to “indulge in territorial expansion, yetmaintain the tariff wall against such insular products as sugar and tobacco, as foreign.” Sparrow,Bartholomew, The Insular Cases and the Emergence of American Empire. Univ. Press of Kansas(2006) p. 105.


Page 4 of 5

have no preclusive effect over the Plaintiff’s claims. To use the Insular Tariff Cases for

preclusive effect is to distort and confuse issues of tariffs with issues of fundamental

rights. The Court has the ability to construe around the Insular Tariff Cases without

overruling them.4 As explained in Section C of Plaintiff’s Opposition to Defendant’s

Motion to Dismiss (contemporaneously filed) Judge Collins Seitz ordered local injunctive

relief in Belton v. Gebhart, 87 A.2d 862 (Del. Ch. 1952) that directly challenged the

racist Plessy v. Ferguson decision. The Court acknowledged that he could not overturn

Plessy, but he found that a detailed analysis of the issues and facts required that local

relief be given to the plaintiffs. His decision was the only case not reversed by Brown v.

Board of Education. Local relief is appropriate in this case. Given the unique local

circumstances in the case sub judice, the insidious racism of the past exerted upon the

Virgin Islands, and the deprivation of the most fundamental right, voting, this Court has

the same power to act locally and to issue relief in conformity with the Plaintiff’s prayer.

CONCLUSION

The Court is looking at an issue never brought before, that the U.S. Virgin Islands

and its citizens – who are citizens of the United States – were denied the fundamental

right to vote for President and Congressional representatives due to the entrenched

racism of 1917. This discriminatory treatment has continued unabated and unrectified

4 “The Supreme Court’s ten decision of 1901 were slender reeds on which to support the UnitedStates’ expansionist polices and control of the new island territories. Slender because a majority onthe Court fully upheld the U.S. government in only three of the cases (Downs v. Bidwell, Dooley v.United States II, and Neely v. Henkel), and because the Court split five-to-four in eight of the tencases. Reeds – plural – because no one clear doctrine emerged from the Insular Cases of 1901.No single position, not Brown’s extension theory, not White’s Incorporation Doctrine, and not Fulleror Harlan’s doctrine of Constitution applying ex proprio vigore, achieved the support of even fivejustices on the bench. Sparrow, Bartholomew, The Insular Cases and the Emergence of AmericanEmpire. Univ. Press of Kansas (2006) p.142.


Page 5 of 5

to the present day due to the inaction of the Election System of the Virgin Islands.

However, this Court has the power to remedy this long standing Constitutional violation

by Ordering that the Election System of the U.S. Virgin Islands to tally votes for

presidential candidates and send those votes to Washington, D.C. and, further, to

establish procedures for the election of a Congressperson and two U.S. Senators.

Those duly elected shall be sent to Washington, D.C., to be seated appropriately in the

House and Senate.

A proposed order is attached


DATED: September 4, 2012 ____________________________J. RUSSELL B. PATE, ESQUIRETHE PATE LAW FIRM )V.I. Bar No: 1124)Royal Dane Mall, 2nd Fl. - P.O. Box 890St. Thomas USVI 00804340.777-5270 [email protected]

Attorney for Plaintiff


I hereby certify that on this the 4th day of September, 2012, I served the foregoing NOTICE OFCOMPLIANCE WITH COURT’S ORAL ORDER AND PLAINTIFF’S INFORMATION MOTION upondefendant’s counsel via U.S. Post:

Carol Thomas-Jacobs, Esq.Department of JusticeAttorney General’s OfficeGERS BuildingSt. Thomas, U.S. Virgin Islands, 00802

_________________________

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDSV I DIVISION OF ST. CROIX -


)

Plaintiff, ) )

V. )

)


)

Defendants. )

'12 SEP21.P2:50.

CIVIL NO. 435/2011


JURY TRIAL DEMANDED

RESPONSE TO PLAINTIFF'S INFORMATION MOTION AND REPLY TO PLAINTIFF'S OPPOSTION TO DEFENDANT'S MOTION TO DISMISS

Defendants, by and through their undersigned counsel, hereby respond to

Plaintiff's information motion and Opposition to Defendants' motion to dismiss and state

as follows:

Defendant agrees that the Ballentine decisions did not address the Fifteenth

Amendment.' The Third Circuit in Ballentine, however, pointed out that Article II,

section 1 of the United States Constitution does not grant the right to vote for President

and Vice President to individual citizens but to Electors appointed by each state. Article

II, section 1 provides that "[e]ach state shall appoint, in such manner as the legislature

thereof may direct, a number of electors." The Third Circuit summarized that because the

Virgin Islands is not a state but rather an incorporated territory, it is not entitled to

appoint electors and since it is the Constitution itself that does not grant citizens residing

'Ballentine v. U.S., 2001 WL 1242571 (D.V.I. 2001); Ballentine v. U.S., 2006 WL 329870 (D.V.I. 2006); Ballentine v. U.S., 486 F. 3d 806 (3d Cir. 2007);

in territories the right to vote for President and Vice President, the denial cannot be

unconstitutional. See Ballentine v. U.S., 486 F. 3d 806, 810-11 (3d Cir. 2007).

Although it is well established that Article II, section 1 of the United States

Constitution does not grant to citizens residing in the territories the right to vote for

President and Vice President, Plaintiff claims that he nonetheless has that right under the

Fifteenth Amendment. The Fifteenth Amendment, however, does not help Plaintiffs

cause. The right to vote in the Presidential Election is not granted by the Fifteenth

Amendment. In U.S. v. Reese, 92 U.S. 214, 217-218, (U.S. 1875) the United Stated

Supreme Court stated as follows:

The Fifteenth Amendment does not confer the right of suffrage upon any one. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done.

U.S. v. Reese, 92 U.S. 214,217-218, (U.S. 1875).

Also, in Romeau v. Cohen, 265 F. 3d. 118 (2nd Cir. 2001), Romeau, a Puerto

Rican resident who had previously lived and voted in New York brought an action in

2000 alleging that the Voting Rights Amendment (VRA), the Uniformed and Overseas

Citizens Absentee Voting Act (UOCAVA) and New York Election law (NYEL)

unconstitutionally denied him the right to receive absentee ballot for the Presidential

Election. In that case the Court explored the argument that the right to vote by citizens in

the territory of Puerto Rico may be available through the Fifteenth Amendment. In

Romeau, Walker J. explained why the Fifteenth Amendment of the U.S. Constitution

does not confer on citizens residing in Puerto Rico the right to vote in a Presidential

Election as follows:

2

It could be argued that because a large segment of the population of the territories is Latino, black, or of Pacific Islander or Asian extraction, the exclusion of U.S. citizens residing in the territories from the vote for electors to the electoral college therefore has a disproportionately discriminatory effect. Of course, this does not make the enfranchisement of U.S. citizens residing in the territories a proper subject of congressional action under § 5 or § 2 because neither the Fourteenth Amendment nor the Fifteenth Amendment proscribes "discriminatory effects." Only intentional discrimination is barred by these amendments.

More significantly, the inability of U.S. citizens residing in the territories to vote for presidential electors is simply not a violation of either amendment, and therefore cannot be "remedied" under either § 5 [of the Fourteenth Amendment] or § 2 [of the Fifteenth Amendment]. To the contrary, the exclusion of the territories from the presidential-selection process is a deliberate product of our Constitution.

Romeau, 265 F. 3d. at 13 3-134 (internal citations omitted). Plaintiffs contention that,

under the Fifteen Amendment, citizens residing in the territories have a right to vote in

the Presidential Election is not novel or new. Courts that have looked at the Fifteenth

Amendment as an avenue for citizens residing in territories to gain right to vote in

Presidential Elections have rejected that argument. Again, Defendants understand

Plaintiffs cause and believe that citizens residing in the territories should have the right

to vote. However, the solution is not in the Courts of the Virgin Islands, but rests with

Congress.

Assuming arguendo that the Fifteenth Amendment is even applicable, Plaintiff

has still failed to state a claim for racial discrimination against Defendants. In the

Amended Complaint, Plaintiff specifically alleges that "[tithe reason Virgin Islanders

were denied the right to vote and the right to run for federal office is due to the

prejudiced, racist and bigoted rationale of a number of dated Supreme Court cases known

as the Insular cases." Am. Compl. ¶ 15. In paragraph 28 of the Amended Complaint,

Plaintiff notes that "President Wilson and Congress of one hundred years ago knew that

extending constitutionally mandated voting rights to U.S. Virgin Islanders would result in

the first majority black jurisdiction capable of electing Congressional representatives.

This was a terrifying idea to an all-white federal government. Thus, citizens of the U.S.

Virgin Islands were denied the right to vote, the right to run for office, and the right of

Electoral College." The only wrongdoers identified by Plaintiff are the U.S. Supreme

Court, former Presidents of the United States and the U.S. Congress. Nowhere in

Plaintiffs complaint has he alleged that Defendants failed to perform an act that they had

a duty to perform or discriminated against him on the basis or race. It is patently obvious

that Plaintiff has failed to state any claim against the named Defendants in his complaint.

WHEREFORE, for the foregoing reasons Defendants requests that the Court

Dismiss this action against them.

DATED: September 21, 2012 RESPECTFULLY SUBMITTED

VINCENT F. FRAZER, ESQ. ATTORNEY GENERAL

By: % I" \ALZ L &Uk :3(

CAIO&'fHOMAS-JACOS, ESQ. ERICA SCOTT, ESQ. Assistant Attorneys General V.I. Department of Justice #6040 Castle Coakley Christiansted St. Croix V.I. 00820

!Ai


IT IS HEREBY CERTIFIED that on the 21 s' day of September 20, 2012, a true

and exact copy of the foregoing Response was served by first class mail, postage

prepaid, to:

J. Russell B. Pate, Esquire THE PATE LAW FIRM Royal Dane Mall, 2'' Floor P.O. Box 890 St. Thomas, V.I. 00804

COPY

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

Bevron Goodwin, individually, and on behalf of all other persons born-in and residing in the U.S. Virgin Islands,

Plaintiff,

V.

Election System of the U.S Virgin Islands ) and John Abramson, Jr., in his official capacity,) asSupeMsorpf Elections )

)

Defendants. )

Civil No. 435/2011


JURY TRIAL DEMANDED

JOTICE TO COURT OF CONGRESSIONAL RECORD çT'

COMES NOW Plaintiff, BEVRON GOODWIN, via his undersigned counsel, and

hereby presents the Court with the Congressional Record of the House of

Representatives of 1898 as 23 Cong. Rec. 341 (1899) attached as Exhibit A.

The record shows that Congress fully believed that all citizens of the United States

should have the right to vote at all levels of government, yet the Representatives

actively plotted to disenfranchise those citizens who were not of the Caucasian race.

Plaintiff prays this Honorable Court will take judicial notice of this Congressional Record.

DATED: February 6, 2013 J. RUSSELL B. PATE, ESQUIRE THE PATE LAW FIRM (V.1. Bar No: 1124) Royal Dane Mall, 2nd Fl. - P.O. Box 890 St. Thomas USVI 00804 340.777-5270 Office PateSunLawVI .com Attorney for Ptaintiff

Citation: 32 Cong. Rec. 341 1899

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-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

CONGRESSIONAL RECORD-HOUSE.

Mr. WILLIAMS of Mississippi. No, I think not; we couldassimilate the Spanish part of them. It isa mistake to suppose thatwe are the only branch of the Caucasian race capable of develop-ment under free institutions. We forget that Spain once reacheda very high position in civilization. There was a time in the his-tory of Europe when Spain was the only free Government inEurope, and when the Spanish infantry stood par excellence forbravery, courage, and endurance among all the troops of Europe.They have been misgoverned and oppressed, not only in body, butin mind and soul and commercial relations, for a long time; butunder free institutions, and with commercial communication andconstant communication with a people who have been used to freegovernmentfor a long time, they can be assimilated-brought backto their original high estate as freemen-and be made useful asAmerican citizens, friendly to our institutions.

Mr. TERRY. Will the gentleman from Mississippi state whatStates and Territories were carved out of the Louisiana purchase?It would be a matter of information to some members of theHouse.

Mr. WILLIAMS of Mississippi. If I had a map before me, sothat I could recollect them, 1 could. There were Louisiana, Ar-kansas, Missouri, Iowa, Kansas, Nebraska, the Dakotas, Minne-sota; in brief, all of the States west of the Mississippi except thosecarved out of the territory covered by the treaty of Guadalupe-Hidalgo and that portion up in Oregon, Washington, Idaho, andWyoming that was covered by the Oregon treaty with GreatBritain-everything else west of the Mississippi River.

But the hearer will say there is no question of the annexationof Canada nor of Mexico. Why do you talk about them? Simplybecause I want to show that in these cases, geographically and po-litically desirable as the acquisitions would be, and more desirableyet from naval and military and commercial and agriculturalstandpoints, that even in these cases, answering all of the testssave one in one instance, there would yet be in that instance graveand serious moral reason to hesitate. How much greater, then,must be the objection to the acquisition of distant territory likethe Philippine Islands, over 7,000 miles from our nearest seacoast,where the moral objection is much stronger and where absolutelynone of the geographical, self-defensive, or racial tests can be suc-cessfully applied.

Their possession would round out noboundary; itwould decreaseno line of defense-it would, on the contrary, permanently treblethe number of our present standing Army; it would remove noenemy farther from us-itwould, on the contrary, project us 7,000miles westward into the very midst and mle of many possibleenemies-China, Japan, Russia, France, Germany, England, and,last but not least, the new and rising colonies of Australia, des-tined in the future to become the" United States of Oceanica," lessin importance in the scale of nations only to the United States ofAmerica and the "United States of South Africa."

In the midst of all these we would stand with clashing inter-ests-each nation with its sentinel out on guard against all theothers-with a United States army of occupation numbering50,000 men, costing the American people $140,000,000 per year, asI hope to prove before I am through-to be reenforced, equipped,and fed over a line of communication 7,000 miles long, their veryfood to be brought in times of war from San Francisco and intimes of peace from Australia. And, as we are considering anAgricultural appropriation bill, it is well to remember, Mr. Chair-man, that taxes are shifted and shifted until they get to the farmerand then they are shiftable no farther. One hundred and fortymillions a year is just $4,000,000 less than our present pension list.

Where is the money to come from? Now and then, when a manis making a partisan speech he may contend that the foreignerpays the tax; but when he is discussing a nonpartisan questionno man was ever yet fool enough to believe it. [Laughter.] TheGovernment is not an independent entity; it has no independentsource of income;'it must get its income from the people. It mustgo down into their pockets somewhere, and when it goes into thepocket of the merchant he shifts it, when it goes into the pocketof the manufacturer he shifts it, but when it gets to the pocket ofthe farmer there is no place to shift it. He is at the end of theshifting line-the Ultima Thule of production.

Our army of occupation will not only be there, and at our per-petual expense, but it and our navy will be confronted with thestanding problem of policing four or five thousand miles of islandseacoastand thehuger problem of retaining in unwilling subjection10,000,000 Filipinos-not of our blood, not of our race, not of our re-ligion, not of our institutions, aliens, and in hostility-10,000,000.who have just emerged from a brave struggle for independenceagainst Spanish tyranny, and who have announced to us and to theworld that they did not free themselves from Spanish dominationfor the purpose of yielding their birthright of independence andending it all by submitting to American domination.

Mr. LINNEY. Will the gentleman from Mississippi state howmany of the islands there are, and what the population is?

Mr. WILLIAMS of Mississippi. The population of all the is-

lands is about ten millions. Some put it at eight millions, someat twelve; but I put it at ten millions. The number of the islandsis, according to one count, about 1,200. They have not evencounted them all yet. They find one of them now and then.[Laughter.] Some of them are, however, mere rocks.

Mr. BAILEY. I have seen a statement that the number wasas high as 2,000, but the statement is made in a British publica-tion that the number is over 400, I think.

Mr. WILLIAMS of Mississippi. Those are the large populatedislands; there are 400 that are populated.

Mr. COX. I want to say to the gentleman from Mississippithat in a publication by the War Department the number ofislhnds is put as high as from 1,200 to 2,000.

Mr. WILLIAMS of Mississippi. Now, when we talk aboutsuperimposing our Government on an unwilling people, somepeople say, "Yes; and our rule will be better for them." Per-haps so; I think so. But it is well to remember that there neverwas yet tyrant or conqueror, who did not proceed upon the theorythat hig government was better for the conquered than their inde-pendence. Butwould it be better for us? It is well to rememberthat our institutions, both fundamental anal administrative, arenot suited to the purpose of holding in subjection alien peoples.

The institutions of Great Britain are, and for two reasons:Great Britain, when she holds colored populations, holds themfrankly as a master race. ruling them firmly, but kindly andjustly, giving them justice, giving them guidance, requiringobedience, with no hypocritical pretense about the "equality ofmen." There is another reason, and that is that Great Britain hasa colonial and foreign affairs department which is capable of asmuch secrecy, as much promptitude, and as much autocracy ofaction, in case of necessity, as that of Russia itself. And how dowe deal with our foreign affairs? How could we meet wars grow-ing necessarily out of colonial sway?

Why, we can not even declare war without consulting two"debating societies," as I believe our distinguished Speaker hascalled them. We can not even make peace, not if the nation werein the very throes of agony, without getting the votes of two-thirds of another "debating society." We have no trained ad-ministrators of foreign affairs. Our consuls and ministers allcome under our patronage system, and those who have traveledabroad know that in the majority of cases where an Americancitizen is in any real trouble he goes to the British consul foradvice.. We could have ruled the island measurably well before recon-struction, because we could have given the rule of the country toits white population, just as England gives the rule of all of hercolonies to their white population. We could, prior to the passageof the fifteenth amendment, have ruled the Philippine Islandseither as a comparatively self-governing Territory or as a State inthe American Union, because we could have conferred by law thesuffrage only upon such male inhabitants as were." free, white,and 21 years of age." [Applause.]

It might not have been just to do so; it might not have beenmorally righteous, but we could have done it constitutionallyaad legally. There would have been no constitutional barrierto surmount or evade. While we were acting as "civilizationschoolmasters" to Philippine pupils the pupils might not haveliked it-might, indeed, have had the sympathy of the world intheir antipathy to it-but we could have done it without violatingour own organic law. Now, however, the Constitution of theUnited States prevents any local self-government in the PhilippineIslands at all unless each Filipino, (who by the decision of theUnited States Supreme Court becomes upon annexation ipsofactoa naturalized citizen of the United States,) has equal rights witheach American and each naturalized citizen of English, German,or other derivation.

I use the word "citizen." I do not use the word "subject,"because I know, as the hearer ought to, that neither our Consti-tution, nor the spirit of our laws, nor the ideals of our forefathersever contemplated that the United States should have a "sub-ject," unless, indeed, the subject were the slave of a citizen. Theold Constitution did contemplate that.

The amended Constitution of the United States, I say, wouldprevent any local self-government in the Philippine Islands inwhich the Filipinos themselves-inimical to American rule, antag-onistic to Christianity, alien in blood, strange in color, for the mostpart savage in life and manners-would not be equal participants.I say this because, first, they become "citizens of the UnitedStates" by annexation, as has been decided by the Supreme Courtof the United States, and, secondly, because the Constitution says,in section 1 of Article XV, that "the right of citizens of theUnited States to vote shall not be denied or abridged by the UnitedStales or by any State on account of race, color, or previous con-dition of servitude."

I had a member of Congress once to say to me: "But you man-age to rule a negro majority in the State of Mississippi, why couldnot we rule a Malay majority in the Philippines?" There is really

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CONGRESSIONAL RECORD-HOUSE. DECEMBER 20,

no negro majority in my State, but let that pass. The reply istwofold; first, that what an overwhelming majority of the whitepeople of the State of Mississippi are willing, taught by horribleexperience, to do, a majority of the white people of the UnitedStates, untaught by any experience, both strangers to the condi-tions of the problem and personally untouched by it, would beunwilling to do.

We have succeeded in disfranchising the worst portion of thecolored population of the State of Mississippi by subjecting them,as well as the white people, to an educational qualification, and asnearly all of the white men can read and write, and as very fewnegroes can, notwithstanding the fact that the schools are now andhave been open to them for thirty years, we manage to secure-forthe electorate a majority safe for white supremacy and civilization.

The reply is, secondly, that all colored populations are not likethe negroes.

The Malays, active, courageous, ambitious, full of fight, and, asthey have recently proven under Aguinaldo's training, capable ofdiscipline, if they found the educational test the sole obitructionbetween them and the political rule of "their own, their nativeland," would not beeive years qualifying enough of the popula-tion for the test to constitute an electorate of Filipinos five-aye,twenty, possibly two hundred-times superior in number now,and for all time, to the entire white population of the islands.

This subracial difference amongst colored peoples has been wellillustrated in the case of the native population of the islands ofHawaii. No educational qualification would disfranchise the in-ferior race there, nor prevent them from ruling the white minor-ity, if Hawaii were to-day a State in the Union or were givenself-government as a Territory. On the contrary, the percentageof Kanakas of Hawaii, who can read and write, is greater than thepercentage of white people in the State of Massachusetts who arepossessed of those qualifications, although Massachusetts boastsof having the best educated population in the United States.

And yet, Mr. Chairman, so much greater than any individualacquisition, is the effect of heredity on the character of the man, somuch greater the effect of the development of the racial organism,before the individual man was born-so much greater is the effectof these in making up the sum total of his individuality and hiscapacities than can be the effect of any individual acquirementsin his own short personal life, a life which is a mere link betweenhis real past and his real future; and so well known is this fact, ofwhich people are instinctively rather than consciously appreciative,when faced with its presence, that there are not to-day 10 per centof the white people in the Hawaiian Islands who would remain thereforty-eight hours after they could get away, if they were assuredwith absolute certainty that there would be instituted and wouldbe perpetually maintained an uncontrolled native Hawaiian ruleand domination in those islands.

Individual accomplishment is skin deep, Mr. Chairman; hered-itary traits, tendencies, and capabilities are inbred to the marrowof the bones. Why, Mr. Chairman, you could shipwreck 10,000illiterate white Americans or Englishmen or Scotchmen, of whomnot one knew a letter in a book, on a desert island, and in threeweeks they would have a fairly good government, conceived andadministered upon fairly democratic lines, based on popular sov-ereignty, defective, perhaps, but protecting, at least, these threethings-their liberties, an approximate equality of opportunityamong all men, and the sanctity of their wives, their daughters,and their homes. You could shipwreck an equal number ofAmerican Indians. every man of whom was a graduate of Hamp-den-Sidney or Carlisle, or 10,000 negroes, every one of whom wasa graduate of Harvard University, and in less than three yearsthey would have retrograded governmentally to the old tribalrelations, half the men would have been killed and the other halfwould have two wives apiece.

Ah,Mr. Chairman, much depends upon whose ox is gored. Myfriend the chairman of the Foreign Affairs Committee, Mr. HITT,of Illinois, went some time ago with a great Republican Senatorand others as a commissioner to Hawaii, representing people whohad been howling, lo! these many years, because Mississippi hadindirectly disfranchised its colored voters. And what did theybring back with them as a scheme of government for those islands,Mr. Chairman? The Mississippi constitution with a propertyqualification added! [Applause.]

When they were faced with the question, came to study theproblem in elbow touch with it, like sensible, practical men, theysaid: "Civilization must be preserved. Peace, law, and ordermust be maintained, and they can not be maintained under Kanakarule. There must be white supremacy." They did not say thatin so many words, but their work shows that they said it. Andif 1 am the only Democrat in this House, I shall stand for whitesupremacy in Hawaii, when that question comes up, as I havestood for it in Mississippi, and shall vote for every provision ofthe Mississippi constitution, which appears in the scheme of gov-ernment presented by the gentleman from Illinois [Mr. HITT] to

this House. [Applause on the Democratic side.] I shallvote forthose provisions of the scheme wich make for a white man'ssupremacy. I shall not vote for the property qualification, becauseI am not in favor of a rich man s supremacy.

Mr. PEARCE of Missouri. Will the gentleman allow me forone moment? Do you not know tha't your attitude in regard tothat very question in Mississippi is a violation of the Constitutionwhich you are advocating?

Mr. BARTLETT. The Supreme Court of the United Stateshave decided otherwise.

Mr. WILLIAMS of Mississippi. My friend from Georgia [Mr.BARTLETT] has answered you. Mr. Chairman, I do not knowthat I am an authority upon law, but the Supreme Court of theUnited States is a better authority than the gentleman from Mis-souri [Mr. PEARCE]. [Laughter.] And the Supreme Court ofthe United States has said that the Constitution forbids us to"discriminate on account of race, color, or previous condition ofservitude," but that we can discriminate on account of ignorance,illiteracy, and crime; and that if the indirect effect of our doingso is to disfranchise the colored voters, neither the Constitutionof the United States nor the Government of the United Stateshas anything to do with it. Why, even the gentleman from Mis-souri, Mr. Chairman, ought to know that if. Mississippi is in theUnion at all, she is in the Union upon an equal footing with'Massachusetts, and Massachusetts has an educational qualification.

Mr. HILL. And so has Connecticut.Mr. WILLIAMS of Mississippi. The gentleman from Connecti-

cut is right-- so has Connecticut. But now, Mr. Chairman, how areyou going to give local self-government at any time to the people inthe Philippine Islands? You can not protect civilization and whitesupremacy there by the educational qualification. Those peoplestand about 200 to 1 to the white people. They are 7,000 milesfrom the white man's help. You must hold them in subjectionby military power or not at-all. Hence this expense of $140,000,000for an army of occupation becomes not only annual but perpetual.

But some one says: "What are you going to do with the Philip-pines-give them back to Spain?" In God's name, no! I wouldnot by any act of mine replace one foot of territory under theheel of Spanish land desolators nor one human being under thehand of Spanish power nor one human soul under the spell ofSpanish governmental bigotry. The alternative is not one ofeither keeping the -islands ourselves or of giving them to Spain.We can simply go back to where we were just after the gloriousbattle of Manila, and I wish I had time to dwell upon the infiniteglory of that day's fight at Manila. Nothing that was ever doneupon the great deep, no exploit of Drake, or Frobisher, or Lord Nel-son himself, could tarnish its glories by comparison. But I havenot.

We can simply go bdck to where we were the day after thenaval battle of Manila, and sail away, retaining only a coalingstation and adjacent territory sufficient for dry docks and repairshops and fortifications for them. No better place for them couldbe found than the peninsula of Cavite, with the outer harbor andits narrow neck upon the land side easily defensible. Having donethis, we could simply let the people have what God gave them-their own land.

You need not fear that Spain will reconquer them. She cannot. She knows it. She will not attempt it. She has boundherself by treaty to a surrender of her pretended sovereignty.But one says, "They will misgovern themselves." I do not doubtit. Costa Rica misgoverns herself. Venezuela misgoverns her-self. Hayti and China are misgoverned. Who made us God'sglobe-trotting vicegerents to forestall misgovernments every-where, "even to the uttermost ends of the earth"? The veryfact that a people is incapable of self-government, if true, is nota reason why we should have them, but is a reason why we shouldnot have them-is a reason why they should have neither part norparcel in our citizenship or government. [Applause.]

Another says, -' It won't be any time before they commit depre-dations upon Germanly , and England, and France, and the balanceof the powers, and all this will lead to wars between themand thenations." This is all wild supposition and is contrary to the lessonstaught as matters of fact to him who will cast his eye over thegeography of the world to-day.

It is not true that those semibarbarous peoples have not senseenough not to know better than to arouse lightly the anger of thegreat powers of Europe. The proclamations of Aguinaldo andthe pronunciamentos of the Philippine congress demonstrate thefact that, although the great body of the Filipinos are not much ad-vanced beyond the stage of barbarism, there exists a small class ofintelligent, comparatively cultured, and highly capable menamongst them-as capable as they can be with their heredity-men who know their international dangers and will guard againstrunning into them.

These will, of course, necessarily constitute the ruling power inthe state, and they ought to rule, for the very simple reason that

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