Department of Justice Views on the Proposed Constitution Drafted by the Fifth Constitutional Convention of the U.S. Virgin Islands

Department of Justice Views on the Proposed

Constitution Drafted by the Fifth Constitutional

Convention of the U.S. Virgin Islands

The following memorandum opinion was initially drafted in the Office of Legal Counsel

at the request of the Assistant Attorney General for Legislative Affairs. It analyzes

several features of the proposed constitution of the U.S. Virgin Islands. The President

attached a copy of this memorandum to his letter transmitting the proposed constitu-

tion to Congress, along with his comments, under Public Law 94-584.

Because it was difficult to discern a legitimate governmental purpose that would be

rationally advanced by provisions conferring legal advantages on certain groups de-

fined by place and timing of birth, timing of residency, or ancestry, the memorandum

opinion recommended that those provisions be removed from the proposed constitu-

tion.

The memorandum opinion concluded that the ten- and fifteen-year residence requirements

for governors, lieutenant governors, and judges of the U.S. Virgin Islands raise consti-

tutional concerns and recommended that consideration be given to shortening the dura-

tion of these requirements.

The memorandum opinion further concluded that the provision concerning territorial

waters and marine resources appeared to be inconsistent with governing federal law

and recommended that it be revised to remove any inconsistency and to make clear its

recognition of Congress’s plenary control over these matters.

February 23, 2010

MEMORANDUM OPINION FOR THE

OFFICE OF MANAGEMENT AND BUDGET

This responds to the Office of Management and Budget’s request for

the views of the Department of Justice on the proposed constitution re-

cently adopted by a constitutional convention in the U.S. Virgin Islands

(“USVI”) and submitted to the President by the Governor of the USVI. 1

Below we provide our analysis of several features of the proposed consti-

tution that we believe warrant comment: (1) the absence of an express

recognition of United States sovereignty and the supremacy of federal

law; (2) provisions for a special election on the USVI’s territorial status;

(3) provisions conferring legal advantages on certain groups defined by

1 See Letter for Barack H. Obama, President of the United States, from John P. de

Jongh, Jr., Governor of the U.S. Virgin Islands (Dec. 31, 2009).

73

34 Op. O.L.C. 73 (2010)

place and timing of birth, timing of residency, or ancestry; (4) residence

requirements for certain offices; (5) provisions guaranteeing legislative

representation of certain geographic areas; (6) provisions addressing

territorial waters and marine resources; (7) imprecise language in certain

provisions of the proposed constitution’s bill of rights; (8) the possible

need to repeal certain federal laws if the proposed USVI constitution is

adopted; and (9) the effect of congressional action or inaction on the

proposed constitution.

Because we find it difficult to discern a legitimate governmental pur-

pose that would be rationally advanced by the provisions conferring legal

advantages on certain groups defined by place and timing of birth, timing

of residency, or ancestry, we recommend that those provisions be re-

moved from the proposed constitution. See infra Part II.C. We conclude

that the ten- and fifteen-year residence requirements for USVI governors,

lieutenant governors, and judges raise constitutional concerns, and we

recommend that consideration be given to shortening the duration of these

requirements. See infra Part II.D. As explained below, the provision

concerning territorial waters and marine resources appears to be incon-

sistent with governing federal law. We recommend that it be revised to

remove any inconsistency and to make clear its recognition of Congress’s

plenary control over these matters. See infra Part II.F.

I. Background

The USVI is an unincorporated territory acquired by the United States

from Denmark in 1917. See 48 U.S.C. § 1541(a) (2006); Convention

Between the United States and Denmark for Cession of the Danish West

Indies, 39 Stat. 1706 (1916); see generally Isaac Dookhan, A History of

the Virgin Islands of the United States 258–62 (1994). The USVI’s

government is established under the Organic Act of 1936, as amended,

48 U.S.C. §§ 1405–1406m (2006), and the Revised Organic Act of

1954, as amended, 48 U.S.C. §§ 1541–1645 (2006). See also 48 U.S.C.

§§ 1392–1397 (2006). A 1976 act of Congress, however, permits the

USVI to propose a constitution for the local government of the Islands.

See Pub. L. No. 94-584, 90 Stat. 2899 (as amended by Pub. L. No. 96-

597, § 501, 94 Stat. 3477, 3479 (1980), codified as note following table of

contents of 48 U.S.C. ch. 12 (2006)) (“Enabling Act”)).

74

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

Under the 1976 Enabling Act, the USVI’s legislature may “call [a]

constitutional convention[] to draft, within the existing territorial-Fed-

eral relationship, [a] constitution[] for the local self-government of the

people of the Virgin Islands.” Id. § 2(a). The proposed constitution must:

(1) “recognize, and be consistent with, the sovereignty of the United

States over the Virgin Islands . . . and the supremacy of the provisions of

the Constitution, treaties, and laws of the United States applicable to the

Virgin Islands,” including provisions of the Organic Act and Revised

Organic Act that “do not relate to local self-government”; (2) “provide for

a republican form of government, consisting of three branches: executive,

legislative, and judicial”; (3) “contain a bill of rights”; (4) “deal with the

subject matter of” provisions of the Organic Act and Revised Organic Act

that “relate to local self-government”; and (5) provide for a system of

local courts consistent with the Revised Organic Act. Id. § 2(b).

The Enabling Act requires the Governor of the Virgin Islands to submit

a proposed constitution to the President. See id. § 4 (“Such constitutions

shall be submitted to the President of the United States by the Governor[]

of the Virgin Islands[.]”). The President “shall transmit such constitution

together with his comments to the Congress” within sixty days of receipt.

Id. § 5. Congress may approve, amend, or modify the constitution by joint

resolution, but the constitution “shall be deemed to have been approved”

if Congress takes no action within “sixty legislative days (not interrupted

by an adjournment sine die of the Congress) after its submission by the

President.” Id. Any constitution approved by Congress takes effect only if

then approved by referendum in the USVI. Id.

A constitutional convention in the USVI proposed a constitution under

the Enabling Act in 1978. The President transmitted this constitution to

Congress with comments recommending certain changes. See Message

from the President of the United States Transmitting the Proposed Consti-

tution for the Virgin Islands, Pursuant to Section 5 of Public Law 94-584,

H.R. Doc. No. 95-385 (1978). The constitution was then deemed ap-

proved under the Enabling Act because Congress took no action, but the

USVI voters rejected it in a referendum. See Department of Justice

Views on the Constitution Adopted by the Constitutional Convention of

the Virgin Islands, 4B Op. O.L.C. 759, 760 n.1 (1980) (“DOJ Views”);

S. Rep. No. 97-66, at 2 (1981). Another constitution was proposed in

1980. The President transmitted this constitution, too, providing com-

ments and recommending changes based in part on a memorandum from

75

34 Op. O.L.C. 73 (2010)

the Department of Justice. See Message from the President of the United

States Transmitting a Proposed Constitution for the Virgin Islands, Pur-

suant to Section 5 of Public Law 94-584, H.R. Doc. No. 96-375 (1980);

DOJ Views, 4B Op. O.L.C. at 759. The USVI constitutional convention

reconvened and proposed amendments to the constitution in response to

Administration concerns, and Congress approved a modified version of

the constitution by joint resolution. See Pub. L. No. 97-21, 95 Stat. 105

(1981); S. Rep. No. 97-66, at 2; H.R. Rep. No. 97-25, at 2 (1981); Fourth

Constitution of the Virgin Islands: Hearing Before the Senate Committee

on Energy and Natural Resources, 97th Cong. 173, 181 (1981) (“Hear-

ing on Fourth USVI Constitution”); Statement on Signing a Bill to Ap-

prove a Constitution for the United States Virgin Islands (July 10, 1981),

1 Pub. Papers of Pres. Ronald Reagan 617 (1981) (“Statement on Sign-

ing”). The USVI electorate, however, again rejected the constitution. See

DOJ Views, 4B Op. O.L.C. at 759.

A constitutional convention in the USVI adopted the present proposed

constitution at the end of May 2009, and the Governor of the USVI sub-

mitted it to the President on December 31, 2009. See Letter for Barack H.

Obama, President of the United States, from John P. de Jongh, Jr., Gover-

nor, U.S. Virgin Islands (Dec. 31, 2009). The Governor also forwarded a

legal opinion on the draft constitution prepared by the Attorney General

of the USVI. See Letter for John P. de Jongh, Jr., Governor, U.S. Virgin

Islands, from Vincent F. Frazer, Attorney General, U.S. Virgin Islands

(June 8, 2009) (“USVI AG Op.”). Both the Governor and the Attorney

General expressed concerns that the proposed constitution was incon-

sistent with the Enabling Act and the U.S. Constitution.

II. Discussion

A. Recognition of U.S. Sovereignty and the

Supremacy of Federal Law

The Enabling Act requires any proposed constitution for the USVI to

“recognize” and “be consistent with” U.S. sovereignty and the supremacy

of the applicable provisions of the Constitution, treaties, and laws of the

United States. Enabling Act § 2(b)(1). The current proposed constitution,

like the one initially proposed in 1980, does not include an express state-

ment directly satisfying this requirement. Indeed, one provision of the

76

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

current constitution states, without any reference to the U.S. Constitution

or federal law, that “[t]his Constitution shall be the supreme law of the

Virgin Islands,” Constitution of the Virgin Islands of the United States,

Fifth Constitutional Convention art. II, § 5 (June 1, 2009) (“Proposed

Const.”), and in several places the proposed constitution refers to the

USVI’s “sovereignty” or “right of self-determination.” E.g., id. pmbl. ¶ 6;

id. art. XII, § 2. Particularly in light of these provisions, we think it would

be preferable if Congress revised—or urged a reconvened constitutional

convention to revise—the proposed constitution to include a more express

recognition of U.S. sovereignty and especially of the supremacy of federal

law, as Congress did in considering the 1980 proposed constitution. Even

in its current form, though, we conclude, as the Department did in review-

ing the 1980 proposed constitution, that a number of provisions in the

present proposed constitution considered together bring it into substantial

compliance with the Enabling Act’s requirement that the proposed consti-

tution recognize U.S. sovereignty and the supremacy of federal law. See

DOJ Views, 4B Op. O.L.C. at 760–61.

Because the Department’s analysis of the 1980 proposed constitution

informs our analysis of the current proposed constitution, we begin by

describing the Department’s 1980 analysis and the development of that

earlier proposed constitution in some detail. The 1980 proposed constitu-

tion, like the constitution proposed now, included no express statement of

federal sovereignty and supremacy. And that earlier proposed constitution

described “[t]his Constitution and laws of the Virgin Islands enacted

under it” as “the supreme law of the Virgin Islands.” H.R. Doc. No. 96-

375, at 7. The Justice Department nonetheless concluded that the 1980

proposed constitution was in “substantial compliance” with section

2(b)(1) of the Enabling Act because other provisions effectively acknowl-

edged United States sovereignty and the supremacy of federal law. DOJ

Views, 4B Op. O.L.C. at 760–61. As the Department explained, the 1980

proposed constitution’s preamble included a statement “declar[ing] that

the Virgin Islands assume ‘the responsibilities of self-government in

political union with the United States.’” Id. at 760 (quoting H.R. Doc. No.

96-375, at 1). In prior testimony regarding a proposed constitution for the

territory of Guam, a Justice Department witness had observed that

“[n]early 200 years of political history have established that political

union with the United States necessarily carries with it the recognition of

the sovereignty of the United States and the supremacy of its laws,” and

77

34 Op. O.L.C. 73 (2010)

that a statement in the preamble of the Guam constitution referring to

“political union” with the United States was therefore “sufficient to over-

come any contention that the explicit or tacit approval of the constitution

by Congress would have the effect of relinquishing the sovereignty of the

United States over Guam and the supremacy of Federal laws.” Constitu-

tion of Guam: Hearing Before the Senate Committee on Energy and

Natural Resources, 95th Cong. 64 (1978) (statement of Herman Marcuse,

Attorney-Adviser, Office of Legal Counsel, Dep’t of Justice). By the

same token, the Department concluded that the reference to “political

union” in the 1980 USVI proposed constitution sufficiently recognized

federal sovereignty and supremacy to satisfy the Enabling Act. DOJ

Views, 4B Op. O.L.C. at 761. The Department further observed that a

draft official analysis of the 1980 proposed constitution interpreted its

preamble as recognizing U.S. sovereignty and that the proposed 1980

USVI constitution elsewhere limited the legislative power of the USVI

government to “subjects . . . consistent with . . . the Constitution and laws

of the United States applicable to the Virgin Islands.” Id. at 760; see also

Hearing on Fourth USVI Constitution at 58 (reproducing draft official

analysis); H.R. Doc. No. 96-375, at 7.

In accordance with the Justice Department’s conclusions, the President

stated in his message transmitting the 1980 proposed constitution to

Congress that “[t]he document implicitly recognizes the sovereignty of

the United States and the supremacy of United States law over locally-

enacted legislation, and is, therefore, in substantial compliance with the

pertinent provision of the Enabling Act that established the procedure for

the drafting of a constitution for the Virgin Islands.” H.R. Doc. No. 96-

375, at iii.

Discussions in Congress led to a suggestion that an additional reference

to U.S. sovereignty and federal supremacy be added. See Hearing on

Fourth USVI Constitution at 173, 194. The USVI constitutional conven-

tion then proposed and Congress adopted an additional clause qualifying

the draft constitution’s statement that the USVI constitution and laws

enacted under it constituted the “supreme law of the Virgin Islands” so

as to assert such supremacy only “[t]o the extent not inconsistent with the

Constitution and laws of the United States.” S. Rep. No. 97-66, at 4; H.R.

Rep. No. 97-25, at 2, 11; Pub. L. No. 97-21, 95 Stat. at 109.

78

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

The current proposed USVI constitution appears no less compliant with

section 2(b)(1) of the Enabling Act than the constitution originally pro-

posed in 1980, if not also the revised version of that constitution ulti-

mately approved by Congress. Much as the preamble of the 1980 consti-

tution described the USVI as “assuming the responsibilities of self-

government in political union with the United States,” H.R. Doc. No. 96-

375, at 1, the preamble of the current proposed constitution declares that

the USVI is “assuming the responsibilities of self-government as an

unincorporated territory of the United States.” Proposed Const. pmbl. ¶ 1

(emphasis added). The term “unincorporated territory of the United

States,” like the term “political union,” carries a well-established meaning

signifying recognition of the supremacy of the United States government.

Territorial Court of the Virgin Islands v. Richards, 673 F. Supp. 152, 157

(D.V.I. 1987) (identifying the USVI as an “unincorporated territory” and

describing Congress’s authority over the territory as “plenary”), aff’d,

847 F.2d 108, 112 (3d Cir. 1988); Harris v. Boreham, 233 F.2d 110, 113 –

14 (3d Cir. 1956) (describing Congress’s “sovereignty” over “unincorpo-

rated territories, such as the Virgin Islands”); S. Rep. No. 97-66, at 4

(report on the 1980 constitution describing the USVI as “an unincorpo-

rated territory of the United States subject to the plenary authority of the

Congress”). Indeed, the Constitution itself prescribes that “[t]he Congress

shall have Power to dispose of and make all needful Rules and Regula-

tions” with respect to United States territories. U.S. Const. art. IV, § 3,

cl. 2. The current proposed constitution’s acknowledgment of the USVI’s

status as an “unincorporated territory of the United States” thus implies

recognition of the United States’ sovereignty over the USVI.

Furthermore, the current proposed constitution also recognizes con-

gressional authority over the USVI by describing the 1917 treaty between

the United States and Denmark as “confirm[ing]” that Congress may

“determine[]” the “civil rights and political status of the inhabitants” of

the USVI, Proposed Const. pmbl. ¶ 3; it limits the legislative power of

the USVI to “subjects of legislation consistent with . . . the Constitution

and laws of the United States,” just as the 1980 proposed constitution did,

id. art. V, § 1; H.R. Doc. No. 96-375, at 7; and in certain other provisions

it acknowledges the applicability of federal law, e.g., Proposed Const. art.

IV, § 4 (prohibiting any “political or religious test” for public office

“other than an oath or affirmation to support the Constitution and laws of

the Virgin Islands, and the Constitution and laws of the United States”);

79

34 Op. O.L.C. 73 (2010)

id. art. VII, § 2 (providing that decisions of the USVI Supreme Court “on

questions arising under this Constitution and the laws of the Virgin Is-

lands shall be final, except as Federal law may provide for review of such

decisions by courts of the United States”); id. art. VII, § 3 (requiring rules

in USVI courts to be consistent with the United States Constitution and

federal laws). It is true that the current proposed constitution also states

that it “shall be the supreme law of the Virgin Islands.” Id. art. II, § 5. But

while, as noted above, Congress revised the similar supremacy provision

in the 1980 proposed constitution to declare that “[t]his Constitution and

laws of the Virgin Islands enacted under it shall be the supreme law of the

Virgin Islands” only “[t]o the extent not inconsistent with the Constitution

and laws of the United States,” Pub. L. No. 97-21, 95 Stat. at 109; see

also Hearing on Fourth USVI Constitution at 173, 194; S. Rep. No. 97-66,

at 4; H.R. Rep. No. 97-25, at 2, 11, the President and the Department of

Justice deemed the 1980 proposed constitution in “substantial compli-

ance” with the Enabling Act even without this change. Moreover, the

original supremacy provision in the 1980 proposed constitution was

arguably less consistent with United States sovereignty and federal su-

premacy than the current provision. The supremacy clause of the 1980

proposed constitution appeared in a provision addressing legislative

powers and asserted the supremacy not only of the proposed constitution,

but also of “laws of the Virgin Islands enacted under it.” H.R. Doc. No.

96-375, at 7. In contrast, the supremacy provision of the current proposed

constitution appears in a stand-alone section and refers only to the USVI

constitution. Proposed Const. art. II, § 5. It may therefore be reasonably

understood to indicate only that the USVI constitution is “the supreme

law of the Virgin Islands” in the sense of superseding other USVI laws

but not federal law. Cf. Maine Const. art. X, § 6 (referring to the Maine

constitution as “the supreme law of the State”); Iowa Const. art. XII, § 1

(“This constitution shall be the supreme law of the state, and any law

inconsistent therewith, shall be void.”).

Accordingly, while we think it would be preferable if Congress re-

vised—or urged a reconvened constitutional convention to revise—the

proposed constitution to include a more express recognition of U.S. sov-

ereignty and especially of the supremacy of federal law, as Congress did

in considering the 1980 proposed constitution, we believe the proposed

constitution is in substantial compliance with section 2(b)(1) of the Ena-

bling Act. DOJ Views, 4B Op. O.L.C. at 761.

80

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

B. Political Status Elections

In Article XVII, the proposed constitution provides for a “special elec-

tion,” to be held after a year of “Public Education” programs conducted

by a “Political Status Advisory Commission,” on “the status and federal

relations options of: (1) statehood, (2) free association, and (3) Independ-

ence.” Proposed Const. art. XVII, §§ 1, 2(a). Because Congress in the

Enabling Act has authorized conventions to draft a USVI constitution

only for “local self-government” “within the existing territorial-Federal

relationship,” Enabling Act § 2(a); see also S. Rep. No. 94-1033, at 4

(1976) (emphasizing that “the constitution [authorized by the Enabling

Act] is not a status document and that the issue of local self-government

should not be delayed or confused with discussions relating to alterations

in existing federal relations”); id. at 8 (letter from the Assistant Secretary

of the Interior to the same effect), some may question the appropriateness

of the inclusion of this provision in the proposed constitution. We do not

believe, however, that this provision violates the Enabling Act.

Given Congress’s constitutional authority over territories, any change

in status for the USVI would require action by Congress. See U.S. Const.

art. IV, § 3, cl. 2; see also, e.g., Examining Bd. of Eng’rs, Architects &

Surveyors v. Flores de Otero, 426 U.S. 572, 586 n.16 (1976); Simms v.

Simms, 175 U.S. 162, 167–68 (1899); Talbott v. Silver Bow County, 139

U.S. 438, 445–46 (1891); First Nat’l Bank v. Yankton County, 101 U.S.

129, 132–33 (1879); Bluebeard’s Castle, Inc. v. Gov’t of the Virgin Is-

lands, 321 F.3d 394, 397 (3d Cir. 2003). The special election therefore

would not effect any departure from the “existing territorial-Federal

relationship.” Moreover, the USVI local government has established

public education commissions on the USVI’s territorial status in the past

and in 1993 held a referendum on the subject. We believe such efforts to

canvass the electorate on issues of fundamental concern may serve valid

purposes of local self-government. See, e.g., 1988 V.I. Sess. Laws 5332;

see generally H.R. Rep. No. 111-357, at 4 (2009); Stanley K. Laughlin,

Jr., The Law of the United States Territories and Affiliated Jurisdictions

380 (1995).

81

34 Op. O.L.C. 73 (2010)

C. Classifications Based on Place and Timing of

Birth, Timing of Residence, and Ancestry

Several provisions of the proposed constitution give special advantages

to “Native Virgin Islanders” and “Ancestral Native Virgin Islanders.”

These provisions raise serious concerns under the equal protection guar-

antee of the U.S. Constitution, which has been made applicable to the

USVI by the Revised Organic Act.

In Article III, Section 2, the proposed constitution would define “Na-

tive Virgin Islander” to mean (1) “a person born in the Virgin Islands after

June 28, 1932,” the enactment date of a statute generally extending United

States citizenship to USVI natives residing in United States territory as of

that date who were not citizens or subjects of any foreign country, see Act

of June 28, 1932, ch. 283, 47 Stat. 336 (now codified at 8 U.S.C.

§ 1406(a)(4) (2006)); and (2) a “descendant[] of a person born in the

Virgin Islands after June 28, 1932.” “Ancestral Native Virgin Islander”

would be defined as (1) “a person born or domiciled in the Virgin Islands

prior to and including June 28, 1932 and not a citizen of a foreign country

pursuant to 8 U.S.C. [§] 1406,” the statute governing United States citi-

zenship of USVI residents and natives; (2) “descendants” of such individ-

uals; and (3) “descendants of an Ancestral Native Virgin Islander residing

outside of the U.S., its territories and possessions between January 17,

1917 and June 28, 1932, not subject to the jurisdiction of the U.S. and

who are not a citizens [sic] or a subjects [sic] of any foreign country.”

Proposed Const. art. III, § 1. 2

2The third prong of this definition appears circular insofar as it defines “Ancestral

Native Virgin Islander” in terms of descendants of “Ancestral Native Virgin Islanders” (a

category of people already encompassed by the definition’s second prong), and it is also

grammatically ambiguous with respect to whether the qualifying terms modify the

“descendants” or the “Ancestral Native Virgin Islander” from whom they are descended.

We think it clear that these classifications could not be considered tribal within the

meaning of the Indian Commerce Clause, U.S. Const. art. I, § 8, cl. 3, that is, as falling

within the established body of law defining the special relationship between aboriginal

peoples of the United States and the federal government. In any event, that Clause em-

powers Congress, not the government of the Virgin Islands.

82

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

1. Property Tax Exemption for

Ancestral Native Virgin Islanders

Under the proposed constitution, the USVI legislature would be author-

ized to impose real property taxes, but “[n]o Real Property tax shall be

assessed on the primary residence or undeveloped land of an Ancestral

Native Virgin Islander.” Proposed Const. art. XI, § 5(g). The property tax

exemption for Ancestral Native Virgin Islanders raises serious equal

protection concerns. The Equal Protection Clause of the Fourteenth

Amendment, which has been extended to the USVI by statute, see 48

U.S.C. § 1561 (2006), 3 generally requires only that legislative classifica-

tions be rationally related to a legitimate governmental purpose. See, e.g.,

Heller v. Doe, 509 U.S. 312, 319 –20 (1993). But the proposed constitu-

tion does not identify a legitimate governmental purpose that the real

property tax exemption for Ancestral Native Virgin Islanders would

further, and it is difficult for us to discern a legitimate governmental

purpose that the exemption could be said to further.

The definition of Ancestral Native Virgin Islander appears to combine

two sub-classes: (i) individuals born or domiciled in the USVI before a

certain date and (ii) descendants of such persons. The first sub-class may

include many long-time residents of the USVI, but to the extent the real

property tax exemption is designed to benefit such long-time residents it

raises serious equal protection concerns. The Supreme Court has held that

statutes limiting benefits, including property tax exemptions, to citizens

residing in a jurisdiction before a specified date are not rationally related

to any legitimate governmental purpose. For example, in Hooper v. Ber-

nalillo County Assessor, 472 U.S. 612 (1985), the Court held that a New

Mexico property tax exemption applicable only to Vietnam War veterans

who resided in the state before a certain date violated equal protection by

“creat[ing] two tiers of resident Vietnam veterans, identifying resident

veterans who settled in the State after May 8, 1976, as in a sense ‘second-

class citizens.’” Id. at 623. Explaining that “singling out previous resi-

3 See also, e.g., Gov’t of the Virgin Islands v. Davis, 561 F.3d 159, 163–64 n.3 (3d Cir.

2009) (recognizing applicability of the Fifth and Fourteenth Amendment Due Process

Clauses to the USVI under the Revised Organic Act); Hendrickson v. Reg O Co., 657 F.2d

9, 13 n.2 (3d Cir. 1981) (same); Moolenaar v. Todman, 433 F.2d 359, 359 (3d Cir. 1970)

(per curiam) (requiring adherence to “the constitutional requirements of equal protection

of the law” in the USVI).

83

34 Op. O.L.C. 73 (2010)

dents for the tax exemption[] [and] reward[ing] only those citizens for

their ‘past contributions’ toward our Nation’s military effort in Vietnam”

was “not a legitimate state purpose,” the Court held that the tax exemption

violated the Equal Protection Clause by “creat[ing] fixed, permanent

distinctions . . . between . . . classes of concededly bona fide residents.’”

Id. at 622–23 (quoting Zobel v. Williams, 457 U.S. 55, 59 (1982)); see

also, e.g., Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 909, 911 (1986)

(plurality opinion) (applying heightened scrutiny to invalidate civil ser-

vice employment preference limited to veterans who lived in the state

when they entered the armed forces); id. at 913 (Burger, C.J., concurring

in judgment) (same under rational basis review); Bunyan v. Camacho, 770

F.2d 773, 776 (9th Cir. 1985) (invalidating law enacted by Guam legisla-

ture awarding certain retirement credits for higher education degrees to

Guam civil servants only if they resided in Guam before pursuing the

degree).

Moreover, even as to this sub-class, the real property tax exemption

proposed here appears to be even less constitutionally justifiable than

benefits for long-time residents. In Nord linger v. Hahn, 505 U.S. 1

(1992), the Supreme Court upheld a California real property valuation

system that disfavored newer purchasers (though not necessarily newer or

longer-term residents), and the Court recognized as legitimate two gov-

ernmental interests for such a system: “local neighborhood preservation,

continuity, and stability,” id. at 12, and honoring the reliance interests of

long-time property owners, id. at 12–13. To the extent that those interests

might be offered in defense of tax benefits for long-time residents or

property owners, they cannot justify the real property tax exemption for

Ancestral Native Virgin Islanders. Neither of those interests appears to be

rationally furthered by the first sub-class included in the proposed proper-

ty tax exemption for Ancestral Native Virgin Islanders because member-

ship in that sub-class is defined neither by length of residence nor even by

length of property ownership in the USVI, but simply by having been

born or having lived in the USVI many years ago. Thus, for example, an

individual born in the USVI on June 28, 1932, who left the Islands the

following year and who moved back to the Islands and bought a home

there 50 years later (or who simply bought an undeveloped piece of land

there 50 years later) would be entitled to immunity from real property

taxes even though an individual who had spent his or her whole life in the

USVI and had owned the same home there for the past 50 years, but who

84

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

had been born there of parents who had arrived in the USVI as immigrants

on June 29, 1932, would not be so shielded. How a system permitting this

kind of discrimination could be said to further neighborhood stability or

reliance interests of long-time property owners is unclear.

The second sub-class benefitted by the real property exemption for An-

cestral Native Virgin Islanders also seems difficult to justify as furthering

a legitimate governmental interest, for the second sub-class is defined

simply by parentage or ancestry. We need not delve into whether this use

of “ancestry” in classifying citizens would be deemed “suspect” and thus

subject to heightened scrutiny under the Fourteenth Amendment. See, e.g.,

Mass. Bd. of Retirement v. M urgia, 427 U.S. 307, 312 & n.4 (1976) (per

curiam) (identifying alienage, race, and ancestry as classifications subject

to strict scrutiny). Again, it is unclear to us what legitimate governmental

purpose would support favoring so starkly the descendants of individuals

born or resident long ago in the USVI regardless of the descendants’ own

connections (or lack thereof) to the Islands.

Because we find it difficult to discern a legitimate governmental pur-

pose that would be rationally advanced by providing property tax exemp-

tions only for Ancestral Native Virgin Islanders, we would recommend

revising the proposed constitution to eliminate Article XI, Section 5(g).

2. Provisions on Voting and Office-Holding

Favoring Native Virgin Islanders and

Ancestral Native Virgin Islanders

Provisions in the proposed constitution that limit certain offices and the

right to vote in certain elections to Native Virgin Islanders and Ancestral

Native Virgin Islanders or that guarantee members of those groups the

right to participate in certain elections present similar issues. Under the

proposed constitution, the positions of Governor and Lieutenant Governor

would be open only to members of these groups, Proposed Const. art. VI,

§ 3(d), as would service on the Political Status Advisory Commission, an

eleven-member body composed of four appointed members and seven

elected members that would promote awareness of the USVI’s political

status options and advise the Governor and Legislature on “methods to

achieve a full measure of self-government.” Id. art. XVII, §§ 1(b), 3. The

special election on “status and federal relations options” provided for

under the proposed constitution would be “reserved for vote by Ancestral

85

34 Op. O.L.C. 73 (2010)

Native and Native Virgin Islanders only, whether residing within or

outside the territory.” Id. art. XVII, § 2. And the proposed constitution

would guarantee that “Ancestral and Native Virgin Islanders, including

those who reside outside of the Virgin Islands or in the military, shall

have the opportunity to vote on” amendments to the USVI constitution.

Id. art. XVIII, § 7. 4

The provisions concerning eligibility to vote in certain elections raise

equal protection concerns. To the extent one might attempt to justify the

limitation on the electorate for the special election on status options as

akin to a durational residence requirement, we believe it is too restrictive

to be so justified. Although the Supreme Court has upheld a very brief

residential limitation on eligibility to vote in one instance based on a

state’s legitimate interest in “prepar[ing] adequate voter records and

protect[ing] its electoral processes from possible frauds,” Marston v.

Lewis, 410 U.S. 679, 680 (1973) (per curiam) (upholding 50-day dura-

tional residence requirement), it has held that even a requirement of one

year’s residence for voting, as opposed to office-holding, violates consti-

tutional equal protection guarantees, Dunn v. Blumstein, 405 U.S. 330,

360 (1972) (invalidating state’s requirement that voters have resided in

the state for one year and the county for three months). Moreover, the

classifications here are not based on length of residence, and their effects

appear potentially arbitrary. As discussed above, the categories of Ances-

tral Native Virgin Islanders and Native Virgin Islanders are based simply

on place and timing of birth, the fact of having resided in the USVI before

a certain date regardless of for how brief a time, or ancestry, regardless of

the individual’s own connection to the USVI. Thus, they could prohibit,

for example, a foreign-born but life-long resident of the USVI from voting

on political status, but would permit any qualifying ancestral descendant,

including those who have never lived in the USVI, to do so. Cf. Soto-

4 The right to vote on such amendments does not appear to be limited to these groups,

as the same provision requires that amendments be submitted “to the electors of the

Virgin Islands.” Proposed Const. art. XVIII, § 7. Although the term “electors of the

Virgin Islands” is undefined, the proposed constitution elsewhere provides that “[e]very

citizen of the United States and the Virgin Islands eighteen (18) years of age or older and

registered to vote in the Virgin Islands shall have the right to vote.” Id. art. IV, § 1. The

separate provisions establishing special voting rights and opportunities for Ancestral

Native Virgin Islanders and Native Virgin Islanders suggest that the term “electors of the

Virgin Islands” refers to the broader group of eligible voters.

86

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

Lopez, 476 U.S. at 915 (Burger, C.J., concurring in judgment) (discussing

“irrationality” of law that “would grant a civil service hiring preference

to a serviceman entering the military while a resident of [the state] even

if he was a resident only for a day,” but that would deny the preference to

a veteran “who was a resident of [the state] for over 10 years before

applying for a civil service position”); Dunn, 405 U.S. at 360 (concluding

that the state interest in “knowledgeable” voters did not justify a duration-

al residence requirement for voting because “there is simply too attenuat-

ed a relationship between the state interest in an informed electorate and

the fixed requirement that voters must have been residents in the State for

a year and the county for three months”); Kramer v. Union Free Sch. Dist.

No. 15, 395 U.S. 621, 632 (1969) (rejecting, under strict scrutiny, re-

strictions on franchise for school board elections because “[t]he classifica-

tions in [the statute] permit inclusion of many persons who have, at best, a

remote and indirect interest in school affairs and, on the other hand,

exclude others who have a distinct and direct interest in the school meet-

ing decisions”).

The proposed constitution’s guarantee that Native Virgin Islanders and

Ancestral Native Virgin Islanders “resid[ing] outside of the Virgin Is-

lands” may vote on amendments to the USVI constitution also raises

equal protection concerns. Proposed Const. art. XVIII, § 7. To uphold

inclusion of non-resident voters in local government elections against

equal protection challenges, courts have required a showing that the non-

resident voters have a “substantial interest” in the elections in question.

See, e.g., May v. Town of Mountain Village, 132 F.3d 576, 583 (10th Cir.

1997) (upholding inclusion of nonresident property owners in town elec-

torate because such voters “have a substantial interest in township elec-

tions”); Bd. of County Comm’rs of Shelby County, Tenn. v. Burson, 121

F.3d 244, 248–51 (6th Cir. 1997) (deeming participation of city voters in

county school board elections irrational and thus impermissible under

Fourteenth Amendment where city voters had their own independent

school board and lacked a substantial interest in county school board

elections); Hogencamp v. Lee County Bd. of Educ., 722 F.2d 720, 722

(11th Cir. 1984) (deeming city taxpayers’ contribution of 2.74% of county

school board’s budget “insufficient by itself to create a substantial interest

in the city residents” justifying their participation in county school board

elections). Because many non-resident Ancestral Native Virgin Islanders

and Native Virgin Islanders may have no connection to the Islands apart

87

34 Op. O.L.C. 73 (2010)

from ancestry, it is unclear whether their inclusion in the electorate for

USVI constitutional amendments would satisfy this standard.

Finally, although the residential duration requirements discussed below

for Governor and Lieutenant Governor and members of the Political

Status Advisory Commission would prevent non-resident individuals who

qualify as Native Virgin Islanders or Ancestral Native Virgin Islanders

from serving in those offices, it is unclear what legitimate governmental

purpose would be advanced by narrowing the subset of longtime residents

who could hold those offices to Native Virgin Islanders and Ancestral

Native Virgin Islanders.

In the absence of any identified legitimate governmental interest to

support such provisions concerning voting and office-holding based on

place of birth, residence many decades ago, or ancestry, we would again

recommend that these provisions be removed from the proposed constitu-

tion. 5

D. Residence Requirements for Office-Holding

In addition to the birth and ancestry qualifications discussed above, the

proposed constitution imposes substantial residence requirements on a

number of USVI offices. In particular, the Governor and Lieutenant

Governor would be required to have been “domiciliar[ies]” of the USVI

for at least fifteen years, ten of which “must immediately precede the

date of filing for office,” Proposed Const. art. VI, § 3(a); judges and

justices of the USVI Supreme Court and lower court to be established

under the proposed constitution would be required to have been “domi-

ciled” in the USVI for at least ten years “immediately preceding” the

judge or justice’s appointment, id. art. VII, § 5(b); the Attorney General

and Inspector General would need to have resided in the USVI for at least

five years, id. art. VI, §§ 10(a)(1), 11(a)(2); 6 and the members of the

5 Because we conclude that the restrictions on voting present clear equal protection

concerns under the Fourteenth Amendment, we need not consider whether they may also

violate the Fifteenth Amendment’s prohibition on denial or abridgement of the right to

vote “on account of race, color, or previous condition of servitude.” U.S. Const. amend.

XV; see also 48 U.S.C. § 1561 (extending Fifteenth Amendment to USVI).

6 The proposed constitution appears ambiguous with respect to how this five-year peri-

od is determined. It provides: “There shall be an Attorney General, who shall be appoint-

ed by the Governor with the advice and consent of the Senate, and at the time of the

88

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

Political Status Advisory Commission would be required to have been

“domiciliaries” of the USVI for “a minimum of five years,” id. art. XVII,

§ 1(b). In addition, the proposed constitution would require that USVI

Senators be “domiciled” in their legislative district “for at least one year

immediately preceding the first date of filing for office.” Id. art. V, § 3(c).

These requirements, particularly those requiring more than five years of

residence, raise potential equal protection concerns. As explained in the

Department of Justice’s comments on the proposed 1980 constitution,

“[t]he Supreme Court has held that candidates for public office ‘do have

a federal constitutional right to be considered for public service without

the burden of invidiously discriminatory disqualifications.’” DOJ Views,

4B Op. O.L.C. at 766 (quoting Turner v. Fouche, 396 U.S. 346, 362

(1970)). Though noting that the Supreme Court has summarily affirmed

three decisions upholding five- to seven-year residence requirements for

state senators and governors, id. at 767 (citing Chimento v. Stark, 353 F.

Supp. 1211, 127 (D.N.H. 1973), aff’d, 414 U.S. 802 (1973); Kanapaux v.

Ellisor (D.S.C. unreported), aff’d, 419 U.S. 891 (1974); Sununu v. Stark,

383 F. Supp. 1287 (D.N.H. 1974), aff’d, 420 U.S. 958 (1975)), the De-

partment’s memorandum observed that the Supreme Court “has not as yet

passed on durational residence requirements for the holding of office,” id.,

and that lower courts have struck down laws imposing residence require-

ments of five or more years on certain state or local offices, id. at 767–68

(collecting cases). The 1980 Justice Department memorandum therefore

concluded that while certain five-year residence requirements in the 1980

proposed constitution likely would not “give rise to serious constitutional

problems,” there was “every reason to question whether the courts

[would] uphold” fifteen-year residence requirements for the offices of

Governor and Lieutenant Governor under that proposed constitution. Id.

at 768.

Likewise, the President observed in his message to Congress that the

fifteen-year residence requirements in the 1980 constitution “may violate

the Federal constitutional prohibition against discriminatory qualifications

for public office.” H.R. Doc. No. 96-375, at iv. As for Congress, the

appointment must . . . have resided in the Virgin Islands at least five (5) years next

preceding his election.” Proposed Const. art. VI, § 10(a)(1). Given that the Attorney

General would be appointed rather than elected, the reference to the period “next preced-

ing his election” seems unclear.

89

34 Op. O.L.C. 73 (2010)

legislative history indicates that its approval of the 1980 constitution did

not signify any “opinion on the merits of these provisions” and that it too

recognized that the fifteen-year “domiciliary qualifications” in that consti-

tution might “be invalidated if they are found to be incompatible with

the United States Constitution.” H.R. Rep. No. 97-25, at 3; see also

S. Rep. No. 97-66, at 5.

The case law since 1980 on durational residence requirements for state

and local offices generally supports the Department’s analysis provided at

that time. In Clements v. Fashing, 457 U.S. 957 (1982), a plurality of the

Supreme Court observed that “the existence of barriers to a candidate’s

access to the ballot ‘does not of itself compel close scrutiny’” and that

“[d]ecision in this area of constitutional adjudication is a matter of degree,

and involves a consideration of the facts and circumstances behind the

law, the interests the State seeks to protect by placing restrictions on

candidacy, and the nature of the interests of those who may be burdened

by the restrictions.” Id. at 963 (plurality opinion) (quoting Bullock v.

Carter, 405 U.S. 134, 143 (1972)). Clements, however, did not involve

durational residence requirements, but rather provisions requiring a wait-

ing period or mandatory resignation before certain current state office-

holders could seek new elective offices. See id. at 966–71. In another

case, a concurring opinion, citing Chimento’s approval of a seven-year

residence requirement for a state governor, suggested that residence

requirements may serve legitimate purposes, but this opinion did not

elaborate on how long a period of prior residence may be required. See

Zobel, 457 U.S. at 70 (Brennan, J., concurring) (observing that “alle-

giance and attachment may be rationally measured by length of residence

. . . and allegiance and attachment may bear some rational relationship to

a very limited number of legitimate state purposes”).

One court of appeals has concluded, based on the Supreme Court sum-

mary affirmances cited in the Department’s 1980 memorandum, that at

least “some durational residency requirements are constitutional.” City of

Akron v. Bell, 660 F.2d 166, 168 (6th Cir. 1981). This court thus upheld a

one-year residence requirement for city council members based on the

local government’s interest in “knowledgeable candidates.” Id. at 168–69.

In other recent decisions, courts have similarly upheld relatively brief

residence requirements for state or local offices, typically applying only

rational basis review and deeming such laws adequately justified by the

governmental interest in ensuring familiarity with local concerns. See,

90

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

e.g., MacDonald v. City of Henderson, 818 F. Supp. 303, 306 (D. Nev.

1993) (one-year residence requirement for city council); Hankins v. Ha-

waii, 639 F. Supp. 1552, 1556 (D. Haw. 1986) (five-year residence re-

quirement for Hawaii governor under state constitution); Schiavone v.

DeStefano, 852 A.2d 862, 866–67 (Conn. Sup. Ct. 2001) (five-year resi-

dence requirement for city mayor); Civil Serv. Merit Bd. of City of Knox-

ville v. Burson, 816 S.W.2d 725, 734 (Tenn. 1991) (one-year residence

requirement for municipal civil service boards); State ex rel. Brown v.

Summit County Bd. of Elections, 545 N.E.2d 1256, 1259–60 (Ohio 1989)

(two-year residence requirement for city council); Langmeyer v. Idaho,

656 P.2d 114, 118 (Idaho 1982) (five-year residence requirement for

appointment to local planning and zoning board); see also, e.g., Thournir

v. Meyer, 909 F.2d 408, 411 (10th Cir. 1990) (upholding under rational

basis review state requirement that unaffiliated candidates have been

registered as unaffiliated voters in the state for at least one year before

filing for office); White v. Manchin, 318 S.E.2d 470, 488, 491 (W. Va.

1984) (applying strict scrutiny based on the fundamental right “to become

a candidate for public office” but upholding state constitutional require-

ment that state senators have resided in their district for at least one year

before their election). On the other hand, at least one federal court has

recently applied strict scrutiny to invalidate a state requirement that state

legislators have resided within their legislative districts for at least one

year. See Robertson v. Bartels, 150 F. Supp. 2d 691, 696, 699 (D.N.J.

2001) (applying strict scrutiny based on “the combined right of persons to

run for public office and the right of voters to vote for candidates of their

choice”); see also, e.g., Peloza v. Freas, 871 P.2d 687, 691 (Alaska 1994)

(applying heightened scrutiny under state constitution and invalidating

three-year residence requirement for city council).

Insofar as the territorial status and unique history and geography of

the USVI make familiarity with local issues particularly important for

office-holders there, the governmental interests supporting durational

residence requirements for USVI offices may be particularly strong. See

DOJ Views, 4B Op. O.L.C. at 768; see also, e.g., Hankins, 639 F. Supp. at

1556 (observing that “[t]he State has a strong interest in the assurance that

its governor will be a person who understands the conditions of life in

Hawaii” and that “[t]his concern has ‘particular relevance in a small and

comparatively sparsely populated state’” (quoting Chimento, 353 F. Supp.

at 1215)); cf. Bell, 660 F.2d at 168 (noting that “the interests of [a state

91

34 Op. O.L.C. 73 (2010)

or local] governmental unit in knowledgeable candidates and knowledge-

able voters may be served by differing lengths of durational residency

requirements”). Yet at least some courts might consider the lengthy

residence requirements here—particularly the ten- or fifteen-year peri-

ods required for USVI judges, governors, and lieutenant governors—

unjustified. Cf. Clements, 457 U.S. at 963 (plurality opinion) (observing

that “[d]ecision in this area of constitutional adjudication is a matter of

degree”); Summit County Bd. of Elections, 545 N.E.2d at 1260 (uphold-

ing two-year residence requirement but deeming it “conceivable that such

a requirement may be too long in duration to serve a legitimate state

interest”).

Accordingly, we would note that these provisions raise constitutional

concerns, and we would recommend that consideration be given to short-

ening the ten- and fifteen-year residence requirements for USVI gover-

nors, lieutenant governors, and judges. Cf. H.R. Doc. No. 96-375, at iv,

10, 22 (recommending that 1980 proposed constitution be revised to

require that the Governor and Lieutenant Governor have been domicil-

iaries of the USVI for ten years instead of fifteen years, even though

provision required only five years of residence immediately preceding the

date of taking office).

E. Potentially Unequal Legislative Districts

The proposed constitution defines electoral districts for several USVI

offices, including members of the USVI Senate. The Senate, which would

serve as the USVI’s unicameral legislature, would include between eleven

and fifteen members. Proposed Const. art. V, §§ 1, 2(a). Beginning with

the first election in 2012, the Senate would consist of (1) six Senators

elected “at large” by the Islands as a whole, three of whom must be resi-

dents of St. Croix and three of whom must be residents of St. Thomas or

St. John; (2) two Senators elected from each of two sub-districts on St.

Croix; (3) two elected from each of two sub-districts on St. Thomas; and

(4) one elected from St. John. Id. art. V, § 2(a)(1). At least once every ten

years and within 120 days of the publication of the official census for the

Islands, the Senate would be required to appoint a “reapportionment

commission,” which would develop a plan, to be approved by the USVI

Supreme Court, for the reapportionment of “At-Large and sub-district

92

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

senate seats that are contiguous and compact areas.” Id. art. V, § 2(b). 7

Although the proposed constitution provides that the areas in these dis-

tricts “shall be constituted as to give, as nearly as is practicable, represen-

tation in proportion to the census population,” the plan also would be

required to “provide for at least one Senator from St. John.” Id. art. V,

§ 2(b). These provisions, particularly the reservation of a Senate seat for

St. John, raise equal protection concerns because they may prove to be at

odds with the principle of “one person one vote.”

The Supreme Court has held that the Equal Protection Clause of the

Fourteenth Amendment requires states to “‘make an honest and good faith

effort to construct districts [for legislative representatives] as nearly of

equal population as is practicable.’” Larios v. Cox, 300 F. Supp. 2d 1320,

1339 (N.D. Ga. 2004) (quoting Reynolds v. Sims, 377 U.S. 533, 556

(1964)), aff’d, Cox v. Larios, 542 U.S. 947 (2004). As noted above, this

requirement is applicable to the USVI by statute. See 48 U.S.C. § 1561;

Moolenaar v. Todman, 433 F.2d 359, 359 (3d Cir. 1970) (per curiam).

Accordingly, insofar as the islands comprising the USVI have (or later

develop) populations significantly disproportionate to the number of seats

reserved for them in the Senate, the provisions for specified geographic

representation may be subject to challenge for violating this “one person

one vote” requirement of equal protection.

The Supreme Court has established a burden-shifting framework for

evaluating “one person one vote” claims based on the deviation in popula-

tion per representative between the most overrepresented and the most

underrepresented electoral districts in a jurisdiction, factoring in at-large

representatives. See, e.g., Bd. of Estimate of N.Y. City v. Morris, 489 U.S.

688, 701–02 & n.9 (1989); Brown v. Thomson, 462 U.S. 835, 842–43

(1983). As a general rule, “an apportionment plan with a maximum popu-

lation deviation under 10%” constitutes only a “‘minor deviation from

mathematical equality’” and is “‘insufficient to make out a prima facie

case of invidious discrimination under the Fourteenth Amendment.’”

Brown, 462 U.S. at 842 (quoting Gaffney v. Cummings, 412 U.S. 735, 745

(1973)). Districting plans with such deviations may not be “automatically

immune from constitutional attack,” but they are at least “presumptively

constitutional, and the burden lies on the plaintiffs to rebut that presump-

7 Article V, § 2(b) refers to a plan for “reappointment” rather than “reapportionment.”

We assume this is a typographical error.

93

34 Op. O.L.C. 73 (2010)

tion.” Larios v. Cox, 300 F. Supp. 2d at 1340–41; see also Cox v. Larios,

542 U.S. at 949 (Stevens, J., concurring) (describing Court’s summary

affirmance as “properly reject[ing]” the defendants’ “invitation” to

“creat[e] a safe harbor for population deviations of less than 10 percent”).

“A plan with larger disparities in population . . . creates a prima facie case

of discrimination and therefore must be justified by the State.” Brown,

462 U.S. at 842–43; see also Voinovich v. Quilter, 507 U.S. 146, 160–62

(1993). Legitimate justifications for a disparity may include preserving

the integrity of political subdivisions or recognizing natural or historical

boundaries, see DOJ Views, 4B Op. O.L.C. at 766 (citing Reynolds v.

Sims, 377 U.S. 533, 580–81 (1964); Swann v. Adams, 385 U.S. 440, 444

(1967)), and the Supreme Court has upheld even a sizeable deviation from

population equality in light of “the importance, consistency, and neutral-

ity of the state policies alleged to require the population disparities.”

Brown, 462 U.S. at 848 (Stevens and O’Connor, JJ., concurring). On the

other hand, the Court has cautioned that “[e]ven a neutral and consistently

applied criterion such as use of counties as representative districts can

frustrate Reynolds’ mandate of fair and effective representation if the

population disparities are excessively high.” Id. at 845.

The 1980 proposed constitution similarly required a representative from

St. John in the USVI Senate. Id. art. V, §§ 2, 3, in H.R. Doc. No. 96-375,

at 7. With respect to this requirement, the Justice Department concluded:

“Whether such a [one-person, one-vote] violation would ultimately occur

would likely turn on specific facts in existence at the time.” DOJ Views,

4B Op. O.L.C. at 766. That statement remains true today. But according

to the Attorney General of the USVI, data from the 2000 census indicate

that the St. John’s senate district would involve a deviation of 53% from

the ideal of equal representation. USVI AG Op. at 13.

The USVI’s island geography and any historic political representation

for St. John might help justify the inequalities between districts. See, e.g.,

Travis v. King, 552 F. Supp. 554, 560 (D. Haw. 1982) (concluding

“[b]ased on the unique geographic and economic insularity of the four

basic island units,” that the objective of providing each main island of

Hawaii “meaningful representation” in the state legislature was “a ration-

al one”); Burns v. Gill, 316 F. Supp. 1285, 1292, 1293, 1299 (D. Haw.

1970) (upholding disparities between electoral districts in Hawaii based

on the “conclusion that if [Hawaii’s] voters are to have functional repre-

sentation in their State legislature each basic island unit must be given

94

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

meaningful recognition therein”). Indeed, the Revised Organic Act,

though permitting reapportionment “as provided by the laws of the Vir-

gin Islands,” initially provided for separate representation of St. John in

the USVI Senate. 48 U.S.C. § 1571(b); see generally Moolenaar v.

Todman, 317 F. Supp. 226, 229–30 (D.V.I. 1970) (describing historical

enactments regarding representation in USVI Senate), rev’d, 433 F.2d

359 (3d Cir. 1970) (per curiam). We understand, however, that at present

the USVI legislature does not include a Senator elected solely by St. John

voters; the USVI Senate, rather, includes seven Senators from the District

of St. Croix and seven from the District of St. Thomas/St. John, plus one

Senator elected at large who must be a resident of St. John. See Legisla-

tive History, Legislature of the Virgin Islands, http://www.legvi.org/

LEGVI2008/history.htm (last visited ca. Feb. 2010). Insofar as guaran-

teed representation for St. John is a departure from current or historic

practice, or if disparities are simply too large to be justified by such

historic practices, the USVI’s senatorial districts under the proposed

constitution might be subject to an equal protection challenge. For exam-

ple, the court in Travis v. King rejected a districting plan for the Hawaii

state senate with a 43.18% total deviation even though the state invoked

the need for separate representation of the state’s island units as a justifi-

cation for the disparity. 552 F. Supp. at 560, 562–63; see also, e.g., Bd.

of Estimate of N.Y. City, 489 U.S. at 702–03 (concluding that “accom-

modat[ion] [of] natural and political boundaries as well as local interests”

was insufficient to justify a 78% disparity in representation of New York

City’s five boroughs on a municipal board).

Because any challenge to USVI’s Senate districts would be fact-

specific, we do not recommend specific changes to the proposed constitu-

tion to address these concerns. Indeed, we note that although the Justice

Department indicated potential “one person one vote” concerns with

respect to the 1980 proposed constitution, see DOJ Views, 4B Op. O.L.C.

at 766, the President did not communicate such concerns to Congress in

his transmittal message, see H.R. Doc. No. 96-375, at iii–v. As in the

1980 Justice Department memorandum, however, we would note the

potential litigation risk posed by these provisions.

95

34 Op. O.L.C. 73 (2010)

F. Territorial Waters, Marine Resources,

and Submerged Lands

Article XII, Section 2, concerning “Preservation of Natural Resources,”

states:

The Government shall have the power to manage, control and devel-

op the natural and marine resources comprising of submerged lands,

inlets, and cays; to reserve to itself all such rights to internal waters

between the individual islands, claim sovereignty over its inter-

island waters to the effect that the territorial waters shall extend 12

nautical miles from each island coast up to the international bounda-

ries. This is an alienable right of the people of the Virgin Islands of

the U.S. and shall be safeguarded.

Proposed Const. art. XII, § 2.

The intended meaning and effect of this provision are not entirely clear.

To the extent that its reference to a claim of “sovereignty” over coastal

waters is intended to derogate from the sovereignty of the United States

over those waters, it is inconsistent with federal law and should be re-

moved. See Proclamation No. 5928, 54 Fed. Reg. 777 (Jan. 9, 1989)

(proclamation of U.S. territorial sea). In addition, by statute, the United

States has, subject to certain exceptions, conveyed to the USVI its right,

title, and interest in submerged lands and mineral rights in those sub-

merged lands out to three miles. 48 U.S.C. §§ 1705, 1706 (2006); see

also, e.g., Proclamation No. 7399, 66 Fed. Reg. 7364 (Jan. 22, 2001)

(proclamation of Virgin Islands Coral Reef National Monument). Any

assertion of USVI control over submerged lands and mineral rights be-

yond those federal statutory limits would be inconsistent with federal law

and should be removed. Federal law also reserves to the United States

exclusive management rights over fisheries within the “exclusive econom-

ic zone.” 16 U.S.C. § 1811(a) (2006). Again, the proposed constitution

must be made consistent with this federal statutory mandate. While the

final sentence of Article XII, Section 2 acknowledges that the rights it

addresses are alienable, we recommend modifying this language to make

clearer that these matters are subject to Congress’s plenary control.

96

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

G. Bill of Rights Provisions

As required by the Enabling Act, the proposed constitution includes a

bill of rights. Proposed Const. art. I; Enabling Act § 2(b)(3). Consistent

with the supremacy of federal law, we understand these provisions as not

purporting to constrain the federal government or federal law but as

constraining only the USVI local government that would be established

by this constitution and local laws.

In its memorandum on the 1980 proposed constitution, the Department

of Justice observed that some provisions of the bill of rights and related

sections in that constitution were not “drafted with adequate clarity and

precision” and might therefore “result in litigation that could burden or

curtail effective local government.” DOJ Views, 4B Op. O.L.C. at 761.

The same could be said of a number of provisions in the current proposed

constitution. For example, the current proposed constitution, like its 1980

predecessor, includes protections of unclear scope for the “dignity of the

human being,” the “right to a reasonable expectation of privacy,” and the

“right to examine any public document and to observe the deliberation of

any agency of government.” Proposed Const. art. I, §§ 1, 3, 4. The consti-

tution also prohibits “employment of children” in certain occupations

without specifying the maximum age of a “child,” id. art. I, § 11(e); see

also id. art. XII, § 1 (indicating that “[t]he Government shall establish

laws to govern the employment of children under the age of fifteen”); and

it fails to specify whether many of the rights it establishes apply only to

government actors or also to intrusions by private parties, see DOJ Views,

4B Op. O.L.C. at 761–63.

In 1980, the President declined to recommend changes to address such

concerns. He observed:

I believe there are some provisions in the constitution that will re-

quire interpretation by the courts. . . . However, I do not feel it is ap-

propriate for me to question the wisdom of entrusting the interpreta-

tion of these provisions to the courts. This is a matter for serious

discussion by the people of the Virgin Islands, for this document

should truly be one of their own making.

H.R. Doc. No. 96-375, at v. Because the same could be said of unclear

provisions in the bill of rights and related sections of the current proposed

constitution, we do not address such provisions in detail or recommend

97

34 Op. O.L.C. 73 (2010)

particular changes, but simply note the potential for uncertainty and

litigation.

H. Repeal of Organic Statute Provisions

We also note that because federal law is superior to territorial enact-

ments and may preempt contrary provisions of territorial law, Congress

may need to repeal certain provisions of the USVI’s organic statutes to

enable this proposed constitution to operate, assuming it is approved by

Congress and the USVI voters. Cf. DOJ Views, 4B Op. O.L.C. at 771

(noting that a provision of the 1980 proposed constitution repealing laws,

executive orders, and regulations inconsistent with the proposed constitu-

tion would be invalid if applied to “matters over which the Federal Gov-

ernment retained jurisdiction”); H.R. Doc. No. 96-375, at v (noting that

this transitional provision of the 1980 constitution “could exceed the

authority of the Constitutional Convention if it is read to affect Federal

law”). Some federal regulations and executive orders may also need to be

revised or revoked. The legislative history of the Enabling Act contem-

plates the submission by the President of a list of provisions requiring

repeal “as a part of his comments on the constitution.” S. Rep. No. 94-

1033, at 4. In 1980 the President, however, did not transmit such a list as

part of his comments on the 1980 proposed constitution, but rather “indi-

cated that [he] [would] submit the list in a timely manner to enable the

Congress to effect the repeals prior to the effective date of the constitu-

tion.” S. Rep. No. 97-66, at 4.

I. Effect of Congressional Action or Inaction

on the Proposed Constitution

Finally, the Enabling Act, as noted, provides that a proposed USVI

constitution “shall be deemed to have been approved” if Congress takes

no action on it within sixty legislative days after its submission by the

President. Enabling Act § 5. In 1978, Congress took no action on the

proposed USVI constitution, which was then submitted to the USVI

voters pursuant to the Enabling Act. See DOJ Views, 4B Op. O.L.C. at

760 & n.1, 772. In contrast, Congress expressly approved, by joint res-

olution, a modified version of the 1980 proposed constitution “for sub-

mission to the people of the Virgin Islands in accordance with the provi-

sions of” the Enabling Act. Pub. L. No. 97-21, 95 Stat. at 105.

98

Department of Justice Views on the Proposed Constitution of the U.S. Virgin Islands

As the Justice Department’s 1980 memorandum explained, congres-

sional inaction does not satisfy the constitutional requirements of bicam-

eralism and presentment for valid federal legislation and therefore “cannot

have any legal effect, except as . . . the occurrence of a condition which

permits the submission of the constitution to the qualified electors of the

Virgin Islands.” DOJ Views, 4B Op. O.L.C. at 772. Such inaction there-

fore “would not have any curative effect on the defects of the constitu-

tion.” Id. In fact, even formal approval of the proposed constitution need

not be construed as federal endorsement of any constitutionally defective

or otherwise invalid provisions. Upon signing the joint resolution approv-

ing the revised 1980 proposed constitution, President Reagan observed:

“This legislation approves referring the constitution to the voters of the

Virgin Islands for referendum. It does not represent a Federal endorse-

ment of the constitution’s substantive provisions.” Statement on Signing

at 617. The legislative history indicates that Congress shared the same

view. See S. Rep. No. 97-66, at 5 (expressing “no opinion on the advisa-

bility or merits of any provisions in the proposed constitution”); H.R.

Rep. No. 97-25, at 3 (expressing “no opinion on the merits” of certain

potentially invalid provisions because the committee “believe[d] that this

is a matter to be considered by the voters, or perhaps, at some future time,

by the courts”).

RONALD WEICH

Assistant Attorney General

Office of Legislative Affairs

99