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Markoe v. Legislature of Virgin Islands and Henrita Todman

decided: January 31, 1979.

CLAUDE O. MARKOE, LEROY S. ARNOLD, JOHN A. BELL, BRITAIN H. BRYANT, HECTOR CINTRON, SIDNEY LEE, AND FRITS E. LAWAETZ, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
v.
LEGISLATURE OF THE VIRGIN ISLANDS AND HENRITA TODMAN, SUPERVISOR OF ELECTIONS OF THE VIRGIN ISLANDS, APPELLEES.



APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX (Civ. No. 77-0068)

Before Seitz, Chief Judge, Weis and Garth, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

Plaintiffs appeal from a judgment of the district court refusing to reapportion the Virgin Islands' fifteen-member legislature. In this appeal, as in the district court, they assert that the district of St. Croix should be entitled to elect a majority of the territorial representatives.

I

On May 18, 1972, the Virgin Islands Senate, the territory's unicameral legislature, enacted an apportionment plan, Act No. 3221, 2 V.I.C. §§ 101-03. That act, presently in force, divides the territory's three islands into two legislative districts, one consisting of St. Croix and the other consisting of St. Thomas and St. John. Fourteen senators are divided equally between the two districts while the fifteenth, known as the senator at large, is elected by the territory's entire population. The senator at large, however, must be a resident of St. John.*fn1

In enacting this plan, the Senate relied upon gross population figures drawn from the 1970 Census. These figures credited St. Croix with a population of 31,779, St. Thomas with a population of 28,960, and St. John with a population of 1,729. The district of St. Thomas-St. John thus included 30,689 persons, or 1090 persons less than the district of St. Croix.

Plaintiffs, a resident of St. Croix and six of St. Croix's seven senators, brought this class action seeking legislative reapportionment. They assert that St. Croix's status as the more populous of the two legislative districts entitles it to majority representation in the Virgin Islands Senate. Plaintiffs base their claim on the fifth amendment to the Constitution of the United States and on 48 U.S.C. § 1561, which guarantees equal protection of the laws to citizens of the Virgin Islands. After receiving the parties' evidence, the district court found that St. Thomas-St. John, although perhaps less populous than St. Croix, included more citizens and more registered voters than the latter district. Furthermore, the district court rejected plaintiffs' contention that the present apportionment gave a majority of the representatives to St. Thomas-St. John. Instead, the district court found that the senator at large represented the entire territory and not just St. Thomas-St. John. On the basis of these findings the district court entered judgment in favor of defendants.

II

On appeal, plaintiffs allege that the district court erred (1) in approving the plan on the basis of data other than that considered by the Senate in 1972; (2) in concluding that the senator at large represents the entire territory rather than just the district of his or her residence; (3) in refusing to give the residents of St. Croix a full eight votes in the Senate rather than seven votes and one senator at large; and (4) in admitting various evidence at the trial. Plaintiffs do not seek to alter either the districting of the Virgin Islands or the number of seats in the Senate. We must consider this appeal, therefore, within the framework of a two-district, fifteen-member plan. Cf. Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 197, 92 S. Ct. 1477, 32 L. Ed. 2d 1 (1972) (whenever possible courts must defer to a legislature's choice as to its own size).

A.

The legislative journal for May 18, 1972, clearly shows that in apportioning the territory the Senate considered only gross population figures from the 1970 Census: St. Croix, 31,779, St. Thomas, 28,960, and St. John, 1,729. Plaintiffs place exclusive reliance on these figures to demonstrate malapportionment. For the purposes of this appeal, we will assume that the 1972 plan must stand or fall on the basis of these figures.

B.

Plaintiffs contend that the district court erred in concluding that the Senate is evenly apportioned 7-7-1 rather than 8-7 in favor of St. Thomas-St. John. They point out that the senator at large must reside in St. John, which ...


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