USVI AG Op. at 15-17 - Governor John P. deJongh

TILE UNITED STATES L'IRGIN ISLANDS 

DEPARTMENT OF JUSTICE 

OFFICE OP THE ATTORNEY GENERAL 

VINCENT F. FRAZER, ESQUIRE 

ATTORNEY GENERAL 

June 8, 2009 

Honorable John P. de Jongh, Jr. 

Governor of the Virgin Islands 

Office of the Governor 

Nos. 21-22 Kongens Gade 

St. Thomas, Virgin Islands 00802 

Re: Legal Opinion on Proposed Constitution of the 

Fifth Constitutional Convention 

Dear Governor de Jongh: 

I hereby submit this opinion to you in response to your request dated June 1, 

2009, for an Attorney General's Opinion, regarding the Proposed Constitution adopted 

by the Fifth Constitutional Convention on June 1, 2009. Your questions raised are as 

follows: 

1. Does the Proposed Constitution meet the requirements set forth in the 

Federal and Local Laws? 

2. If it does not, what action, if any, is required of the Governor with respect 

to the Proposed Constitution? 

We have considered these very important questions and recognize the historical 

and legal significance of the issues. However, given the short amount of time available 

to us, we were not able to address all of the possible issues that are presented by the 

Proposed Constitution, but we have looked very carefully at four critical issues that 

taint this important document and affect the process. 

It is our considered opinion that the Proposed Constitution is legally deficient in 

several respects under the Public Law 94-584. First and foremost, the Proposed 

Constitution does not satisfy the formal requirement that any new constitution 

"recognize ... the supremacy of the ... Constitution, treaties and laws of the United 

States." Pub. L. 94-584 § 2(b)(1). 

02-:38 K IIONPRINDS ENS GADF.GERS BLDG.,2ND FLOOR Sr. TH.,,-,, .S.VIROIN ISLANDS 00002.(340)774-5000 FAX (:340)774-9710 

8040 CASTI.E ( OARi.EY VESIGN CF.N[ER B LDG.- CHRISTI LASTED ,ST. CROIX, U.S. VIRGIN ISLANDS 00820-(.'31,0)773-0295. FAX (:340)77:3-83208

Letter to the Honorable John P . de Jongh, Jr. 

Re: Legal Opinion on Draft Constitution of the 5th Constitutional Convention 

Page 2 of 17 

More substantively, we believe that at least two provisions quite clearly violate the 

substantive requirements of the U.S. Constitution, and that other provisions are more 

likely than not, unconstitutional. Specifically, the provisions granting a property tax 

exemption only to "Ancestral Native Virgin Islanders", and the provision granting 

native Virgin Islanders, and only them, the right to vote on constitutional amendments 

even if they are not currently citizens of the Virgin Islands, are fairly clear violations of 

the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution. 

Accordingly, in at least those respects, the Proposed Constitution violates the statutory 

requirement that the provisions of any new constitution "be consistent with ... the 

Constitution ... of the United States." Id. In addition, we believe the provisions of the 

Proposed Constitution restricting candidates for governor and lieutenant governor to 

Native Virgin Islanders, as defined therein, are likely unconstitutional as well. 

Further, we believe that, in its present form, the provision guaranteeing a seat in the 

Legislature to St. John is likely vulnerable to constitutional attack as a violation of the 

"one man, one vote" principle - because it results in an overrepresentation of St. John's 

residents compared with residents of St. Thomas and St. Croix. 

1. Compliance with the Formal Requirements of Public Law 94-584 

Federal Public Law 94-584 imposes at least five formal requirements for any 

constitution proposed for the Virgin Islands.' In particular, Congress requires that a 

proposed constitution not only "recognize the sovereignty of the United States over the 

Virgin Islands," but that it also "recognize, and be consistent with ... the supremacy of 

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

Section (2)(b) of Public Law 94-584 requires: 

(I) that the proposed constitution "recognize, and be consistent with," 

(a) "the sovereignty of the United States over the Virgin Islands;" and 

(b) "the supremacy of the provisions of the Constitution, treaties, and laws of the United States applicable 

to the Virgin Islands and Guam, respectively, including, but not limited to, those provisions of the Organic 

Act and Revised Organic Act of the Virgin Islands ... which do not relate to local self-government;" 

(2) that the constitution "provide for a republican form of government, consisting of three branches: executive, 

legislative, and judicial;" 

(3) that the constitution "contain a bill of rights;" 

(4) that the constitution "deal with the subject matter of those provisions of the Revised Organic Act of the Virgin 

Islands of 1954 (48 U.S.C § 1541 et seg.), as amended ... which relate to local self-government;' and, 

(5) that the constitution "provide for a system of local courts consistent with the provisions of the Revised Organic 

Act of the Virgin Islands, as amended." 

Pub. L. 95-584.




the Virgin Islands." Pub. L. 94-584 § (2)(b)(1). In 1980, when the Proposed Constitution 

resulting from the Fourth Constitutional Convention was sent for referendum this 

formal requirement was met in the proposed Constitution, which stated, in Article V, 

Section 1 thereof, that, "(t]o the extent not inconsistent with the Constitution and lazes of the 

United States, this Constitution and laws of the Virgin Islands enacted under it shall be 

the supreme law of the Virgin Islands." The current constitutional proposal, however, 

nowhere expressly recognizes the supremacy of the "Constitution, treaties, and laws of 

the United States." To be sure, a few provisions may recognize, at least implicitly, the 

sovereignty of the United States over the Virgin Islands.'- Article V, Section 1 limits the 

Senate's legislative power to "subjects of legislation consistent with ... the Constitution 

and laws" of the United States. But that is not the same as recognizing, for purposes of 

all governmental activity, the supremacy of the United States' "Constitution, treaties, 

and laws." We believe the lack of an express statement of the supremacy of U. S. 

Constitution and laws violates the formal requirements of Public Law 94-584. 

The lack of an express statement becomes particularly striking when the text of 

the current proposal is compared with the text of the Fourth Constitutional 

Convention's draft constitution, proposed in 1980 ("1980 Proposal"). As noted above, 

The 1980 Proposal stated, under "Legislative Power:" 

`The legislative power of the Virgin Islands is vested in a unicameral body 

designated the Senate of the Virgin Islands and shall extend to all subjects 

of legislation consistent with this Constitution and the Constitution and 

laws of the United States applicable to the Virgin Islands. To the extent 

not inconsistent with the Constitution and laws of the United States, this 

Constitution and laws of the Virgin Islands enacted under it shall be the 

supreme law of the Virgin Islands." 1980 Proposal, Art. V, § 1 

("Legislative Power"). 

The "Legislative Power and Authority" section in the new proposal 

repeats the first sentence from the 1980 Proposal, but then omits the second 

sentence entirely. That omission may create an inference that the drafters of the 

current proposal purposefully left ambiguous the question of the supremacy of 

For example, the Preamble states that the people of the Virgin Islands are "assuming the responsibilities of selfgovernment 

as an unincorporated territory" of the U.S., and recognizes that the Treaty of Cession of 1917 

'confirmed that the civil rights and political status of the islands shall be determined by the U.S. Congress. See also 

Art. IV, § 4 ("No political or religious test, other than oath or affirmation to support the Constitution and laws of the 

Virgin Islands, and the Constitution and laws of the United States, shall be required as a qualification for public 

office"); Art. VII, § 2 (decisions of the Virgin Islands Supreme Court are final, "except as Federal law may provide 

for review of such decisions by courts of the United States").




federal law in contexts other than legislation. In any event, as noted, the lack of 

an express U.S. supremacy clause in the current proposal is inconsistent with the 

plain language of Public Law 94-584, which requires that any constitution 

proposed for the Virgin Islands "recognize" the supremacy of U. S. Constitution 

and federal laws. 

The omission is also inconsistent with the constitutions adopted by the vast 

majority of territories that obtained statehood after 1880. Of the twelve territories that 

obtained statehood after 1880, only three-Montana, Alaska, and Hawaii-did not 

include an express statement of the supremacy of U. S. law in their constitutions.; 

California's clause is typical of the clauses adopted by states that came after it: The State 

of California is an inseparable part of the United States of America, and the United States 

Constitution is the supreme law of the land." Calif. Const. Art. III, § 1. That appears to be 

the type of supremacy clause (with an addition for other federal laws) that Congress 

contemplated in Public Law 94-584. 

At the same time, it is important to recognize that an express supremacy clause is 

a statutory requirement, not a constitutional one.} The statute that authorized Puerto 

Rico to pass a constitution, for example, did not require that the proposed constitution 

"recognize" the supremacy of U. S. law. Accordingly, Puerto Rico's constitution does 

not include a supremacy clause, although it states that Puerto Rico's "political power 

emanates from the people and shall be exercised in accordance with their will, within 

the terms of the compact agreed upon between the people of Puerto Rico and the 

United States of America."5 Pub. L. 81-600; P.R. Const., Art. I, § 1. But because Public 

Law 94-584 expressly requires a federal supremacy clause, the Proposed Constitution is 

formally defective under that statute.6 

'" California, which became a state in 1850, and West Virginia. which became a state in 1863, also include clear 

supremacy clauses. The following state constitutions contain supremacy clauses: Arizona, California, Idaho, 

Maryland, New Mexico, North Dakota, Oklahoma. South Dakota, Utah, Washington, West Virginia, and Wyoming. 

° Indeed, at least two states, Iowa and Maine, have constitutions which designate the state constitution as the 

"supreme law of the state" and do not expressly recognize the supremacy of the U.S. Constitution. Maine Const. Art. 

X, § 6; Iowa Const. Art. XII. § I ("This constitution shall be the supreme law of the state, and any law inconsistent 

therewith, shall be void."). 

s No other United States territory apart from Puerto Rico has a constitution. Micronesia. which is in "free 

association" with the United States, does not have a supremacy clause in its constitution. 

It is of note, however, that, notwithstanding the lack of a requirement in Public Law 81-600 that the Puerto Rico 

Constitution contain a clause recognizing the supremacy of the United States Constitution, the following language 

was added to Article VII, Section 3 of the Puerto Rico Constitution through by a resolution which was adopted via 

the Puerto Rico referendum in 1952 at which that constitution was ratified, "Any amendment or revision of this 

constitution shall be consistent with the resolution enacted by the applicable provisions of the Constitution of the 

United States, with the Puerto Rican Federal Relations Act and with Public Law 600, Eighty-first Congress, adopted 

in the nature of a compact" Thus, the Puerto Rico Constitution recognizes the supremacy of the United States 

Constitution.

Letter to the Honorable John P. de Jongh, Jr. 



Not only did the drafters of the Proposed Constitution fail to expressly recognize 

the supremacy of the U. S. Constitution, but in Article II section 5 it states "This 

constitution shall be the supreme lain of the Virgin Islands". This provision is in direct 

contravention of Public Law 94-584 § 2(b). We believe that this type of direct violation, 

makes the Proposed Constitution defective. 

H. Consistency with the United States Constitution 's Substantive Requirements 

In addition to the formal requirements discussed above, Public Law 94-584 also 

provides generally that provisions of any Virgin Islands constitution must be 

"consistent with ... the supremacy of the provisions of the [United States] Constitution, 

treaties, and laws of the United States applicable to the Virgin Islands." We read this 

language to require that provisions of the Proposed Constitution must not only 

"recognize" the supremacy of the U. S. Constitution and applicable U. S. law, but must 

also be substantively compliant with that law. Additionally, Congress, by the Revised 

Organic Act of 1954, (48 U.SC. § 1561), has expressly made the Fourteenth 

Amendment's Privileges or Immunities Clause, Due Process Clause, and Equal 

Protection Clause, among others, applicable to the Virgin Islands. Our analysis 

suggests that several provisions of the Proposed Constitution that grant preferential 

treatment to the proposed "native" classes are inconsistent with federal constitutional 

law. Other provisions, including the Proposed Constitution's method of apportioning 

legislative seats, are likely inconsistent with federal constitutional law, raising at least 

significant constitutional concerns in their current form. 

A. "Native" Virgin Islander Requirements and the Equal Protection 

Clause 

Article III of the Proposed Constitution creates two new classifications of "Virgin 

Islanders." The classification "Ancestral Native Virgin Islander" includes any "person 

born or domiciled in the Virgin Islands prior to and including June 28, 1932 and not a 

citizen of a foreign country ... and his/her descendants," or any descendant of such a 

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

1917 and June 28, 1932," who is neither "subject to the jurisdiction of the U. S." nor "a 

citizen[ ] or subject[ ] of any foreign country." Prop. Const. Art. III, § 1(a), (b) (emphasis 

added). The classification "Native Virgin Islander" includes "a person born in the Virgin 

Islands after June 28, 1932" and his or her descendants. Art. III, § 2(a), (b) (emphasis 

added). 

Proposed Articles VI, XI, XVII, XVIII, and XIX create rights, restrictions, and 

benefits based upon the "Native " classifications of Article III. Those rights , restrictions, 

and benefits relate to exemption from certain property taxes (Art. XI, § 5(g)); certain




voting rights (Art. XVII, § 2 and Art. XVIII, § 7); and the requirements for holding 

certain political offices (Art. VI, § 3 and Art. XVII, § 1). We will address the validity of 

those provisions under the U. S. Constitution. This analysis suggests that all of the 

proposed Constitution provisions discussed herein are, at a minimum, highly 

vulnerable to constitutional challenge. 

1. Proposed Article XI, Section 5(g): Ancestral Native Virgin Islander 

Exemption from Property Taxes 

Proposed Article XI, Section 5 authorizes the Senate to "provide for the levy and 

collection of taxes on real property," subject to several limitations. One of those 

limitations provides that "No Real Property tax shall be assessed on the primary residence or 

undeveloped land of an Ancestral Native Virgin Islander." Art. XI, § 5(g). It is our opinion 

that the classification embodied in Art. XI, Section 5(g), which causes differential 

treatment in property taxation, is incompatible with, and invalid under, the U.S. 

Constitution's Equal Protection Clausen 

In general, states and other entities subject to the Fourteenth Amendment "have 

large leeway in making classifications and drawing lines which in their discretion 

produce reasonable systems of taxation." Williams v. Vermont, 472 U.S. 14, 22 (1985); 

Nordlinger z'. Hahn, 505 U.S. 1, 10 (1992). Because of the breadth of that discretion, 

although classifications used in state taxation schemes are subject to review under the 

Equal Protection Clause, such classifications are typically subject to minimal "rational 

basis" review. Williams, 472 U. S. at 22; see also Exxon Corp. v. Eagerton, 462 U.S. 176 

(1983). In rational basis review, "a statutory classification must be upheld against equal 

protection challenge if there is any reasonably conceivable state of facts that could 

provide a rational basis for the classification." FCC v. Beach Comm'cns, 508 U.S. 307, 313 

(1993). A stricter standard known as "strict scrutiny" applies to classifications based on 

race or alienage, but it does not appear to us, at first impression, that the classification in 

Proposed Article III is based on those criteria.8 Accordingly, we will assume that 

rational basis review applies here. 

In addition, the preferential tax exemption of Article XI may also be vulnerable to challenge under the Privileges 

and Immunities Clause of the Fourteenth Amendment, the Commerce Clause of Article 1, § 8, and the right to travel. 

Note that the Equal Protection Clause and Privileges and Immunities Clause are expressly made applicable to the 

Virgin Islands by the Revised Organic Act. Congress has not made the Commerce Clause expressly applicable to 

the Virgin Islands, but the United States Court of Appeals for the Third Circuit may have held that the Clause is 

made applicable in the Virgin Islands implicitly by operation of the Territorial Clause of Article IV. § 3, cl.2. See 

Polychrome Int'l Corp. v Krigger, 5 F.3d 1522, 1534 (3d Cit. 1993). Assuming that decision is correct (and we are 

not sure it is), it follows that the right to travel applies in the Virgin Islands. 

s Because we conclude that the native preference of Proposed Article XI cannot survive rational basis review, we 

need not consider whether the classification it creates is subject to the greater rigor of "strict scrutiny." We note, 

however, that the differential tax treatment could potentially be regarded as based on "suspect" classifications that 

would subject the statute to strict scrutiny. If, for example, the category of "Ancestral Native Virgin Islanders" were




Despite the liberality of the rational basis standard , 

property tax preference of Proposed Article XI is unconstitutional . 

we conclude that the 

The Supreme Court 

has repeatedly struck down state schemes that provide benefits more favorable to longterm 

residents than to new or prospective residents . 

For example, in Zobel r. Williams, 

457 U.S. 55 (1982 ), the Court addressed the constitutionality of Alaska's dividend 

distribution program, 

which (at that time) distributed oil-revenue dividends to each 

resident in amounts determined by the length of residency , such that "a one-year 

resident would receive one unit, or $50," while a 21 -year resident "would receive 21 

units, or $1 ,050." Id. at 57 . As the Supreme Court noted , the effect of the residency 

variable was to create "fixed, permanent distinctions between an ever-increasing 

number of perpetual classes of concededly bona fide residents , based on how long they 

have been in the State ." [d. at 59. 

Applying rational basis review , the Supreme Court concluded that Alaska's 

distribution scheme violated the Equal Protection Clause. In so doing, it observed that 

the state's purported interest in "reward [ing] citizens for past contributions " was "not a 

legitimate state purpose." Id . at 63. The Court has reached similar conclusions in other 

cases. E.g., Shapiro v. Thompson , 394 U.S. 618 , 632-33 (1969) (noting that the Equal 

Protection Clause " prohibits ... an apportionment of state services" according to "the 

past tax contributions of its citizens "), rev'd in part on other a rounds, Edelman v. Jordan, 

415 U.S. 651 (1974 ); Vlandis v. Kline, 412 U.S. 441, 449-50 (noting that "apportion[ing] 

tuition rates on the basis of old and new residency . . . would give rise to grave 

problems under the Equal Protection Clause of the Fourteenth Amendment "); Att. Gen. 

of Nert' York v. Soto-Lopez , 476 U.S. 898 , 903-904 & n.3 (1986) (stating that the Equal 

Protection Clause forbids state laws that "classify [ ] residents according to the time they 

established residence , result [ing] in the unequal distribution of rights and benefits 

among otherwise qualified bona fide residents").9 

The general principle that "the Constitution will not tolerate a state benefit 

program that creates fixed, permanent distinctions ... between ... classes of concededly 

really a "proxy" for a racial classification, the statute would be subject to strict scrutiny and thus presumptively 

invalid. See Rice v. Cayetano, 528 U.S. 495 (2000) (concluding that a classification limited to Hawaiians descended 

from "the aboriginal peoples" who occupied the Hawaiian Islands in 1772 was a "proxy" for race, and striking it 

down under the Fifteenth Amendment). In addition, if the "native" preference embodied in the combination of 

Article III and Article XI were regarded as based on "alienage" or "national origin," that would also subject it to 

strict scrutiny. See, e.g-, Graham v. Richardson, 403 U.S. 365, 376 (1971) (holding that "a state statute that denies 

welfare benefits to resident aliens and one that denies them to aliens who have not resided in the United States for a 

specified number of years violate the Equal Protection Clause"); Hernandez v Texas, 347 U.S. 475, 479 (holding 

that "exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is 

discrimination prohibited by the Fourteenth Amendment"). 

9 Several of the cases listed here are addressed in terms of the "right to travel," which-at least in this contextappears 

to arise primarily from the Equal Protection Clause. The equal protection analysis here would be equally 

applicable if framed in "right to travel" terms. See, eg.. Soto-Lopez, 476 U.S. at 903-04.




bona fide residents, based on how long they have been in the State," Zobel, 457 U.S. at 

59, has been applied to property-tax exemptions like the one at issue in Proposed 

Article M. For example, in Hooper v. Bernalillo County, 472 U.S. 612 (1985), the Supreme 

Court considered a New Mexico statute granting a property-tax exemption limited to 

those Vietnam veterans who resided in the state before May 8, 1976. 

Id. at 614. The 

statute at issue thus "divide[d] resident Vietnam veterans into two groups: resident 

veterans who resided in the state before May 8, 1976, [who] qualify for the exemption; 

[and] resident veterans who established residence after that date[, who] do not." Id at 

616-17. Applying rational basis review, the Court struck down the statute as violating 

the Equal Protection Clause because "neither the Equal Protection Clause, nor this 

Court's precedents, permit the State to prefer established resident veterans over 

newcomers in the retroactive apportionment of an economic benefit." Id. at 623. A 

statute that effectively "creates two tiers of resident[s] . . . as in a sense 'second-class 

citizens"" is unlikely to pass constitutional muster in the absence of some extraordinary 

state interest. Id.. 

We believe the tax exemption conferred upon "Ancestral Native Virgin Islanders" 

by Proposed Article XI is invalid under the principles announced in Zobel, Hooper, and 

the many other cases cited above. Like the statutes at issue in those cases, Article XI, 

Section 5(g) effectively "divides [Virgin Islanders] into two groups": native-born Virgin 

Islanders of longtime provenance and their descendants on one hand, and all other 

residents and citizens on the other. Hooper, 472 U.S. at 616-17. By establishing those 

distinct groups, Proposed Article III "creates fixed, permanent distinctions" among 

residents of Virgin Islanders, and Article XI confers a substantial monetary benefit on 

one group to the exclusion of the other. Relative to that chosen "native" group, all other 

Virgin Islanders are essentially treated as "second-class citizens." Id. at 623. This the 

U.S. Constitution forbids. 

In light of the Supreme Court's jurisprudence on this issue, we do not believe 

that any government interest could justify the kind of preference conferred upon 

Ancestral Native Virgin Islanders by Proposed Article XI, Section 5(g). To the extent 

that the Preamble to the Proposed Constitution suggests that Article XI might be 

intended to reward "native" Virgin Islanders for their "hardships" and "contributions," it 

is clear that such a purpose is not legitimate under the U.S. Constitution. Zobel, 457 U.S. 

at 63. Similarly, if the tax exemption were intended to assist long-term residents who 

are in danger of losing their ancestral homes, the tax exemption is not reasonably 

related to that purpose: By its terms, the exemption applies to both new primary 

residences and old ones, and to all "undeveloped" land-not just land that has been 

held by one person or family for generations.




We therefore conclude that the favorable tax treatment afforded by the Proposed 

Constitution to the discrete class of persons defined as Ancestral Native Virgin 

Islanders is unconstitutional under the U.S. Constitution's Equal Protection Clause. 

2. Proposed Article XVIII, Section 7: Enhanced Voting Rights for Ancestral 

Native Virgin Islanders and Native Virgin Islanders 

Proposed Article XVIII, Section 7 provides that future constitutional 

amendments must be ratified by "the affirmative vote of a majority of those voting on 

the amendment." It further provides that "Ancestral and Native Virgin islanders, including 

those who reside outside of the Virgin [stands or in the military, shall have the opportunity to 

vote on Constitutional Amendments." Although the provision is somewhat ambiguous, 

we believe it is most plausibly read to selectively enlarge the class of eligible voters on 

constitutional amendments by extending the franchise to non-citizen members of the 

two "native" classes." By contrast, in all other contexts, the Proposed Constitution 

limits the franchise to "citizens." See Prop. Art. IV, § 1. Yet neither of the "native" 

classifications of Proposed Article III is facially limited to citizens;" indeed, the very 

purpose of Proposed Article XVIII, Section 7 appears to be to permit participation by 

non-citizen members of the "native" classes. Accordingly, the question presented by 

Proposed Article XVIII, Section 7 is whether this selective expansion of the franchise 

comports with the principles of equal protection. We conclude that it does not. 

In general, a government's "decision to include or exclude" any particular group 

within its polity "involves choices about the nature of representation[,] with which [the 

Supreme Court] has been shown no constitutionally founded reason to interfere." Burns 

v. Richardson, 384 U.S. 73, 90 (1966). But a government's prerogative in this regard is not 

unlimited: Any choice it makes about constituting its own polity cannot be "one the 

Constitution forbids." Id.; see also Carrington v. Rush, 380 U.S. 89, 91 (1966) (noting "the 

historic function of the States to establish, on a nondiscriminatory basis, and in accordance 

with the Constitution, other qualifications for the exercise of the franchise") (emphasis 

10 The provision could conceivably be construed to grant to the native classes an exclusive franchise in amendment 

ratification proceedings. That interpretation seems unlikely, however: The provision includes no words indicating 

exclusivity, and the only other provision of the Proposed Constitution to grant an exclusive franchise to the native 

classifications does so expressly. See Prop. Art. XVII, § 2 (stating that "the special election on status shall be 

reserved for vote by Ancestral Native and Native Virgin Islanders only"). We note that if the provision were found 

to limit voting on constitutional amendments to the native classes, it would clearly be unconstitutional: Where the 

election involves a matter of general interest and importance, the U.S. Constitution "[p]resumptively ... does not 

pertnit ... the exclusion of otherwise qualified citizens from the franchise." Phoenix v Kolodzieiski. 399 U.S. 204, 

209 (1970) (emphasis added). 

'' The definition of"Ancestral Native Virgin Islander" appears to limit the membership in that class to persons who 

are descended from a Virgin Islander who was not "a citizen of a foreign country," but it places no such limitations 

on the descendents themselves. Prop. Art. III, § I(a)(b). The definition of "Native Virgin Islander" makes no 

reference to citizenship at all. Prop. Art. III, § 2(a), (b).




added). At a minimum, a decision to reduce or expand the polity must be "rational," 

that is, must reasonably serve some legitimate state interest. 

The inclusion of non-citizen, non-resident "natives" in the pool of persons eligible to 

vote on ratification of constitutional amendments fails that test, for at least two reasons. 

First, there appears to be no rational explanation for the decision to favor the "native" 

classes only in the context of constitutional amendments. The Proposed Constitution 

itself, if enacted, will be ratified by the current polity of the Virgin Islands, which does 

not include non-citizen members of the proposed classifications of "Ancestral Native" 

and "Native Virgin Islanders." There is no apparent justification for the Proposed 

Constitution's attempt to provide for ratification of constitutional amendments by a 

polity that is both (a) different than the one that ratified the Proposed Constitution 

itself, and (b) different from the one that votes in all other general elections and 

referenda under the Proposed Constitution.12 Second, there is no obviously legitimate 

purpose that this selective enfranchisement could serve. On its face, Proposed Article 

XVIII, Section 7 appears intended simply to enhance the political power of the 

identified classes on issues of particular and far-reaching importance, based on no 

distinction save ancestry. Even if that basis for distinction is not itself sufficient to 

trigger strict scrutiny, we do not believe it could survive rational basis review. 

3. Proposed Article VI, Section 3 : Restrictions on Officeholders 

Proposed Article VI, Section 3(d) also provides that both the Governor and the 

Lieutenant Governor must "be an Ancestral or Native Virgin Islander." That provision 

has the effect of limiting those offices to a subset of the overall polity, based entirely 

upon their place of birth and ancestry. We believe that provision is also likely 

vulnerable to a federal constitutional challenge. 

In general, the right to political candidacy or political office-unlike the right to 

vote-is not a fundamental right, and restrictions on such rights are typically subject 

only to rational basis review. See, e.g., Clements v. Fashing, 457 U.S 957 (1982). 

Nevertheless, the Supreme Court has not hesitated to strike down restrictions on officeholding. 

The Court has repeatedly stated that "the Equal Protection Clause protects the 

There is one other instance in which the Proposed Constitution provides enhanced voting rights to the "native" 

classes: the Special Election on "status" called for by Article XVIL That election, which is intended to explore three 

options for the future political status of the United States Virgin Islands, is "reserved for vote by Ancestral Native 

and Native Virgin Islanders only." See Prop. Art. XVIL, § 2(b) (emphasis added). To the extent the proposed 

"Special Election" addresses an issue of general interest to all Virgin Islanders, the denial of voting rights for nonnatives 

is almost certainly a violation of the Equal Protection Clause: In cases where "all citizens are affected in 

important ways by a governmental decision," the U.S. Constitution "[plresumptively ... does not permit ... the 

exclusion of otherwise qualified citizens from the franchise." Phoenix v. Kolodaieiski, 399 U.S. 204, 209 (1970) 

(emphasis added).




right to be considered for public service without the burden of invidiously 

discriminatory disqualifications" -and although the phrase "invidiously discriminatory 

disqualifications" suggests something like suspect-class review, the Court has extended 

the concept of "invidious discrimination" in this context to restrictions that are not 

subject to strict scrutiny (most notably, property ownership requirements). See, e.g., 

Quinn z'. Milsap, 491 U.S. 95, 103 (1989) (invalidating requirement that officeholders own 

real property); Turner v. Fouche, 396 U.S. 346, 362 (1970) (invalidating requirement that 

officeholders be "freeholders"). The key "inquiry is whether the challenged restriction 

unfairly or unnecessarily burdens 'the availability of political opportunity'"-and, in 

particular, whether such restrictions "operate as a mechanism to exclude certain classes 

of candidates from the electoral process." Clements, 457 U.S. at 963-64. 

In light of these authorities, it is our opinion that the "Ancestral or Native" 

requirements for holding the offices of governor and lieutenant governor are likely 

unconstitutional. Although we are unaware of any direct precedent rejecting the kind 

of restriction presented here, the overwhelming tenor of the caselaw suggests that a 

restriction on office-holding based upon birthplace and descent is precisely the kind of 

"burden on the availability of political opportunity" that the Equal Protection Clause 

forbids. Id. The restriction is unequivocally discriminatory. Consider two Virgin 

Islanders, both citizens and long-time residents of the islands. Person A was born in St. 

Thomas; Person B immigrated to St. Croix with his parents when he was a young child; 

attended and graduated from public school in St. Croix and now works as a 

government employee in St. Croix. Regardless of their other qualifications, Person A is 

eligible to be governor of the Virgin Islands, and Person B is not-and cannot ever be, 

since the disqualifying features of his biography (place of birth and ancestry) are not 

subject to change. This must not only shock our conscience for unfairness but is 

obviously unconstitutional. 

If a state's attempt to condition ballot access on a mutable characteristic like land 

ownership (see, e.g., Quinn, 491 U.S. at 103) constitutes "invidious discriminatory 

disqualification," then the Proposed Constitution's attempt to condition office-holding 

on immutable characteristics like birthplace and ancestry must, a fortiori, be more 

invidious still. Cf. Michael M. v. Superior Court of Sonoma County, 460 U.S. 464, 478 (1982) 

(stating that "[t]he Constitution is violated when government ... invidiously classifies 

similarly situated people on the basis of the immutable characteristics with which they 

were born"). For that reason, we conclude that the native requirement for holding 

executive offices would likely be held unconstitutional. 

We recognize of course that the U.S. Constitution has an analogous restriction on 

candidates for President. See Art. II, § 1, cl. 4. But that fact does not undermine the


Re: Legal Opinion on Draft Constitution of the 51h Constitutional Convention 


constitutional if applied in a state or territorial constitution . The Supreme Court has 

repeatedly rejected the so-called "federal analogy" as a basis for upholding state-level 

violations of equal protection . See, e.g., Gray v. Sanders, 372 U.S. 368, 378 (1963); Davis v. 

Mann, 377 U.S. 678, 692 (1964); Reynolds v. Sims, 377 U.S. 533, 571-72 (1964). And 

although those cases arose in the apportionment context, we are aware of no authority 

suggesting that the principles informing them would not extend to other areas, 

including attempts to restrict office-holders to members of an immutable class. 

B. Proposed Article V, Section 2: the St. John Senator and the "One-Person- 

One-Vote" Requirement 

Article V, Section 2 of the Proposed Constitution also establishes a new method 

for apportioning seats in the Senate. Because the apportionment overrepresents St. John 

and underrepresents St. Thomas and St. Croix relative to their populations, it does not 

accord with the principle of "one person, one vote." Accordingly, as Proposed Article V 

is currently drafted, there is a significant probability that the apportionment of the 

Senate would violate the Equal Protection Clause of the United States Constitution. The 

governing law is relatively clear: The Equal Protection Clause requires that all state and 

local legislative bodies be apportioned based on the principle of "one person, one 

vote."13 As the Supreme Court has explained, "Legislators represent people, not trees 

or acres. Legislators are elected by voters, not farms or cities or economic interests." 

Reynolds, 377 U.S. at 562. An individual's right to vote is thus "unconstitutionally 

impaired when its weight is in substantial fashion diluted when compared with votes of 

citizens living in other parts of the State." Id. at 568. Accordingly, districts must be 

constructed "as nearly of equal population as practicable." Id. at 577. Although the 

"one person, one vote" requirement does not demand complete mathematical precision, 

electoral districts cannot be significantly unequal in population. 

To assess the significance of disparities in population per legislator, the Supreme 

Court has developed a metric called the "maximum population deviation." See, e.g., 

Connor v. Finch, 431 U.S. 407, 416-17 (1977). That measure identifies the degree to which 

13 The one person, one vote" principle applies not only to state legislatures, but also to any legislative body 

established by a state or local government. See, e.g.. Avert/ v. Midland County_ 390 U.S. 474 (1968) (county 

coin inissioners); Hadley v. Junior College District, 397 U.S. 50 (1970) (junior college district); Board of Estimate v. 

:Norris, 489 U.S. 688 (1989) (the New York Board of Estimates). Because the right to an undiluted vote is an 

individual right guaranteed by the Equal Protection Clause of the Fourteenth Amendment, it applies to legislative 

body in the U.S. Virgin Islands to the extent that citizens of the Virgin Islands are protected by the Fourteenth 

Amendment. Accord Board of Estimate, 489 U.S. at 693 (explaining that each and every citizen has an inalienable 

right to ful I and effective participation in the political process of the legislative bodies of the Nation, State, or 

locality as the case may be") (quotation omitted).




electoral districts deviate from the ideal of a perfectly proportional district 14 The 

Supreme Court has generally deemed maximum population deviations below 10% to be 

tie minimus, but it has held that deviations above 10% establish a prima facie case of vote 

dilution in violation of the Equal Protection Clause. See, e.g., Voinovich v. Quilter, 507 

U.S. 146, 161 (1993); Brown v. Thomson, 462 U.S. 835, 842-43 (1983); Connor, 431 U.S. at 

418. If the maximum population deviation exceeds 10 the deviation "must be 

justified." Brown, 462 U.S. at 843. And many purported justifications have been 

rejected, including justifications based upon "geographical, historical, topographic and 

economic considerations," Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 738 

(1964), and the desire "to insure effective representation for sparsely settled areas." 

Reynolds, 377 U.S. at 580. 

To be sure, in certain situations the Court has found sufficient justification where 

malapportionment resulted from a state's "tradition of respecting the integrity of the 

boundaries of cities and counties in drawing district lines", Davis, 377 U.S. at 686, or 

from a desire to ensure that each jurisdiction had at least one representative, see Brown 

462 U.S. at 843-46. See also Voinovich i'. Quilter, 507 U.S. 146 (1993); Mahan v. I-Powell, 410 

U.S. 315 (1973). However, in several cases with maximum population deviations 

greater than 20%, the Court has nevertheless found insufficient justification in following 

political jurisdictional lines. See, e.g., Sut'ann n. Adams, 385 U.S. 440 (1967). The 

population deviation for St. John would be 53%, causing over representation based on 

the 2000 census. 

Under the authorities, we believe Proposed Article V, Section 2 would likely be 

held unconstitutional. Section 2(1) provides: 

is The maxima in population deviation is calculated as follows: (1) the apportionment base (i.e., the total population) 

is divided by the number of legislators in the legislative body to determine the ideal of a perfectly proportional 

district; (2) the percentage of overrepresentation or underrepresentation for each district ( or legislator) is determined 

by calculating the difference between the district's population (or the population represented by each legislator) and 

the ideal, and then dividing that number by the ideal; (3) the maximum population deviation is calculated by adding 

the percentage of underrepresentation for the most underrepresented district (or legislator) to the percentage of 

overrepresentation for the most overrepresented district (or legislator). See Connor, 431 U.S. at 416- 17; Chapman v. 

Meier, 420 U.S. I (1975 ). This calculation is complicated by the presence of at-large seats, however , which must be 

included in the analysis. See Board of Estimate , 489 U.S. at 701 (acknowledging , where voters in each district voted 

for both district representatives and citywide representatives , that "the citywide members are a major component in 

the calculation " that "should not be ignored"). A t-large votes are incorporated as follows: Each district's 

percentage of the total population is multiplied by the number of at-large legislators to determine the portion of the 

at-large vote represented by each district. That portion is added to the district representative to calculate the total 

number of representatives per district. The population of the district is then divided by the number of 

representatives per district to calculate the population per representative for each district . The percentage difference 

between the population per representative in each district and the perfectly proportional ideal is the amount of 

underrepresentation or overrepresentation in that district . See id. at 702 nA; see also Paul El. Edelman , Making 

Votes Count in Local Elections : .4 Mathematical Appraisal ofAt- Large Representation , 4 ELECTION L.J. 258, 274 

n. 103 (2005 ) (explaining the Court's formula in Board of Estimate)




"Effective with the election of 2012, the Senate shall consist of fifteen 

Senators with: (a) six elected At-Large, three who are residents of St. Croix 

and three who are residents of either St. Thomas or St. John, elected in 

alternate years by the electors of all the Virgin Islands, (b) two elected 

from each of two sub-districts to be established on St. Croix, (c) two 

elected from each of two sub-districts to be established on St. Thomas, and 

one elected from St. John. Senators shall be residents of the sub-districts 

from which elected, and shall be elected by the electors of that subdistrict." 

This provision effectively establishes five electoral districts, four of which elect 

two Senators each and one of which elects one Senator. Additionally, six at-large 

Senators are elected from the entire Virgin Islands population.13 This proposed 

apportionment is a break from the past. 16 By granting St. John a Senator in the 15-seat 

Senate, the Proposed Constitution's new method of apportionment gives St. John a 

greater share of power in the Senate than its small proportion in the population. 

In short, Proposed Article V, Section 2 likely violates the U.S. Constitution's 

Equal Protection Clause by overrepresenting St. John and underrepresenting St. 

Thomas and St. Croix in the Senate. There does not appear to be any legally sufficient 

justification for this departure from the "one person, one vote" principle. Although it 

remains possible that the Constitutional Convention could make findings to justify its 

proposed apportionment scheme, no sufficient justification is apparent at this time. 

C. Summary 

In summary, it is my opinion that the Proposed Constitution is clearly deficient 

in several respects. First, it does not satisfy the formal requirement that any new 

constitution "recognize ... the supremacy of the ... Constitution, treaties and laws of 

the United States" as required by Pub. L. 94-584, § 2(b)(1). Second, the provision 

granting a property tax exemption only to "native" Virgin Islanders is a clear violation 

of the Equal Protection Clause. And third, the same is true of the provision granting 

them, and only them, the right to vote on constitutional amendments even if they are 

not currently citizens of the Virgin Islands. I also believe the provisions restricting 

candidates for governor and lieutenant governor to Native Virgin Islanders are likely 

unconstitutional as well. And in its present form, the provision guaranteeing a Senator 

to the district of St. John is likely vulnerable to constitutional attack as a violation of the 

o We do not address the residency restrictions for the district and at-large Senators. 

16 It is also somewhat different from the proposal submitted by the Fourth Constitutional Convention. That proposal 

entailed a 15-member Senate composed of no more than four at-large Senators. The remainder were to be elected 

from legislative districts, wherein "the legislative districts of St. Croix, St. John, and St. Thomas each shall be 

represented." See Pub. L. 97-21. Art. V., Sec. 2, July 9 1981. 95 Stat 105.


Re: Legal Opinion on Draft Constitution of the 5'h Constitutional Convention 

Page 15 of 17 

one man, one vote" principle - although that problem could easily be fixed if the 

Convention is extended. 

III. Action Required of Governor on the Proposed Constitution under 

Federal and Local Laws 

Having concluded above that the Proposed Constitution is deficient due to its 

failure to meet the formal requisites of Public Law 94-584, and its provisions which are 

inconsistent with the Constitution of the United States, (which is also required by the 

Public Law), we must now address your second inquiry; What action is required of the 

Governor with regards to the Proposed Constitution. It is our opinion that due to the 

fact that the Proposed Constitution fails to conform to the requisites of the Public Law 

and section 1(o) of Act No. 6688, you have no further duty at this time. But for the fact 

that the Fifth Constitutional Convention has expired on May 31, 2009 by its enabling 

statute, Act No. 6688, as amended by Acts Nos. 6820, 6969, and 7055,, your duty would 

have been to return this Proposed Constitution to the president of the Constitutional 

Convention. However, since the Constitutional Convention is inactive under existing 

local law, and the local Act No. 6688, as amended, is silent in directing the Governor of 

what to do in the event a non-conforming constitution is submitted to him, we conclude 

that you have no duty to submit the Proposed Constitution to the President of the 

United States. 

Let there be no doubt, we believe very strongly in the process to establish a 

Virgin Islands Constitution and we are desirous of allowing the people of the Virgin 

Islands to vote on a constitution; however we cannot ignore the facial deficiencies of 

this Proposed Constitution, which compels that you consider your duty imposed by the 

Revised Organic Act of 1954. The Governor has a duty to obey and defend the 

Constitution and laws of the United States applicable to the Virgin Islands and laws of 

the Virgin Islands. You are the Chief Executive of the Government of the Virgin Islands 

of the United States and as such you are "responsible for the faithful execution of the lan's of 

the Virgin Islands and the laws of the United States applicable to the Virgin Islands". Revised 

Organic Act of 1954 §11. You are charged to represent all of the residents of the Virgin 

Islands. 

Any perceived duty of the Governor created in Act No. 6688 to submit a 

tendered proposed constitution to the President of the United States must be weighed 

against your duty under the laws of the United States applicable to the Virgin Islands 

and the Constitution of the United States. In this instance, your duty to uphold the 

Constitution and the federal Public Law 94-584 will govern and supersede the duty 

imposed by Act No. 6688, to the extent that it is inconsistent with those federal legal 

provisions and the Revised Organic Act.


Re: Legal Opinion on Draft Constitution of the 51h Constitutional Convention 


Section 1(o) of Act No. 6688 requires that the president of the Convention submit 

the Proposed Constitution to the Governor, "in compliance with the provisions of 

Public Law 94-384, section 4," and then specifies that the Proposed Constitution "shall, 

within ten days after it was submitted to him, be submitted by the Governor to the 

President of the United States." However, Section 4 of the federal Public Law, in turn, 

specifies that the convention "shall submit to the Governor of the Virgin Islands a 

proposed constitution ... which shall comply with the requirements set forth in section 

2(b)" of that public law, and that "such constitution[] shall be submitted to the President 

of the United States by the Governor[]." 

At first blush, these statutes could be read to make the Governor a mere courier 

of the Constitutional Convention-whose only role is to receive the Proposed 

Constitution and pass it on to the President of the United States. However, that reading 

ignores the Governor's legally mandated duty to uphold the Constitution and laws of 

the United States applicable to the Virgin Islands. 

The simplistic reading of the governing statutes ignores their precise and 

carefully chosen language. Section 4 of the Public Law specifies that a proposed 

constitution "shall comply" with section 2(b), and that "[s]uch constitutions shall be 

submitted to the President." Pub. L. 94-584 § 4. The use of the word "such" strongly 

implies that a proposed constitution that does not "comply" with the requirements of 

section 2(b) does not trigger the Governor's duty under Section 4 to transmit the 

proposal to the President. 

Although Section 4 supersedes any contrary provision of local law, Section 1(o) 

of Act No. 6688 is in fact consistent with this reading of Section 4. As noted, Section 1(o) 

requires that a proposed constitution be submitted to the Governor "in compliance with 

the provisions of Public Law 94-584, section 4." Given that Section 4 itself requires that 

the proposal comply with the requirements of Section 2(b), by implication Section 1(o) 

imposes that same requirement. Thus, a proposed constitution that does not comply 

with the requirements of Section 2(b) cannot trigger Section 1(o)'s transmittal 

requirements. And once again, the Governor can have no duty under that local 

provision to transmit to the President a proposal that does not comply with the 

requirements of Section 2(b), of the Public Law. Therefore, in our legal opinion, the 

Proposed Constitution submitted by the Fifth Constitutional Convention does not 

comply with either Public Law 94-584 or Act No. 6688, as amended, and should not 

have been forwarded to you in the first instance. 

The foregoing, we believe, is the best reading of Section 1(o). However, even if 

Section 1(o) could be read to require transmittal of a defective proposal, that 

requirement would be superseded by the Public Law's section 4 clear implication that



Page 17 of 17 

the Governor is under no duty to transmit such a proposal. This means, of course, that 

the Governor has the authority (and I say, the duty) under federal law to examine the 

proposal for compliance with Section 2(b)'s requirements. This authority cannot 

properly be revoked by a Virgin Islands statute. 

Therefore it is my opinion, Governor, that you have an obligation to review the 

proposed Constitution and if it is found not to be in conformity with Public Law 94-584, 

and the supremacy of the Constitution of the United States, you have no duty to submit 

it to the President of the United States. It is our opinion, as stated above, that the 

Proposed Constitution is in nonconformity with the constitution contemplated by the 

federal Public Law 94-584 and local Act No. 6688. 

The Constitutional Convention's enabling statute does not indicate what the 

Governor is required to do if the proposed constitution does not comply with the it's 

requirement and the requirements of the Public Law; and further, the Convention's 

existence has expired, thus you have no further duty. 

I trust that this opinion provides the necessary guidance for your consideration. 

Very truly yours, 

'Vincent F. Frazer, Esq. 

Attorney General

USVI AG Op. at 15-17 - Governor John P. deJongh

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