On Appeal from the District Court of the Virgin Islands - St. Thomas, D.C. Civ. No. 86-0544.
Before: SEITZ, HIGGINBOTHAM and ROSENN, Circuit Judges.
James O'Bryan, Jr. appeals from the January 8, 1987 order of the district court denying his motion for reconsideration of the writ of mandamus issued by it. We have jurisdiction under 28 U.S.C. § 1291 (1982).
The general election for the Virgin Islands was held on November 4, 1986. From a single paper ballot, electors selected a governor, a lieutenant governor, an at-large senator, and seven additional members of the legislature from the St. Thomas-St. John District or the St. Croix District. The Democratic Party of the Virgin Islands endorsed five district candidates for the St. Thomas-St. John district.
Each ballot consisted of two pages. The ballot instructions appeared at the top of the first page and included the following language:
To vote a straight party ticket, that is for all candidates of a particular party, make a crossmark (x) opposite the name, emblem or symbol of the party of your choice.
If the political party you have selected does not have a complete sale of candidates, you may vote for additional candidates so that the total number of candidates from the political party you have selected plus the additional candidates does not exceed the total number for which you are entitled to vote.
DO NOT SELECT MORE THAN ONE PARTY EMBLEM OR SYMBOL.
The party symbols appeared below the instructions. The candidates for governor and lieutenant governor appeared below the party symbols. The senator at large candidates were listed at the top of the second page and were followed by the district candidates.
In canvassing the returns, the Board of Elections applied a total invalidity rule to mismarked ballots. It determined that a ballot would not be counted for any office if (1) the voter marked a party symbol and marked an at-large candidate who was not a candidate of the selected party; or (2) the voter marked a party symbol and proceeded to mark boxes for various district candidates who were not candidates of that party, if the sum of the district candidates fielded by the selected party plus the additional candidates selected by the elector exceeded the total number of district candidates for which the elector was entitled to vote.
Of the approximately 27,000 ballots cast in the general election, the Board of Elections treated 1,378 as invalid, primarily for the reasons described above. The Board of Elections certified James O'Bryan, Jr., an independent, as the winner of the ...