433 F.2d 359

Jessica Tutein MOOLENAAR et al.
v.
Henrita TODMAN, Supervisor of Elections, et al. and
Legislature of the Virgin Islands et al. Legislature of the Virgin Islands, John L. Maduro, and A. David Puritz (Intervening Defendants in D. C.), Appellants.

No. 19291.

United States Court of Appeals, Third Circuit.

Argued October 9, 1970.

Decided October 9, 1970.

Alfred L. Scanlan, Shea & Gardner, Washington, D. C., for appellants.

Ronald H. Tonkin, Christiansted, St. Croix, V. I., for appellees.

Before KALODNER, STALEY, and GIBBONS, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

1

The Order of the District Court of the Virgin Islands dated September 18, 1970 and entered September 22, 1970, 317 F. Supp. 226 will be reversed for these reasons: (1) Injunctive relief in the period between the September 8, 1970 election and the general election to be held November 3, 1970 which would produce a different apportionment of the legislature, is more disruptive of the fair exercise of elective franchise than allowing the general election to proceed on the same basis as the primary. It is now too late for equitable relief with respect to the November 1970 election; and (2) the basis of decision of the District Court is erroneous.

2

The District Court held that Section 5(b) of the Organic Act, 48 U.S.C. § 1571 (b) prohibits the Virgin Islands Legislature from changing the districts established by Congress in 1954. We read the language of Section 5(b) as amended in 1966 (Pub.L. 89-548 § 1; 80 Stat. 371, amending 48 U.S.C. § 1571(b)) as a grant to the Virgin Islands Legislature of the power to create appropriate legislative districts comporting to constitutional standards of fair representation. Congress did not, in 1966, freeze then existing district boundaries. The Virgin Islands Legislature may establish new districts, including a separate district for St. John, provided that the constitutional requirements of equal protection of the law are adhered to. How this may be accomplished in the future is for the Legislature to decide in the first instance.

3

Since the District Court has retained jurisdiction of the cause, we deem it appropriate to suggest that any further hearings with respect to plaintiffs' Complaint should not be held until the official results of the 1970 decennial census have been published, and until the Legislature has had a reasonable opportunity to act in the light of these new population figures and this Opinion.

4

The Order of the District Court will be reversed, and the Mandate of this Court will issue forthwith.