                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                  No. 14-3280
                 _____________

           SORAYA DIASE COFFELT;
             JOHN M. CANEGATA;
              RONALD CHARLES,
                              Appellants

                        v.

         CAROLINE F. FAWKES;
   GOVERNMENT OF THE VIRGIN ISLANDS
            _____________

         On Appeal from the District Court
        for the District of the Virgin Islands
          (D.V.I. Civil No. 1-14-cv-00025)
     District Judge: Honorable Wilma A. Lewis
                  ______________

              Argued August 1, 2014
                ______________

Before: FISHER, VANASKIE, and SHWARTZ, Circuit
                    Judges

         (Opinion Filed: August 26, 2014)
Andrew C. Simpson, Esq. [ARGUED]
Andrew C. Simpson Law Offices
2191 Church Street, Suite 5
Christiansted, VI 00820
       Counsel for Appellants

Kimberly L. Salisbury, Esq. [ARGUED]
Carol L. Thomas-Jacobs, Esq.
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
       Counsel for Appellees
                       ___________

                OPINION OF THE COURT
                     ___________

VANASKIE, Circuit Judge.

       In May of this year, Caroline F. Fawkes, the Virgin
Islands Supervisor of Elections, disqualified Appellants
Soraya Diase Coffelt and John M. Canegata from appearing
on the general election ballot for the offices of Governor and
Lieutenant Governor, respectively, of the Virgin Islands, for
ostensible noncompliance with the Virgin Islands Election
Code. Coffelt and Canegata, arguing that Fawkes misapplied
the Election Code, brought this action to obtain a permanent
injunction that would allow them to appear on the November
general election ballot. In the alternative, they argued that
Fawkes’s interpretation of the Code, if correct, violates the




                              2
First Amendment, and sought injunctive relief on that ground
as well. The District Court initially agreed with Coffelt and
Canegata’s reading of the Election Code and granted a
temporary restraining order. Following additional briefing
and oral argument, however, the District Court denied a
permanent injunction and dismissed the lawsuit. In an order
filed August 1, 2014, we granted Appellants’ motion for an
injunction pending appeal and stated that an opinion would
follow.    Because we now conclude that Coffelt and
Canegata’s candidacy is not barred under 18 V.I.C. § 342a,
we will vacate the District Court’s order of July 7, 2014 and
remand for further proceedings.

                              I.

       Candidates for Governor and Lieutenant Governor of
the Virgin Islands must run as an inseparable pair on a single
ticket. 48 U.S.C. § 1591. Under the Election Code, which
was overhauled in 1963 and modeled in large part on
Pennsylvania’s election law, 25 Pa. Stat. Ann. §§ 2600–3591,
a candidate seeking public office has two options to appear on
the general election ballot.

       Subchapter I of Chapter 17 describes the traditional
party-nomination process, under which a candidate submits a
“nomination petition,” competes in the party’s primary
election, and, if successful, appears on the general election
ballot as that party’s official candidate. See 18 V.I.C. §§
341–359. In 2005, the Virgin Islands Legislature added 18
V.I.C. § 342a to Subchapter I, which provides:

             Any person running for public
             office must run as a candidate
             consistent with the political party




                              3
              designation under which the
              candidate is registered at the time
              of the filing of the nomination
              petition, whether the political
              party designation indicates an
              affiliation with a political party as
              defined in section 301 or
              otherwise.

Id. § 342a.

       Subchapter II, by contrast, details a “direct
nomination” path to the general election ballot for candidates
lacking the imprimatur of a recognized political party. See id.
§§ 381–385.1 Such candidates declare their interest with
submission of a “nomination paper,” which must have a
certain number of signatures from qualified electors. Id. §
381. If such a candidate represents a “political body,” the


       1
         The term “direct nomination” is used by the parties
but does not appear in the Election Code itself. The existence
of this alternative path to the general election ballot is
consistent with the Supreme Court’s recognition that
“although the citizens of a State are free to associate with one
of the two major political parties, to participate in the
nomination of their chosen party’s candidates for public
office and then to cast their ballots in the general election, the
State must also provide feasible means for other political
parties and other candidates to appear on the general election
ballot.” Storer v. Brown, 415 U.S. 724, 728 (1974) (citing
Williams v. Rhodes, 393 U.S. 23 (1968)).




                                4
candidate must specify the name of that body. Id. § 384(a).2
The political body’s name may not be “identical with, or
deceptively similar to” the name of any political party or
competing political body. Id. § 384(b). If the candidate does
not specify a political body, “the candidate shall . . . be
designated as ‘Independent’” on the general election ballot.
Id. § 384(c).

       In early 2014, Coffelt, who is not registered with any
political party,3 sought a running mate in connection with a
“direct nomination” bid for Governor of the Virgin Islands.
Canegata, a registered Republican (and in fact the sitting
Chair of the Virgin Islands Republican Party), expressed
interest in being Coffelt’s running mate. Notably, the
Republican Party opted not to advance a party-sponsored
ticket in the November 2014 gubernatorial election, thus
leaving Canegata with no opportunity to pursue a traditional
“Subchapter I” bid for that office as a Republican.



       2
         A “political body” is a “political group which is not a
political party but which has nominated candidates for at least
two public offices by nomination papers under subchapter II
of chapter 17 . . . .” 18 V.I.C. § 301(b). Neither party
contends that this case involves any political bodies.
       3
         The Election Code gives      no formal designation to
electors who are not associated       with a particular party,
although terms appearing in the       record for such electors
include “no-party,” “unaffiliated,”   or “Independent.” (See,
e.g., App. 379–83.)




                               5
        On May 23, 2014, Coffelt filed a nomination paper
with the Office of Supervisor of Elections, signaling her
intent to run for Governor with Canegata as her running mate.
On May 27, 2014, Canegata filed a nomination paper to run
as Lieutenant Governor on the same ticket as Coffelt.4 The
same day of their respective filings, Coffelt and Canegata
each received, by email, a “Notice of Defect” from Fawkes in
her capacity as Supervisor of Elections. The Notice of Defect
addressed to Coffelt states, in pertinent part:

             Pursuant to Title 18 Section 411
             you are hereby notified that your
             nomination petition/paper was
             found to be defective. The reason
             for the defect:

             Pursuant to VIC Title 18, Chapter
             17, § 342a – Prohibition against
             persons registered to a political
             party running as a no-party or
             independent candidate.

             The required running mate must
             be of like Independent Party in
             order to be an eligible candidate
             for Governor – VIC 18 Section
             [342a].

(App. 79 (emphasis and all caps omitted).)

      4
        Appellant Ronald Charles is an elector who signed
Canegata’s nomination paper.




                              6
       The Notice of Defect addressed to Canegata states, in
pertinent part:

             Pursuant to Title 18 Section 411
             you are hereby notified that your
             nomination petition/paper was
             found to be defective. The reason
             for the defect:

             As a registered member of the
             Republican Party you have filed a
             nomination paper as a Lieutenant
             Governor candidate with a no
             party   candidate     which    is
             impermissible under the law.

(App. 78 (emphasis and all caps omitted).)

       On May 30, 2014, Appellants filed the instant action in
the District Court for the Virgin Islands, seeking to enjoin
Appellees from disqualifying Coffelt and Canegata from the
November ballot. They also sought a declaratory judgment
that the pair had met the requirements of 18 V.I.C. § 381 for
placement on the general election ballot under Subchapter II.
Alternatively, they requested a declaration under the remedial
provisions of 42 U.S.C. § 1983 that 18 V.I.C. § 342a, if
correctly interpreted by Fawkes, violated their rights under
the Revised Organic Act, 48 U.S.C. § 1561, and the federal
Constitution.

       Together with the complaint, Appellants filed a motion
for a temporary restraining order and preliminary injunction.
On June 3, the District Court heard oral argument on the
motion. On June 6, the Court entered a 14-day temporary




                              7
restraining order, noting that § 342a, by its own terms, applies
only to candidates who file a nominating petition—i.e., the
document associated with a bid for office under Subchapter
I—and not to candidates who file a nominating paper under
Subchapter II, such as Coffelt and Canegata. (App. 58.) The
Court thus concluded that “the agency’s interpretation of the
law is not supported by the plain language of the applicable
statutory provisions.” (Id.)

       The parties submitted additional briefing on the motion
for a permanent injunction, and the Court held oral argument
on June 27, 2014. On July 7, 2014, the District Court entered
a memorandum and order reversing course. The Court
vacated the temporary restraining order, denied the motion for
a permanent injunction, and entered judgment in favor of
Appellees. Appellants filed a timely notice of appeal on July
9, 2014.

                              II.

       The District Court had original jurisdiction over
Appellants’ federal constitutional challenges to 18 V.I.C. §
342a under 28 U.S.C. §§ 1331 and 1343. See, e.g., Roger v.
Corbett, 468 F.3d 188, 192 (3d Cir. 2006) (reviewing the
constitutionality of a provision of Pennsylvania election law).
And although the related claim—i.e., that Fawkes simply
misapplied Virgin Islands election law—is not the sort over
which federal district courts typically may exercise original
jurisdiction,5 we conclude that the District Court was entitled

       5
        See, e.g., Shannon v. Jacobowitz, 394 F.3d 90, 94 (2d
Cir. 2005) (“Only in extraordinary circumstances will a
challenge to a state [or local] election rise to the level of a




                               8
to exercise supplemental jurisdiction over that claim because
it “form[s] part of the same case or controversy under Article
III . . . .” 28 U.S.C. § 1367(a). We have appellate
jurisdiction under 28 U.S.C. § 1291.

       We review the District Court’s decision to grant or
deny a permanent injunction for abuse of discretion. We
exercise plenary review, however, over the Court’s
underlying legal conclusions. See Stolt-Nielsen, S.A. v.
United States, 442 F.3d 177, 182 (3d Cir. 2006). In assessing
whether injunctive relief is appropriate, we must consider
whether:

             (1) the moving party has shown
             actual success on the merits; (2)
             the moving party will be
             irreparably injured by the denial
             of injunctive relief; (3) the
             granting of the permanent
             injunction will result in even
             greater harm to the defendant; and
             (4) the injunction would be in the
             public interest.

Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001) (citing
ACLU v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471,

constitutional deprivation.”) (internal citation and quotation
marks omitted); Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th
Cir. 1998) (“In general, garden variety election irregularities
do not violate the Due Process Clause, even if they control
the outcome of the vote or election.”).




                              9
1477 nn.2–3 (3d Cir. 1996)). The parties’ briefing, and our
analysis, focuses predominantly on whether Appellants have
shown success on the merits.

                              III.

        This case turns on whether a candidate registered to a
political party may seek “direct nomination” to the general
election ballot under Subchapter II of Title 17 of the Election
Code.      Both parties contend that the Code operates
unambiguously in their favor—in other words, Appellants
argue that the Code expressly permits the candidacy (by
failing to prohibit it), while Appellees believe that the Code
prohibits the candidacy (by necessary implication). In the
alternative, Appellees contend that insofar as the Code is
ambiguous, the Supervisor of Elections, a governmental
employee under the “direction, control and supervision of”
the Virgin Islands Joint Board of Elections, 18 V.I.C. § 4(b),
is entitled to deference in her interpretation of the Election
Code under Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944).6 The District Court concluded that the Election Code


       6
         Where an agency rule is a function of its “legislative”
authority, i.e., an exercise of formal rule-making capacity
(typically through a notice-and-comment procedure), we
apply a highly deferential standard of review under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842–43 (1984). The District Court noted that
Chevron deference was likely inappropriate due to the lack of
formality involved in the Supervisor of Elections’
pronouncements, (App. 22–26), but ultimately concluded that
it need not reach the question because applying even the less-




                              10
was silent on the permissibility of Canegata’s candidacy; that
this silence was ambiguous; and that as a result, the
Supervisor of Elections’ interpretation of the Code, which the
Court found persuasive, was entitled to deference.

       In deciding whether the plain language of the Code
unambiguously permits or prohibits the candidacy at issue,
we “must presume that a legislature says in a statute what it
means and means in a statute what it says there.” Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253–54 (1992). If the statute
is unambiguous, “‘judicial inquiry is complete.’” Id. at 254
(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).
Even where a statute is “silent” on the question at issue, such
silence “‘does not confer gap-filling power on an agency
unless the question is in fact a gap—an ambiguity tied up
with the provisions of the statute.’” Lin-Zheng v. Att’y
Gen., 557 F.3d 147, 156 (3d Cir. 2009) (en banc) (quoting
Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 107 (3d Cir.
2007), overruled on other grounds by Lin-Zheng, 557 F.3d at
147)). “An inference drawn from congressional silence
certainly cannot be credited when it is contrary to all other
textual and contextual evidence of congressional intent.”
Burns v. United States, 501 U.S. 129, 136 (1991), abrogated
on other grounds by Booker v. United States, 543 U.S. 220
(2005).

       Here, Subchapter II of the Election Code provides an
express statutory procedure for appearance on the general
election ballot by way of direct nomination. Although

deferential Skidmore standard justified denial of the motion
for a permanent injunction.




                              11
Subchapter II contains certain procedural requirements
related to naming conventions, see 18 V.I.C. § 384, there is
no statement that a candidate’s eligibility to proceed under
that Subchapter turns on a candidate’s lack of any party
affiliation. And § 342a, initially relied upon by the
Supervisor of Elections in her Notice of Defect, imposes a
party-affiliation requirement only in connection with
nomination petitions, not nomination papers. Thus, like the
District Court, we conclude that the Code does not expressly
prohibit Canegata’s candidacy. At the same time, however,
we recognize that the plain language of the Code does not
affirmatively permit Canegata’s candidacy either.

        We therefore consider what to make of the Election
Code’s silence regarding the participation of party-affiliated
candidates in the Subchapter II nomination process. We
begin by noting that the Election Code, when it was redrafted
in 1963, was modeled on Pennsylvania election law.
Subchapter I, like the Pennsylvania Code, explicitly requires
that a candidate be a member of a particular political party for
his name to appear on that party’s primary ballot by way of
nominating petition. Compare 18 V.I.C. § 344(a), with 25 Pa.
Cons. Stat. § 2867. Subchapter II, however, departs from
Pennsylvania law in a crucial respect. The Pennsylvania
analogue to Subchapter II contains a requirement that a
“nominating paper” candidate, i.e., one proceeding by direct
nomination, not be a member of a political party within 30
days of that year’s primary. See 25 Pa. Cons. Stat. §
2911(e)(6). In other words, Pennsylvania law would require
that Canegata divest himself of his affiliation with the
Republican Party to pursue his bid for Lieutenant Governor.
Other states, too, have express provisions on this point, and
the Supreme Court confronted the constitutionality of such




                              12
provisions nearly 40 years ago. See Storer, 415 U.S. at 728
(upholding constitutionality of California law disqualifying
independent candidates who were registered with a political
party within one year prior to the immediately preceding
primary election). And yet Subchapter II does not contain
that clause, or any clause having the same effect.

       The distinction between Subchapter I and Subchapter
II was made more pronounced by the Virgin Islands
Legislature’s adoption, in 2005, of § 342a, which imposes a
party-affiliation requirement only in connection with
“nomination petitions.” 18 V.I.C. § 342a (emphasis added).7
The Legislature, then, has twice considered a party-affiliation
requirement in connection with the nomination process for
public office and twice applied that requirement only to
candidacies under Subchapter I. From this we infer that the
absence of a party-affiliation clause in Subchapter II is
intentional.



       7
          Section 342a is titled Prohibition against persons
registered to a political party running as a no-party or
independent candidate, which might seem to expressly bar
Canegata’s candidacy here.          The Virgin Islands Code
specifies, however, that “[t]he classification and organization
of the titles, parts, chapters, subchapters, and sections of this
Code, and the headings thereto, are made for the purpose of
convenient reference and orderly arrangement, and no
implication, inference, or presumption of a legislative
construction shall be drawn therefrom.” 1 V.I.C. § 44. Thus,
we afford no weight whatsoever to the title to § 342a.




                               13
       The District Court’s otherwise-comprehensive opinion
did not address these conspicuous departures. Instead, the
Court relied on § 384, which imposes certain naming
protocols on Subchapter II candidates, as evidence that the
Virgin Islands Legislature wished to prevent registered
members of political parties from pursuing Subchapter II
candidacies. (App. 20–21.) On its face, however, § 384
dictates no such result. It merely prevents a no-party
candidate from feigning association with a real or fictional
political party, such as by running as a “Democratt,” or a
representative of the “Get Rich Quick” party.

       We acknowledge that under Appellants’ reading of §
384, the Election Code not only permits, but requires, that the
general election ballot allow only those who win their party’s
primary to be identified with their party’s name. Thus, a
registered Republican like Canegata, who obtains access to
the ballot via the nomination paper process, would be
designated on the general election ballot as an “Independent.”
This would convey only that he is not the designated choice
of his party and thereby ensure that the electorate is not
mislead to believe that he emerged as his party’s candidate
from the party’s primary election process. Under this
statutory scheme, the Legislature has decided that protection
of the party’s identity and “brand” is important and the way
candidates appear on ballots furthers this goal.8

       8
         As recognized by the District Court, this reading of
the statute creates a situation whereby a person who is
registered with a political party can seek access to the general
election ballot via the nomination paper process but not
disclose his political affiliation on the nomination paper and




                              14
       In sum, the Election Code does not expressly require
that Canegata renounce his party affiliation in order to seek
office by direct nomination. For the reasons stated above, we
are persuaded that the Code’s silence on this point is not
ambiguous, and that the District Court erred in finding
otherwise.9 As a result, we conclude that Appellants have

appear on the ballot under the term “independent.” 18 V.I.C
§ 384. As a result, both the nomination paper and general
election ballot convey that the candidate has no party
affiliation when in fact he has one. While there is a strong
interest in ensuring that the electorate has accurate
information about the candidate, the statutory scheme does
not completely advance it. It is up to the Legislature,
however, to determine the importance of this interest and
select the means it deems warranted to address it.
       9
          We decline to consider Appellees’ argument that
Canegata’s candidacy is barred under 18 V.I.C. § 410(b),
which states that “[i]n any general election year a person may
file either a nomination petition pursuant to [§] 344 of this
chapter or a nomination paper pursuant to subchapter II, but
not both.” In 2014, Canegata submitted not only the
nomination paper at issue here, but also a nomination petition
to seek reelection as Republican Party Chair. As noted by the
District Court, it is a “bedrock principle of administrative law
that judicial review of an agency’s decision is limited to the
rationale that the agency provides.” Konan v. Att’y Gen., 432
F.3d 497, 501 (3d Cir. 2005). Here, the Supervisor of
Elections did not cite § 410(b) as a factor in its
disqualification of Canegata’s candidacy, and consequently
gave him no opportunity to cure any defect in that regard.




                              15
demonstrated actual success on the merits of the question
presented. In light of that outcome, we further conclude that
Appellants have satisfied their burden of demonstrating that
(1) Appellants would be irreparably injured if an injunction
were denied; (2) a permanent injunction would not result in
even greater harm to Appellees; and (3) an injunction would
be in the public interest.

      Accordingly, we will vacate the District Court’s
judgment in favor of Appellees and remand for further
proceedings consistent with this opinion.

                             IV.

       For the aforementioned reasons, we will vacate the
District Court’s order of July 7, 2014, and remand for further
proceedings consistent with this Opinion.10




      10
           Because of our conclusions above, we do not
address the argument that the reading of the Code proposed
by the Supervisor of Elections would constitute an
impermissible “political test” under 48 U.S.C. § 1561 and
violate the First Amendment. See Lyng v. Nw. Indian
Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988) (“A
fundamental and longstanding principle of judicial restraint
requires that courts avoid reaching constitutional questions in
advance of the necessity of deciding them.” (citing Three
Affiliated Tribes of Ft. Berthold Reservation v. Wold Eng'g,
P.C., 467 U.S. 138, 157–58 (1984)).




                              16
