The Virgin Islands Board of Elections met Monday for an emergency meeting to discuss next steps following Attorney General Gordon Rhea’s recommendation that the board seek independent representation in Brett “Mac” McClafferty’s federal lawsuit challenging his disqualification from the delegate to Congress ballot.
The Virgin Islands Justice Department’s decision not to represent the Board of Elections or Supervisor of Elections Caroline Fawkes marked yet another twist in the ongoing McClafferty-BOE saga. The decision is grounded in Rhea’s belief that doing so could undermine public faith in the department’s impartiality, especially during an election year.
“VIDOJ can decline representation in matters where the impartiality and integrity of the Department may be questioned,” Rhea wrote in a July 13 letter addressed to Fawkes. “Moreover, given that this is an election year, voter confidence related to the electoral process must be prioritized,” he continued.
The dispute between McClafferty and the BOE began on June 15, when Fawkes disqualified McClafferty from the delegate race citing irregularities in his St. Croix nominating petitions that she believed compromised their integrity.
Although Fawkes’ decision was met with blowback from some members of the board, they ultimately upheld her decision in a 7-2 vote on July 1. In the wake of the board’s vote, McClafferty filed suit against Fawkes and the BOE, seeking declaratory relief, damages, and restoration to the ballot.
BOE Chair Raymond Williams opened Monday’s meeting with a brief moment of silence for board member Michael Joseph, who recently died at the age of 76. The board then entered an executive session. Williams announced beforehand that no action would be taken during the executive session, and clarified that it was to be spent discussing the McClafferty suit.
Following the executive session, the board approved a motion to retain independent counsel in an 8-1 vote, with one abstention and three absences.
“I commit to letting the membership know via email when a determination [on specific counsel] is made, and that will happen posthaste, simply because there is a complaint to be answered and the time clock is running,” Williams said.
Board member Harriet Mercer, who was not in the room when the vote on the motion was taken, said the following:
“I had to step out. I’d like to make sure it’s recorded that my vote was ‘no’ for independent counsel.”
“Too late,” said Williams.
Mercer’s statement frustrated many board members, and set off a heated back-and-forth in which the words of individual members could not be made out. At one point, as board members were speaking loudly over one another, Mercer said: “Miss lady, shut up now.”
Despite some members’ impassioned disagreement with the board’s decision, the meeting proceeded, with Fawkes offering three names of attorneys currently under consideration to represent the board. Fawkes’ list includes Treston Moore of St. Thomas, Scot McChain of St. Croix, and Bruce Harvey of Atlanta. While based in Atlanta, Fawkes noted that Harvey serves in the District Court of the Virgin Islands.
Although a judge denied McClafferty’s request for an emergency temporary restraining order that would have restored him to the ballot, an evidentiary hearing in the McClafferty-BOE case has been scheduled for Aug. 26, further prolonging the dispute while giving the board the imperative to select its counsel.
