ST. CROIX — A federal judge on Thursday denied an emergency request from disqualified delegate to Congress aspirant Brett “Mac” McClafferty for a temporary restraining order that would have forced election officials to immediately place his name on the ballot.
However, U.S. District Judge Evan Rikhye ordered an evidentiary hearing for next month to consider McClafferty’s request for a preliminary injunction against Supervisor of Elections Caroline Fawkes and Board of Elections Chair Raymond Williams.
McClafferty, who sought to qualify as an independent candidate for Virgin Islands delegate to Congress, filed a lawsuit on July 8 challenging the Board of Elections’ June 15 decision to disqualify him from the race. On July 9, he filed an emergency motion for a TRO and preliminary injunction, seeking immediate certification of his candidacy while the underlying lawsuit proceeds.
In a three-page order issued Thursday, Rikhye ruled that McClafferty’s emergency request was procedurally deficient because he failed to prove he had served the motion to the defendants. Rikhye noted that federal rules allow for an ex parte restraining order — issued without notice to the opposing party — only if specific facts clearly show immediate and irreparable injury will occur before the defense can respond.
“Plaintiff has failed to allege specific facts that clearly demonstrate what immediate and irreparable harm he will suffer before the defendants can be heard in opposition,” Rikhye wrote. “Furthermore, plaintiff has failed to certify in writing what efforts, if any, he has made to give notice to the defendants, or to articulate any rationale why such notice should not be required.”
Despite denying the immediate restraining order, Rikhye scheduled a hearing on McClafferty’s motion for a preliminary injunction for 10 a.m. August 26 at District Court on St. Thomas. McClafferty must serve a copy of the order to the defendants by July 24.
In a statement following the ruling, McClafferty said he was pleased with the decision to grant a hearing.
“An emergency motion for a TRO is an extraordinary motion, and we respect that the court denied such motion on procedural grounds,” McClafferty stated. “However, as I am not a candidate in the upcoming primary election, we believe the August 26 hearing set by his honor — granting us a hearing on preliminary injunction — is a huge win for our campaign and for the rule of law that gives us ample time to return to the ballot in accordance with the law. This also provides the attorney general of the Virgin Islands time to issue the legal opinion requested by the governor, for which we can ask the court to take judicial notice. All in all, we are pleased with the court’s ruling and look forward to our day in court.”
Although Governor Albert Bryan Jr. originally requested that Attorney General Gordon Rhea consider issuing a legal opinion regarding McClafferty’s specific ballot disqualification, the DOJ subsequently informed Government House that it would not provide an opinion on the matter, according to Government House spokesperson Richard Motta Jr.
READ MORE: DOJ declines Gov. Bryan’s request to consider opinion on Brett McClafferty’s ballot disqualification
In response, Bryan sent follow-up correspondence to Rhea on July 9, clarifying and superseding his earlier request. Instead of focusing on McClafferty’s individual case, the governor refined the scope of his inquiry to focus on broader legal questions concerning the administration of territory-wide elections.
Specifically, Bryan’s letter asks the attorney general to clarify the respective statutory authorities of the Board of Elections and the supervisor of Elections regarding candidate qualification, the legality of post-certification petition reviews, and the constitutionality of increased ballot-access burdens. The governor also requested guidance on whether the board may legally deliberate on candidate eligibility in executive sessions under the Virgin Islands Open Meetings Act.
“These are questions about process, procedure, and public confidence,” Bryan said in a statement. “The people of the Virgin Islands deserve election rules that are clear, consistently applied, and fully understood by those who administer our elections, those who seek public office, and those who cast their ballots.”
The legal battle over the delegate to Congress seat stems from a 7-2 vote by the Board of Elections, with one abstention, to uphold Fawkes’ investigation into irregularities involving nomination petition signatures collected on McClafferty’s behalf on St. Croix.
READ MORE: Board of Elections upholds Brett McClafferty, Ida Smith disqualifications during contentious meeting
In his lawsuit, McClafferty alleges that he submitted enough valid signatures and successfully cured initial deficiencies identified by election staff in both districts. He argues that Fawkes lacked the statutory authority under Virgin Islands law to conduct a post-certification investigation into complaints about the signatures, contending that such authority belongs solely to the Board of Elections for potential referral to the Department of Justice.
McClafferty’s lawsuit alleges violations of Virgin Islands election law and his constitutional rights under the First and Fourteenth Amendments. It also includes a civil Racketeer Influenced and Corrupt Organizations Act claim against Fawkes and Williams.
McClafferty had previously argued that emergency relief was required quickly due to imminent campaign finance deadlines, the August 1 primary election, and the upcoming timeline for printing general election ballots.
Both parties have been ordered to submit electronic versions of their proposed exhibits to the Clerk’s Office by August 21 ahead of the scheduled hearing.
