ST. CROIX — A Superior Court judge on Friday ordered the attorney for Supervisor of Elections Caroline Fawkes to file a brief addressing whether former Senator Stephen “Smokey” Frett was afforded due process when his 2026 gubernatorial ticket was disqualified.
Judge Venetia Velázquez raised the issue during a hearing in her courtroom on St. Croix after reviewing an August 24 legal opinion from Attorney General Gordon Rhea concerning election law and candidate disqualification.
The opinion states that a disqualified candidate who files a non-frivolous appeal to the Board of Elections is entitled, consistent with general due process requirements, to a “reasonable opportunity to present argument and evidence,” subject to waiver.
Velázquez questioned whether Frett’s due process rights were violated because he was not given an opportunity to argue his position before the Board.
The judge directed Assistant Attorney General Julie Beberman, who represents Fawkes, to file a brief by 5 p.m. Monday addressing whether Frett received the procedural protections described in the attorney general’s opinion.
The dispute stems from Fawkes’ May 22 decision to disqualify Frett’s gubernatorial ticket after the Elections System determined his prospective running mate, Derek Bermudez, was not a registered voter in the Virgin Islands.
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Frett argues the issue should have been treated as a correctable defect rather than a fatal eligibility problem and that he should have been allowed to cure it.
In a document filed in the case, Frett also challenges the statutory language governing the qualifications of gubernatorial candidates. He points to Section 1591 of Title 48 of the U.S. Code, which refers to a gubernatorial candidate being an “eligible voter,” and argues that the statute does not require the candidate to be a “registered voter.”
Frett also distinguishes between two provisions of Section 411 of Title 18 of the VI Code. He argues that subsection (b) allows the supervisor of elections to disqualify a candidate who does not meet the required qualifications, while subsection (c) provides that a defective nomination paper may be refiled within three days.
Frett is asking the court to determine whether his case falls under Section 411(b), making the disqualification final, or Section 411(c), which he argues would allow the defect to be corrected.
During Friday’s hearing, Frett challenged whether the terms “eligible voter” and “registered voter” have the same meaning. He testified that he believed Bermudez was a registered Virgin Islands voter when he selected him as his running mate.
“By putting me back on the ballot, who am I putting at a disadvantage?” Frett asked the court while participating in the hearing virtually from the courthouse on St. Thomas.
Fawkes testified in person on St. Croix that Frett and Bermudez did not meet the applicable qualifications and that there was no opportunity to cure the problem.
“That is a fatal error,” she said. “Not a defect.”
When Velázquez asked whether the Elections System treats “qualified” and “eligible” as having the same meaning, Fawkes said it does.
Fawkes also acknowledged that Frett was not given an opportunity to argue his position before the Board.
Beberman, who also appeared in person on St. Croix, introduced several documents, including Fawkes’ May 22 disqualification letter, an amended election calendar dated June 10, Frett’s formal appeal to the Board, and the Board’s response. The response stated that the Board met June 8 and voted to uphold Fawkes’ disqualification.
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The attorney general’s opinion states that the supervisor of elections has primary responsibility for determining candidate eligibility, identifying defects in nomination papers and petitions, and disqualifying candidates. The Board’s primary role in such cases is to hear and decide appeals of the supervisor’s determinations.
Beberman argued Friday that Section 11 of the Revised Organic Act requires gubernatorial candidates to be registered voters before filing their nomination papers.
Fawkes and the Elections System have maintained that Bermudez’s lack of Virgin Islands voter registration made him ineligible to serve as lieutenant governor and that the problem was therefore not correctable.
Frett filed his lawsuit June 25, seeking judicial review of Fawkes’ decision and asking the court to allow his name to appear on the November ballot.
READ MORE: Stephen “Smokey” Frett asks Superior Court to reverse gubernatorial disqualification
The case was initially filed in the Superior Court’s St. Thomas/St. John District but was transferred to St. Croix after four judges recused themselves. It was delayed after Frett initially failed to provide evidence that Fawkes had been properly served.
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Frett subsequently served Fawkes, allowing the court to consider his request for preliminary and permanent injunctive relief.
In addition to directing Beberman to file a brief addressing whether Frett received the procedural protections described in the attorney general’s opinion, Velázquez said the briefing should consider the issue alongside Section 411(b) of Title 18 of the VI Code and Section 11 of the Revised Organic Act of 1954. Frett will then have an opportunity to respond, and Velázquez said she expects to rule shortly thereafter, given Fawkes’ testimony that absentee ballots must be distributed by September 19.
