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ESVI: Government unable to conduct primary elections without changes to unconstitutional laws

Supervisor of Elections Caroline Fawkes, right, testifies during a Senate Committee of the Whole meeting Monday in the Frits E. Lawaetz Legislative Conference Room on St. Croix. At-Large Senator Angel Bolques Jr., left; Senator Javan James Sr., middle; and Senator Franklin Johnson are also pictured.
Supervisor of Elections Caroline Fawkes, right, testifies during a Senate Committee of the Whole meeting Monday in the Frits E. Lawaetz Legislative Conference Room on St. Croix. At-Large Senator Angel Bolques Jr., left; Senator Javan James Sr., middle; and Senator Franklin Johnson are also pictured.

ST. CROIX — An elections official asked senators to make necessary changes to laws found unconstitutional by the District Court during a Committee of the Whole meeting Monday on St. Croix to allow the Office of the Supervisor of Elections to be able to conduct primary elections.

The federal court’s ruling allows for political parties to conduct their own primary elections rather than the government.

Chief Judge Robert Molloy declared unconstitutional 10 provisions of the Virgin Islands Code related to elections in a January 10 judgment in favor of the plaintiffs in a civil lawsuit.

The Republican National Committee and Republican Party in the Virgin Islands filed the lawsuit August 2, 2022 in the U.S. District Court of the Virgin Islands, Division of St. Thomas and St. John against the Virgin Islands Board of Elections and Supervisor of Elections Caroline Fawkes.

The RNC and VIGOP challenged the constitutionality of several provisions of the Virgin Islands Code that directly and extensively regulate plaintiffs’ internal party governance, operations, and selection of party leaders. The court’s ruling prevents the Elections System and the Board of Elections from dictating when the VIGOP must assemble or pick its members.

The court found that eight statutes in Title 18 — 301(a), 303(a)-(c), 305, 306(a), 307, and 342 — and the first sentence contained in Section 304(a) — relating to when members of the territorial committee shall meet for organization — impermissibly infringe upon plaintiffs’ freedom of association guaranteed by the First Amendment by imposing severe burdens upon their internal party operations.

Additionally, the court found that the second sentence contained in Section 232 — relating to the responsibility of the Board of Elections for certifying the process to be used by any political party to select party officers and candidates for public office — is not only unconstitutionally vague, but also violates constitutional due process by failing to provide a means of redress.

Supervisor of Elections Caroline Fawkes said she must follow the District Court’s legal opinion unless a higher court overrules it. She said the Board of Elections voted on March 26 to ask the Office of the Attorney General if the board should appeal the ruling, noting the timeline to file an appeal had already passed.

The Board of Elections had 60 days to appeal the court’s decision. Now that that court’s decision stands, Fawkes said her office will not be able to conduct any primary election unless the Legislature makes changes to the law to allow the Office of the Supervisor of Elections to conduct them. Otherwise, she said there will be legal challenges.

“The Elections System of the Virgin Islands does not have the funding for any non-foreseeable legal consequences brought by the unconstitutional ruling of these particulars of the Virgin Islands Code,” she said.

Fawkes said the casting of lots for the primary election is May 31. She said the casting of lots will have to be postponed or canceled unless the laws addressing the primary election get amended. If the law stands as it is now, she said her office will not be able to hold a primary election. She pointed out to the senators that they have the authority to amend laws.

Senator Franklin Johnson also pointed out the Senate can amend the laws.

“We’re gonna have to do some real digging in this to make sure we’re on the right track going forward,” he said.

The Republican Party in the Virgin Islands is prepared to move forward during this election cycle.

John Yob, who was elected February 8 as the VIGOP’s national committeeman, and elected May 3 as the party’s state chair, confirmed that the party is making plans to nominate Republican candidates through a party-run process.

Senators discussed the court’s ruling as it relates to Section 232, which states in the first sentence that party primary elections shall be in the Virgin Islands on the first Saturday of August for the purpose of choosing candidates for nomination to public offices to be voted for at the ensuing general election. The Senate’s legal counsel clarified the first sentence of Section 232 remains law. He said the second sentence that gave the Board of Elections responsibility for certifying the process to be used by any political party to select party officers and candidates for public office was deemed unconstitutional. He pointed out that the first sentence only references public offices, not party offices.

Senator Milton Potter said the court’s ruling requires the Office of the Supervisor of Elections to stand down when it comes to conducting primary elections. He asked Fawkes how Section 232 should be amended.

“Section 232 needs to be very specific and clear,” Fawkes said, suggesting senators review existing state laws that require primaries be conducted by the government.

In 20 states, at least one political party conducts open primaries where voters can participate in nominating contests for congressional and state-level offices regardless of their party affiliation, according to Fawkes. In 15 states, at least one political party conducts closed primaries in which only people registered with the party can vote in a party’s primary election for congressional and state-level offices. In 14 states, at least one political party conducts semi-closed primaries for congressional and state-level offices.

Senator Ray Fonseca asked Fawkes if she would make a recommendation to the Legislature relating to how Section 232 should be amended. Fawkes said the topic has been an ongoing discussion in the Legislature for more than a decade, suggesting senators know what corrections are needed.

“I think it should be coming from the legislative body,” Fawkes said.

Senate President Novelle Francis Jr. said the lawmakers need to hear the positions of the political parties regarding how they plan to proceed if the government does not conduct primary elections. He acknowledged the lawmakers have work to do when it comes to the election laws.

“I look forward to some very near date in the future where we could reconvene in order to address this issue of elections and our primary,” Francis said.

Senate President Novelle Francis Jr. speaks during a Senate Committee of the Whole meeting Monday in the Frits E. Lawaetz Legislative Conference Room on St. Croix.
Senate President Novelle Francis Jr. speaks during a Senate Committee of the Whole meeting Monday in the Frits E. Lawaetz Legislative Conference Room on St. Croix.

In addition to amending the election laws to address those found unconstitutional by the District Court, the Legislature is planning to act on four other amendments relating to elections.

Senator Kenneth Gittens said four relatively minor amendments to the election laws will be offered during the next legislative session. He said one amendment addresses casting of lots, one increases the contribution amounts to $3,500 from $1,000, one clears up language that speaks to primary elections and makes allowances for petition packages to be filled out electronically, and one clarifies the language relative to felon or those convicted of a crime of moral turpitude.

“These individuals shall not be afforded the ability to run for public office unless they have been pardoned and all their rights are restored,” Gittens said.

Senator Kenneth Gittens, right, speaks during a Senate Committee of the Whole meeting Monday in the Frits E. Lawaetz Legislative Conference Room on St. Croix. Senator Diane Capehart is also pictured.
Senator Kenneth Gittens, right, speaks during a Senate Committee of the Whole meeting Monday in the Frits E. Lawaetz Legislative Conference Room on St. Croix. Senator Diane Capehart is also pictured.

Tom Eader is the Chief Reporter for WTJX. Originally from South Bend, Indiana, Eader received his bachelor's degree in journalism from Ball State University, where he wrote for his college newspaper. He moved to St. Croix in 2003, after landing a job as a reporter for the St. Croix Avis. Eader worked at the Avis for 20 years, as both a reporter and photographer, and served as Bureau Chief from 2013 until their closure at the beginning of 2024. Eader is an award-winning journalist, known for his thorough and detailed reporting on multiple topics important to the Virgin Islands community. Joining the WTJX team in January of 2024, Eader brings a wealth of experience and knowledge to the newsroom. Email: teader@wtjx.org | Phone: 340-227-4463
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