ST. THOMAS — A federal judge did not rule Wednesday on whether Brett “Mac” McClafferty should be reinstated as a candidate for delegate to Congress, instead ordering both sides in his lawsuit against Virgin Islands’ elections officials to file additional briefs after hours of witness testimony during an evidentiary hearing.
McClafferty, who represented himself, is suing Supervisor of Elections Caroline Fawkes and Board of Elections Chair Raymond Williams in District Court, seeking to overturn his disqualification from the November ballot. District Judge Evan Rikhye gave both sides until September 2 to file supplemental briefs addressing how Wednesday’s testimony bears on McClafferty’s request for a preliminary injunction and the defendants’ motion to dismiss the case.
How McClafferty ended up in court:
McClafferty submitted nomination petitions in May to run as an independent for delegate to Congress, which requires at least 100 valid signatures from each of the territory’s two election districts. The St. Croix District initially found his petition short and issued a notice of defect. McClafferty says he submitted additional signatures and that both district offices confirmed in writing that he had cured the defect.
Fawkes’ office then received six complaints alleging problems with how McClafferty’s campaign had collected signatures in St. Croix. She opened an investigation, which contributed to postponing the official candidate certification announcement twice. On June 15, she disqualified him, citing findings that some signers said they had been misled about who the candidate actually was, that nomination papers had circulated with the candidate’s name field blank, and that video evidence showed petition circulator David Greaux — who is not a registered St. Croix voter and is not permitted to gather signatures there — soliciting signatures himself, rather than Jonathan James, the circulator who had signed the required affidavit.
McClafferty appealed the same day, arguing Fawkes had no authority to investigate or to unilaterally postpone the candidate certification deadline. The Board met July 1, deliberated in executive session, and voted 7-2 with one abstention to uphold the disqualification. Board member Cleopatra Peter argued that Fawkes lacked authority to investigate and that the complaints were themselves procedurally deficient.
McClafferty’s lawsuit raises several claims, including that the disqualification violated procedures for challenging nomination petitions, that Fawkes exceeded her statutory authority to investigate — which he argues belongs to the Board alone — and that the investigation amounted to an unconstitutional additional qualification for office.
The AG opinion’s role:
The hearing came two days after Attorney General Gordon Rhea issued a legal opinion addressing many of the same questions raised in the case, at Governor Albert Bryan Jr.’s request. The opinion concluded the supervisor of elections has primary authority to investigate and disqualify candidates, subject to the Board’s oversight; that disqualified candidates are entitled to notice and a meaningful opportunity to appeal; and that once a candidate clears the minimum signature threshold, challenges to additional “surplus” signatures don’t affect eligibility.
At the start of Wednesday’s hearing, Rikhye asked the defendants’ attorney, Mally Rutherford, for her general assessment of the opinion. Rutherford said it generally supported her clients’ position — but noted the opinion was only advisory, not binding, since the Board is an independent agency within the government.
A pro se plaintiff and five witnesses:
Wednesday’s proceedings had a different tone than a typical District Court hearing. Rikhye said he was giving McClafferty, who is not a lawyer, a “wider berth” as a pro se litigant, stopping repeatedly to explain courtroom procedure and rules of evidence.
McClafferty called five witnesses. Williams, the Board chairman, testified first that the elections supervisor is a Board employee, pushing back on McClafferty’s characterization that she acts at the Board’s “behest.” McClafferty then pulled up Elections System press releases announcing two separate postponements of the candidate certification listing in June and asked who had authorized them. “Not the board,” Williams said, adding he was not aware of any legislative action giving the supervisor that authority. Pressed on whether the postponement had been illegal, though, Williams declined to characterize it that way.
Williams also testified that when the Board voted to uphold McClafferty’s disqualification, none of the appealing aspirants were invited to that meeting or given a chance to present evidence. He said he had based his vote on the evidence presented to him, including letters from people who said their signatures had been collected under false pretenses.
Board member Barbara LaRonde testified next that setting the elections schedule belongs to the Board, not the supervisor, and called the postponement illegal — though she said her real objection was to a lack of proper procedure, not the postponement itself. She testified that investigative authority rests with the Board, and while the Board can direct the supervisor to investigate, it never directed Fawkes to investigate McClafferty. She said she was told none of the appealing aspirants were allowed to attend the Board’s meeting or present evidence, which she said went against past appeals processes, adding it was her opinion that all such appeals should be public. LaRonde described the evidence presented to the Board as lacking: some complaints were not notarized, she said, and in at least one case, a complaint was not even signed by the person making it.
McClafferty briefly questioned Fawkes as well, who testified that setting the candidate certification date falls to the supervisor, and must come before the casting of lots. She said the postponements stemmed from pending appeals that had to be resolved, and that she disqualified McClafferty after investigating the complaints against him, including reviewing security-camera footage from three locations on St. Croix.
The most dramatic testimony of the day came from McClafferty’s own petition circulators.
Greaux testified under oath that he had not circulated McClafferty’s petition on St. Croix without James present and never represented himself as the candidate to anyone signing. He said he had collected “yard sign signatures” while on St. Croix without James. But security-camera footage played in court showed Greaux circulating green sheets that appeared identical to the nomination petition, with people signing them and James nowhere to be seen. Confronted with the footage, Greaux denied the papers were petitions, then fell silent when Rutherford asked what they were, prompting her to remind him he was under oath. He said he could not remember what the papers were for. When Rutherford pointed to another video and asked if he remembered what the stack of green papers were, Greaux said he could not recall. Rikhye pressed him directly — asking if he was saying he did not remember what the papers were for — and Greaux answered, “No, your honor.” On redirect, McClafferty asked Greaux whether the yard-sign forms were also green; Greaux said yes. When McClafferty followed up — “So that is what you were circulating?” — Rikhye interjected, noting Greaux had just testified he did not remember what he had been holding.
James, McClafferty’s petition circulator for St. Croix, testified he had witnessed all the signatures on the petition sheets he turned in and that the yard-sign sheets were also green. But under cross-examination, Rutherford asked James what the yard-sign sheets actually were; he said he did not have “full knowledge” of that. Asked how he knew they were green, then, James backtracked, saying he was not sure they were green after all — that they could have been.
The defendants’ only witness was Fawkes, called back to the stand for a fuller account of her role. She has served as supervisor for 13 years, she said, and her responsibility is to certify or disqualify aspirants, while the Board’s role is policymaking. Rutherford introduced documentation of the rules governing aspirants, nomination papers and circulators, including a “candidate verification form” that McClafferty and every other aspirant had signed, authorizing the supervisor to verify and investigate nomination-paper submissions.
Fawkes testified that after receiving the six complaints, she reviewed security footage from three locations, which she said corroborated the complaints. She said the green papers Greaux was seen circulating matched the nomination petitions used by independent aspirants like McClafferty, and that after 13 years in the role, she could tell from the footage it was a nomination package. That evidence, she said, was the basis for disqualifying him. She also testified that when the Board asked that the complaints against McClafferty be notarized, she contacted each complainant to have that done. Like Williams, Fawkes said she had not yet reviewed the AG’s opinion, but that during her tenure as supervisor, the office had always treated such opinions as advisory rather than binding.
What’s next:
Rikhye issued no ruling after the hours of testimony, instead giving both sides until September 2 to file briefs on how Wednesday’s testimony bears on their arguments.
