The Virgin Islands Justice Department has declined to represent the Board of Elections and Supervisor of Elections Caroline Fawkes in Brett “Mac” McClafferty’s federal lawsuit challenging his disqualification from the delegate to Congress ballot, with Attorney General Gordon Rhea concluding that doing so could undermine public confidence in the electoral process and recommending the board immediately retain independent counsel.
The July 13 letter marks a significant development in one of the territory’s most closely watched election disputes, offering the first public explanation for why the Justice Department declined Gov. Albert Bryan Jr.’s earlier request to issue a formal legal opinion on questions surrounding McClafferty’s disqualification.
In the letter addressed to Fawkes, Rhea wrote that several circumstances make DOJ’s representation inappropriate. McClafferty is currently being prosecuted by the department in an unrelated criminal matter, the Board of Elections could later refer issues arising from its disqualification decision to DOJ for investigation, and the department must avoid any appearance that its impartiality could reasonably be questioned during an election year.
“VIDOJ can decline representation in matters where the impartiality and integrity of the Department may be questioned,” Rhea wrote. “Moreover, given that this is an election year, voter confidence related to the electoral process must be prioritized.”
Rather than defend the Elections Board, Rhea advised election officials to retain outside counsel under Title 18, Section 51 of the Virgin Islands Code, noting that the Virgin Islands Supreme Court has recognized the board’s authority to hire independent counsel to defend appeals from its decisions. Given McClafferty’s pending request for emergency relief in federal court, the attorney general recommended the board do so immediately.
Questions Over Authority
The dispute began June 15, when Fawkes disqualified McClafferty from the delegate to Congress race after an Elections System investigation concluded that irregularities compromised the integrity of his St. Croix nominating petitions.
McClafferty had initially failed to submit the required number of valid signatures but was later given an opportunity to cure those deficiencies. According to his court filings, deputy supervisors in both election districts subsequently confirmed in writing that his campaign had satisfied the statutory signature requirements after additional petitions were submitted.
Fawkes later concluded that multiple petition sheets had been obtained through false or misleading representations, that some petitions had been circulated with the candidate’s name incomplete or blank, and that the individual identified as the St. Croix petition circulator was not present for every signature. She determined those irregularities rendered the petitions invalid and disqualified his candidacy.
McClafferty has denied those allegations. He argues that his campaign lawfully cured every deficiency, that Elections System officials confirmed the petitions were sufficient, and that the Elections System exceeded its authority by conducting what he characterizes as a post-certification investigation rather than following the procedures established under Virgin Islands election law.
He has also argued that Title 18 of the Virgin Islands Code assigns authority to investigate election fraud and irregularities to the Board of Elections, raising broader questions about the scope of the Supervisor of Elections’ authority after petition deficiencies have been cured.
The Board of Elections upheld Fawkes’ decision in a 7-2 vote on July 1.
McClafferty subsequently filed suit in the District Court of the Virgin Islands against Fawkes and Board Chairman Raymond Williams, seeking declaratory relief, damages and an injunction restoring his name to the ballot. He has also asked the court to issue an emergency temporary restraining order and preliminary injunction, arguing that intervention is necessary before election deadlines make relief impractical.
The defendants have not yet responded to the complaint.
DOJ Explains its Decision
Rhea’s letter reveals that the Justice Department believes representing the Elections Board while simultaneously prosecuting McClafferty – and potentially investigating matters arising from the board’s own decision – could compromise the appearance of neutrality.
“If, however, the Election Board decides to refer this matter to the Virgin Islands Department of Justice for investigation, it would be imprudent for the VIDOJ to investigate and simultaneously defend the Elections Board action which gave rise to this suit,” Rhea wrote.
He also noted that McClafferty is currently facing criminal prosecution by DOJ in an unrelated matter, concluding that defending the Elections Board under those circumstances “may appear to be biased or prejudiced” against McClafferty.
The recommendation comes less than a week after Bryan publicly weighed in on the broader issue of ballot access, arguing in an opinion piece that Virgin Islands voters – not restrictive laws, administrative decisions or prolonged legal battles – should ultimately decide who represents them.
Without naming McClafferty, Fawkes or any other election official, Bryan argued in an op-ed piece that the territory has devoted too many resources to keeping candidates off ballots rather than allowing voters to make those decisions at the polls.
Multiple Cases Continue
The election lawsuit is only one of several legal proceedings involving McClafferty.
He remains the defendant in a pending criminal prosecution brought by the Justice Department following allegations involving banking transactions that prosecutors contend resulted in hundreds of thousands of dollars in losses. McClafferty has pleaded not guilty to those charges.
Separately, he has filed a civil lawsuit against Banco Popular alleging negligence, false arrest, defamation, abuse of process and intentional infliction of emotional distress arising from the same underlying events that led to his arrest. That litigation remains pending.
Those parallel proceedings formed a central part of Rhea’s decision to step aside from the election case. In addition to the ongoing criminal prosecution, the attorney general concluded that the possibility of a future Elections Board referral created a circumstance in which DOJ could be asked to investigate matters related to the same plaintiff while simultaneously defending the board’s actions in federal court. Under those circumstances, he wrote, retaining independent counsel best protects both the department’s integrity and public confidence in the electoral process.
The developments also come as the Justice Department prepares for a leadership change within the Criminal Division. This week, DOJ confirmed to the Source that Criminal Division Director Patricia Lynn Pryor will resign effective July 17 to return to private practice. Pryor has previously appeared on behalf of the government in McClafferty’s criminal proceedings, including litigation over his pretrial release conditions. The department said attorneys already assisting the White Collar Crime Unit will continue handling its cases while a replacement is hired and emphasized that ongoing investigations and prosecutions will continue.
The Board of Elections did not confirm by press time whether it is expected to retain outside counsel rather than rely on the Justice Department.
