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Board of Elections, AG’s Office Claim No Role in Contested Delegates’ Court Case

Representatives of the Attorney General’s Office and the V.I. Board of Elections were called to Superior Court on Friday to explain why their respective entities have decided to take no position in a case that will likely affect the interpretation of election law in the territory.

The case is part of a battle on the part of John Yob, Erica Yob and Lindsey Eilon to represent the USVI as delegates to the Republican National Convention in Cleveland, Ohio, this July. (See Link: Contested New V.I. GOPers Win Three National Convention Slots)

The Yobs and Eilon were among the top vote-getters in the territory’s Republican Caucus on March 10, but face multiple challenges to their eligibility to serve. Eilon’s husband also ran in the caucus but did not place among the winners.

The first challenge came on March 4, when Elections Supervisor Caroline Fawkes struck the Yobs and Eilon from the territory’s registry of voters, saying they had not met a 90-day residency requirement. The second came on March 21 when, after the three candidates had already won their bids, local GOP Chairman John Canegata disqualified the whole slate of winning delegates based on a procedural issue.

Both challenges have sparked a series of interparty quarrels. (See Link: Fight: V.I. Republicans Announce Two Competing Slates of Delegates to National Convention)

While the second challenge must be settled by the party, the first is being fought by the Yobs and Eilon in court.

The decision in the case will have no bearing on whether the National Republican Party ultimately chooses to accept a slate of delegates sent by Canegata to National Chairman Reince Priebus on April 2 or whether it will reinstate the original disqualified slate, including the Yobs and Eilon.

It will, however, determine whether or not there is a period of time an individual must wait after moving to the territory before he or she can register to vote.

The Yobs and Eilon contend that Fawkes misinterpreted V.I. law when she disqualified them as eligible voters. Fawkes said they would have to wait 90 days before registering. They argue the 90-day wait applies to voting in an election, not simply registering, and that a party caucus does not apply.

So far the court has sided with the contested delegates. On March 9, the court issued a temporary restraining order reinstating their voting rights provisionally to allow them to participate in the caucus. That TRO was followed by a preliminary injunction on March 22 stating that the Yobs and Eilon will likely prevail in their argument that they were eligible to register on the day they arrived in the V.I.

The Board of Elections has repeatedly said that despite being named as a defendant in the case, it has no stake in it and no opinion on the March 4 letter written by Fawkes to the V.I. Republican Party stating the delegates were not eligible voters.

Presiding Judge Kathleen Mackay said she was not pleased by the Elections Board’s decision to neither make a counterargument in the case, nor alternatively seek some agreement with the plaintiffs. The board appeared to be “lying down and playing dead,” she said.

At a March 22 hearing, St. Thomas-St. John District Board of Elections Chairman Arturo Watlington Jr. said Fawkes had acted within her authority by independently responding to the issue. The board does not become involved in voting eligibility issues, he said, unless there is a direct appeal of the supervisor’s decision.

Because the Yobs and Eilon appealed directly to the territory’s courts rather than the Elections System, the issue never came before the board, Watlington said again Friday.

The board’s position, Mackay said, puts Fawkes in an ambiguous position since she may not have any separate legal identity from the board when acting in her official capacity.

Since the board has said it has no opinion and has not authorized the hiring of legal counsel, Fawkes has been represented in the case by attorney Scot McChain, who is working pro bono. McChain has had his right to represent Fawkes without board approval challenged by opposing legal counsel.

The Attorney General’s Office has also declined involvement in the case.

On Friday, Assistant Attorney General Hugh Greentree told Mackay the AG’s Office had taken its position because the Board of Elections is an independent entity with the ability to hire private legal counsel and also because the AG’s Office is currently investigating the Elections System for alleged misconduct during the 2012 election, a fact which raises a conflict of interest.

Complicating matters further is the fact that multiple individuals have filed motions to intervene in the case, one of which has been granted.

Valerie Stiles, who was granted intervener status on March 22, alleges that there are larger issues than the 90-day wait time that should be weighed before the case is decided.

The question of “bona fide residency,” though not mentioned in the case’s original filings, has been circling via some of its motions and objections.

Stiles’ attorney Edward Barry said Friday that to determine the case only based on the 90-day issue would be a “hit and run” approach, and other challenges to bona fide residency should be considered, including whether or not the Yobs and Eilon are registered to vote in other jurisdictions.

Attorney for the plaintiffs J. Russell B. Pate reminded Barry that registration outside the territory would be irrelevant since his clients had been denied eligibility in the V.I., and other jurisdictions would not have canceled their registration until receiving notice.

Mackay said that after taking Friday’s information under advisement, the court will issue an order regarding the case by Monday or Tuesday, followed shortly by a full judicial opinion.

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