Elections misses key federal deadline St. Thomas-St. John Elections chair refuses to divulge AG's advice


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ST. THOMAS - The St. Thomas-St. John Board of Elections is in violation of a federal consent order that mandated the board to send out absentee ballots to overseas military personnel by June 17.

During an emergency meeting called for Friday afternoon at the board's offices in Lockhart Gardens on St. Thomas, board members were irate with the V.I. Elections System for not better communicating the status of the ballots in the last two weeks.

They said that during that time, they thought that the ballots were finalized and sent out to military members.

"We have a crisis," said Arturo Watlington Jr., chairman of the St. Thomas-St. John Board of Elections.

The U.S. Attorney's Office asked the V.I. Attorney General's Office to check on the status of sending out ballots for the Aug. 2 primary election in the territory, at which point the territorial office discovered this week that the ballots had not yet been finalized.

The V.I. Attorney General's Office sent a letter recommending a series of steps that the board take to catalyze the process, including holding the emergency meeting Friday afternoon.

"I'm really a little embarrassed. It's a little disconcerting that we are where we are," Watlington said.

The board initially finalized the ballots in a June 13 meeting, though members were surprised to find that changes needed to be made when they attended a June 16 meeting.

Three days later, the board convened for the second time that week and discovered that the board missed the deadline and still had small edits to make to the ballots.

On Friday, the V.I. Elections System approved a final ballot, said St. Thomas-St. John Deputy Elections Supervisor Nefrediezha Barbel.

Still, it will take two days - Friday and Saturday included - to print the ballots, after which point, the company handling the territory's ballots, ES&S, would expedite their delivery to the board.

The board then is responsible for sending the ballots to the military personnel.

The Elections System website posted a notice of recognition that it had not met the June 17 deadline, which reflects a local statute requiring the government to provide servicemen and women with ballots within 45 days of the territory's primary election.

The federal ballots allow them to vote for the territory's congressional delegate.

This year, as a paper-saving measure, the federal ballot and territorial ballot will be combined.

The website stated that it is making every effort to get the ballots within the next three days.

In the St. Thomas-St. John District, there are two members of the service, and both are stationed in Everett, Wash., according to Barbel. St. Croix also has two service members.

St. Croix Board of Elections Chairman Adelbert Bryan, who was present during the St. Thomas-St. John meeting would not comment about the status of St. Croix operations when asked by Watlington.

Without a show of cause that the tardiness of the ballots was not intentional, the federal government could hold officials from the V.I. Elections System or the St. Thomas-St. John Board of Elections in contempt, according to Watlington.

All of the board members present expressed discontent with Elections Supervisor Caroline Fawkes, who was not present at the meeting. They held Fawkes responsible for not working to get the finalized ballots to ES&S sooner.

Board members also berated Barbel for not knowing more about the status of the ballots and not having better communication with all those involved with the ordering of the ballots.

Board members were not happy to hear a number of other items pertaining to the election, including that 52,000 ballots had been ordered for the primary election, though Barbel did not know whether the number covered only the St. Thomas-St. John District or whether the order was for the entire territory.

Either way, board members were shocked, stating that the number was far too high.

The board calculated that less than 15,000 people are eligible to vote in the primary election on St. Thomas and St. John, and it estimated that not more than 15,000 more could be eligible on St. Croix.

In that case, 52,000 ballots would be an obscene amount of ballots even just for the territory, board members said, let alone for just the St. Thomas-St. John district.

The V.I. Elections System has a contract of more than $600,000 with ES&S that covers any number of ballots, though the printing of the ballots is not included in the contract.

The board could not provide an estimate of the cost of printing 52,000 ballots.

"I don't think Ms. Fawkes ever told us how much she was going to order," Watlington said.

The board ordered Barbel to contact ES&S and tell them to immediately send about 120 ballots to cover the two military members in the district and the nearly 60 other absentees in the district.

Additionally, they said they want 20 percent of the initial 52,000-ballot order as soon as possible.

The board is hoping that it can speak with Fawkes and request the order of ballots be revised, so that the number is more fitting to the district's number of eligible primary election voters.

The board also ordered Barbel to find out more about the status of envelopes to accompany absentee ballots, and also the instructions, which have been edited time and again as well and should be finalized at this point.

- Contact Jenny Kane at 714-9102 or email jkane@dailynews.vi. ST. THOMAS - In violation of the territory's Open Records law, St. Thomas-St. John Board of Elections Chairman Arturo Watlington Jr. and V.I. Attorney General Vincent Frazer refused to release to the public a letter from the Attorney General's Office outlining the steps the Elections board needs to take after failing to comply with a federal consent decree regarding absentee ballots.

Watlington and Frazer both cited attorney-client privilege when asked to provide a copy of a letter from Assistant Attorney General Carol Thomas-Jacobs that specified the violations of the board in relation to a federal consent decree issued three years ago.

"We can't provide that," Frazer said. "It's an internal document."

However, the attorney-client privilege does not apply to government agencies acting on behalf of the people, according to Daily News legal counsel Kevin Rames.

"There is no case law in this jurisdiction supporting Mr. Watlington's position, and it is likewise bad policy, given that his position is no more than an effort to shield a government agency that is engaged in behavior damaging to the public interest," Rames said. "One wonders if this non-existent privilege would be claimed if the letter from the attorney general was in praise of the agency. How many lawsuits must the government lose before it gets the message that public documents belong to the people, and that the protection of fundamental constitutional rights, like the right to vote, is not a matter for unlawful secrecy?"

The Open Records Act does not list the attorney-client privilege as a basis for government agencies to refuse the disclosure of public documents, because government agencies are public entities and, when the Attorney General's Office represents a public agency, the office is representing the public, Rames said.

The Federal Rules of Evidence affords the attorney-client privilege to public officials, not to public agencies, according to Rames.

A rule was proposed at one point that would have extended the attorney-client privilege to public agencies, but that rule was rejected by the United States Congress in favor of developing the privilege through case law, according to Rames.

Jacobs's letter followed a request from the U.S. Attorney's Office that the Attorney General's Office check the status of the absentee ballots for the primary election.

In 2011, the federal government issued the consent decree citing a violation of absentee ballot policies, which mandate that states and territories send federal ballots to military members 45 days in advance of a primary election. This week, the attorney general's office discovered that the Elections System had missed the deadline.

"She has advised us to take certain action so we can clearly explain why the military people have not received their ballots as per the consent decree," Watlington said, summarizing Thomas-Jacobs' letter in his own words.

- Contact Jenny Kane at 714-9102 or email jkane@dailynews.vi.

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