Is Attorney General guilty of negligence in the face of proof that allegations of election misdeeds and fraud were filed?

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Part 2 of 2

(Editor's Note: This letter is too lengthy for publication on one day; rather than delete any part of it, The Daily News has divided it into two parts. Part 1 was published Monday, Dec. 3.)

This is an Open Letter to V.I. Attorney General Vincent Frazer, in objection to Attorney General's Office Conflict of Interest in investigating the 2012 General Election.

Noteworthy in the Nov. 14, 2012 Virgin Islands Daily News article are your statements that now that allegations have surfaced after the fact, the panel "will step up and investigate the matter," and election allegations were brought to your attention "only through the media."

V.I. Code 18, Chapter 3, §47(8) mandates the Boards of Elections "investigate election frauds, irregularities and violations of this title, and report all suspicious circumstances to the Virgin Islands Department of Justice for possible prosecution;"

Logically, legitimate sources that would report verifiable election law violations to the Supervisor of Elections, or to the Boards of Elections, to be forwarded to your office, would include the pool of voters and candidates themselves, as they have a vested interest in election outcomes.

Allegations ignored?

Were you forwarded any reports from the Boards or the Supervisor of Elections containing allegations of Primary Election fraud, irregularities and violations of Title 18? If so, were they so untimely as to be considered insufficient advance notification precluding any reasonable mitigation on your part for the General Election?

For example, on Aug. 17, 2012, Krista Schluderman submitted an inquiry to the St. Croix District Board of Elections and the Supervisor outlining findings that Senators Usie Richards and Alicia "Chucky"

Hansen's election files contained petition signature deficiencies and were missing critical, 2010 election campaign disclosure documentation of donations and expenditures.

Did you receive that document in a timely fashion?

On Sept. 20, 2012, St. Thomas senatorial candidate Jean Forde listed several serious allegations in his notarized correspondence about the St. Thomas-St. John District Board's mishandling of the Primary Election, tabulation and questionable conduct of the board altogether.

Did you receive that document in a timely fashion?

On Sept. 24, 2012, a detailed complaint was submitted to the St. Thomas-St. John Board of Elections and the Supervisor by a group of candidates alleging a wide variety of egregious infractions and citing observations about the conduct of the Primary Election - specifically negligent mishandling of paper ballots, voting machine non-certification and non-compliance, vote tabulation, etc.

Did you receive that document in a timely fashion?

On Oct. 1, 2012, St. Thomas-St. John Board of Elections Vice Chair and Senator-At-Large candidate Wilma Marsh-Monsanto challenged the protocol and certification of the 2012 Primary Election as a result of the breaking of a quorum and board members' signing the certification document - outside of the official meeting environment and out of public view.

Did you receive that document in a timely fashion?

Voting machine owner's role

On Oct. 1, 2012, St. Croix Board of Elections candidate, Krista Schluderman, submitted a challenge to the 2012 St. Croix Primary Election certification due to the status of Electec Inc. president and owner Matthew Lilly and his unlawful role as an examiner during the testing of our electronic voting machines.

Additionally, she raised concerns about the conflicting and unsubstantiated claims made publicly by the Supervisor of Elections, by the Joint Boards Chair, and by Lilly that the voting machines used in our elections are certified - National Association of State Election Directors (NASED) and Election Assistance Commission (EAC) certified.

Those claims are abject misrepresentation.

An identical complaint was submitted by St. Thomas-St. John Board of Elections candidates Diane Magras and Harriet Mercer.

Did you receive those documents in a timely fashion?

On Nov. 2, 2012, Delegate to Congress candidate Norma Picard Samuel informed you that the mere testing and the deployment of non-EAC certified electronic voting machines into polling locations on election-day violates our local law, Act 7334, which mandates only EAC-certified voting apparatus shall be used in all U.S. Virgin Islands elections from December 28, 2011, forward.

She informed you that electronic ballots cast for federal office must be accomplished by voters on federally certified voting machines according to the Help America Vote Act (HAVA). Otherwise, all ballots are automatically nullified ab initio.

By her advance notification, you were alerted, in good faith, that this circumstance bears a direct impact on the outcome of her investment and endeavor to be fairly elected to federal office, and she requested your immediate involvement to prevent the Tuesday, Nov. 6, 2012, deployment of these voting machines in order to avoid any potential legal ramifications.

Did you receive that document in a timely fashion?

If not, then the boards and the supervisor are grossly negligent in their non-compliance to VIC 18, Chapter 3, §47(8) by their failure to bring serious election issues to your attention.

At the very least they have denied the complainants' due process by not properly vetting the complaints and instead dismissing them out-of-hand and characterizing them on public airwaves as "political ploys to get votes" (St. Thomas-St. John Board of Elections member Lawrence Boschulte), and as "partisan politics" (Joint Boards Chair, Rupert Ross Jr.)

Conversely, if you did receive the above-mentioned documents in a timely fashion, then you are not only grossly negligent in failing to act to mitigate the general election allegations that are presently flowing from those complaints and challenges, but your statements that "allegations have surfaced after the fact" and were brought to your attention "only through the media" are troubling, disingenuous and misleading.

Undoubtedly, early and appropriate action would likely have not only reversed the Primary Election certification, but it would have changed the face of the general outcome in terms of perceived transparency and voter satisfaction, plus avoided the turmoil and unnecessary controversy we all face today.

What you said in print

Other statements you made in the Nov. 14, 2012 Virgin Islands Daily News: Your said your characterization of election allegations as "unfounded" was a "slip," and you said, "It's not our job to monitor elections."

You also said, "It is not my job or my role to stand over them and make sure they do what they are supposed to do," and you said you did not have the "staff to appoint…to help supervise activities on election day."

What you said on radio

However, claims made on Radio 1000 on Oct. 14, 2010, by you and by Assistant Attorney General Terrlyn Smock, St. Thomas-St. John Board of Elections Chair Lorna Thomas and Supervisor of Elections, John Abramson Jr., reveal in start detail the V.I. Attorney General's role in oversight of election tabulation, your adverse position on paper ballots, and your staunch defense of electronic voting machines.

Assistant Attorney General Terrlyn Smock's 2010 statements on radio included:

- "The Attorney General's Office routinely attends the counting of ballots to make sure that they are verified and they are done legally and that at the Attorney General's Office that's what we are there for…we are there to make sure it is done correctly and legally."

- "We have an ethical responsibility as members of the Bar of the Virgin Islands to see that that is done. I can tell you when we're there, we're there for that purpose."

- "There is no legal basis for the use of a paper ballot in the Virgin Islands."

- "Our jurisprudence in the United States of America will demonstrate the cases we have dealing with paper ballots, they are replete with problems, all kinds of problems that you have with the paper ballot. And there are less cases that we have had in regards to the electronic ballots that we have."

- "We've had cases in the Virgin Islands, very serious cases, where there's been spoiled ballots and there's been consequences of spoiled ballots. So I think using paper ballots is just problematic."

Attorney General Vincent Frazer's Oct. 14, 2010 statements on radio included:

- The demand for paper ballots "really just creates a lot of confusion. It is an attempt to ignore the legal and established method for voting the Legislature has created…that the election system of the Virgin Islands shall be by electronic votes."

- "Until someone can substantiate there is something wrong with our voting system, that is the way that our voters are supposed to vote."

- "You should have one voting system, one set of votes to count. And when you create a second track of votes to count, that is a dangerous thing and is subject to manipulation. And that is what we are trying to prevent."

- "Our responsibility at the Department of Justice is to defend the electronic voting system."

- "A paper ballot, a paper system is subject to much more manipulation than the electronic system we have."

- "From our perspective in the family of justice, our position is the Legislature says we vote on electronic voting machines. As far as I'm concerned, that's what we will defend."

Attorney General Frazer, is your longstanding prejudice towards paper ballots the driving force behind your decision to direct voters to use voting machines - in contravention to Act 7334 - and

a key factor in your staunch determination to deploy the same antiquated voting machines in the 2012 election regardless of the consequences?

If it is not the job or role of the Attorney General's Office to "stand over them (the Boards of Elections) and make sure they do what they are supposed to do," why would Assistant Attorney General Smock make the claims she made?

When was the last time your office assigned anyone to oversee any election-day activity, vote tabulation, or voting machine certification of testing?

Given the 2010 statements above, how is it remotely conceivable that the election "probe" under way at this moment will yield anything other than biased results designed to shield the Election System and your office?

Adelbert Bryan challenge

Lastly, there was the Aug. 17, 2010 Court Case, No. SX-10-CV-0079, where Superior Court Judge Julio Brady dismissed the complaint filed by former Sen. Adelbert "Bert" Bryan that challenged the Board of Election's decision not to provide an official paper ballot as an option for voters who distrust the electronic voting machines, or object to the use of a provisional ballot.

Before proceedings commenced, Bryan was called out of the courtroom and into Brady's chambers, where attorneys from your office, including Assistant Attorney General Carol Thomas-Jacob, were

already present. And it was there that Bryan learned that the hearing would proceed without witnesses, testimony or evidence and that the court would hear oral arguments only from Bryan and Jacob. Carol Thomas-Jacobs is one of the five senior attorneys appointed to your panel to "look into" the 2012 election issues.

Taken in totality, the aforementioned illustrates plainly that your conduct flies in the face of your duty to investigate violations of the laws of the Virgin Islands, to see to it the best interests of the people of the Virgin Islands are served, and to administer and enforce laws pertaining to ethics and conflicts of interest.

That is the rationale for reporting of your conduct to the V.I. American Bar Association.

Further, as legal counsel for the Boards of Elections, you should be cognizant of S. Ct. No. 2007-96, page 20, where the Supreme Court of the Virgin Islands stated as part of its decision:

"The Board and all election officials must pay close attention to the laws as enacted by the Legislature. For it is their duty as public servants of the people of Virgin Islands to ensure that all elections are conducted lawfully."

You are bound to the same.

I am concerned that the appearance of any investigation by your office may impact on the potential adjudication of election litigation and contests in our courts.

Moreover, the seizure by authorities from your office of documentation generated by the election process may deprive other election and judicial authorities of critical materials needed to resolve election disputes, conduct recounts, and certify the ultimate winners.

Accordingly, it should be general policy of your office not to conduct overt investigations or probes, including early interviews with individual voters, candidates, election officials or staff, until after the outcome of the election allegedly affected by potential error or fraud has reached its ultimate conclusion.

Otherwise, a suspicious public is justified to reject, out-of-hand, any findings issued by your office and deem them chilling, duplicitous and self-serving.

The pervasive view at the moment is the likelihood of an outcome of any election "probe" conducted by your office that is not biased, prejudiced, preemptive of federal action, or skewed in some way to

favor the Election System and dilute voters' protections is utter fantasy.

It remains to be seen whether or not your activity is a legitimate "probe" or the precursor to the aiding and abetting of a cover up by a government agency to protect the status quo and, once again, to

sacrifice justice at public expense.

I vehemently object to any covert investigation of election-related issues that does not include comprehensive investigation of you and the V.I. Attorney General 's Office.

Transparency dictates you report your findings to the U.S. Attorney's Office.

- Eddie Donoghue, Ph.D., is a historian and consultant on V.I. political, cultural and historical matters.

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