As a former deputy supervisor of elections for St. Croix, former senator, and former standards board member of the U.S. Elections Assistance Commission, I have a profound understanding of the critical importance of maintaining the integrity and fairness of our electoral process. Recent developments, particularly the ruling by the chief judge of the District Court, have highlighted significant deficiencies in our election laws, necessitating immediate legislative action to safeguard voter rights and ensure compliance with federal mandates.

Judge Robert Molloy’s decision in the Republican National Committee’s lawsuit against the Virgin Islands Board of Elections has brought to the forefront serious issues within our election statutes. The ruling invalidated this year’s primary election, citing the unconstitutional vagueness of specific provisions of the Virgin Islands Code that pertain to public office candidates, including those running for the Legislature, Delegate to Congress, Board of Education, and Board of Elections.

The court found that several sections of the Virgin Islands Code imposed severe burdens on party operations and infringed upon the plaintiffs’ freedom of association guaranteed by the First Amendment. Specifically, the court invalidated the following provisions:

– 18 V.I.C. §§ 301(a), 303(a)-(c), 305, 306(a), 307, 342, and the first sentence contained in 18 V.I.C. § 304(a) for imposing undue burdens on internal party operations without serving a compelling government interest.

– 18 V.I.C. § 232, the second sentence, for being unconstitutionally vague and violating due process by failing to provide a means of redress.

These findings clearly indicate the need for the Virgin Islands Legislature to act promptly to revise and clarify our election laws, ensuring they comply with federal mandates and constitutional protections.

Furthermore, the current compliance with the Help America Vote Act and the guidelines set forth by the Election Assistance Commission is under scrutiny. HAVA, enacted as Public Law 107-252 on Oct. 29, 2002, mandates specific standards for election administration, including the use of certain types of voting equipment and procedures. The Virgin Islands must align its election laws with these federal standards to protect voter rights and maintain public trust in the electoral process.

Supervisor of Elections Caroline Fawkes, my former boss, testified before the Legislature on May 13 before the Committee of the Whole, expressing her concerns about the primary election not being conducted by the Office of the Supervisor of Elections and the Board of Elections. According to 18 V.I.C. § 232, “Party primary elections shall be held in the Virgin Islands on the first Saturday of August for the purpose of choosing candidates for nomination to public offices to be voted for at the ensuing general election. The Board of Elections will be responsible for certifying the process to be used by any political party to select party officers and candidates for public office.” This law, written in 1998 and last amended on May 31, 2012, requires the Legislature to address the issue and make necessary changes to allow the Office of the Supervisor to conduct the elections. Without such changes, legal challenges will continue to undermine our electoral process.

The recent court ruling has made it clear that the current state of our election laws is untenable. To address these urgent issues, I call upon the 35th Legislature to undertake the following actions:

1. Legislative Clarification and Reform: Amend the Virgin Islands Code to eliminate vague and unconstitutional provisions. Clear, precise language is essential to ensure that election laws are understandable and enforceable, thereby preventing future legal challenges and protecting the integrity of our elections.
2. Protection of Voter Rights: Reinforce the provisions of HAVA that guarantee voters the opportunity to correct their ballots before submission. This includes ensuring that all voting systems and procedures comply with EAC guidelines, thereby safeguarding the accuracy and reliability of the electoral process.

Moreover, it’s crucial to acknowledge that HAVA mandates specific equipment and guidelines, which raises concerns about the capability of political parties like the Democratic, Republican, and Independent Citizens Movement to conduct primaries in compliance with these standards. In the case of Kenneth Mapp and Janelle Sarauw v. Fawkes (2014), which focused on ballot issues and compliance with the Help America Vote Act, the manner of voting, particularly the placement of the ballots in the secondary bin, became a central concern. This legal battle underscored the critical importance of adhering to federal standards outlined in HAVA for effective election administration. This further emphasizes the necessity for legislative intervention to ensure that our election infrastructure meets federal requirements and protects the fundamental rights of all voters.

During my tenure as deputy elections supervisor, I was appointed to serve along with the supervisor, Fawkes, on the Standards Board of the U.S. Elections Assistance Commission, comprising 110 members from state and local elections officials across the United States and its territories. I then ran in 2016 to serve on the Executive Board of the Standards Board, before running for office in 2018. I last served as the vice-chair on the Executive Board. My election to the board and subsequent appointment as chair of the Clearinghouse Committee, a HAVA-mandated entity, underscored my commitment to developing the voluntary voting system guidelines and centralizing resources for the effective administration of federal and local elections.

The Virgin Islands must take decisive action to reform its election laws, ensuring they are clear, fair, and in full compliance with federal standards. By doing so, we can safeguard the integrity of our elections and ensure that every vote is counted fairly and accurately.

— Genevieve Whitaker is a Democratic candidate for public office (Legislature of the Virgin Islands, St. Croix District), former senator, 34th Legislature of the Virgin Islands, former deputy supervisor of elections (St. Croix District) and former standards board member, U.S. Elections Assistance Commission.