Candidate's case illustrates voting impediments

By Barbara J. Jones
BridgeTower Media Newswires

MINNEAPOLIS — Respect for elders is a tenet of Hmong culture. So when St. Paul City Council member Dai Thao’s elderly woman neighbor needed help voting, it was natural for him to help.

As a candidate for mayor, he was familiar with the campaign manual that said voters were allowed to have assistance, including translators.

So he took his neighbor to the polling place, translated for her and marked her ballot as she directed, all in the presence of election judges, who made no objection. They knew he was a candidate and there were no interpreters at the polling location.

“She asked for my help and I helped her,” Thao said. He didn’t know that as a candidate, he was not allowed to help under state law.

Then he was charged with marking a ballot without lawful authorization. He appears to be the only person ever prosecuted for this gross misdemeanor.

The situation ended happily for Thao, who was acquitted after a bench trial based on stipulated facts, based on reasonable reliance on the election judges. Ramsey County District Court Judge Nicole J. Starr also said that the Minnesota law prohibiting voter assistance by a candidate was pre-empted by the Voting Rights Act, 52 USCA sec. 10508.

But the impediments to non-English speaking registered voters remain. As in this situation, many polling places are not staffed with interpreters.

There were some unusual elements about the trial. Thao agreed to be interviewed by the investigator and the trial was based on stipulated facts.

There were “pretrial” issues such as the Voting Rights Act, and there were guilt or innocence issues of reliance and mens rea, Dixon said. The judge didn’t rule on the mens rea element after finding him not guilty on the grounds of reliance. Thao was transparent about the assistance he gave the elderly voter, said his attorney, Joe Dixon.

It’s generally true that ignorance of the law is no excuse, said Dixon. But an exception exists if the conduct in question is generally legal. The law does make distinctions that could require the state to prove that the defendant knew what he was doing was wrongful, he explained. That remains an open question in this case, Dixon said. The state did not argue that Thao knew that what he was doing was wrong, Dixon said. Its argument was that his knowledge didn’t matter.

“This is a very unusual law,” Dixon said. The secretary of state appeared to be unfamiliar with it, since the candidate manual didn’t advise them of the prohibition, he said. Some Minnesota statutes say that generally people can help others vote, he said.

“Election judges are providing a service to our community. I’m thankful for that service,” Dixon said. “By the same token, it’s hard for the state to prosecute a case of someone acting in a transparent way, who is known to the election judges, who helps the election judges and only after the fact, as he’s walking out, is told, ‘You shouldn’t have done what you did.’” Ultimately that’s what the judge found, Dixon said. “They permitted the conduct to go forward,” which is the defense of reliance, he said. Reliance is a pretty well-developed area of case law, Dixon explained.

While voting integrity is a critical issue, it’s important to recognize that barriers exist for some people, Dixon continued. “It’s harder to vote than some of us would like to think,” he said.

Thao was elected to the City Council in 2012 but was a community activist before that. “As a community organizer and activist I’ve taken seniors and elders [to vote and] I’ve translated for them. We don’t have enough translators. The county doesn’t provide translators, and each of us is only able to translate for three voters. We have more voters than we have volunteers,” he said.

“It was my honor to help an elder who paved a path to bring us to this country,” he said. “I’ve mentioned that our seniors are the pinnacle of our community and I still hold that value.” He even told the election judges how to fix their troublesome printer, Thao said.

Thao said that Americans are subtle. “If they don’t want you to do something they won’t tell you. But if they don’t provide translators, they don’t provide the same opportunity that the law says that they should. In a way, they are saying to us that we’re not welcome,” he said. Voting can be very intimidating he said.

The state argued that there was an interpreter available at a completely different polling place, Dixon said, but there was no indication how long it would be before that person was available. When the state says there’s an interpreter in another location, Thao said, the message is that all non-English speaking people need to go there.

Dixon said that the case should be understood broadly. It concerns the state’s restraints on voting that are not consistent with the Voting Rights Act, including the rule that a translator can serve only three voters and the rule that says candidates may not assist voters. The constraints put election judges and voters on the spot, he said. “It’s not the judges, it’s the system that’s been set up,” Thao said. It should not be a surprise that Hmong translators would be needed for an election in St. Paul, Dixon said. “For years we
have known that this is difficult,” Thao said. Translators and voters have been turned away from polls routinely, he said.

Thao was very angry because the charge affected his family, his clan and the whole Hmong community, but Dixon helped him calm down, he said. An attack on the system would have been contagious, Thao said. But he and his wife decided he had nothing to hide. That’s why he agreed to proceed on stipulated facts, even though it was difficult. “I wanted the community to know the truth.”

Thao is a public servant, Dixon said, which can be a thankless job. “We need more good people willing to be in public service. The charge went to his integrity as a politician. He had to make choices about how to handle this. He didn’t want to hide his conduct. There’s a lot of bravery in that,” Dixon said. “People have to be willing to do public service and be willing to stand up for what they believe in.”

Thao wants the secretary of state to look at the issue and provide an equitable amount of translators. Minneapolis attorney Tim Branson, representing Asian Americans
Advancing Justice and Fair Elections Center, has forwarded Starr’s order on Thao to Steve Simon, secretary of state, and requested that officials be instructed not to enforce the problematic parts of the statute.

Branson’s clients have the support of the American Civil Liberties Union of Minnesota. David McKinney, staff attorney, said in an email to Minnesota Lawyer, “The ACLU-MN fully agrees with Judge Starr’s conclusion that Section 208 of the federal Voting Rights Act (VRA) preempts Minn. Stat. § 204C.15, a state voting law that places unnecessary restrictions on the ability to fully assist people who the VRA was enacted to protect — those in need of voting assistance because of a disability or a language issue.

“Although it has come under substantial attacks in recent years, the VRA is a bulwark against systemic efforts to suppress voting, particularly from persons of color. The ACLU-MN encourages Minnesota Secretary of State Steve Simon to enforce Judge Starr’s order with respect to all state law voting restrictions violating the VRA.”

Meanwhile, Thao will continue to press the issue of adequate translation services.

“If they want translators to go through certain programs, we’ll do that,” Thao said. “I’m OK with carrying this load to get this law changed. I’m at peace with that.”