Without St. Paul City Council member Dai Thao’s help, the Hmong woman he faces criminal charges for assisting inside a voting booth last fall would have been unable to cast a ballot, according to Thao’s lawyer.
As such, the charges facing him in the case are in violation of the federal Voting Rights Act that protects voters’ constitutional right to vote and should be dismissed, according to arguments defense attorney Joseph Dixon laid out in a motion filed recently in Ramsey County District Court.
The motion also asks the judge overseeing the case to acquit Thao of the charges should she choose not drop them.
The legal documents provide a window into Thao’s legal strategy as he continues to fight the charges filed against him stemming from his alleged conduct in last November’s election.
Authorities charged Thao with unlawfully marking a ballot, misconduct in or near polling places and unlawful assistance of a voter — all misdemeanor-level offenses — after he drove a Hmong woman he’d encouraged to vote to the Martin Luther King Recreation Center last Nov. 6 and helped her mark her ballot.
The 63-year-old woman did not speak English and had vision problems, Thao said previously. Without any Hmong interpreters made available to help her from election judges, Thao, who was a candidate for St. Paul mayor at the time, accompanied her into the voting booth himself, his attorney wrote in the motion.
The woman later told authorities that while Thao read her the candidates’ names in the various races and helped her mark her ballot, he did not tell her who she should vote for, nor that he was a candidate running for mayor.
St. Paul Mayor Melvin Carter wound up winning the race with 51 percent of the vote. Pat Harris came in second, garnering about 25 percent. Thao came in third place with 12 percent.
WILL VOTING RIGHTS ACT FACTOR IN CASE?
The federal Voting Rights Act allows any voter in need of aid due to “blindness, disability, or inability to read or write be given assistance by a person of the voter’s choice,” according to Thao’s motion for dismissal of the charges.
The only exceptions in the federal law are the voter’s “employer or agent of that employer or officer or agent of the voter’s union,” all of whom are barred from assisting citizens as they might try to influence or manipulate the voters’ selections, the motion states.
What it does not expressly state, according to the legal filing, is that elected officials are among those barred from providing such help, a distinction that is made in Minnesota law.
“Minnesota is attempting to restrict conduct expressly allowed by the Voting Rights Act. Such a constraint on federal law cannot be tolerated,” the memo argues. It continues that banning Thao Thao from helping the woman would have denied her “a meaningful opportunity to vote due to her inability to read English and her poor vision.”
The Voting Rights Act is aimed at preventing discrimination in the electoral process, particularly against “citizens of language minorities,” the motion states.
Such a concern is “very real” for Hmong voters in St. Paul, where about 28 percent of the voting age population identified as speaking English “not well” or “not at all,” according to a 2015 estimate provided by the Census Bureau, Dixon argues.
ATTORNEY LAYS OUT CASE
In addition to violating the Voting Rights Act, Thao’s attorney argues that local election judges at the Martin Luther King Recreation Center failed in their official capacity to enforce election laws when they witnessed Thao unknowingly break state law by accompanying the voter into the polling booth.
Instead, they seemed to permit his actions, Dixon wrote.
Thao and the voter worked closely with election judges to register her to vote and were observed by several entering the polling booth together as well, Dixon added.
“Some (of the election judges) recognized Mr. Thao as a mayoral candidate. Yet none … made any effort to inform (him) that he could not assist a voter, even though election judges are affirmatively charged with doing so.”
Further, he said a campaign manual distributed to candidates underscored that individuals can help voters without making any mention of exclusions for candidates, Dixon stated.
As such, Thao thought he was acting within the bounds of the law, according to his motion, further bolstering the soundness of his argument that the case should be dismissed.
The motion also states that the state’s case violates Thao’s First Amendment right to free speech.
PROSECUTOR’S COUNTER MOTIONS TO COME
The Dakota County Attorney’s Office filed the charges against Thao in February after Ramsey County conflicted it out.
Dakota County Attorney James Backstrom
At the time, Dakota County Attorney James Backstrom said the intention behind Thao’s actions were moot when determining their legality.
“Under the law … if you are a candidate…
Authored by Mike Tigas