A judge handed St. Paul City Council Member Dai Thao a significant legal victory this week, agreeing that he was protected by federal law when he helped a woman vote in an election in which he was a mayoral candidate.
Thao’s actions resulted in three misdemeanor counts that accused him of violating state election laws. But Ramsey County District Court Judge Nicole Starr granted part of Thao’s motion, finding that the Voting Rights Act of 1965 pre-empts Minnesota law regulating a candidate’s actions at polling stations.
Although Starr didn’t rule on Thao’s motion to dismiss the criminal charges against him, the judge’s decision supports his attorney’s argument that Thao, who is Hmong and speaks the language, acted legally last year when he helped an older Hmong woman who spoke no English at the polls.
Thao, 43, was charged in February with three misdemeanor counts of unlawfully marking a ballot, misconduct in and near polling places and unlawfully assisting a voter. Minnesota law prohibits candidates for office from assisting voters in a polling place.
“Mr. Thao is grateful for the ruling,” said his attorney, Joe Dixon. “It confirms that he was acting consistent with the law in trying to help a woman overcome physical and language impediments to exercise her vote. He wasn’t trying to do anything wrong.”
Thao declined to comment Wednesday, deferring to Dixon.
Starr granted the prosecution’s motion to abstain from addressing Thao’s guilt or innocence so both sides can review her decision. A hearing is scheduled for Nov. 29. The move effectively puts the case on pause and opens the door for prosecutors to ask the Minnesota Court of Appeals to review Starr’s decision.
“We have received the decision and are reviewing our options,” said Chief Deputy Dakota County Attorney Phil Prokopowicz.
The Dakota County Attorney’s Office is prosecuting the case to avoid a conflict of interest.
Starr wrote that state and federal voting laws clashed on Nov. 6 when Thao drove a 63-year-old Hmong woman to an early voting site. Thao interpreted for her, helped her register to vote and marked her choices on the ballot.
Thao was running for mayor of St. Paul at the time; he lost to Melvin Carter.
“Here, without the candidate’s assistance the voter would have been unable to vote because she only spoke Hmong,” Starr wrote. “Though the record indicated that the voter was under some time constraints as she was leaving on international travel … even if she did not have these time constraints, the position that the voter could wait for an undetermined amount of time until an interpreter arrived is an unacceptable barrier.”
Dixon argued in legal filings that the case should be dismissed because federal law supersedes state law, and allows voters to select whomever they wish for help voting, among other arguments.
Starr wrote in her order that she agreed with Dixon’s interpretation of the federal law.
“[T]he Court finds that the purpose of the Act was to create as few barriers as possible to voting, with the understanding that non-English speakers are fully capable of determining who should serve as their trustworthy assistant,” she wrote. “Under these facts, the [state] prohibition of a candidate as a possible trusted assistant acted as an obstacle to the accomplishment of the full purpose and objective of Congress.”
There were no other Hmong speakers at the voting site, the Martin Luther King Recreation Center, at the time, the judge wrote.
“Though other Hmong language speakers were available at different polling places, the record is bare as to how long the voter would have waited to receive assistance in Hmong at her location,” Starr wrote. “With the help of the candidate, the voter was able to vote and as the parties agree, the candidate filled out the ballot as the voter directed.”