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Twin Cities candidate didn’t violate law by entering voting booth, judge says

Dai Thao, St. Paul mayoral candidate. Scott Takushi / St. Paul Pioneer Press

ST. PAUL — When St. Paul City Council Member Dai Thao entered a voting booth last fall to help an elderly Hmong woman vote for him, he may indeed have violated a state law. But not a federal one.

Federal law makes clear that disabled or illiterate voters may pick almost any assistant of their choosing other than their union representative or employer.

In the criminal case filed against Thao, the federal Voters Rights Act of 1965 “preempts the Minnesota voter assistance law,” said Ramsey County District Court Judge Nicole Starr in a seven-page legal order signed Tuesday, Oct. 23. “The two laws conflict. … Without the candidate’s assistance, the voter would have been unable to vote because she only spoke Hmong.”

Noting “the extent (to which) the Minnesota law limits the right of a voter to have an assistant of her or his choosing,” Starr all but acquitted Thao of three charges filed against him. The judge said, however, that prosecutors previously asked the court not to address the issue of guilt “until the parties had a chance to review the court’s order.” She said she would abide by the motion and hold off on proceedings.

In February, the Dakota County Attorney’s office charged Thao with unlawfully marking a ballot, misconduct in or near polling places and unlawful assistance of a voter following his decision last year to help a Hmong elder cast a ballot for his own mayoral run.

The first charge is a gross misdemeanor and the two others are petty misdemeanors.

Thao’s attorney, Joe Dixon, argued that under the Federal Voting Rights Act, voters who need assistance “by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or … agent of the voter’s union.”

Prosecutors noted, however, that state law goes a step further, adding “or a candidate for election” to the list of potential assistants prohibited from entering the voting booth.

Starr laid out why the additional state requirement was unreasonable under the circumstances.

Her judicial order emphasizes that “at the time the voter was at the polling place, the only other person who spoke Hmong was the candidate. … The position that the voter could wait for an undetermined amount of time until an interpreter arrived is an unacceptable barrier.”

Starr also noted that given her finding that federal law preempts state law, there was no need to take up another argument brought up by Thao’s attorney — whether Thao had a Constitutional right to assist the voter under the First Amendment, which protects free speech.

In November, St. Paul Mayor Melvin Carter won the ranked-choice mayoral race with 51 percent of the vote. Pat Harris came in second, garnering about 25 percent. Thao came in third with 12 percent.