Ballot Brouhaha-A Federal Case?

Campaigns, city compromise on corrections, but debate over omitted Chinese names continues

By Julie D. Soo

Asian American advocates this week called on federal authorities to look into whether San Francisco violated the Voting Rights Act by refusing to reprint thousands of voter handbooks and absentee ballots to include the Chinese translations of Supervisor Mabel Teng's name and those of six other local candidates.

"How could my name be missing from the ballot? It's unfair," said Teng in an Associated Press report sent out before lawyers for her and the other candidates filed suit last week.

That suit was settled by Oct. 22, though a pact hammered out between city attorneys and lawyers for Teng and supervisor candidate Victor Marquez; school board candidates Carlota del Portillo, Ash Bhatt, Maria Dolores Rinaldi and Julian Lagos; and community college board candidate Anita Grier. Under the agreement, signed by Superior Court Judge Ronald Quidachay, a Filipino American, the Department of Elections will send letters and revised voting materials to some 3,000 Chinese-language voters. Ballots prepared for the polls already reflect the corrections, as well as the correct translation for Supervisor Tom Ammiano's name, which had been mistranslated as "Ammiano Tom."

The city did not, however, go along with the candidates' requests to mail all voters the corrected ballot handbooks and absentee ballots. That would have entailed-which called for a complete reprinting and remailing-called for a full re-sending of more than 52,000 absentee ballots, according to an Oct. 20 declaration filed in Superior Court by Acting Director of Elections Naomi Nishioka.

Nishioka estimated to AsianWeek that it would cost about $19,000 to fulfill the court-signed agreement, though she cautioned that unknown variables could drive the cost up. For example, she doesn't know how many people will actually recast ballots-and for each one, workers must find and set aside the original ballot and re-verify the new ballot.

Still, she said, the $19,000 tab and the accompanying work is a small fraction of what Supervisor Michael Yaki's resolution re-mailing might have cost taxpayers. Nishioka estimates the amount would have hit at least $105,000.

Although the agreement settled the candidates' specific disputes, the issue is far from resolved-the Asian Law Caucus, the Lawyers' Committee for Civil Rights and Chinese for Affirmative Action still plan to ask the Justice Department to monitor the city Elections Department to ensure voter access, as federal officials have in Alameda County for two years. On Tuesday, Department of Justice spokesperson Christine DiBartolo would only say that officials had received a letter and would give it careful consideration.

The activists say they continue to be concerned about what they see as a haphazard procedure for ensuring translations, as well as the city's failure to translate state- and national-level candidates' names, including that of U.S. Senate candidate Matt Fong.

Fong campaign spokesman Joe Yew, an assistant state treasurer, said that the GOP nominee was generally aware of news coverage involving Teng's dispute with the Elections Department. Saying he didn't know of specific details, Yew said Fong's campaign was optimistic of a satisfactory resolution. "Matt has historically admired the work of [City Administrator] Bill Lee."

But when told that San Francisco elections staff, unlike those in Alameda and Santa Clara counties, do not provide written Chinese translations of state and national candidates' names, Yew said Fong would look into a more uniform procedure, conceding that Fong would benefit from the increased accessibility such translations might provide.

As Asian Law Caucus staff attorney Frank Tse sees it, the San Francisco Elections Department has acted like it doesn't believe translations are mandated by federal law. Moreover, he says, officials' defense that the candidates' campaigns failed to respond to phone calls from the department is spurious-because, he says, it's not up to candidates to decide whether their translated names will appear.

"The department is wrong on the law," Tse said. "The federal Voting Rights Act requirement that certain cities translate voting materials certainly extends to candidate names. It cannot be made optional for candidates to choose whether or not their names are translated."

State law, patterned under guidelines set by the Voting Rights Act of 1965, mandates that counties and local precincts provide translations in a language other than English if more than 3 percent (federal guidelines mandate 5 percent) of the citizens of voting age are members of a language minority and are limited-English proficient, or when the secretary of state receives sufficient information that a precinct must provide foreign-language materials to ensure equal access.

Supervisor Leland Yee, who this month cast the only opposing vote against Yaki's emergency measure directing the Department of Elections to correct the absentee ballots, stood by his vote in a press conference last week.

Yee explained that his opposition stemmed from his belief that the election process had gone awry and that individual campaigns had bungled their part of it.

"The situation has been muddled with bilingualism and affirmative action rhetoric, but that's not how it is," Yee said. "I have been a champion and advocate of bilingual education and services, but to use the Chinese language and bilingual issue to subvert the democratic process is just not fair.

"If you care about the election, then play by the rules."

Teng said she is disheartened that the situation has been pegged by some as a personality conflict instead of as a threat to voter access. Still, she said: "This ensures a fair election and reaffirms bilingual balloting. This is a voter access issue."

Though Teng reiterated that neither she nor her campaign had received calls about the missing translations from absentee ballots, she hopes that there will be a "proper procedure," under which translations are automatic.

"The department has a responsibility to provide access to monolingual voters. It shouldn't be up to the candidates" to decide on translations," she said vehemently.

Deputy state superintendent of education Henry Der agreed. The long-time civil rights activist and former executive director of Chinese for Affirmative Action said the focus should be on voter access, not on politics and personal agendas. "The issue is full access to vote; voters are the victims in this," he said.

"I don't care who is at fault, but when city officials and city institutions involved know of a problem, it is incumbent upon them to correct the problem."

According to a sworn statement that Nishioka filed in Superior Court, the ballot brouhaha erupted Sept. 28 when she received a call from Teng's campaign manager, John Whitehurst, who complained that the supervisor's name had not been translated into Chinese in the voter handbook and absentee ballots. According to Nishioka, however, the omission went through only after her office twice called Teng's campaign to ask whether it wanted a translation-which she says campaign officials declined.

According to her statement, Nishioka told Whitehurst that the English-language voter handbooks were already being delivered to the post office and could not be changed, nor could some 100,000 absentee ballot booklets that had been printed as well. Over the next two days, her office decided it had enough time to reprint polling-place ballots and Chinese-language voter handbooks, and it did so.

To change the sample ballot pages inside each English-language voter handbook, she said later, would have meant reprinting and resending the entire booklet-an endeavor that would have cost taxpayers at least $310,000. In addition, she said, reprinting and remailing would have taken at least 10 days, disrupting the city's distribution and election schedule.

Nishioka considered the matter settled, but on Oct. 14, she again received a call from Whitehurst and others in Teng's campaign, her statement said. This time, he demanded that a correction sheet be sent to more than 80,000 absentee voters. Moreover, Teng and the other candidates called for their Chinese-language names to be highlighted in red. City attorneys and Nishioka responded in the court document: "It is ironic that plaintiffs, after arguing at length about the need for absolute uniformity in the type and contents of ballots, now would abandon that principle to draw attention to their own names."

Under the agreement, the department is to send the sheet only to some 3,000 voters who requested Chinese-language election materials and an absentee ballot. The department will also spend up to $7,500 to run quarter-page ads in four Chinese-language newspapers. Furthermore, those who turned in their absentee ballots before receiving the department's letter can recast their ballots if they swear under penalty of perjury that the faulty ballots prevented them from voting correctly.

Stacy Lavilla and Janet Dang contributed to this report.

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