Federal VRA Complaint to DOJ

For Informational Purposes. The following is a copy of the federal complaint letter delivered to the Justice Department.

November 6, 2022

Kristen Clarke, Assistant Attorney General for Civil Rights

T. Christian Herren, Jr., Voting Section Chief of the Civil Rights Division

U.S. Department of Justice /Washington, D.C. 20530

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RE:?Request for Federal Observers to Guard Against Anti-Asian Voter Disenfranchisement after Racial Appeals Made in Violation of The Voting Rights Act in CA, GA, IL, MD, MA, MI, NC, NV, NY, OK, PA, TX, VA, and WA

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Dear Assistant Attorney General Clarke and Voting Section Chief Herren:

?I write to issue a complaint about recent racial appeals that could have a disenfranchising effect on Asian American voters in the upcoming Midterm Congressional Elections on November 8th, 2022. Mailings with overtly racial appeals have been sent to Asian American and other minority voters in at least 14 states: California, Georgia, Illinois, Maryland, Massachusetts, Michigan, Nevada, New York, North Carolina, Oklahoma, Pennsylvania, Texas, Virginia, and Washington. ?To ensure that Asian American and other minority voters do not face intimidation in violation of the Voting Rights Act, I urge you to assign federal observers to poll sites with large numbers of Asian American voters.

?I am the principal at Magpantay & Associates, a nonprofit consulting & legal services firm. I served as a voting rights lawyer at the Asian American Legal Defense and Education Fund (AALDEF). I now serve on the New York Advisory Committee to the U.S. Commission on Civil Rights.

?Over the past week, Asian American voters and community leaders reached out to me about disturbing mailings from the America First Legal Foundation, sent to voters throughout the 14 aforementioned states. I personally received one of these targeted mailings (see attached) on November 5th, 2022. I am a registered Asian American voter.

?The mailing portrays white voters as victims of reverse discrimination in education, health care, business development, and employment. It includes President Joe Biden’s name and photo, along with text accusing “Biden and the Left” of enacting such reverse discrimination. And it explicitly pits “Whites & Asians” against “Black or Latinx” voters. The timing of this mailing in the week leading up to Election Day is highly suspect.

What’s more, the IRS has ruled that nonprofit tax-exempt organizations engaged in biased voter education activities that “have the effect of favoring a candidate or group of candidates” may also violate the law.[1] The America First Legal Foundation is a nonprofit tax-exempt organization, and their mailing has the effect of disfavoring Democratic candidates who support equal opportunities for people of color in education, health care, business development, and employment.

Racial appeals are expressly indicative of a violation of the Voting Rights Act of 1965. Section 2 of the Voting Rights Act prohibits practices that discriminate against racial and language minority voters. Courts consider several factors in determining violations of Section 2. This includes “the use of overt or subtle racial appeals in political campaigns.”[2] The mailing from the America First Legal Foundation is a racial appeal meant to impact the outcome of the election in favor of candidates from an opposing political party. Moreover, it stirs resentment, promotes division, and drives minority balkanization.

In addition to racial appeals, other factors that illustrate violations of Section 2 of the Voting Rights Act include:

• a history of official voting-related discrimination in the state or political subdivision
• the extent to which voting … is racially polarized
• the extent to which the [prior] voting practices or procedures [enhanced] discrimination against the minority group, such as unusually large election districts
• the extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process.[3]

Asian Americans and other racial minority voters in the following states have encountered a history of these types of discriminatory voting practices or procedures:

?●?????Georgia used literacy tests and white-only primaries to intentionally and effectively?disenfranchise minority voters. Georgia has a proven history of racial segregation in education, employment, and health. Notably, in 2020 Asian Americans leaders invigorated minority voters in Georgia, leading to significant voter participation that resulted in the dramatic success of minority candidates. Then in 2021, a white gunman shot and killed eight people, six Asian American women, at a Korean spa in Atlanta. It was one of the most horrific incidents of anti-Asian violence amidst an ongoing wave of prejudicial scapegoating of Asian Americans for COVID-19.?Post-election retribution against the rising influence of a minority group and electoral win is commonplace.

?●?????California once had literacy tests and low minority voter participation that led to certain counties being covered under Section 5 of the Voting Rights Act. Counties in California have been sued by the U.S. Department of Justice for violations of the language assistance provision (Section 203) of the Voting Rights Act. Asian American Justice Centers (AAJC) in Los Angeles and San Francisco have monitored elections and found a series of anti-Asian voting barriers.

●?????Massachusetts once had a poll site that segregated Chinese voters by race. AALDEF has monitored several elections in Massachusetts and found a series of anti-Asian voting barriers. The U.S. Department of Justice and AALDEF sued the City of Boston for violations of the Voting Rights Act.

?●?????New York used literacy tests in three counties in New York City that systematically disenfranchised minority voters. At AALDEF, I have personally monitored several elections and found a series of ongoing anti-Asian voting barriers. AALDEF twice sued the New York City Board of Elections for violations of the Voting Rights Act.

?●?????Pennsylvania has been found to disenfranchise Asian American voters. South Asian voters complained in a prior election that a poll site was suddenly and surprisingly moved to another distant location, which required walking along a three-lane byway in a majority-white community center.

●?????Texas used literacy tests and at-large voting systems to intentionally and effectively disenfranchise minority voters. AALDEF has monitored several elections in Texas and found a series of anti-Asian voting barriers. Texas and its counties have also been subject to lawsuits by the U.S. Department of Justice, AALDEF, and Mexican American Legal Defense and Education Fund (MALDEF) for violations of the Voting Rights Act.

?●?????Virginia had literacy tests as well as a poll site that once segregated Asian American voters by race. AALDEF has monitored several elections in Virginia and found a series of anti-Asian voting barriers. Minority group members in Virginia have a proven history of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process.

?The legislative intent of the Voting Rights Act also notes that “lack of responsiveness [by] elected officials to the particularized needs of minority group members” can reinforce a violation. In all of these 14 states - CA, GA, IL, MD, MA, MI, NC, NV, NY, OK, PA, TX, VA, WA – Asian Americans have complained that elected officials have often been unresponsive to their voting needs.

Asian American voters have struggled for political recognition. Even a recent voter poll by the New York Times/Siena College listed “White,” “Black,” “Hispanic,” and “Other” voters. Asian American voters have been marginalized and overlooked as a political constituency. This leads to a “history of frustration” in Asian American efforts to meaningfully participate in our nation’s electoral process.

To ensure that Asian American and other minority voters do not face intimidation in the upcoming Midterm Election, in violation of Section 2 of the Voting Rights Act, I urge you to assign federal observers to poll sites with large numbers of Asian American voters, according to the U.S. Census and past documented incidents of anti-Asian voter discrimination.

?●?????CA: Alameda, Los Angeles, Sacramento, Santa Clara, and San Diego Counties

●?????GA: City of Atlanta

●?????IL: Cook County

●?????MA: City of Boston

●?????MD: Silver Spring, Rockville

●?????MI: Wayne County; Cities of Hamtramck, Detroit, and Dearborn

●?????NC: Cities of Raleigh and Durham

●?????NV: Clark County

●?????NY: Queens, Brooklyn, Manhattan, and The Bronx

●?????OK: Jenks, Stillwater

●?????PA: Cities of Philadelphia and Upper Darby; Buck County, Berks County

●?????TX: Cities of Dallas and Houston; Harris County

●?????VA: Fairfax County; Arlington County; Falls Church; Centreville

●?????WA: King County (Seattle)

I hope you will look favorably upon this request. If you have any questions, feel free to contact me at [email protected] or 917-439-3158.

Sincerely,

Glenn D. Magpantay, Esq.

NY Bar No. 2936649

Principal, Magpantay & Associates: a nonprofit consulting & legal services firm

and Advisor to the U.S. Commission on Civil Rights (New York Committee)

[email protected]?

1-917-439-3158

3405 80th Street, Suite 22, Queens, NY 11372

[1] IRC §501(c)3; 26 CFR § 1.501(c)(3)-1 (2022).

[2] S.Rep. No. 97-417, 97th Cong., 2d Sess. (1982), pages 28-29 (emphasis added).

[3] See id.?