NEW YORK LAW JOURNAL

Asian-Americans Pin Hopes of Voting

On Court and Congress

BY BRUCE FEFFER AND EARLE TOCKMAN

ARECENT SURVEY of voters in New York City's Chinatown revealed that low voter turnout among Asian-Americans is partly due to the lack of bilingual voting materials. More than 60 percent of the respondents polled said they would vote more often if the ballots were printed in their native language.

If a recent decision of the New York State Supreme Court is allowed to stand, Asian-American voters may soon get their wish.

Ruling in Matter of Margaret Chin v. Board of Elections of the City of New York, et.al. (Supreme Court, New York County, 23315/91, Nov. 1, 1991), Justice Martin Evans directed the Board of Elections to print ballots in Chinese and other Asian languages in all districts in the City of New York containing any separate Asian language population of more than 5 percent of the citizens of voting age residing in the district.

Justice Evans further directed that in all such districts, voting instructions, registration forms and any other voting related materials that are made available to the general public must also be available in each language appropriate to the Asian language population of the district. Non-English speaking Asian-American voters also would be permitted to obtain assistance from any person of their choice in reading the ballot or operating the voting machine.

Justice Evans' decision was the culmination of a five day hearing held in October 1991, during which numerous witnesses- including not only Asian- Americans, but African-Americans, Hispanics and Caucasians - testified about widespread discrimination against Asian-American voters in Chinatown during the Sept. 12 Democratic Primary for City Council.

Witnesses told of non-English speaking Asian voters being summarily turned away from the polls by hostile Caucasian election inspectors, some of whom uttered racial slurs at or about the voters. Other Asian-American voters became intimidated by inspectors who hurried them out of the voting booth as they painstakingly struggled to read the ballot and instructions (which appeared only in English and Spanish). The accounts of abuse were so severe that the U.S. Justice Department sent a team of Marshals into the district to observe the conduct of the General Election held in November.

In his unprecedented decision, Justice Evans clearly recognized the connection between the right to vote, and the ability to vote. Yet, as civil rights advocates and the Asian-American community hailed the decision, the City immediately obtained a stay of its enforcement, pending appeal.

As the City enters a busy election season including races for President and Congress, a reversal of Chin v. Board of Elections could mean a replay of last year=s City Council election nightmare. That is, if Asian-American voters show up to vote at all.

Even as it appeals the Chin decision, however, the City has recently announced a pilot program for the September primary election, by which the Board of Elections will print sample ballots in Chinese, as well as provide Chinese interpreters and voting instructions in parts of lower Manhattan, Queens, and Brooklyn.

This is seen as fence straddling by voting rights group and politicians who praise the plan but say it should go further. After all, the reasoning suggests, if the City can provide Chinese sample ballots, why not real ones? And if it can be done for this election in limited districts, why not commit to a permanent policy.

It may be that the Administration is trying to preempt the political outcry that would result if the City succeeds in getting the Chin decision reversed in the courts. A reversal that could come on the eve of a mayoral election year.

WHILE THE Chin decision represents a major voting rights milestone for New York, a bill pending in Congress offers similar hope on a national scale.

The Voting Rights Improvement Act of 1992 (H.R. 4312), introduced by Congressman Jose Serrano (D-Bronx), would, if enacted, amend the Voting Rights Act of 1965 to require jurisdictions with large language minority populations to provide bilingual ballots and other forms of assistance.

The current formula for calculating which counties are covered by the Federal Voting Rights Act is based on the same 5 percent threshold that Justice Evans applied in Chin. The drawback of the federal formula, however, is that some language minorities, while large in population, do not make a 5 percent of the population. This is true, for example, of Hispanics in Los Angeles and Asians in New York City. Thus, these groups go unprotected in some of their largest communities.

The Serrano bill would require that a county be covered by the Voting Rights Act if the 5 percent threshold is met, or if there are more than 10,000 voters in the county who speak English poorly. In New York City=s Chinatown alone, there are well over 10,000 residents of voting age, and 6,466 are registered to vote. Clearly, the Serrano bill represents a significant opportunity to safeguard the voting rights of Asian-Americans, as well as Hispanics and Native Americans.

The bill was recently passed by the House of Representatives, 237-125, and was sent to the Senate.

Ironically, as the City appeals Chin, Mayor Dinkins has urged Congress to pass this legislation that in many ways would have the same effect.

Taken together, the Chin decision and the Serrano bill present two golden opportunities to advance voting rights locally and nationally.

Regardless of whether the Serrano bill is enacted, however, the Chin case represents New York City's best chance to guarantee the voting rights of all its citizens. Given this fact, and the already existing racial tension in this city, prudent public policy might guide the Dinkins administration to reconsider its appeal of the Chin decision.

Language minority citizens, and their lawyers, will be watching. Bruce Feffer and Earle Tockman are name partners in Tockman & Feffer, trial counsel for the petitioners in Chin v. Board of Elections.

New York Law Journal
New York, Thursday, July 30, 1992