Northwest Austin Municipal Utility Distr. One v. Holder Brief Amicus Curiae Asian American Legal Defense and Education Fund

    08-322

IN THE

mpxtxm (Emxri t\\t ptmtefa J§tztes

No rth w est  A ustin  Municipal Utility  District  Nu m ber  On e ,

Appellant,

Eric  H. Ho ld er , Jr ., Atto r n e y  Gen eral  of  the 
United  States o f  A m e ric a , e t a l .,

Appellees.

o n  a p p e a l  fr o m  t h e  u n it e d  states  d istr ic t  c o u r t
FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMICUS CURIAE 
ASIAN AMERICAN LEGAL DEFENSE AND 

EDUCATION FUND IN SUPPORT OF APPELLEES

Ma r g a r e t  Fung  
Glenn  D. Magpantay  
Asian American Legal Defense 

and  Education Fund 
99 Hudson Street, 12th Floor 
New York, New York 10013-2815 
(212) 966-5932

Th e o d o r e  K. Cheng  
Counsel o f Record 

Jerry  G. Vattam ala  
Pauline  S. Kim  
Ma r k  L. Legaspi 
Pr oskau er  Rose LLP 
1585 Broadway
New York, New York 10036-8299 
(212) 969-3000

Attorneys fo r  Amicus Curiae 
Asian American Legal Defense and 

Education Fund in Support o f  Appellees

(Additional Am ici Curiae Listed On Inside Cover)

March 25, 2009



ADDITIONAL AMICI CURIAE

Additional amici curiae are the following organizations 
that represent Asian American voters and have conducted voter 
registration drives, voter education events, and election protec­
tion activities on Election Day.
Am erican  Citizens fo r  Justice
A sian Am erican  Ba r  A ssociation  of  Greater  Chicago  
A sian Am erican  Ba r  Association  o f  New  York  
A sian Am erican  Law yers A ssociation  of  Massach u setts  
Asian Am erican  LEAD
A sian Am erican  Society  of  Cen tral  Virginia  
A sian Com m unity  Developm ent  Corporatio n  o f  Boston  
A sian Pacific  Am erican  A g e n d a  Coalition  
A sian Pacific  Am erican  Bar  Association  of  the  Greater  

Wa sh in g to n , DC Ar e a
A sian Pacific  Am erican  Ba r  A ssociation  o f  Pennsylvania
A sian Pacific  Am erican  La b o r  Alliance
A sian Pacific  Am erican  Legal  Reso u rce  Center
A sian Pacific  Islander  Am erican  Vote
Cam bo dian  A ssociation  o f  Greater  Philadelphia
Chinese  Am erican  Voters  A ssociation
Chinese Pro gressive  A ssociation
Coalition  of  A sian Pacific  Am erican s  o f  Virginia
Filipino Am erican  Human  Services , In c .
Korean  A m erican  Leag ue  fo r  Civic A ction  
Korean  Am erican  Reso u rce  & Cultural Cen ter  
Korean  A m erican  Vo te r s ’ Council o f  NY & NJ 
Korean  Comm unity  Service  Cen ter  of  Greater  

Wash in g to n , DC
Maryland  Vietnam ese  Mutual  A ssociation  
MassVOTE
Muslim  Ba r  A ssociation  o f  New  York  
National  A sian Pacific  Am erican  Wo m en ’s Forum  
National  Korean  Am e ric an  Service  & Education  

Consortium
North  Am erican  South  A sian Ba r  A ssociation

OCA
ONE Lowell 
One Nevada
Philadelphia  Chinatow n  Developm ent  Corporation



Providence  Youth  and  Stu d en t  Movem ent  
The Sikh Coalition
South A sian Am ericans Lead in g  Togeth er  
South A sian Ba r  A ssociation  o f  Michigan  
South A sian  Ba r  A ssociation  o f  New  York  
South A sian Youth  A c tio n !
Vietnamese  Am erican  Initiative fo r  Developm ent  
Vietnam ese  Am erican  Young  Le ad er s  A ssociation  of 

New  Orleans
YKASEC - Em pow erin g  the Korean  Am erican  Comm unity



1

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES........................... iii

INTERESTS OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT........................................ 2

ARGUMENT.... ................................................................ 4

I. Section 5 of the Voting Rights Act 
Protects the Voting Rights of Asian 
Americans.......................     4

A. Section 5 Helps Provide 
Asian Americans With 
Greater Access to Their 
Voting Rights, Particularly 
in Jurisdictions Covered By 
the Language Assistance 
Provisions of the Voting
Rights Act ..........................   5

B. Section 5 Ensures that
Changes to Poll Sites Do Not 
Infringe on Asian 
Americans’ Right to Vote..................... 10

C. Section 5 Prevents 
Retrogressive Effects on 
Asian American Voting
Power........................................................12



D. Section 5 is an Effective Tool 
in Ensuring that Asian 
Americans Are Not 
Discriminated Against In 
Redistricting P lans.............................. ..14

II. Asian Americans Continue To Face 
Historical Discrimination, Thus 
Supporting Congress’ Reauthorization 
of Section 5 ......       15

CONCLUSION................     27

APPENDIX ....App. 1



TABLE OF CITED AUTHORITIES

Pa g e (s)

CASES

In re Ah Yup,
1 F. Cas. 223 (C.C. Cal. 1878).........................19

Alshra.fi v. Am. Airlines Inc.,
321 F. Supp. 2d 150 (D. Mass. 2004)............. 21

Chae Chan Ping v. United States,
130 U.S. 581 (1889).............................................19

Fong Yue Ting v. United States,
149 U.S. 698 (1893)..........   19

Koremat.su v. United States,
323 U.S. 214 (1944)............................................ 21

Lau v. Nichols,
414 U.S. 563 (1974)....................   20

Ozawa v. United States,
260 U.S. 178 (1922)............................................18

People v. Hall,
4 Cal. 399 (Sup. Ct. 1854)................................ 19

Terrace v. Thompson,
263 U.S. 197 (1923)............................................18

Thornburg v. Gingles,
478 U.S. 30 (1986)......................... 17, 20, 23, 26

iii



IV

United States v. Wong Kim Ark,
169 U.S. 649 (1898)............. ........... . 19

White v. Regester,
412 U.S. 755 (1973)................. ........ ...... ..........20

STATUTES

42 U.S.C. § 1973aa-la(c).............................................6

42 U.S.C. § 1973c....... ......................... ........... ...............4

42 U.S.C. § 1973b(f)(3-4)............................................... 6

1998 N. Y. Sess. Laws 569-70 (McKinney).............. .12

Cable Act of 1922,
ch. 411, 46 Stat. 1021....... ....... . 19

Cal. Civ. Code § 60 (1905).............................. ........ ....19

Chinese Exclusion Act of 1882,
ch. 126, 22 Stat. 58 (repealed 1943)............ ...18

Chinese Police Tax of 1862,
ch. 339, 1862 Cal. Stat. 462 (repealed 
1939)................................... ........... .................... 19

Immigration Act of 1917,
ch. 29, 39 Stat. 874 (repealed 1952)...............18

Immigration Act of 1924,
ch. 190, 43 Stat. 153 (repealed 1952)............. 18



V

Naturalization Act of 1790,
ch. 3, 1 Stat. 103 (repealed 1795)....................18

Philippine Independence Act of 1934,
ch. 84, 48 Stat. 456 .................................. ........ 18

Scott Act of 1888,
ch. 1064, 1, 25 Stat. 504...................................18

REGULATIONS

28 C.F.R. § 51.29 ..............................................................6

28 C.F.R. § 51.32........................................................... 10

28 C.F.R. § 51.33................................ ........ .................10

28 C.F.R. part 51, App................................................ ...4

EXECUTIVE ORDERS

Exec. Order No. 589 (Mar. 14, 1907)..........................19

Exec. Order 9066, 7 Fed. Reg. 1407 (Feb. 19,
1942).............................  21

CONSTITUTIONAL PROVISIONS

Cal. Const, of 1879, art. XIX, § 2 19



V I

OTHER AUTHORITIES

“3 Indians Attacked on Street And the Police
Call It Bias,” N.Y. Times (Aug, 6, 2003)........22

AALDEF, Asian American Access to
Democracy in the 2004 Elections: Local
Compliance with the Voting Rights Act
and Help America Vote Act (HAVA) in
NY, NJ, MA, RI, MI, IL, PA, VA (2005),
available at http://www.aaldef.org/arti
cles/2005-08-18_189_AsianAmericanA.
pdf (last visited Mar. 20, 2009)........................6

AALDEF, Asian Americans and the 
Voting Rights Act: The Case 
for Re authorization (2006), 
available at http://www.aaldef. 
org/articles/2006-06-13_137_ 
AALDEFReleases.pdf (last 
visited Mar. 6, 2009)).................. 8, 9, 10, 11, 14

AALDEF, The Asian American Vote, A Report 
of the AALDEF Multilingual Exit Poll 
in the 2004 Presidential Election (2005), 
available at http://www.aaldef.org/artic 
les/2005-04-20_67_The AsianAmeric.pdf 
(last visited Mar. 6, 2009)........................... .......7

AALDEF, The Asian American Vote in the 
2006 Midterm Elections: NY, NJ, MA,
MI, PA, MD, VA, IL, WA, DC (2007), 
available at http://www.aaldef.org/docs/ 
AALDEF2006ExitPollReportMay2007.p 
df (last visited Mar. 20, 2009) 23

http://www.aaldef.org/arti
http://www.aaldef
http://www.aaldef.org/artic
http://www.aaldef.org/docs/


vii

“Allen Quip Provokes Outrage, Apology,”
Wash. Post (Aug. 15, 2006)..............................25

Keith Aoki, “Foreignness” & i^sian American 
Identities: Yellowface, World War II 
Propaganda, and Bifurcated Racial 
Stereotypes, 4 Asian Pac. Am. L. J. 1 
(1996).............................   .17

“Arsonist Avoids Jail In Church Van Blaze,”
N.Y. Daily News (Aug. 5, 2004)........................22

Jessica S. Barnes & Claudette E. Bennett,
U.S. Census Bureau, The Asian 
Population: 2000 (2002), available at 
http://www.census.gov/prod/2002pubs 
/c2kbr01-16.pdf (last visited Mar. 20,
2009)............................................................. 4, 5, 8

Nicole Bode, “Asians Rip Re districting Group 
Says New Boundaries Would Sap 
Voting Strength,” N.Y. Daily News (Feb.
20, 2002) ...........................................................................12

Terri Yuh-lin Chen, Hate Violence as Border 
Patrol: An Asian American Theory of 
Hate Violence, 7 Asian L.J. 69 (2000)............21

Continuing Need for Section 203’s Provisions 
for Limited English Proficient Voters,
Hearing Before the House Judiciary 
Comm., 109th Cong. (2006) (testimony 
of Margaret Fung, AALDEF, Exec. Dir.)...... 25

http://www.census.gov/prod/2002pubs


V l l l

Sam Dillon, “Ethnic Shifts Are Revealed in 
Voting for Schools,” N.Y. Times (May 
20, 1993)........................ ........ ..........................12

DOJ Press Release, “Justice Department to 
Monitor Elections in New York,
Washington, and Alabama” (Sept. 13,
2004), available at http://www.usdoj.gov 
/op a/p r/2004/Septe mbe r/04_crt_615. htm
(last visited Mar. 20, 2009).... ..........................24

Darryl Fears, “Hate Crimes Against Arabs
Surge, FBI Finds,” Wash. Post (Nov. 26,
2002), at A 2 .......................... ......... .........................21

Fed. Glass Ceiling Comm’n, Good for Business: 
Making Full Use of the Nation’s Human 
Capital (1995)...................................................20

“Girl’s Bloody Beating; Driver Does Nothing
As Teens Attack Her On Bus,” N.Y. Post 
(Mar. 18, 2007)...................... ........ ...................22

Carol Hardy-Fanta, Christine Marie Sierra, 
Pei-te Lien, Dianne M. Pinderhughes, 
Wartyna L. Davis, Race Gender and 
Descriptive Representation: An 
Exploratory View of Multicultural 
Elected Leadership in the United 
States, September 4, 2005, available at 
http ://www. gmcl. or g/p dh AP S A9 -05- 
05.pdf (last visited Mar. 20, 2009)......... 15

http://www.usdoj.gov


IX

Lynette Holloway, “This Just In: May 18
School Board Election Results,” N.Y.
Tunes (June 13, 1999)............................. ........ 12

H.R. Rep. No. 109-478 (2006)........................... 5, 16, 24

Robert Kengle, Voting Rights in Georgia:
1982-2006 (Mar. 2006), available at 
http://www.civilrights.org/voting- 
rights/vra/states/GeorgiaVRA.pdf (last 
visited Mar. 20, 2009)......................................... 6

Stacey J. Lee & Kevin K. Kumashiro, Natl
Educ. Assoc., A Report on the Status of 
Asian Americans and Pacific Islanders
in Education: Beyond the “Model
Minority” Stereotype (2005)............................. 20

Vanessa Leung, The Coalition for Asian. Am.
Students and Families (2004)..........................20

Thomas T. Mackie & Richard Rose, The 
International Almanac of Electoral 
History (3d ed. 1991)......................................... 12

New America Media, Legal Immigrants: A 
Voice of Reason in the Immigration 
Debate 3 (2006), available at http:// 
media.newamericamedia.org/images/pol 
ls/imm_poll/Immigration_exec_summar
y.pdf (last visited Mar. 6, 2009)..................... 22

Jim O’Grady, “Asian Americans Diving
Gracefully Into Political Water,” N.Y.
Times (May 6, 2001).........................................12

http://www.civilrights.org/voting-rights/vra/states/GeorgiaVRA.pdf
http://www.civilrights.org/voting-rights/vra/states/GeorgiaVRA.pdf


X

Jacques Steinberg, “School Board Election
Results,” N.Y. Times (June 23, 1996)............12

Views on the 2006 Reauthorization of the 
Voting Rights Act: When the Voting 
Rights Act Became Un-American: The 
Misguided Vilification of Section 203, 58 
Ala. L. Rev. 377 (2006).................. ........... .......17

Voting Rights Act: Section 5 of the Act-
History, Scope, and Purpose, Hearing 
Before the House Subcomm. on the 
Const., House Judiciary Comm., 109th 
Cong. (2005) (appendix to statement of 
the Honorable Bradley J. Schlozman,
U.S. Dept, of Justice)........................................13

Voting Rights Act: Section 203-Bilingual
Election Requirements, Part I Before 
the House Subcomm. on the Const.,
House Judiciary Comm., 109th Cong.
(2005) (statement of Margaret Fung,
AALDEF Exec. D ir.)........................ ...................8

DeWayne Wickham, “Why Renew Voting 
Rights Act? Ala. Town Provides 
Answer,” USA Today (Feb. 22, 2006)............ 24

Frank Wu, Yellow: Race in American Beyond
Black and White (Basic Books 2001)..............16



1

INTERESTS OF AM ICI CURIAE

Non-parties Asian American Legal Defense 
and Education Fund (“AALDEF”) and [others] 
(collectively, “Amici Curiae” or “Amici”) are 
organizations that advocate on behalf of Asian 
American voters and have conducted voter 
registration drives, voter education events, and 
election protection activities on Election Day.1

In particular, AALDEF is a 35-year-old 
national civil rights organization based in New 
York City that promotes and protects the civil 
rights of Asian Americans through litigation, 
legal advocacy, and community education. 
AALDEF has monitored elections through annual 
multilingual exit poll surveys since 1988. 
AALDEF has collected valuable data that 
documents both the use of, and the continued 
need for, protection under the Voting Rights Act 
of 1965. In 2008, AALDEF expanded its survey 
and dispatched over 1,500 volunteers to 130 poll 
sites, covering 39 cities in 11 states. The survey, 
the largest of its kind, polled 16,665 Asian 
American voters. A significant component of

1 Counsel of record for Appellant and all Intervenor- 
Appellees have previously provided consent to the filing of 
this brief. Counsel for Appellee was timely notified of the 
intent to file this brief under S. Ct. R. 37.2(a) and has also 
consented to its filing; its consent letter has been filed with 
the Clerk of the Court. Counsel for Amicus Curiae 
AALDEF researched and drafted this brief with the advice 
and consent of all amici. No counsel for a party in this 
Court authored this brief, in whole or in part, and no party 
in this Court or its counsel made a monetary contribution 
intended to fund the preparation or submission of this brief.



2

AALDEF’s mission is to ensure that Asian 
Americans have an equal opportunity to 
participate in the voting process.

Amici submit this brief in support of 
Appellee and Intervenor-Appellees to ensure that 
the discrimination Asian Americans face at the 
polls is accurately and fairly considered in 
determining whether Congress acted within the 
scope of its enforcement powers in reauthorizing 
Section 5 of the Voting Rights Act.2

SUMMARY OF ARGUMENT

Amici curiae submit this brief to highlight 
the discrimination faced by Asian Americans and 
the continuing need to uphold Section 5 of the 
Voting Rights Act to protect Asian Americans and 
their right to vote and participate on an equal 
basis in the political process. As Appellee and 
Intervenor-Appellees demonstrate, the contention 
advanced by Appellant Northwest Austin 
Municipal Utility District No. 1 -  that Congress 
lacked sufficient evidence of racial discrimination 
in voting to justify the provision’s intrusion upon 
state sovereignty when it extended Section 5 in 
2006 -  was correctly rejected by the District 
Court. Indeed, AALDEF submitted significant 
evidence to Congress in support of the 
re authorization of the Voting Rights Act. In 
addition to the persuasive reasoning of the 
District Court, the Voting Rights Act has had 
(and continues to have) a deep impact on the

2 Statements of interest for the other amici are included in 
the Appendix to this brief.



3

Asian American community, especially in light of 
the long history of racism and discrimination that 
Asian Americans have faced in this country. This 
brief serves to illuminate the Court on this 
valuable, but often omitted, perspective.

Justice requires society as a whole, and the 
Government in particular, to vigilantly safeguard 
the rights of its citizens to vote and participate in 
the democratic process. The impact of Section 5 
on protecting the voting rights of Asian 
Americans is amply illustrated through the 
community’s experiences in seeking language 
assistance at the polls, monitoring changes in poll 
sites, ensuring proper participation and 
representation in local elections, and scrutinizing 
redistricting efforts. Moreover, underlying 
societal discrimination against American citizens 
of Asian ancestry casts them as perpetual 
foreigners and immigrants. This misperception 
has become particularly worrisome as the country 
has become more hostile towards immigrants, 
leading to enduring discrimination at poll sites 
and negatively affecting the ability of Asian 
Americans to participate fully in the electoral 
process. Section 5 is a critical mechanism for 
combating these systemic problems.

Accordingly, this Court should affirm the 
judgment of the District Court, concluding that 
Section 5 of the Voting Rights Act continues to be 
necessary, and that Congress properly exercised 
its powers under the Reconstruction Amendments 
when it reauthorized the law. A ruling to the 
contrary would lead to an overturning of



4

Congress’ deliberative fact-finding process, 
leaving Asian Americans without the necessary 
protections to exercise their right to vote.

ARGUMENT

I. Section 5 of the Voting Rights Act 
Protects the Voting Rights of Asian 
Americans

Section 5 of the Voting Rights Act of 1965 
requires certain states and localities with a 
history of racial discrimination to obtain federal 
approval of changes in voting practices. Once a 
jurisdiction is covered, Section 5 requires that 
changes to any voting qualification, standard, 
practice, procedure, or redistricting plan be 
“precleared” by the U.S. Department of Justice 
(“DOJ”) or the United States District Court for 
the District of Columbia before going into effect. 
See 42 U.S.C. § 1973c. To obtain preclearance, 
the jurisdiction must show that the proposed 
change does not have the purpose or effect of 
denying or abridging the right to vote because of 
race or color. See id. If preclearance is denied, 
then the change cannot be implemented. See id.

Section 5 has had an enormous impact on 
the ability of Asian Americans to fully exercise 
their right to vote. For example, in a covered 
jurisdiction such as New York City -  the city with 
the nation’s largest Asian American population -  
Section 5 has protected Asian Americans from 
discriminatory voting changes. See 28 C.F.R. part 
51, App.; Jessica S. Barnes & Claudette E.



5

Bennett, U.S. Census Bureau, The Asian 
Population: 2000, at 7, Table 3 (2002), available 
at http://www.census.gov/prod/2002pubs/c2kbr01- 
16.pdf (last visited Mar. 20, 2009). The four most 
notable examples relate to (a) providing language 
assistance at the polls; (b) monitoring changes in 
poll sites; (c) ensuring proper Asian American 
participation and representation in local 
elections; and (d) scrutinizing redistricting 
efforts.3

A. Section 5 Helps Provide Asian 
Americans With Greater Access 
to Their Voting Rights, 
Particularly in Jurisdictions 
Covered By the Language 
Assistance Provisions of the 
Voting Rights Act

In reauthorizing Section 5 of the Voting 
Rights Act, the House Judiciary Committee 
reported on instances of discriminatory tactics 
and efforts on the part of local officials to keep 
covered language minority citizens from 
registering and casting effective ballots from 
many different jurisdictions. See H.R. Rep. No. 
109-478, at 45 (2006). For example, in a number 
of states, language minority citizens were subject

3 Most of the examples and findings below pertain to New 
York City because that city is covered under Section 5. 
Moreover, New York City, with a sizeable Asian American 
population, see Barnes & Bennett, supra, at 7, is one of the 
few places in the country covered under both Section 5 and 
Section 203, the language assistance provisions of the 
Voting Rights Act.

http://www.census.gov/prod/2002pubs/c2kbr01-16.pdf
http://www.census.gov/prod/2002pubs/c2kbr01-16.pdf


6

to harassment by others who challenged their 
citizenship status solely on the basis of their 
surnames or ethnicity. See AALDEF, Asian 
American Access to Democracy in the 2004 
Elections: Local Compliance with the Voting 
Rights Act and Help America Vote Act (HAVA) in 
NY, NJ, MA, RI, MI, IL, PA, VA 15-16 (2005), 
available at http://www.aaldef.org/articles/2005- 
08-18_189_ AsianAmericanA.pdf (last visited 
Mar. 6, 2009); see also Robert Kengle, Voting 
Rights in Georgia: 1982-2006 (Mar. 2006),
available at http://www.civilrights.org/voting- 
rights/vra/states/GeorgiaVRA.pdf (last visited 
Mar. 20, 2009).

Section 5 has had its greatest influence on 
the ability of Asian Americans to participate in 
the political process in the context of providing 
language assistance at the polls. Section 203 of 
the Voting Rights Act requires covered 
jurisdictions to provide translated ballots and 
voting materials, as well as oral language 
assistance, for voters who are limited English 
proficient. See 42 U.S.C. § 1973aa-la(c). Section 
5 requires that any plans to comply with Section 
203, or changes to current practices to comply 
with that section, must be precleared. See 42 
U.S.C. § 1973b(f)(3-4) (applying Section 5
coverage trigger to language assistance 
obligations). Interested individuals and 
community groups may review the submission 
and provide comments during the preclearance 
period. See 28 C.F.R. § 51.29.

http://www.aaldef.org/articles/2005-08-18_189_
http://www.aaldef.org/articles/2005-08-18_189_
http://www.civilrights.org/voting-rights/vra/states/GeorgiaVRA.pdf
http://www.civilrights.org/voting-rights/vra/states/GeorgiaVRA.pdf


7

When jurisdictions are covered under both 
Section 5 and 203 for Asian language assistance -  
such as New York and Kings Counties in New 
York City and Harris County, Texas — the two 
provisions together have been powerful tools to 
ensure that language minorities have full access 
to political participation. Section 203 provides for 
language assistance; Section 5 enforces Section 
203 so as to ensure that any changes to the 
provision of language assistance are not 
retrogressive.

For example, Section 5 played a pivotal role 
in shaping the Chinese Language Assistance 
Program in New York, which was first adopted 
after the city gained coverage under Section 203 
in 1992. Limited English proficient Chinese- 
American voters typically know the candidates by 
their transliterated names. These names appear 
in Asian-language media outlets, advertising, 
public notices, and campaign literature. See 
AALDEF, The Asian American Vote, A Report of 
the AALDEF Multilingual Exit Poll in the 2004 
Presidential Election 12 (2005) (finding that more 
than a third (35%) of Asian American voters 
turned to ethnic media outlets in Asian languages 
for their main source of news about politics and 
community issues), available at http://www.aaldef 
.org/articles/2005-04-20_67_TheAsianAmeric.pdf 
(last visited Mar. 6, 2009). In the 1994 election 
cycle, community groups pressed for fully 
translated ballots that included the 
transliteration of the candidates’ names in 
Chinese. Ultimately, the denial of preclearance of 
the New York City Board of Election’s language

http://www.aaldef


8

assistance program under Section 5 is precisely 
what forced the Board to provide fully translated 
ballots. Section 5’s comment and preclearance 
process gave community groups and individuals 
the valuable opportunity to shape the nature and 
scope of meaningful language assistance 
programs. See Voting Rights Act: Section 203- 
Bilingual Election Requirements, Part I Before 
the House Subcomm. on the Const., House 
Judiciary Comm., 109th Cong. 19 (2005)
(statement of Margaret Fung, AALDEF, Exec. 
Dir.); see also Letter from D. Patrick, U.S. Dep’t of 
Justice to K. King, Gen. Counsel, New York City 
Bd. of Elections (May 13, 1994) (denying
preclearance; on file with counsel).

The interaction between Section 5 and 203 
also became evident after the 2000 Census in the 
provision of language assistance. The census 
reported a sixty-six percent (66%) growth in the 
Asian American population in New York. See 
Barnes & Bennett, supra, at 5, Table 2. 
Commensurate with this growth, the number of 
poll sites and election districts targeted to provide 
language assistance significantly increased. See 
AALDEF, Asian Americans and the Voting Rights 
Act: The Case for Re authorization 42-43 (2006) 
(hereinafter, “AALDEF Report”) (submitted to 
Congress and available at http://www.aaldef.org/ 
articles/2006-06-13_137_AALDEFReleases.pdf 
(last visited Mar. 6, 2009)).

Despite this population growth, the Board 
tried to curtail its language assistance program 
by proposing a change in its targeting formula.

http://www.aaldef.org/


9

The Board sought to change its methodology for 
targeting language assistance at certain poll 
sites, resulting in the removal of Chinese 
language assistance at nearly 70 poll sites in 
heavily populated neighborhoods. The change 
would also remove 16 sites for Korean language 
assistance. See AALDEF Report at 43. In 
response, AALDEF submitted comments in 
opposition to preclearance under Section 5, 
arguing that the change was retrogressive. See 
Letter from G. Magpantay, AALDEF Staff 
Attorney to J. Rich, U.S. Dep’t of Justice (Oct. 17, 
2003) (submitted to Congress with AALDEF 
Report and on file with counsel).

In deciding whether to interpose an 
objection, the DOJ sent the Board a “more 
information” request letter, asking for more 
detailed information to refute AALDEF’s 
contentions. It also gave the city another 
opportunity to demonstrate that the change 
would not place Asian Americans in a worse 
position to exercise their right to vote. Upon 
receiving the city’s response, along with 
AALDEF’s opposition letter, the Board withdrew 
its submission to change the targeting formula. 
See AALDEF Report at 43. Only because of 
Section 5 was Section 203 fully implemented in 
New York City.



10

B. Section 5 Ensures that Changes 
to Poll Sites Do Not Infringe on 
Asian Americans’ Right to Vote

Changes to poll sites are disruptive to the 
ability of Asian Americans to vote. In every 
election that AALDEF has monitored in New 
York City, the Board has failed to take reasonable 
steps to ensure that Asian American voters are 
informed of their correct poll sites. Voters have 
been misinformed about their poll sites before the 
elections or misdirected by poll workers at poll 
sites on Election Day. Section 5 has helped to 
minimize these disruptions.

The preclearance requirement serves an 
important and mandatory public notice function: 
Any changes to the locations of designated poll 
sites must be submitted for preclearance, and, 
once submitted, the Attorney General must notify 
interested individuals and groups of the proposed 
submission, as well as provide copies of detailed 
submissions to groups who request the 
information. See 28 C.F.R. §§ 51.32, 51.33. 
Experience has shown that Section 5 has 
prevented sudden poll sites closures in Asian 
American neighborhoods that would otherwise 
have been made without any notice to the 
community. Even in emergencies, poll site 
changes, absent notice, constitute violations of 
Section 5. See AALDEF Report at 41.

For example, in 2001, the primary elections 
were scheduled for September 11, but were 
cancelled due to the attacks on the World Trade



11

Center and rescheduled for September 25. The 
week before the rescheduled primaries, AALDEF 
discovered that a certain poll site, I.S. 131, a high 
school located in the heart of Chinatown and 
within the restricted zone in lower Manhattan, 
was being used by the Federal Emergency 
Management Agency for services related to the 
World Trade Center disaster. The Board chose to 
close down the poll site, but failed to inform 
voters of the change. The Board managed, 
however, to submit the proposed change to the 
DOJ for preclearance under Section 5. See id.

AALDEF filed oral comments with the DOJ 
urging for an objection because no notice had 
been given to voters. The Board provided no 
media announcement to the Asian language 
newspapers, made no attempts to send out a 
mailing to voters, and failed to arrange to place 
signs or poll workers at the site to redirect voters 
to other poll sites. In fact, no consideration at all 
was made for the fact that the majority of voters 
at this site were limited English proficient, and 
that the site had been targeted for Asian 
language assistance under Section 203. AALDEF 
contended that the Board should have considered 
placing bilingual poll workers and translated 
signs at the poll site directing voters to alternate 
poll sites. See id.

Thereafter, the DOJ issued an objection 
and informed the Board that the change could not 
take effect. The elections subsequently took place 
as originally planned at I.S. 131, and hundreds of 
votes were cast on September 25. See id.



12

Without Section 5, those voters would 
undoubtedly have lost their right to vote.

C. Section 5 Prevents Retrogressive 
Effects on Asian American 
Voting Power

Before 2001, in New York City, the only 
electoral success for Asian Americans was on local 
community school boards. In each election -  in 
1993, 1996, and 1999 -  Asian American
candidates ran for the school board and won. See 
Lynette Holloway, “This Just In: May 18 School 
Board Election Results,” N.Y. Times (June 13, 
1999); Jacques Steinberg, “School Board Election 
Results,” N.Y. Times (June 23, 1996); Sam Dillon, 
“Ethnic Shifts Are Revealed in Voting for 
Schools,” N.Y. Times (May 20, 1993). These 
remarkable gains stood, at the time, in stark 
contrast to the total absence of Asian Americans 
in the City Council, State Legislature, or 
Congress, despite a city-wide population of over 
800,000 Asian Americans. See Nicole Bode, 
“Asians Rip Redistricting Group Says New 
Boundaries Would Sap Voting Strength,” N.Y. 
Daily News (Feb. 20, 2002); Jim O’Grady, “Asian 
Americans Diving Gracefully Into Political 
Water,” N.Y. Times (May 6, 2001).

The school boards used an alternative 
voting system known as “single transferable 
voting” or “preference voting.” Instead of 
selecting one representative from single-member 
districts, voters ranked candidates in order of 
preference, from “1” to “9.” See Thomas T. Mackie



13

& Richard Rose, The International Almanac of 
Electoral History 508 (3d ed, 1991). In 1998, New 
York opted to change the voting system from 
“preference voting,” in which voters ranked their 
choices, to a different system of “limited voting,” 
where voters could select only four candidates for 
the nine-member board, and the nine candidates 
with the highest number of votes were elected. 
See 1998 N. Y. Sess. Laws 569-70 (McKinney).

This voting change was submitted to the 
DOJ for preclearance. AALDEF submitted 
comments to the DOJ in opposition to the change 
and urged denial of preclearance because Asian 
American voters would be in a worse position to 
elect candidates of their choice. See Letter from 
M. Fung, AALDEF Exec. Dir., and T. Sinha, 
AALDEF Staff Attorney to E. Johnson, U.S. Dep’t 
of Justice (Oct. 8, 1998) (submitted to Congress 
with AALDEF Report and on file with counsel). 
The DOJ, using its authority under Section 5, 
interposed an objection and prevented the voting 
change from taking effect. See Voting Rights Act: 
Section 5 of the Act-History, Scope, and Purpose, 
Hearing Before the House Subcomm. on the 
Const., House Judiciary Comm., 109th Cong. 
1664-66 (2005) (appendix to statement of the 
Honorable Bradley J. Schlozman, U.S. Dept, of 
Justice) (providing Section 5 objection letter to 
Board and summarizing changes made to the 
voting methods, along with overall objections to 
the changes).



14

D. Section 5 is an Effective Tool in 
Ensuring that Asian Americans 
Are Not Discriminated Against 
In Redistricting Plans

Finally, Section 5 has also been used by 
Asian Americans to comment on redistricting 
plans. After the 1990 and 2000 Censuses, 
AALDEF, along with many community groups, 
submitted comments under Section 5 on the 
redistricting plans for the New York City Council 
and New York State Legislature. See AALDEF 
Report, App. O thereto. AALDEF asserted that 
Asian American neighborhoods should be kept 
within a single district, documenting political 
cohesion among Asian American voters and the 
presence of communities of interest within certain 
districts. AALDEF also objected to proposed city 
council redistricting plans that would have joined 
Manhattan’s Chinatown, where mostly lower- 
income Chinese reside, with the heavily white, 
upscale neighborhoods of Soho, Tribeca and 
Battery Park City. See Letter from M. Fung, 
AALDEF Exec. Dir., et al. to J. Rich, U.S. Dep’t of 
Justice (Apr. 29, 2003) (submitted to Congress 
with AALDEF Report and on file with counsel).

Section 5 provided the mechanism for 
Asian Americans to comment on voting changes 
that would deny them a meaningful opportunity 
to elect candidates of their choice. Without this 
opportunity to participate in and scrutinize the 
redistricting process, the Asian American voice 
would be largely ignored, leading to
disenfranchising consequences at the polls.



15

In short, Section 5 is a critical component 
of the Voting Rights Act, allowing Asian 
Americans full access to voting and affording 
them a powerful tool to fight efforts to quiet their 
voices. There is little doubt that Asian Americans 
would be denied opportunities to participate 
equally in the electoral process without the 
protections afforded under Section 5. This Court 
should affirm Congress’ determination that 
Section 5 remains necessary to protect voters in 
minority populations.

II. Asian Americans Continue To Face 
Historical Discrimination, Thus 
Supporting Congress’ Reauthorization 
of Section 5

Since the Voting Rights Act was first 
enacted, Asian Americans have made some gains 
in electoral representation. According to a 2005 
study, approximately seventy-five percent (75%) 
“of Asian American elected officials were from 
jurisdictions covered by Section 203 provisions or 
in combination with other provisions,” including 
Section 5 of the Voting Rights Act. See Carol 
Hardy-Fanta, Christine Marie Sierra, Pei-te Lien, 
Dianne M. Pinderhughes, Wartyna L. Davis, Race 
Gender and Descriptive Representation: An
Exploratory View of Multicultural Elected 
Leadership in the United States, September 4, 
2005, at 17, available at http://www.gmcl.org/pdf/ 
APSA9-05-05.pdf (last visited Mar. 20, 2009). 
However, in reauthorizing Section 5, Congress 
also found that the number of Asian Americans 
elected to office “has failed to keep pace with [the]

http://www.gmcl.org/pdf/


16

population growth” of that community. H.R. Rep. 
No. 109-478, at 33.4

While some progress has undeniably been 
made, Asian Americans still face overt racial 
discrimination at the polls when attempting to 
exercise their right to vote, such as hostile and 
unwelcoming poll workers, as well as outright 
challenges to their right to vote based on race. 
Moreover, societal discrimination and the 
misperception of Asian Americans as perpetual 
foreigners and immigrants, coupled with 
historical de jure racism against Asian 
Americans, only reinforce the need to safeguard 
the voting rights of this minority group. See 
generally Frank Wu, Yellow: Race in American 
Beyond Black and White (Basic Books 2001).

Because Asian Americans bear the 
discrimination and misperceptions directed at 
them when they enter the poll sites, Section 5 is 
necessary to ensure that their voting rights are 
fully protected. Notably, this Court set forth in 
Thornburg u. Gingles that “typical factors” 
probative of a violation under the non­
discrimination provisions of the Voting Rights Act 
include (1) “the extent to which the members of 
the minority group in the state or political 
subdivision bear the effects of discrimination in

4 “For example, the number of Asian American elected 
officials has increased from 120 in 1978 to 346 in 2004. 
However, as of 2004, there were twelve million Asian 
Americans residing in the United States compared to the 
1.2 million Asian Americans who resided in 1970.” Id. at 
33-34.



17

such areas as education, employment and health, 
which hinder their ability to participate 
effectively in the political process” and 
(2) “whether political campaigns have been 
characterized by overt or subtle racial appeals.” 
478 U.S. 30, 36-37 (1986). Thus, facts probative 
of a violation under those provisions are relevant 
to, and inform the analysis under, the Section 5 
enforcement provisions.

Discrimination against American citizens 
of Asian ancestry carries grave societal 
consequences, compelling Asian Americans to 
continue “bear[ing] the effects of discrimination” 
that “hinder their ability to participate effectively 
in the political process.” Id. at 37. It also 
reinforces negative stereotypes about the group 
and may ultimately encourage hate crimes and 
racial violence, as well as facilitate the adoption 
of anti-immigrant laws and policies.

Renewed anti-immigrant sentiment — some 
of it directed at American citizens of Asian 
ancestry — also re-emphasizes the need to protect 
the voting rights of this minority group through 
Section 5. See Views on the 2006 Re authorization 
of the Voting Rights Act: When the Voting Rights 
Act Became Un-American: The Misguided
Vilification of Section 203, 58 Ala. L. Rev. 377, 
382 (2006). In particular, Asian Americans are 
perceived as perpetual foreigners or immigrants 
and not “American,” regardless of their true 
status. See, e.g., Keith Aoki, “Foreignness” & 
Asian American Identities: Yellowface, World



18

War II Propaganda, and Bifurcated Racial 
Stereotypes, 4 Asian Pac. Am. L.J. 1, 9-13 (1996).

History is replete with examples of 
discrimination and anti-immigrant sentiment 
directed towards Asian Americans. For example, 
legislative efforts have limited the Asian 
American community’s access to this country’s 
borders. See, e.g., Philippine Independence Act of 
1934, ch. 84, 48 Stat. 456, 462 (imposing annual 
quota of fifty Filipino immigrants; amended 
1946); Immigration Act of 1924, ch. 190, 43 Stat. 
153 (denying entry to virtually all Asians; 
repealed 1952); Immigration Act of 1917, ch. 29, 
39 Stat. 874, 874-98 (banning immigration from 
almost all countries in the Asia-Pacific region; 
repealed 1952); Scott Act of 1888, ch. 1064, 1, 25 
Stat. 504, 504 (rendering 20,000 Chinese re-entry 
certificates null and void); Chinese Exclusion Act 
of 1882, ch. 126, 22 Stat. 58, 58-61 (prohibiting 
immigration of Chinese laborers; repealed 1943); 
Naturalization Act of 1790, ch. 3, 1 Stat. 103 
(providing one of the first laws to limit 
naturalization to aliens who were “free white 
persons” and thus, in effect, excluding African- 
Americans, and later, Asian Americans; repealed 
1795).

Asian Americans have also suffered from a 
long history of de jure discrimination. See, e.g., 
Terrace v. Thompson, 263 U.S. 197 (1923) 
(upholding Alien Land Laws that effectively 
precluded Asians from owning land); Ozawa v. 
United States, 260 U.S. 178 (1922) (holding that 
Japanese are ineligible for naturalized



19

citizenship); Cable Act of 1922, ch. 411, 46 Stat. 
1021, 1021-1022 (mandating that any American 
female citizen who marries “an alien ineligible to 
citizenship” would lose her own citizenship); Exec. 
Order No. 589 (Mar. 14, 1907) (prohibiting 
Japanese and Korean citizens with passports 
issued by the Government of Japan to go to 
Hawaii, Mexico, or Canada to re-emigrate to the 
U.S.; repealed by Exec. Order No. 10009, 13 Fed. 
Reg. 6104 (Oct. 18, 1948)); Cal. Civ. Code § 60 
(1905) (prohibiting issuing of licenses for 
marriages between whites and “Mongolians”); 
United States v. Wong Kim Ark, 169 U.S. 649 
(1898) (considering whether an American-born 
person of Chinese ancestry could be denied U.S. 
citizenship and excluded from the country); Fong 
Yue Ting u. United States, 149 U.S. 698 (1893) 
(upholding constitutionality of the Geary Act of 
1892, ch. 60, 4, 27 Stat. 25, which renewed the 
exclusion of Chinese laborers for another ten 
years and required all Chinese to register); Chae 
Chan Ping v. United States, 130 U.S. 581 (1889) 
(upholding constitutionality of Chinese exclusion 
laws); Cal. Const, of 1879, art. XIX, § 2 (excluding 
Chinese immigrants from sectors such as 
corporations and public works); In re Ah Yup, 1 F. 
Cas. 223 (C.C. Cal. 1878) (holding that a native of 
China is not entitled to become a citizen of the 
United States); Chinese Police Tax of 1862, ch. 
339, 1862 Cal. Stat. 462 (requiring Chinese mine 
workers to pay a police tax; repealed 1939); 
People v. Hall, 4 Cal. 399 (Sup. Ct. 1854) 
(establishing that Chinese-Americans and 
Chinese immigrants had no rights to testify 
against white persons in court).



20

Asian Americans further “bear the effects 
of discrimination in such areas as education [and] 
employment.” Gingles, 478 U.S. at 36-37. See, 
e.g., Lau v. Nichols, 414 U.S. 563 (1974) (holding 
that the lack of educational services in Chinese 
effectively denied Chinese students equal 
educational opportunities on the basis of their 
ethnicity in violation of Title VI of the Civil 
Rights Act of 1964); Stacey J. Lee & Kevin K. 
Kumashiro, Nat’l Educ. Assoc., A Report on the 
Status of Asian Americans and Pacific Islanders 
in Education: Beyond the “Model Minority”
Stereotype (2005) (discussing education 
discrimination faced by Asian Americans); 
Vanessa Leung, The Coalition for Asian Am. 
Children and Families, Hidden in Plain View: An 
Overview of the Needs of Asian Am. Students in 
the Public School System 18 (2004) (same; citing 
Bd. of Educ. of the City of New York, Office of 
English Language Learners, Facts & Figures 
2000-2001); Fed. Glass Ceiling Comm’n, Good for 
Business: Making Full Use of the Nation’s 
Human Capital (1995) (discussing employment 
discrimination faced by Asian Americans, among 
other groups). This discrimination in education 
and employment negatively affects the ability of 
Asian Americans to fully exercise their right to 
vote. Cf. White v. Regester, 412 U.S. 755, 765-70 
(1973) (holding that disestablishment o f the 
multi-member districts in certain counties was 
warranted in light of the history of political 
discrimination against African-Americans and 
Mexican-Americans residing in those counties 
and the residual effects of such discrimination 
upon those groups).



21

Perhaps one of the most poignant examples 
of anti-Asian discrimination was the internment 
of approximately 120,000 Americans of Japanese 
ancestry during World War II without the right to 
notice of charges, the right to attorneys, or the 
right to a trial. See Exec. Order 9066, 7 Fed. Reg. 
1407 (Feb. 19, 1942) (authorizing the
internment); see also Korematsu v. United States, 
323 U.S. 214 (1944) (upholding the internment 
under strict scrutiny review). White immigrant 
groups whose home countries were also at war 
with the United States were not similarly 
detained because they did not seem as “foreign” 
as the Japanese, in that they did not threaten the 
existence of a white national identity or its 
security. See Terri Yuh-lin Chen, Hate Violence 
as Border Patrol: An Asian American Theory of 
Hate Violence, 7 Asian L.J. 69, 80 (2000).

Most recently, after the attacks of 
September 11, 2001, people of South Asian 
descent have become targets of countless hate 
crimes and incidents of racial profiling across the 
country. See, e.g., Darryl Fears, “Hate Crimes 
Against Arabs Surge, FBI Finds,” Wash. Post 
(Nov. 26, 2002), at A2 (noting that the FBI 
recorded 481 post-9/11 attacks against, among 
others, South Asian Sikhs, representing over a 
1,500 percentage increase in hate crimes). Here, 
too, courts are noting that, “ [sjince the terrorist 
attacks of September 11, 2001, this country has 
struggled to meet the stringent demands of 
national security and, simultaneously, to protect 
the civil rights of the American people.” Alshrafi



22

v. Am. Airlines Inc., 321 F. Supp. 2d 150, 152 (D. 
Mass. 2004).

Anti-Asian discrimination resonates with 
segments of society ready to take action to defend 
their way of life from being destroyed by 
“foreigners.” Indeed, numerous hate crimes have 
been directed against Asian Americans either 
because of their minority group status or because 
they are perceived as unwanted immigrants. See, 
e.g., “Girl’s Bloody Beating; Driver Does Nothing 
As Teens Attack Her On Bus,” N.Y. Post (Mar. 18, 
2007) (a female Asian American Catholic high 
school student was brutally punched, kicked, and 
teased for looking “Chinese” by a gang of youths 
while riding a city bus home from school); 
“Arsonist Avoids Jail In Church Van Blaze,” N.Y. 
Daily News (Aug. 5, 2004) (a man was charged 
with allegedly setting fire to a van bearing 
Korean lettering because he hated Asian 
immigrants); “3 Indians Attacked on Street And 
the Police Call It Bias,” N.Y. Times (Aug. 6, 2003) 
(three white men allegedly attacked three Sikhs 
while yelling “Bin Laden family! Go back to your 
country!”).

In a national poll of legal immigrants from 
Latin America, Asia, Africa, and Europe, who 
numbered around 14 million Americans in 2006, 
a majority felt the anti-immigrant sentiment was 
growing in America and that anti-immigrant 
sentiment had detrimentally affected their 
families. See New America Media, Legal
Immigrants: A Voice of Reason in the
Immigration Debate 3 (2006), available at http://



23

media.newamericamedia.org/images/polls/imm_p 
oll/Immigration_exec_summary.pdf (last visited 
Mar. 20, 2009). Indeed, AALDEFs multilingual 
exit poll in 2006 also found that thirty percent 
(30%) of respondents said that they or members of 
their family had been affected by anti-immigrant 
sentiment either at work, at school, or in public 
locations. See AALDEF, The Asian American 
Vote in the 2006 Midterm Elections: NY, NJ, MA, 
MI, PA, MD, VA, IL, WA, DC 12 (2007), available 
at http://www.aaldef.org/docs/AALDEF2006ExitP 
ollReportMay2007.pdf (last visited Mar. 20, 
2009).

It is difficult to imagine that the stigma, 
stereotyping, and bias that American citizens of 
Asian ancestry endure in society would cease to 
exist once they enter the poll site to vote. Indeed, 
political campaigns have resorted to “overt or 
subtle racial appeals” in an effort to affect 
electoral outcomes. Gingles, 478 U.S. at 37. 
Specifically, they have used xenophobic tactics to 
marginalize and stereotype Asian Americans as 
foreigners. Asian Americans make easy targets 
in political campaigns because they are clothed 
with the label of “immigrant” or “foreigner” 
simply by their appearance. Such actions are 
undeniably probative of potential violations under 
the Voting Rights Act.

For example, in the 2004 primary elections 
in Bayou LaBatre, Alabama (a Section 5 covered 
jurisdiction), supporters of a white incumbent 
running against a Vietnamese-American 
candidate made a concerted effort to intimidate

http://www.aaldef.org/docs/AALDEF2006ExitP


24

Asian American voters. The supporters 
challenged Asian Americans at the polls, falsely 
accusing them of not being U.S. citizens or city 
residents, or of having felony convictions. See 
H.R. Rep. No. 109-478, at 45 (“In Alabama, Asian 
American voters attempting to vote in an election 
with an Asian American candidate were harassed 
and threatened by supporters of an opposing 
candidate in polling locations in Bayou La 
Batre.”). The challenged voters had to complete a 
paper ballot and have that ballot vouched for by a 
registered voter. The DOJ investigated the 
allegations and found them to be racially 
motivated. See id.; see also DOJ Press Release, 
“Justice Department to Monitor Elections in New 
York, Washington, and Alabama” (Sept. 13, 2004) 
(“In Bayou La Batre, Alabama, the Department 
will monitor the treatment of Vietnamese- 
American voters.”), available at http://www.usdoj. 
go v/op a/pr/2004/Septe mbe r/0 4_crt_615. htm (last 
visited Mar. 20, 2009). As a result, the 
challengers were prohibited from interfering in 
the general election, and the city, for the first 
time, elected an Asian American to the City 
Council. See DeWayne Wickham, “Why Renew 
Voting Rights Act? Ala. Town Provides Answer,” 
USA Today (Feb. 22, 2006),5

5 Counsel notes that the Governor of Alabama has 
submitted an amicus brief in support of neither party, in 
which he relates the purported progress in his state with 
regards to African-Americans. Nowhere in that brief does 
he address the incident described above or any advances 
made with respect to Asian Americans.

http://www.usdoj


25

Additionally, in the 2004 U.S. Senate race 
in Virginia (a Section 5 covered jurisdiction), 
incumbent George Allen, at a campaign rally in 
southwest Virginia, repeatedly called a South 
Asian volunteer for the Democrat challenger a 
“macaca” — a racial epithet used to describe Arabs 
or North Africans, which literally means 
“monkey” -  and then began talking about the 
“war on terror.” See “Allen Quip Provokes 
Outrage, Apology,” Wash. Post (Aug. 15, 2006).

These incidents of discrimination and 
racism can penetrate into the voting booth where 
the perception that American citizens of Asian 
ancestry are foreigners or immigrants has the 
real effect of denying them full participation in 
the electoral process. For example, in 2004 in 
New York, poll workers racially profiled Asian 
American voters and required them to provide 
naturalization certificates before they could vote. 
At another poll site, a police officer required all 
Asian American voters to show photo 
identification before they could vote. Photo 
identification is not required to vote in New York 
elections, but if voters could not produce such 
identification, the officer turned them away from 
the polls and told them to go home. See 
Continuing Need for Section 203’s Provisions for 
Limited English Proficient Voters, Hearing Before 
the House Judiciary Comm., 109th Cong. 37 
(2006) (testimony of Margaret Fung, AALDEF, 
Exec. Dir.); Letter from G. Magpantay, AALDEF 
Staff Attorney to J. Ravitz, Exec. Dir., New York 
City Bd. of Elections (June 16, 2005) (submitted



26

to Congress with AALDEF Report and on file 
with counsel).

The overt racial appeals and discrimination 
during the course of political campaigns and 
elections impinge upon the ability of Asian 
Americans to freely and fully exercise their right 
to vote because they compel Asian Americans to 
“bear the effects of discrimination” and “hinder 
their ability to participate effectively in the 
political process.” Gingles, 478 U.S. at 37. They 
have created an environment of fear and 
resentment towards Asian Americans, many of 
whom are perceived as foreigners based on their 
physical attributes. This perception, coupled with 
the growing sentiment that foreigners are 
destroying or injuring the country, jeopardizes 
Asian Americans’ ability to exercise their right to 
vote free of harassment and discrimination.

In sum, Section 5 has proven to be an 
effective tool in protecting Asian American voters 
against a host of actions that threatened to 
curtail their voting rights. In particular, 
American citizens of Asian ancestry have been 
targeted as foreigners and unwanted immigrants. 
These perceptions have real consequences for the 
ability of Asian Americans to fully participate in 
the electoral and political process. Congress 
properly reauthorized Section 5 after a 
deliberative fact-finding process and with 
awareness of the important functions that it 
serves for minority communities.



27

CONCLUSION

For the foregoing reasons and the reasons 
presented by Appellee and Intervenor-Appellees, 
the judgment of the United States District Court 
for the District of Columbia should be affirmed.

Respectfully submitted.

M argaret  Fung  
G lenn  D. M agpan tay  
A sian  Am erican  Legal  

D efense and  
E ducation  Fund 

99 Hudson Street 
New York, NY 10013-2815 
(212) 966-5932

T heodore  K. Cheng  
Counsel of Record 

Jerry  G. V attam ala  
Pauline  S. K im  
M a rk  L. Legaspi 
Proskauer  R ose LLP 
1585 Broadway 
New York, NY 10036-8299 
(212) 969-3000

Counsel for Amicus Curiae 
Asian American Legal Defense 

and Education Fund



APPENDIX



App. 1

APPENDIX

STATEMENTS OF INTEREST OF AMICI

American Citizens for Justice

The American Citizens for Justice (ACJ) is 
a nonprofit organization dedicated to serving the 
Asian Pacific American communities of Metro 
Detroit, Michigan, and the Midwest and to 
advocate for the civil rights of all Americans. 
ACJ conducted poll monitoring/exit polling during 
the 2008 election.

Asian American Bar Association 
of Greater Chicago

The Asian American Bar Association of the 
Greater Chicago Area (AABA) serves not only the 
interests of its members, but also the community 
from which many of its members came. AABA 
has continually reaffirmed its commitment to that 
belief and has grown to more than 400 members 
and associates. From increasing awareness 
among elected officials on issues of importance to 
the Asian American community, to documenting 
the need for increased representation in all areas 
of the profession including the judiciary, to 
serving the legal needs of the community by 
supporting non-for-profit organizations, AABA 
has strived to serve Chicagoland’s Asian 
American attorneys and community. AABA 
conducted poll monitoring/exit polling during the 
2008 election.



App. 2

Asian American Bar Association of New York

The Asian American Bar Association of 
New York (AABANY) is a membership
organization of attorneys, judges, law professors, 
legal professionals, legal assistants or paralegals, 
and law students concerned with issues affecting 
the Asian Pacific American community.
AABANY works to advocate for the Asian Pacific 
American community and seeks to improve the 
study and practice of law, and the fair 
administration of justice for all by ensuring the 
meaningful participation of Asian Americans in 
the legal profession. AABANY is the regional 
affiliate of the National Asian Pacific American 
Bar Association. AABANY conducted poll 
monitoring/exit polling during the 2008 election.

Asian American Lawyers Association 
of Massachusetts

The Asian American Lawyers Association 
of Massachusetts is a non-partisan, non-profit 
organization of over two hundred Asian American 
lawyers, judges, law professors, and law students. 
AALAM’s mission is to promote and enhance the 
Asian American legal profession by furthering 
and encouraging professional interaction and the 
exchange of ideas among its members and with 
other individuals, groups, and organizations. 
AALAM also strives to improve and facilitate the 
administration of law and justice. AALAM is a 
member organization of the National Asian 
Pacific American Bar Association. AALAM



App. 3

conducted poll monitoring/exit polling during the 
2008 election.

Asian American LEAD

AALEAD’s overarching goal is to increase 
the opportunities and ability of low-income Asian 
American children to move out of poverty and 
become successful, self-sufficient adults. 
AALEAD firmly believes that education is the key 
to meeting this goal. However, AALEAD 
understands that children need additional family, 
school, and personal supports, not just academic 
assistance, to succeed. Consequently, AALEAD 
uses a five-pronged approach to youth 
development, offering each child after school 
intervention in a safe space, mentoring, family 
support and educational advocacy. AALEAD 
conducted poll monitoring/exit polling during the 
2008 election.

Asian American Society of Central Virginia

Asian American Society of Central Virginia 
(AASoCV), a non-profit charitable organization 
501(c)(3) established in 1998, strives to represent 
the concerns of over 30,000 Asian Americans who 
live in Central Virginia. AASoCVs goal is to 
promote unity, harmony and diversity in Central 
Virginia. AASoCV conducted poll monitoring/exit 
polling during the 2008 election.



App. 4

Asian Community Development Corporation 
of Boston

The Asian Community Development 
Corporation, a community-based organization, is 
committed to high standards of performance and 
integrity in serving the Asian American 
community of Greater Boston, with an emphasis 
on preserving and revitalizing Boston’s 
Chinatown. The Corporation develops physical 
community assets, including affordable housing 
for rental and ownership; promotes economic 
development; fosters leadership development; 
builds capacity within the community; and 
advocates on behalf of the community. The 
Corporation conducted poll monitoring/exit 
polling during the 2008 election.

Asian Pacific American Agenda Coalition

The Asian Pacific American Agenda 
Coalition is a coalition of organizations and 
individuals who have come together to identify 
and to move forward a common agenda that 
addresses the needs of the Asian Pacific American 
communities in Massachusetts. Their mission is 
to promote and foster the development of Asian 
Pacific Americans and to ensure their full and 
equal participation in the social, economic, and 
political lives of their communities. The Asian 
Pacific American Agenda Coalition conducted poll 
monitoring/exit polling during the 2008 election.



App. 5

Asian Pacific American Bar Association 
of the Greater Washington, DC Area

The Asian Pacific American Bar
Association of the Greater Washington, DC Area 
is an organization of attorneys, judges, law 
professors, law students, and other legal 
professionals dedicated to the advancement of 
Asian Pacific Americans. APABA-DC is the 
oldest and largest association of xAsian Pacific 
American attorneys in the Washington, DC area. 
APABA-DC is an affiliate chapter of the National 
Asian Pacific American Bar Association. APABA- 
DC conducted poll monitoring/exit polling during 
the 2008 election.

Asian Pacific American Bar Association 
of Pennsylvania

The Asian Pacific American Bar 
Association of Pennsylvania is a non-profit 
organization founded in 1984 to serve a wide 
network of Asian Pacific American attorneys 
admitted or practicing in Pennsylvania, Northern 
Delaware and Southern New Jersey. The 
APABA-PA is dedicated to the advancement of its 
members and the Asian American Community. 
APABA-PA also educates its members about 
issues critical to Asian Pacific Americans and 
advances the interests of Asian Pacific American 
attorneys as well as the interests of the local 
community. APABA-PA has previously worked 
with AALDEF in monitoring elections and in 
conducting its exit poll of Asian American voters.



App. 6

APABA-PA conducted poll monitoring/exit polling 
during the 2008 election.

Asian Pacific American Labor Alliance

The Asian Pacific American Labor Alliance 
(APALA), AFL-CIO, is the first and only national 
organization of Asian Pacific American (APA) 
union members. Over 600,000 APA workers have 
joined unions and are seeking better pay, 
improved benefits, dignity on the job, and a voice 
in the workplace. Backed with strong support of 
the AFL-CIO, APALA has 11 chapters and pre­
chapters and a national office in Washington, 
D.C. In 2006, APALA educated, registered, and 
mobilized voters in Nevada, Michigan, 
Washington, California, Hawaii, District of 
Columbia, Maryland, and Texas. APALA was 
again active in 2008 with educating, registering, 
and mobilizing voters, including conducting poll 
monitoring/exit polling during the 2008 election.

Asian Pacific American Legal Resource Center

The Asian Pacific American Legal Resource 
Center (APALRC) is the Capital Region’s 
nonprofit advocate advancing the legal and civil 
rights of Asian Pacific Americans through direct 
services, education, and advocacy. The APxALRC 
serves the individual legal needs of low-income 
and limited-English proficient Asian Pacific 
Americans and advocates for broad-based 
systemic change on legal and civil rights issues 
impacting Asian Pacific Americans. APALRC is 
committed to ensuring that Asian Pacific



App. 7

Americans are able to vote, unencumbered by 
barriers including language access and
inaccessible poll sites. APALRC has conducted 
poll monitoring and exit polling in Virginia 
during the 2004 election and in Virginia, 
Washington DC, and Maryland during the 2006 
and 2008 elections. Through APALRC’s poll 
watching and exit polling, APALRC has 
documented the difficulties that place
unwarranted burdens upon Asian Pacific 
American voters. APALRC thus supports 
ensuring the right to vote of Asian Pacific 
Americans through Section 5 of the Voting Rights 
Act.

Asian Pacific Islander American Vote

Asian and Pacific Islander American Vote 
(APIAVote) is a national nonpartisan, nonprofit 
organization that encourages and promotes civic 
participation of Asian Pacific Islander Americans 
in the electoral and public policy processes at the 
national, state and local levels. APIAVote 
envisions a society in which all Asian Pacific 
Islander Americans fully participate in and have 
access to the democratic process. APIAVote 
conducted poll monitoring/exit polling during the 
2008 election.

Cambodian Association of Greater Philadelphia

The Cambodian Association of Greater 
Philadelphia, Inc. seeks to improve the quality of 
life of Cambodian Americans within the greater 
Philadelphia area through direct services,



App. 8

advocacy, and cultural awareness. Since its 
inception, CAGP has developed and implemented 
many social, educational, and cultural programs 
helping Cambodian American families become 
self-sufficient. CAGP conducted poll
monitoring/exit polling during the 2006 and 2008 
elections.

Chinese American Voters Association

The Chinese American Voters Association 
(CAVA) is a non-profit organization established to 
advance the political awareness and voter 
education of Chinese Americans in New York. 
CAVA has sponsored numerous events and 
provided community services such as voter 
education literature, publication of newsletters, 
voter registration drives, political forums, polling 
site assistance, and other voter education 
programs. CAVA conducted poll monitoring/exit 
polling during the 2008 election.

Chinese Progressive Association

The Chinese Progressive Association is a 
grassroots community organization working for 
full equality and empowerment of the Chinese 
community in the Greater Boston area. CPA 
seeks to address the issues affecting Chinese 
Americans from improving the living and working 
conditions to increasing political empowerment 
and voter education within the community. CPA 
conducted poll monitoring/exit polling during the 
2008 election.



App. 9

Coalition of Asian Pacific Americans of Virginia

The Coalition of Asian Pacific Americans of 
Virginia aims to unify the Asian and Pacific 
Islander community to have an organized voice 
throughout the Commonwealth of Virginia. They 
seek to promote active participation of Asian and 
Pacific Americans in the policy arena and support 
community-organizing efforts. CAPAVA also 
supports and defends equal rights and 
opportunities for all Asian and Pacific Americans. 
CAPAVA preserves the voting rights of all Asian 
Americans by participating in poll monitoring/exit 
polling during elections. CAPAVA conducted poll 
monitoring/exit polling during the 2008 election.

Filipino American Human Services, Inc.

FAHSI is a community-based, non-profit 
organization dedicated to improving the social 
conditions and enhancing the self-reliance of the 
Filipino and Filipino American communities of 
New York City. FAHSI’s vision is an empowered 
Filipino American community with a strong sense 
of identity and commitment to civic participation. 
FAHSI serves marginalized segments of the 
community, particularly the elderly, youth, 
women and recent immigrants. FAHSI assisted 
in conducting poll monitoring/exit polling during 
the 2006 and 2008 elections.

Korean American League for Civic Action

The Korean American League for Civic 
Action is a leading non-partisan, advocacy 
organization dedicated to promoting the civic



App. 10

participation of Korean Americans and Asian 
Pacific Americans in New York. KALCA aims to 
improve civil society and American democracy 
with a more engaged electorate and they work to 
encourage greater participation by the Korean 
American and Asian Pacific American 
communities with community outreach, voter 
education, and voter registration drives. KALCA 
has conducted poll monitoring/exit polling in New 
York and New Jersey for the past several 
elections, including the 2008 election.

Korean American Resource & Cultural Center

Korean American Resource & Cultural 
Center, the Chicago affiliate of the National 
Korean American Service & Education 
Consortium, aims to empower the Korean 
American community through education, social 
service, organizing/advocacy and culture. Serving 
the Korean American community of greater 
Chicago, the organization strives to resolve issues 
facing the growing Korean American community. 
KRCC has conducted poll monitoring/exit polling 
for the past several elections, including the 2008 
election.

Korean American Voters’ Council of NY & NJ

The Korean American Voters’ Council of 
New York & New Jersey is a coalition of 
organizations and individuals working to create 
greater civic participation in the Korean 
American community. KAVC conducted voter 
registration drives, translated and published



App. 11

voters’ handbooks, and held seminars about 
political candidates and issues. KAVC has also 
operated voter hotlines in Korean and assisted 
voters at poll sites. KAVC has conducted poll 
monitoring/exit polling for the past several 
elections, including the 2008 election.

Korean Community Service Center 
of Greater Washington, DC

KCSC’s mission is to assist and empower 
Asian Americans and new immigrants to become 
well-adjusted and fully contributing members of 
the United States through social services, 
education, advocacy, and development of 
resources. KCSC conducted poll monitoring/exit 
polling during the 2008 election.

Maryland Vietnamese Mutual Association

MVMA’s mission is to serve, support, and 
advance the Vietnamese American community. 
While MVMA’s special commitment is to advocate 
for the cause of Vietnamese Americans, it serves 
all immigrant communities. MVMA’s vision is to 
build a strong, unified, and caring Vietnamese 
American community, where young people, adults 
and elders are engaged and contributing citizens 
through continuing educational, social and 
economic advancement, while maintaining their 
cultural heritage. MVMA is involved with 
educating and mobilizing voters in the 
Vietnamese community especially those with 
language access needs. MVMA conducted poll 
monitoring/exit polling during the 2008 election.



App. 12

MassVOTE

MassVOTE (The Massachusetts Voter 
Education Network) is a non-partisan voting 
rights organization whose urban voter 
mobilization model works with non-profit 
organizations to increase voter education and 
turnout. In addition, MassVOTE’s electoral 
reform agenda seeks to eliminate voter 
participation barriers, especially among 
communities of color, language minorities, low 
income, youth, new Americans and the disabled. 
MassVote conducted poll monitoring/exit polling 
during the 2008 election.

Muslim Bar Association of New York

The Muslim Bar Association of New York 
(MuBANY) is a member-based professional 
association serving the educational, professional, 
and social needs of Muslim lawyers, legal 
professionals and law students living and 
working in the New York metropolitan area. In 
2008, MuBANY members participated in voter 
registration and election protection efforts focused 
on Muslim voters, many of whom are Asian 
Americans, including poll monitoring/exit polling.

National Asian Pacific American Women’s Forum

NAPAWF is the only national, multi-issue 
APA women’s organization in the country. 
NAPAWF’s mission is to build a movement to 
advance social justice and human rights for APA 
women and girls. NAPAWF has been actively 
involved in registering, educating, and mobilizing



App. 13

voters over the years, including poll 
monitoring/exit polling during the 2008 election.

National Korean American Service 
& Education Consortium

The National Korean American Service & 
Education Consortium is a national non-profit 
organization based in Los Angeles, California 
with a Washington DC office. NAKASEC 
affiliates are the Korean American Resource & 
Cultural Center in Chicago and the Korean 
Resource Center in Los Angeles. Founded in 
1994, NAKASEC is a multi-issue civil rights and 
human rights organization based in the Korean 
American community. NAKASEC’s mission is to 
project a national progressive voice for Koreans 
Americans and promote their full participation in 
the United States. To this end, NAKASEC 
promotes equitable and just changes to the 
political and legislative systems through a 
combination of education and policy advocacy 
with grassroots organizing and community 
mobilization. NAKASEC conducted poll 
monitoring/exit polling during the 2008 election.

North American South Asian Bar Association

The North American South Asian Bar 
Association (NASABA) is the umbrella 
organization for 26 regional bar associations in 
North America representing the interests of over 
6,000 attorneys of South Asian descent. Within 
the United States, NASABA takes an active 
interest in the legal rights of South Asian and



App. 14

other minority communities, including voting 
rights. NASABA conducted poll monitormg/exit 
polling during the 2008 election.

OCA

Originally founded as the Organization of 
Chinese Americans, OCA is a national 
organization dedicated to advancing the social, 
political, and economic well-being of Asian Pacific 
Americans in the United States. With over 80 
chapters and affiliates across the nation, OCA’s 
aims are to advocate for social justice, to promote 
civic participation, to advance coalitions and 
community building, and to foster cultural 
heritage. OCA monitors issues and policies that 
affect the Asian Pacific American community. 
OCA and/or its chapters have conducted poll 
monitoring/exit polling during the 2002, 2004, 
2006, and 2008 elections.

ONE Lowell

ONE Lowell is a non-profit organization in 
Lowell, Massachusetts that has been dedicated to 
increasing the integration and self-sufficiency of 
Lowell's immigrant populations by strengthening 
civic participation, developing strong leadership 
and increasing access to vital services. ONE 
Lowell works with immigrant communities to 
register qualified voters and increase awareness 
about the traditions of democracy in America. 
The organization also works with local, state and 
national organizations to increase awareness 
about policies and legislation that affect the



App. 15

immigrant populations. ONE Lowell has 
conducted poll monitoring/exit polling for the past 
several elections, including the 2008 election.

One Nevada

One Nevada is a nonpartisan coalition that 
works in partnership with APALA and APIAVote 
to register new voters and organize get-out-the- 
vote campaigns by encouraging early voting, 
phone banking infrequent registered Asian 
American Pacific Islanders (AAPI) voters, and 
canvassing highly concentrated AAPI 
neighborhoods to increase the AAPI vote. One 
Nevada conducted poll monitoring/exit polling 
during the 2008 election.

Philadelphia Chinatown 
Development Corporation

PCDC is a grassroots, non-profit, 
community-based organization. Our mission is to 
preserve, protect, and promote Chinatown as a 
viable ethnic, residential, and business 
community in Philadelphia, Pennsylvania. PCDC 
conducted poll monitoring/exit polling during the 
2006 and 2008 elections.

Providence Youth and Student Movement

Providence Youth and Student Movement 
is a local grassroots organization that works to 
with Southeast Asian American youth and 
families to confront and end state, street, and 
interpersonal violence in Providence, Rhode 
Island. Through programs, campaigns, and



App. 16

community building, PrYSM focuses on civil 
rights and social issues that affect immigrant 
youth. PrYSM conducted poll monitoring/exit 
polling during the 2004 and 2008 elections.

The Sikh Coalition

The Sikh Coalition works to defend civil 
rights and liberties for all people, promote 
community empowerment and civic engagement 
within the Sikh community, create an 
environment where Sikhs can lead a dignified life 
unhindered by bias and discrimination, and 
educate the broader community about Sikhsim 
order to promote cultural understanding and 
create bridges across communities. Ensuring 
that Sikhs have free access to the polls is 
fundamental to this mission. The Sikh Coalition 
believes that any attempt to suppress the right to 
vote is contrary to the laws and traditions of the 
United States. The Sikh Coalition conducted poll 
monitoring/exit polling during the 2004, 2006, 
and 2008 elections.

South Asian Americans Leading Together

South Asian Americans Leading Together 
(SAALT) is a national, non-profit organization 
dedicated to ensuring the full and equal 
participation by South Asians in the civic and 
political life of the United States. SAALT works 
to unify the South Asian community in America 
and provide a voice on issues affecting South 
Asians that relate to equality and civil rights. 
SAALT coordinates the National Coalition of



App. 17

South Asian Organizations (NCSO), a national 
network of 36 organizations based in 12 regions 
around the country. SAALT conducted poll 
monitoring/exit polling during the 2004, 2005, 
2006, and 2008 elections.

South Asian Bar Association of Michigan

The South Asian Bar Association of 
Michigan is a voluntary bar association dedicated 
to the needs, concerns, and interests of the South 
Asian American legal community in the Michigan 
area. The South Asian Bar Association of 
Michigan conducted poll monitoring/exit polling 
during the 2008 election.

South Asian Bar Association of New York

The South Asian Bar Association of New 
York (SABANY) is an organization of South Asian 
attorneys practicing in the New York 
Metropolitan region. SABANY is a voluntary bar 
association dedicated to the needs, concerns, and 
interests of lawyers of South Asian heritage. 
SABANY is dedicated to ensuring the civil 
liberties of the South Asian community in New 
York, by acting as a conduit between the South 
Asian community and legal services and 
educational programs in the area. In addition, 
they are committed to promoting the professional 
development of the South Asian legal community 
through networking, advocacy and mentoring. It 
is SABANY’s goal to educate South Asian 
Americans about the legal system and to 
encourage more participation by the community



App. 18

in the legal profession. SABANY conducted poll 
monitoring/exit polling during the 2008 election.

South Asian Youth Action!

The South Asian Youth Action! (SAYA!) is 
a community organization working to promote 
leadership and encourage the success of South 
Asian youth in the New York City area. SAYA! 
recognizes the importance of creating 
opportunities for South Asian youth and works to 
resolve the social issues that affect the South 
Asian community in a post-9/11 society. Through 
its programs and advocacy efforts SAYA! works to 
create broad social and systematic changes that 
positively impact immigrant youth. SAYA! has 
conducted election poll monitoring/exit polling for 
the past several elections, including the 2008 
election.

Vietnamese American Initiative for Development

Vietnamese American Initiative for 
Development (VietAID) is a local organization 
dedicated to empowering the Vietnamese 
Community of the Boston metropolitan area 
through civic participation and community 
development. In preparation for the 2000 
elections, VietAID conducted voter registration 
drives and mobilized voters, which lead to an 
increased voter turnout by 47% in the Vietnamese 
American community.



App. 19

Vietnamese American Young Leaders Association 
of New Orleans

The Vietnamese American Young Leaders 
Association of New Orleans (VAYLA-NO) is a 
youth-led, youth organizing and development, 
community-based organization in New Orleans 
dedicated to the empowerment of Vietnamese 
American and underrepresented youth through 
services, cultural enrichment, and social change. 
VAYLA-NO conducted poll monitoring/exit 
polling during the 2008 election.

YKASEC -  Empowering the Korean American 
Community

YKASEC -  Empowering the Korean 
American Community was established to meet 
the needs and concerns of the Korean American 
Community through education, civic participation 
immigrant rights, social services, and culture in 
New York. YKASEC works with various 
grassroots organizations on immigration policy 
and voter rights. YKASEC — Empowering the 
Korean American Community has conducted 
election poll monitoring/exit polling for the past 
several elections, including the 2008 election.



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