Bagatelos Law FIRM
ATTORNEY AT LAW
380 WEST PORTAL AVENUESUITE F
SAN FRANCISCO, CALIFORNIA 94127
TEL:        (415) 242-8830
FAX:        (415) 242-8838
E-MAIL:  PABLAWYER@AOL.COM

St. Francis circle Professional Center       

pETER A. BAGATELOS

Text Box: 380 WEST PORTAL AVENUE
SUITE F
SAN FRANCISCO, CALIFORNIA 94127
TEL:        (415) 242-8830
FAX:        (415) 242-8838
E-MAIL:  PABLAWYER@AOL.COM
 

July 24, 2002

Mr. John Arntz

Acting Director

Department of Elections

City & County of San Francisco

1 Dr. Carlton B. Goodlett Place, Room 48

San Francisco, Ca.  94102-4634

Re:  Chinese Name for Michael Denny, Candidate for 12th Assembly District

Dear Mr. Arntz: 

Introduction

            This firm represents Michael Denny, Libertarian Candidate for the 12th Assembly District in the upcoming November 5, 2002 general election.  I am writing to protest in the strongest terms your department policy regarding the use of Chinese names by candidates on the ballot.  I am writing to demand that the policy be discarded immediately and that Mr. Denny be permitted to use his authentic Chinese name as guaranteed to him by the Constitution of the United States. As an attorney who has been practicing in the area of elections and campaign laws for 26 years, I am completely surprised and shocked that your department would be complicitous in promoting racism and violating the rights of an individual such as Mr. Denny.  

Mr. Denny has advised me that he has qualified as a candidate by submitting the proper forms with your office.  One of your forms requested that Mr. Denny provide his Chinese name, apparently for purposes of including such name on the translated versions of the official ballot that is sent to the Chinese community.  Mr. Denny provided his official Chinese name on the form.  He was subsequently advised informally that he would be denied by your Department the right to use this name because it violates a City-adopted policy against non-Chinese persons using politically correct Chinese names.  Instead, he was advised that he will be assigned a phonetic Chinese name, based on his name in English, which will clearly mark and brand him as a non-Chinese person on the ballot.  Enclosed is a March 22, 2002 press release that briefly summarizes the background facts.  Mr. Denny wants to use his authentic Chinese name of “Dai Min Hao” and not a nonsensical Chinese version that sounds somewhat like his name in English.

  Demands

             The afore-described policy is not only outrageous, especially in liberal minded San Francisco where the rights of individuals of all types are zealously promoted and protected, but also highly illegal under the Constitution of the United States.  The United States Supreme Court has ruled clearly and loudly that it is unconstitutional for a government to identify the race of a candidate on the ballot.  On behalf of my client, I demand the following:

 

  1. That you safeguard Mr. Denny’s Constitutional rights and use his proper Chinese name on the ballot as submitted by him to your office on the proper form; and

 

  1. That the Department of Elections, under the auspices of the Elections Commission, cease and desist from continuing to use any policy that identifies candidates by race on the

ballot, either expressly or impliedly, in violation of the judicial pronouncements of the Supreme Court, or, in the alternative,

 

  1. That all candidates be identified on all ballots with only their names in English so that all candidates are treated fairly and equally. This is discussed in more detail below.

 Background

             Mr. Denny is not Chinese.  However, he maintains a home in Taipei, has been traveling extensively to China for years, does business in China, speaks a fair amount of Mandarin, and socializes extensively with Chinese friends, associates, and business acquaintances.  He adopted the use of an authentic Chinese name approximately eight years ago, by which he is known to all of his acquaintances and friends in the Chinese community.   He uses this name on his official Visa when he travels to China.  By custom, usage, practice, and design, Mr. Denny has acquired and uses a Chinese name which is now part of his identity in both the Chinese communities of China and San Francisco.  To deny him the right to use such name under such circumstances amounts to nothing less than pure discrimination based on racism.

             Mr. Denny was advised by your department that he could not use his widely accepted and long used Chinese name on the translated version of the ballot for the Chinese community in this coming November election.  He was told that his authentic Chinese name made him sound Chinese and that this would “confuse” Chinese voters into thinking he was Chinese. This is a clear indication of what is prohibited by law.  Voters are not supposed to be able to distinguish the race of a candidate on the ballot under the Supreme Court’s ruling.

             Your department advised Mr. Denny that it would refuse to print Mr. Denny’s authentic Chinese name in the ballot materials translated into Chinese for the Chinese community.   Instead, Mr. Denny was advised that his name in English would be transliterated into a Chinese sounding name by court translators.  Such transliteration would produce the same basic sounds as his name spoken in English and would produce a name that, to Chinese persons, would sound nonsensical.  The Chinese sounding name for Mr. Denny that your department proposed is a name that no Chinese person would ever use.  This decision was based on a policy adopted by the Department which is based on the work of a group called the “Advisory Panel on Candidate Names in Chinese.” 

             The Advisory Panel on Candidate Names in Chinese met on August 25, 2000.  A copy of their meeting notes is attached hereto.  Except for the then Director of Elections, Patty Fado, the entire 6 member composition of the Panel who participated in that meeting appears to be exclusively Chinese persons.  The meeting notes seem to contain the policy on which your department has based its decision not to allow Mr. Denny to use his authentic Chinese name on the ballot.  That policy speaks for itself.  It excludes anyone who is not Chinese by birth or who was not raised from a young child in a Chinese family from using a Chinese name on the ballot. The Panel even suggested that your department ask candidates to provide their ethnic background confidentially to assure that the policy is promoted.  How exclusive and how discriminatory this is!

             I challenge everything about the Panel and its policy.   The Panel is racially exclusive and appears not to have solicited or factored in the views of any other racial groups.  Who adopted this policy officially?  Was it reviewed by the Board of Supervisors?  Has the City Attorney ruled on its constitutionality?  Has the new Elections Commission sanctioned this policy?  Has anyone focused on the simple fact that this policy discriminates in violation of the basic laws of the land and violates Mr. Denny’s basic civil rights as a citizen of the United States entitled to equal protection under the laws?

 SUPREME COURT RULING

             The United States Supreme Court, in the case of Anderson v. Martin (1964), 375 U.S.399, considered Louisiana elections in 1962.  Louisiana law then required the nomination papers and ballots in all elections designate the race of all candidates. Black candidates identified as “Negroes” on the ballot sued and won a victory ruling that said such a requirement violated the Equal Protection and Due Process Clauses of the amendments to the Constitution. The court clarified right at the outset of its ruling that the case “…has to do only with the right of a State to require or encourage its voters to discriminate upon the grounds of race.”  The court further stated:  “…the State furnishes a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another.  This is true because by directing the citizen’s attention to the single consideration of race or color, the State indicates that a candidate’s race or color is an important – perhaps paramount – consideration in the citizen’s choice, witch may decisively influence the citizen to cast his ballot along racial lines.”  The court

said that the vice in this system lies in placing “…the power of the State behind a racial classification that induces racial prejudice at the polls.”

 ANALYSIS

             The policy of your department, based on criteria apparently developed by an all-Chinese Advisory Panel, violates the above Supreme Court ruling.  There is no justification for the policy based on meeting any legitimate governmental interest.  The policy is discriminatory, pure and simple.  As the Supreme Court said in the Anderson case:  “Race is the factor upon which the statute operates and its involvement promotes the ultimate discrimination which is sufficient to make it invalid.”  So too is your department policy based purely on racial considerations.   Only a authentic Chinese person can use an authentic Chinese name.  No non-Chinese person can use

an authentic Chinese name because it might confuse people into thinking a non-Chinese candidate were really Chinese.  This cannot be allowed because the goal is clearly to make sure

that Chinese people only vote for Chinese candidates.  Is this discrimination against Mr. Denny based on racial factors, considerations, and policies?  YOU BET IT IS!

             By requiring that Mr. Denny not be able to use his authentic Chinese name, which he has established legally as his name through usage over many years, and by further requiring Mr. Denny to use a nonsensical Chinese sounding name that will make Chinese voters laugh when they read it, your department will pigeon-hole Mr. Denny into a racial compartment that is no different than the isolated box in which black candidates found themselves in the 1962 Louisiana elections.  It makes no difference whether the terms “Caucasian” or “Chinese” are used on the ballot, or whether other terms or devices are similarly used to mark candidates by race.  The effect is the same. Chinese voters in this case receive a very clear message when they read a ballot translated into Chinese as to who are the Chinese candidates and who are not by virtue of the authenticity of the Chinese name that is used for each candidate.

             Mr. Denny’s opponent in the 12th AD race is Supervisor Leland Yee.  Under your department’s policy, Mr. Yee will be able to use his name in English on the English ballots and his authentic Chinese name on the Chinese translated ballots.  When the voters read in Chinese the authentic name of Mr. Yee, they will clearly be advised that he is Chinese.  When they read Mr. Denny’s Chinese sounding nonsensical name that is based on the phonetic pronunciation of his name in English, they will clearly be advised that Mr. Denny is not Chinese.  The racial distinction, prohibited by Anderson v. Martin, is a clear factor in this setting.  What is also clear is that the Chinese voters will thereby be induced to vote for their Chinese colleague based on the factor of race, rather than on the qualifications of each respective candidate.  There is no room for such discrimination in San Francisco.  There is no room for such a violation of Mr. Denny’s civil rights as protected by the United States Constitution.

             Mr. Denny should be permitted to use his authentic Chinese name, just as Mr. Leland Yee will be permitted to use his authentic Chinese name, on all ballots translated into Chinese.  If this poses a problem, then the names of all candidates in English should be used consistently on all ballots.  No translation, transliteration, or transposition of any candidate’s name from English into any other version should be utilized whatsoever.  Use of one name in all places would also assure fairness and non-discrimination based on racial factors.

 CONCLUSION

             By requiring a non-Chinese candidate for office, who has legally used for 8 years an authentic Chinese name for travel, business, and interpersonal relations with the Chinese community here and abroad, to use an Americanized and bastardized version of his name in English as his Chinese name on the ballot, is tantamount to listing Mr. Denny’s race on the 

ballot.   It is just as wrong to identify to a large class of voters that a non-Chinese candidate is non-Chinese on the ballot as it is to denote to voters that a candidate is “Causcasian” or “Negro” on the ballot. This is illegal and unconstitutional.   Based on the foregoing, I again demand, on behalf of my client, that your department immediately agree that Mr. Denny will be permitted to use his authentic Chinese name on the translated Chinese ballots.  I also demand that the policy on which your department originally denied Mr. Denny the right to use his authentic Chinese name be abandoned forthwith.  Alternatively, I demand that the names of all candidates in English be used on all ballots consistently so that no candidate receives any special consideration based on racially-related special treatment.

 By copy of this letter to the persons and entities shown below, I am requesting assistance and support within their respective scopes of influence and power to assure that this injustice is

corrected immediately to protect the rights not only of Mr. Denny as an individual, but also of all non-Chinese candidates who similarly will fall victim to this illegal discriminatory policy. 

  I am specifically requesting that the Elections Commission review this policy and take steps to remove it forthwith.  Mr. Denny appeared before the Elections Commission and introduced himself in Mandarin using his authentic Chinese name.  Mr. Denny’s Chinese friend, Acko Chou, also testified at the Commission meeting in March, 2002, and advised the Commission that, in his opinion, the supposed Chinese name proposed by your department is “not a Chinese name.”  The Commission advised Mr. Denny that they would hold a hearing on the Chinese name policy and would ask to receive an opinion from the City Attorney by March 20, 2002.  However, the Commission has, according to my client, failed to follow up as indicated and stopped returning Mr. Denny’s telephone calls.  Mr. Denny has thus redressed his grievances to the proper governmental agency responsible for setting policy for the Department of Elections, but that agency has failed in its duty to address that grievance in a timely and proper manner.  Action is requested now. 

I am specifically requesting that members of the Board of Supervisors also review the questioned policy through its processes and assure it is removed forthwith.  I am specifically requesting that the United States Justice Department investigate this matter, involving civil rights violations based on racial factors, and take steps to protect aggrieved persons including specifically Mr. Denny.  I am specifically requesting that the Secretary of State who, as the Chief Elections officer of the State, has shown great interest in the past year of becoming involved specifically in San Francisco elections, to provide guidance and direction to your department as to the undesirability and illegality of such a discriminatory policy.  I am requesting that the San Francisco Civil Grand Jury investigate this matter as well.  An official complaint (copy enclosed) has been filed with the Grand Jury along with a copy of this letter.

            Obviously, in order to protect the full range of Mr. Denny’s rights under law as a citizen and candidate for office, I request that you provide a response to this letter in a timely manner.  I expect that your response will be favorable.  But if, for any reason, you respond unfavorably due to whatever influences, then Mr. Denny should have a reasonable opportunity and the time to seek other obvious avenues of redress. I request your response in writing. 

 Sincerely,

 Peter A. Bagatelos

 ccHonorable Willie L. Brown, Jr.  -  Mayor, City & County of San Francisco

Honorable Board of Supervisors – City & County of San Francisco

Honorable Election Commission – City & County of San Francisco

Dennis Herrera – City Attorney,  City & County of San Francisco

Honorable Secretary of State Bill Jones

United States Department of Justice – Civil Rights Division

San Francisco Civil Grand Jury

American Civil Liberties Union

Pacific Legal Foundation

 

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