Assessment of public comment

The Office of the New York State Attorney General (“OAG”) is promulgating a rule related to the preclearance section of the John R. Lewis Voting Rights Act of New York (the “NYVRA”). On June 12, 2024, the Notice of Proposed Rulemaking was published in the State Register. The deadline for public comment was August 12, 2024. The Notice of Adoption of the final rule will be published in the State Register on September 11, 2024, and the final rule will take effect on September 22, 2024. Pursuant to section 202(5)(b) of the New York State Administrative Procedure Act, this assessment of public comment includes a summary and analysis of the issues raised and significant alternatives suggested by all public comments received, a statement of the reasons why any significant alternatives were not incorporated into the rule, and a description of any changes made to the rule as a result of such comments. Copies of the comments submitted can be found on the OAG website.

As detailed herein, no substantial revisions have been made to the proposed rule.

1.    Issue raised: Section 501.3(b)(3) of the proposed rule states: “A consent decree or other executed written agreement shall be deemed to be based upon a finding of a violation, and thus may subject the political subdivision to preclearance coverage, if the agreement reflects a finding of noncompliance with one of the laws or constitutional provisions enumerated in sections 17-210(3)(a) and (b) of the Election Law, and contains no provision denying liability with respect to such laws or constitutional provisions.” The NYVRA provides that “any political subdivision which, within the previous twenty-five years, has become subject to a court order or government enforcement action based upon a finding of any violation” of certain statutes or constitutional provisions, or “at least three court orders or government enforcement actions based upon a finding of any violation of any state or federal civil rights law or the fourteenth amendment to the United States constitution concerning discrimination against members of a protected class,” is a covered entity subject to preclearance requirements, and defines “government enforcement action” as “a denial of administrative or judicial preclearance by the state or federal government, pending litigation filed by a federal or state entity, a final judgment or adjudication, a consent decree, or similar formal action.” See N.Y. Elec. Law §§ 17-210(3), 17-204(9).

Orange County submitted a comment stating that this provision of the proposed rule is an ultra vires application of the statute. The county states that OAG’s powers of regulation under the NYVRA extend only to covered policies, not covered entities, and that the rule goes beyond the statutory definition of “covered entity.” In addition, the county states that the rule improperly expands the concept of a “finding” to include agreements aside from consent decrees that “reflect a finding of noncompliance,” and furthermore, that the rule does not specify the type of agreements contemplated. Citing “due process impacts,” the county further states that, while court orders or enforcement actions entail an opportunity to be heard by the covered entity, the same is not true of an “agreement” that “reflects” a finding¹. 
a.    Alternative suggested: The county suggests that section 501.3(b)(3) be withdrawn.
b.    Reason why significant alternatives were not incorporated into the rule:

The CRB considered, but disagrees with, Orange County’s understanding of the scope of the CRB’s regulatory authority. The NYVRA unambiguously provides the CRB with authority to promulgate regulations related to preclearance and, further, the entire statute, and the rule is an appropriate exercise of that authority. See N.Y. Elec. Law § 17-219.

In addition, while the comment references only paragraph (3) of section 501.3(b)(3), the entirety of section 501.3(b) clarifies various aspects of the statute’s coverage formula, and its provisions are best understood when read together as a whole. For example, the statute provides that, to trigger coverage, a government enforcement action must be “based upon a finding of [a] violation” of one of the enumerated provisions, but the definition of “government enforcement action” includes consent decrees, which often occur by mutual agreement of the parties and without a final determination on the merits by the court arrived at through the adversarial process. The CRB sought to clarify the interaction between these provisions by detailing the circumstances under which a consent decree would be understood as based upon a “finding of [a] violation” within the meaning of the statute. That clarification encompasses sections 501.3(b)(3) and 501.3(b)(4).

The statute’s definition of “government enforcement action” includes “a consent decree, or similar formal action.” See N.Y. Elec. Law § 17-204(9). Section 501.3(b)(4) seeks to clarify the scope of the phrase “similar formal action,” which by its terms would include an “other executed written agreement” as referenced in section 501.3(b)(3). To that end, section 501.3(b)(4) states, in relevant part:

“Similar formal action” as provided in section 17-204(9) of the Election Law includes, but is not limited to . . . A settlement agreement to which a federal or state entity is a party, if such agreement reflects a finding of noncompliance with one of the laws or constitutional provisions enumerated in sections 17-210(3)(a) and (b) of the Election Law, and contains no provision denying liability with respect to such laws or constitutional provisions[.]

Thus, examples of the types of agreements that may trigger coverage are enumerated in the immediately ensuing provision of the rule.

The other phrasing noted by the county, “reflects a finding,” indicates simply that such a finding’s existence is apparent on the face of the consent decree or written agreement; it does not obviate or eliminate the requirement that the consent decree or written agreement contain a finding. Indeed, as noted by the county, the rule also includes a condition that the consent decree or agreement must not contain a provision denying liability with respect to the laws or constitutional provisions underlying the finding, in recognition that a party might enter into a consent decree or other agreement in the interest of settling a matter while continuing to deny wrongdoing, and that such a scenario would not unambiguously constitute a finding of a violation. This condition thus makes it less likely, not more, that any given jurisdiction would be subjected to preclearance coverage arising from a consent decree or other written agreement. Moreover, the jurisdictions identified by the CRB as covered entities were given an opportunity to be heard through a public comment period relating to the CRB’s Preliminary Identification of Covered Entities and Covered Policies Subject to Preclearance. Such comment period spanned more than sixty days, from December 19, 2023 through February 20, 2024.
c.    Changes made to the rule: Because the CRB disagrees with the portions of the comment regarding the scope of the CRB’s authority and the merits of the rule as an application of the statute, the CRB has declined to withdraw section 501.3(b)(3). However, based on this comment, to clarify that this rule does not subject to preclearance jurisdictions that are party to agreements that do not “contain” a finding of a violation, the CRB has amended sections 501.3(b)(3) and 501.3(b)(4) as follows:

501.3(b)(3) A consent decree or other executed written agreement shall be deemed to be based upon a finding of a violation, and thus may subject the political subdivision to preclearance coverage, if the agreement [reflects] contains  a finding of noncompliance with one of the laws or constitutional provisions enumerated in sections 17-210(3)(a) and (b) of the Election Law, and contains no provision denying liability with respect to such laws or constitutional provisions.

501.3(b)(4) “Similar formal action” as provided in section 17-204(9) of the Election Law includes, but is not limited to:
(i) A settlement agreement to which a federal or state entity is a party, if such agreement [reflects] contains a finding of noncompliance with one of the laws or constitutional provisions enumerated in sections 17-210(3)(a) and (b) of the Election Law, and contains no provision denying liability with respect to such laws or constitutional provisions; and
(ii) A public report or other written document issued by a federal or state entity, if such report or document [reflects] contains a finding of noncompliance with one of the laws or constitutional provisions enumerated in sections 17-210(3)(a) and (b) of the Election Law.

2.    Issue raised: Section 501.1(a)(3)(iii)(a)(6) of the proposed rule states that, where relevant to a preclearance application, the CRB may require information regarding election returns, including the number of registered voters by race, color, and language-minority group for each election district for which such returns are furnished. The New York State School Boards Association (the “NYSSBA”) submitted a comment noting that, due to operational differences between school board elections and other types of local elections, school districts may be unable to provide the information stated in this subclause. Specifically, the New York State Education Law, which largely governs school district elections, does not require voters to be registered, except in city school districts; union free and central school districts may adopt personal registration systems, but common school districts do not have that authority. If a school district does not have a personal registration system, voters may be asked to present proof of residency on Election Day. For districts that do have such a system, a voter is considered eligible if registered either with the school district or with the county, and the school district receives a voter registration list from all relevant county boards of election. The law does not require that a voter’s race, color, or language-minority group be provided upon registering to vote. Accordingly, some school districts may be unable to furnish a complete voter registration list, and those that are able to do so may be unable to identify voters by race, color, or language-minority group.
The NYSSBA further notes that, while school districts that require personal registration may establish election districts, the purpose of such districts under the Education Law is to allow the school district to have multiple polling locations, and the vast majority of school board seats are not tied to the geographic area of an election district. Accordingly, the commenter suggests that a breakdown of election results by election district may be available, but of limited utility.
In another comment, the New York City Board of Elections (the “NYCBOE”), similarly noted that a county board of elections would not be in possession of the race, color, or language-minority group of registered voters by election district and would have to request the information from its Department of City Planning, which would be burdensome. The NYCBOE also raised a similar concern regarding sections 501.1(a)(3)(i) (demographic information for the affected area by race, color, and language-minority group), 501.1(a)(3)(iii)(a)(2) (race, color, or language-minority group of each candidate in election returns, “if known”), and 501.1(a)(3)(iv) (analysis indicating the extent to which voting in the political subdivision is racially polarized, “or a statement of why such analysis is impossible or impracticable”).
a.    Alternative suggested: The NYSSBA suggests that a clarifying change be added to the rule recognizing that school districts may not be able to provide this type of information as supplemental material to a preclearance submission. The NYCBOE did not make a specific suggestion.
b.    Reason why significant alternatives were not incorporated into the rule: Section 501.1(a)(3), entitled “Supplemental contents,” lists information that “may” be required “where relevant” in addition to the basic information listed in section 501.1(a)(2), meaning that for many submissions, this type of information will not be requested or required in order for the submission to be properly analyzed.  For example, a racially polarized voting analysis will likely not be requested for changes that primarily alter the process of voting, for example, by moving a poll site. However, when such information is requested, section 501.1(a)(1)(v) of the rule provides that, where information is relevant but not known or available, or is not applicable, a preclearance submission must state as much, and (except as to information that is not applicable) must demonstrate that the submitting authority exercised due diligence and was unable to obtain the information. Additionally, as noted above, section 501.1(a)(3)(iii)(a)(2) provides for the information to be included “if known” and section 501.1(a)(3)(iv) allows for the submitter to state that a racially polarized voting analysis would be impossible or impracticable to provide. Accordingly, the rule already recognizes that certain types of information listed in the “Content of submissions” section may be either unavailable to a covered entity or inapplicable to a particular preclearance request, and provides recourse for a submitting authority should that situation arise. While data sources may exist that allow this information to be measured or approximated, and some of the information may be obtained from the Census Bureau or other government entities, the CRB anticipates that some jurisdictions may, at times, be unable to obtain certain information, which is among the reasons for inclusion of section 501.1(a)(1)(v) in the proposed rule.

Finally, while election districts are not generally coterminous with representational districts such as City Council or State Assembly districts, election returns by election district may nevertheless be useful for evaluating a preclearance submission, regardless of whether a jurisdiction elects its representatives on an at-large or ward- or district-based basis. Election districts provide a useful, and relatively small, subset of voter data, allowing the CRB to engage in a more precise analysis of voting behavior at the local level.
c.    Changes made to the rule: N/A

3.    Issue raised: Section 501.1(a)(2) of the proposed rule states: “Each submission must be made in such form and manner as the CRB may require[.]” The NYCBOE noted that the form and manner are not specified.
a.    Alternative suggested: The NYCBOE suggested a clarification.
b.    Reason why significant alternatives were not incorporated into the rule: The required form and manner of submissions are not specified in the regulations because such requirements inevitably must change to accommodate evolving data analysis, communication, regulatory practices, and technology, particularly given the fact-specific nature of preclearance review. The CRB will provide guidance to covered entities regarding their anticipated preclearance submissions and the subsequent review process. Because published guidance can be updated more easily and efficiently than a regulation, the CRB views the former as the more appropriate venue to detail the required form and manner of submissions.
c.    Changes made to the rule: N/A

4.    Issue raised: Section 501.1(a)(2)(xii) of the proposed rule states that submissions must contain a “statement identifying any past or pending litigation to which the covered entity is or was a party concerning the change or related voting practices.” The NYCBOE noted that, without a timing limitation, this requirement could be burdensome for election administrators that are parties to a substantial volume of litigation, and may also be irrelevant given changes to the New York State Election Law. 
a.    Alternative suggested: The NYCBOE suggested that the requirement be narrowed to reflect a time frame.
b.    Reason why significant alternatives were not incorporated into the rule: N/A
c.    Changes made to the rule: Based on this comment, the CRB amended section 501.1(a)(2)(xii) to provide that past litigation must be reported only if it was initiated or resolved during the period of the entity’s current coverage status pursuant to section 17-210(3) of the NYVRA. For jurisdictions covered under paragraph (a) of the coverage formula, this period begins on the date of the most recent violation triggering coverage; for jurisdictions covered under paragraph (b), it begins on the date of the earliest of the most recent set of three violations triggering coverage; and for jurisdictions covered under paragraph (c) or (d), it begins in the first year of the ten-year period used to calculate the arrest rate or dissimilarity index score, respectively.

5.    Issue raised: Section 501.1(a)(2)(xiv) of the proposed rule states that submissions must contain a “statement identifying any other proposed change to a practice or policy, regardless of whether that practice or policy constitutes a covered policy in its own right, that may interact with the submitted covered policy.” The NYCBOE noted that this is a broad requirement that may be difficult to ascertain.
a.    Alternative suggested: The NYCBOE suggested a clarification.
b.    Reason why significant alternatives were not incorporated into the rule: In light of the fact-specific and contextual nature of preclearance review and the relationship between covered policies and other changes that interact with them, the CRB will offer written guidance, which it considers a more appropriate venue to provide clarity with respect to this provision. The CRB will also welcome regulatory dialogue and consultation from covered entities contemplating future preclearance submissions, to determine other potential changes and the extent to which they may interact with the covered policy. 
c.    Changes made to the rule: N/A

6.    Issue raised: Sections 501.1(b)(1)(i) and (iii) of the proposed rule describe how time periods for preclearance submission and review will be calculated and state that the date of a submission is the date on which it is received by the CRB. The NYCBOE noted that the provisions do not state whether the CRB will confirm receipt of a preclearance submission with the submitter, to allow the submitter to calculate the deadline for the CRB’s review.
a.    Alternative suggested: The NYCBOE did not make a specific suggestion, but implied that this point should be clarified.
b.    Reason why significant alternatives were not incorporated into the rule: N/A
c.    Changes made to the rule: Based on this comment, the CRB amended section 501.1(b)(1)(iii) to provide that it will confirm the date of receipt of a submission to the covered entity.