Notice of adoption

Action: Add New Chapter X, Part 500 to Title 13 NYCRR

Statutory Authority: N.Y. Elec. Law §§ 17-210, 17-219. 

Subject: Preclearance Pursuant to the John R. Lewis Voting Rights Act of New York (the “NYVRA”)

Purpose: 

  • Clarify the information required to be included in NYVRA preclearance submissions and the manner in which such submissions may be made and reviewed; 

  • Establish retrogression as the standard of review for administrative preclearance submissions pursuant to the NYVRA;

  • Clarify certain elements of the coverage formula set forth in section 17-210(3) of the NYVRA, which is used to designate the political subdivisions throughout the state that are subject to the preclearance requirement; and

  • Clarify certain elements of the list of covered policies set forth in section 17-210(2) of the NYVRA.

Prior publication: A notice of proposed rulemaking (the “NPRM”) was published in the State Register on June 12, 2024.

Effective date of rule: September 22, 2024

To obtain a copy of the complete text of the rule, please contact Lyric Landon at 28 Liberty Street, New York, NY 10005 or (212) 416-9818, email votingrights@ag.ny.gov, or visit the OAG website's text of final rule page.

Summary of rule:

The NYVRA was enacted on June 20, 2022, with the express purpose of encouraging participation in the elective franchise by all eligible voters to the maximum extent and ensuring that eligible voters who are members of racial, color, and language-minority groups have an equal opportunity to participate in the political processes of the State of New York, especially to exercise the elective franchise. See N.Y. Elec. Law § 17-200. To ensure that the right to vote is not denied or abridged on account of membership in a race, color, or language-minority group, the NYVRA requires that certain types of voting- or election-related changes (“covered policies”), when made by certain jurisdictions (“covered entities”), be precleared by the Office of the Attorney General’s (“OAG”) Civil Rights Bureau (the “CRB”) or by a designated court before the changes can be enacted or implemented. See N.Y. Elec. Law § 17-210. The NYVRA further authorizes the CRB to promulgate rules to effectuate the preclearance requirement, which may include, but need not be limited to, rules for an expedited, emergency preclearance process in the event of a disaster or exigent circumstances, and rules designating additional types of voting- or election-related changes for preclearance coverage beyond those enumerated in the statute. See N.Y. Elec. Law §§ 17-210(2)(l), 17-210(4)(f)(iv), 17-210(7). 

Pursuant to the authority granted by the NYVRA, the CRB filed a proposed rule with the State Register on May 28, 2024, for publication on June 12, 2024. A public comment period was held until August 12, 2024. No substantial revisions were made to the rule as a result of any comments received. A summary of the final rule, which will take effect on September 22, 2024, is below. The full text of the rule can be found on the OAG website.

Part 500: General provisions

If any provision of this rule is deemed invalid by a court, that judgment does not affect any other provision of the rule or its application, and is limited to both the provision and the person or circumstance in question. This part also includes defined terms.

Part 501: Preclearance

Section 501.1: Submission and review procedures

The NYVRA requires covered entities to submit covered policies to the CRB for preclearance before the changes can go into effect. The statute sets some administrative parameters, such as the time periods for review and public comment, but does not include further detail regarding the submission and review process. This rule clarifies certain details of that process, including the types of information required to be included with submissions, procedures for submission and notification of administrative determinations, and computation of time. The rule also provides for emergency expedited preclearance, which is explicitly authorized by section 17-210(4)(g) of the NYVRA. This rule is intended to provide guidance to covered entities and ensure that the preclearance submission and review process is transparent and efficient, minimizing to the extent possible the administrative burden imposed on regulated parties.

Section 501.2: Legal standard

The NYVRA provides that when a covered entity seeks to enact or implement a covered policy which “diminish[es] the ability of protected class members to participate in the political process and to elect their preferred candidates to office,” that covered policy will not be precleared. The interests of voters, residents, and covered entities are best served by further detailing the rubric by which the CRB will adjudicate administrative preclearance submissions. Specifically, diminishment is measured according to a retrogression standard, which assesses whether members of a protected class would be in a worse position following enactment and implementation of the covered policy than they were under the “benchmark” policy previously in place. The rule provides that change will be deemed retrogressive, and therefore will not be precleared, if: (1) the individuals who will be affected by the change are disproportionately likely to be members of one or more protected classes; and (2) the change imposes a burden material enough that it will likely cause some reasonable members of those protected classes not to vote or otherwise participate in the political process. Retrogression will be assessed with respect to all impacted protected classes within the covered entity.

The rule further provides guideposts for covered entities seeking to enact or implement covered policies. By adhering to the principles set forth in this rule, a covered entity can better assess whether a covered policy is non-retrogressive and will be precleared. The preclearance process will ensure that voters are able to freely and fairly participate in the electoral process. Preclearance also helps to limit the potential for litigation, preserving much-needed judicial capacity and saving covered entities the substantial costs associated with election litigation. 

The rule provides that the burden of proof of demonstrating that preclearance should be granted rests at all times with the covered entity submitting the proposed change. To satisfy the burden of proof, the covered entity must provide information sufficient to demonstrate non-retrogression.

Section 501.3: Covered entities

The NYVRA’s preclearance coverage formula determines which jurisdictions are subject to the preclearance requirement. See N.Y. Elec. Law § 17-210(3). These sections codify CRB’s interpretation of certain provisions of the coverage formula in order to ensure clarity for regulated parties and the public. 

For example, under sections 17-210(3)(a) and (b) of the NYVRA, a jurisdiction is subject to preclearance if it has become subject to a court order or government enforcement action based upon a “finding of any violation” of certain voting- or civil rights-related statutes and Constitutional provisions within the previous 25 years. Section 501.3(b) of the rule provides further detail regarding what constitutes a “finding of any violation” for purposes of these provisions. Additionally, section 501.3(c) details the methodology used by the CRB in applying the sections of the coverage formula that require data analysis, and section 501.3(d) clarifies that if a political subdivision is deemed a covered entity solely because it contains a covered entity within its borders, that political subdivision need only obtain preclearance for changes affecting elections held in that covered entity. Section 501.3(e) clarifies that the State of New York is not a covered entity.

Section 501.4: Covered policies

These sections clarify certain aspects of preclearance administration, including the scope of coverage and treatment of enabling legislation, court-ordered changes, and recurring practices. This information is intended to provide clarity to covered entities regarding the types of changes that will require preclearance.

 

Summary of assessment of public comment:

OAG received three comments on the proposed rule. Pursuant to section 202(5)(b) of the New York State Administrative Procedure Act, OAG has issued an Assessment of Public Comment (the “Assessment”), which 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. Because the Assessment exceeds 2,000 words, a summary is below. The full text of the Assessment, and copies of the comments submitted, can be found on the OAG website's New York Voting Rights Act page.

 Comment 1

The first comment, from Orange County, relates to section 501.3(b)(3) of the proposed rule, which 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.” 

Orange County states that this provision 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” by expanding the concept of a “finding” to include agreements aside from consent decrees that “reflect a finding of noncompliance.” Citing “due process impacts,” the county 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 finding.[1] The county suggested that the provision be withdrawn.

As detailed in the Assessment, the CRB disagrees with the county’s understanding of the scope of its regulatory authority, as the rule is an appropriate exercise of the authority to promulgate regulations related to preclearance and the entire NYVRA. The provision, read in context with the rest of the rule, is a clarification of the types of government enforcement actions that may lead to preclearance coverage under the NYVRA’s coverage formula. 

Accordingly, the CRB declined to withdraw section 501.3(b)(3). However, the CRB has removed the word “reflects” 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 thus amended sections 501.3(b)(3) and 501.3(b)(4) as follows: 

(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.

(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.

Comment 2

The second comment, from the New York State School Boards Association (the “NYSSBA”), relates to section 501.1(a)(3)(iii)(a)(6) of the proposed rule, which 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 NYSSBA noted 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. The NYSSBA further notes that the purpose of election 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; therefore, a breakdown of election results by election district may be of limited utility.

The NYSSBA suggested 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. 

As detailed in the Assessment, section 501.1(a)(3) of the rule, 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. 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. 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, as detailed in the assessment, election returns by election district may be useful for evaluating a preclearance submission regardless of whether the jurisdiction elects representatives in a ward- or district-based system.

No changes were made to the rule as a result of this comment.

Comment 3

The third comment, from the New York City Board of Elections (the “NYCBOE”), related to several provisions of the rule, each of which is addressed below.

  1. 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 and suggested a clarification. 

As detailed in the Assessment, 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.

No changes were made to the rule as a result of this comment.

  1. 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, and suggested that the requirement be narrowed to reflect a time frame.

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, respectively.

  1. 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 and suggested a clarification.

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. 

No changes were made to the rule as a result of this comment.

  1. 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.

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.

  1. 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 NYCBOE raised the same issue raised in Comment 2, noting 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”).

As noted with respect to Comment 2, the rule provides an alternative if a submitter is unable to obtain the requested information, and the regulations in question pertain to supplemental information, which will not be required for many submissions. Additionally, 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. 

No changes were made to the rule as a result of this comment.

Summary of changes:

Since the NPRM was published, several technical edits have been made to the rule at OAG’s own initiation for purposes of clarity, consistency, and brevity. Because these changes do not materially alter the purpose, meaning, or effect of the rule and instead merely define or clarify its text, they do not constitute substantial revisions. See N.Y. A.P.A. Law §§ 102(9), 202(4-a). The changes are listed below. Additional non-substantial changes, made in response to public comments received, are detailed in the Assessment of Public Comment.

  • Section 500.3 has been amended to state that the term “protected class” is defined as it is in the NYVRA. The previous section 500.3, relating to severability, has accordingly been renumbered to 500.4. Additionally, in sections 501.1(a)(2)(xi), 501.1(a)(3)(ii)(c), 501.1(a)(3)(iv), and 501.1(a)(3)(v)(b), the phrases “race, color, or language-minority group” and “race, color, and language-minority group” been replaced with “protected class” or “protected classes,” as the definition of the latter encompasses the former.

  • In sections 500.2, 501.1(b)(1)(ii), 501.1(c)(2), and 501.1(c)(3)(iv)(b), references to the “Office of the Attorney General” or “OAG” have been corrected to “Office of the New York State Attorney General.” In sections 501.1(b)(3)(i)(a) and 501.1(c)(11)(i), the abbreviation “OAG” has been replaced with “CRB” (Civil Rights Bureau).

  • Section 501.1(a)(1)(iv) has been deleted, because it was redundant with section 501.1(a)(2)(xv). Sections 501.1(a)(1)(v) and (vi) have accordingly been renumbered to 501.1(a)(1)(iv) and (v), respectively.

  • In section 501.1(a)(2)(iv)(a), the word “or” has been replaced by the word “and,” to clarify that submissions must include the name of the person or body responsible for enacting a covered policy and the one responsible for implementing the covered policy, if the two are different.

  • In section 501.1(a)(2)(xv), the word “should” has been replaced by the word “must.”

  • In section 501.1(a)(3)(v)(b), the phrase “interested parties” has been replaced by “members of the public” to avoid confusion with the term “interested parties” as used in section 501.1(c)(11)(i), regarding notification of preclearance-related updates.

  • In section 501.1(a)(3)(v)(d), the word “the” has been removed from the phrase “for [the] consideration of the CRB.”

  • In section 501.1(a)(3)(v)(e), the word “an” has been added to the phrase “were provided an opportunity to engage.”

  • In section 501.1(b)(3)(i)(b), a reference to section 17-210(4)(f) of the Election Law has been updated to section 17-210(4) of the Election Law, to clarify that the provision relates to the administrative preclearance process as a whole.

  • In section 501.1(c)(3)(i), the phrase “authorized person” has been replaced by the phrase “person authorized to act,” and a comma has been added.

  • In section 501.1(c)(3)(iii), a cross-reference has been added to section 501.4(a)(5).

  • In section 501.1(c)(3)(v), the phrase “such covered policy” has been replaced by the phrase “a covered policy that is subject to preclearance,” to clarify that the CRB will only pursue action if a covered policy brought to its attention was in fact required to be precleared.

  • Section 501.1(c)(4)(i)(a)(3) has been amended to remove the reference to changes that have been superseded, because changes that have been superseded are covered by section 501.1(c)(4)(i)(a)(9).

  • Section 501.1(c)(5)(i) has been updated to clarify that preclearance reports and determinations will be issued in writing.

  • Section 501.1(c)(5)(ii) has been updated to refer to a “special proceeding” rather than an “action,” to correctly refer to proceedings initiated pursuant to Article 78 of the CPLR.

  • In section 501.1(c)(6)(ii), a cross-reference to section 501.1(c)(11)(i) has been changed to the correct format (previously 501.(1)(c)(11)(i)).

  • Section 501.1(c)(11)(ii) has been amended to reflect that notice of resubmissions, related submissions, requests for additional information, and withdrawals will be sent to individuals and groups who register for the preclearance notification registry, as stated in sections 501.1(b)(3)(iii), 501.1(c)(4)(i)(c), 501.1(c)(4)(ii)(b)(4), 501.1(c)(5)(v), and 501.1(c)(6)(ii).

  • Section 501.3(d) has been updated to cross-reference section 17-210(3)(e) of the Election Law rather than 17-210(3)(d), as the section was renumbered pursuant to an amendment to the NYVRA, enacted on August 6, 2024.

  • Sections 501.2(c) and 501.2(c)(1) have been amended as follows, to comport with the statutory text: 

    • 501.2(c) A covered policy will [not] be precleared only if it will not diminish the ability of members of any protected class to participate in the political process [or] and to elect their preferred candidates to office.

    • 501.2(c)(1) A covered policy [diminishes] will not diminish the ability of members of a protected class to participate in the political process and to elect their preferred candidates to office if it will not lead to a retrogression in the position of members of a protected class (i.e., it will not make members of such a group worse off than they had been before the change) with respect to their ability to participate in the political process and to elect their preferred candidates to office.

  • In section 501.2(e)(2)(ii), the word “would” has been replaced by “will,” to match the statutory text. 

  • In section 501.3(d), a cross-reference to section 17-210(3)(d) of the Election Law has been updated to 17-210(3)(e), to reflect an amendment to the NYVRA, enacted on August 6, 2024.

  • Section 501.4(a)(5)(i) has been amended to clarify that a change ordered or approved by a court is not exempt from preclearance review if the change was proposed by the relevant covered entity.

  • Section 501.4(b)(2) has been amended to refer to a “report and determination” rather than a “final response,” to match the terminology used in the statute and elsewhere in the regulations.

     

1The comment also states that the rule singles out Orange County for selective enforcement and that, as a result, the regulatory impact statement inaccurately states that any costs to regulated parties are imposed only by the statute, as Orange County would not be covered but for the rule. However, the rule applies indiscriminately to all regulated parties and its purpose is to provide clarity and guidance as to how the statute’s coverage formula is applied. Moreover, the regulatory impact statement further notes that, notwithstanding the lack of additional costs imposed by the rule, the regulatory flexibility analysis and rural area flexibility analysis include estimated ranges of potential costs. Accordingly, even accepting arguendo that a regulated jurisdiction may incur additional costs as a result of the rule, such costs are encompassed by the ranges of potential costs set forth in the regulatory flexibility analysis and rural area flexibility analysis. Thus, these costs have been properly estimated in accordance with the requirements of the State Administrative Procedure Act