Regulatory Flexibility Analysis

To the extent that local governments may incur costs associated with preclearance under the New York Voting Rights Act, N.Y. Elec. Law § 17-200 et seq. (“NYVRA”), such costs are imposed not by this rule, but by the requirements set forth in the statute. However, in the interest of providing maximum transparency and guidance, the Office of the New York Attorney General (“OAG”) provides in this analysis an estimated range of compliance and professional costs that some local governments may incur. While this range represents rough estimates of the potential cost for a given submission, it includes cost estimates for several time-intensive policy changes, which will likely be rare.^[1]

1. Effect of rule. The proposed rule affects local governments, but does not affect small businesses. The NYVRA establishes a preclearance process, requiring certain local governments to submit election- and voting-related changes that qualify as “covered policies” to the OAG’s Civil Rights Bureau (“CRB”) or a designated court for review before they can take effect. See N.Y. Elec. Law § 17-210. These preclearance requirements apply to “covered entities,” i.e., local jurisdictions that constitute “political subdivisions” under section 17-204 of the NYVRA, such as counties, cities, towns, villages, and school districts, and satisfy one or more criteria under the NYVRA’s preclearance coverage formula. See N.Y. Elec. Law § 17-210(3). The statute delegates authority for implementing administrative preclearance to the CRB. This rule facilitates implementation of the NYVRA by specifying requirements related to the timing and content of administrative preclearance submissions, providing further detail regarding the legal standard that the CRB will use to evaluate those submissions, and clarifying certain provisions of the statute related to covered entities and covered policies. The rule applies uniformly throughout the state to any jurisdiction that qualifies as a covered entity. As of December 19, 2023, the CRB had preliminarily identified 34 political subdivisions that are covered entities as provided in section 17-210(3) of the NYVRA and thus subject to this rule.[2] Because coverage status is subject to change over time, the CRB is unable to estimate the number of local governments to which this rule may apply in the future.
2. Compliance costs estimates: methodology. 
   1. Capital costs. The CRB does not foresee any initial capital costs associated with compliance with this rule. Covered entities seeking administrative preclearance may need to maintain and supply the CRB with documentation of their practices and standards. Such submissions may be sent electronically and thus need not carry costs associated with printing or postage. 
   2. Personnel-related costs. To generate an estimate of the range of personnel-related costs that may arise from compliance with administrative preclearance, the CRB used median hourly wage information, coupled with the estimated number of hours it would take to prepare preclearance submissions. 

3. Compliance requirements. As mentioned above, covered entities are required to submit covered policy changes for preclearance and may elect to submit such policies to the CRB. This administrative preclearance process begins with the covered entity submitting the proposed change in writing to the CRB, along with supporting documentation and information. See N.Y. Elec. Law § 17-210(4)(a). To enable the CRB to review covered policies as required by the statute, the rule requires such submissions to contain information that will enable the CRB to determine whether preclearance should be granted, which may vary depending on the type of proposed change and other relevant circumstances. Covered entities may appeal any denial of preclearance in a proceeding commenced against the CRB in the Supreme Court for the county of New York or the county of Albany, pursuant to Article 78 of the Civil Practice Law and Rules. See N.Y. Elec. Law § 17-210(4)(g). 

   There is no cure period included in the rule. However, if the CRB determines that a submission is improper, the rule authorizes the CRB to waive procedural requirements pertaining to preclearance review and notify the submitter that their submission will not be considered, with an explanation for the decision. Additionally, if a submission is incomplete, the rule provides that the CRB may request additional information, which the submitter will have an opportunity to provide before a determination on the merits is made. Annual costs associated with compliance may include minimal recordkeeping and other administrative costs.

4. Professional services. A covered entity may choose to employ the professional services of a third party to develop an administrative preclearance submission. For example, in rare instances, the covered entity may retain a third party to prepare a racially polarized voting (“RPV”) or other complex demographic analysis to support its preclearance submission. As discussed further below in section 5, political subdivisions that choose to employ a third party to conduct these analyses may incur costs beyond those involved with submissions for simpler and more common types of covered policies. In addition, covered entities that choose to appeal the CRB’s decision to deny administrative preclearance may incur costs associated with the acquisition of legal or other professional services to commence a proceeding against the CRB. See N.Y. Elec. Law § 17-210(g). However, such services are not required in order to comply with this rule. Moreover, the requirement to submit covered policies for preclearance and the option to appeal a preclearance denial arise not from this rule, but from the statute. Accordingly, to the extent that covered entities retain third-party professional services to facilitate either action, any associated costs are not attributable to this rule.

   First, to analyze wage information, the CRB reviewed New York statewide data for certain occupations included in the U.S. Bureau of Labor Statistics’ May 2023 Occupational Employment and Wage Statistics (“OEWS”) estimates.[3] The selected occupations represent the types of staff that could be involved in preparing an administrative preclearance submission.[4]

   While individuals holding the selected occupations, or comparable occupations, may all be involved in the preclearance process, some are more likely to have a substantial role than others. For example, a line-level employee will likely spend more time executing the tasks needed to prepare a preclearance submission[5] than someone in a more managerial or supervisory position, who would more likely review the line-level employee’s work. The CRB therefore grouped the selected occupations into two groups: roles that reflect line-level functions, and those that reflect managerial, supervisory functions. The CRB grouped these occupations based on how they are defined by the U.S. Bureau of Labor Statistics.[6] After grouping these occupations, the CRB assumed for purposes of these calculations that line-level employees would perform the full extent of any given task. The CRB further assumed that managerial/supervisory employees would spend 25 percent of the total time needed to review the line-level employee’s work. For example, for a task related to preparing a preclearance submission which the CRB estimates would take one hour, the CRB assumed that such task would be completed by a line-level employee and used their median hourly wage to calculate the personnel cost of one hour of work. The CRB then assumed a 25 percent, or 15 minute, review period for a supervisory/managerial employee, and used that employee’s median hourly wage to complete the calculation. 

   Second, to develop hourly estimates, the CRB estimated the least and greatest amounts of time it may take to fulfill the minimum requirements for an administrative preclearance submission in compliance with the statute and rule, based on the types of information required to be included in a submission pursuant to Proposed Rule 13 NYCRR §§ 501.1(a)(2) and (3). 

   The amount of time required to complete a submission may vary, depending on a variety of factors, including the nature and complexity of the covered policy change. For most submissions, the time needed to provide the following required information will likely be negligible: contact information of a political subdivision’s officials; desired date of policy change; name of the submitting county or the county where the covered entity is located; a written description of the covered policy change[7] and the current “benchmark” policy; and a sworn attestation about the accuracy of the submission. Additionally, as officials will be able to submit preclearance requests online in a standardized format, the time required for submission is likely to be negligible as well. Finally, the following types of information will only be required for certain types of submissions, and the time needed to compile them is also expected to be negligible in most cases: demographic information for the affected area; election returns; evidence of notice and opportunities for the public to be heard regarding the covered policy; legislative history of the covered policy; and community group contacts.

   Other types of information required by the rule may require more time to compile and/or analyze. These requirements involve compiling information that the covered entity may or may not already have in its possession. For example, creating an assessment of the anticipated effect of the change on members of race, color, and language-minority groups will likely be among the most time-consuming parts of a given submission. A covered entity that seeks to change its form of government, for instance, may need to compile and analyze demographic information regarding populations within its borders to satisfy the requirements. Additionally, the rule provides that for certain types of covered policies, the CRB may require the submitting authority to include within its submission an analysis of whether racially polarized voting exists within the political subdivision or complex demographic analyses associated with the boundaries of the political subdivision, including, for example, when it seeks preclearance for an annexation or incorporation of other political subdivisions. While these types of submissions are among the most complex changes subject to preclearance, they are also likely to be among the most infrequent. Accordingly, on rare occasions, covered entities may incur additional costs associated with RPV or other complex demographic analyses.

   The compliance cost estimates stated in Section 5 below likely exceed the costs most jurisdictions will incur for most submissions, for several reasons. First, in most instances, covered entities will be requesting preclearance for comparatively simple and routine changes (e.g., moving poll sites), rather than rarer, more complicated ones (e.g., form of government changes). In addition, jurisdictions with less fluctuation in their election procedures will likely need to submit fewer preclearance requests than jurisdictions with more fluctuation. Moreover, because OEWS data limitations precluded the CRB from isolating New York public sector wage estimates for the selected occupations, the wage estimates included in this analysis were calculated with data collected from both public and private sector employers. These figures likely exceed those associated with government wages of local jurisdictions, as private sector wages are typically higher than government wages and may inflate the estimates.[8] Similarly, OEWS statewide data includes wage data for New York City, which skews higher than wages in other parts of the state, likely further inflating the estimates.

5. Compliance cost estimates.
   1. To calculate the estimated low-end cost of a preclearance submission, the CRB identified the relevant line-level occupation with the lowest median hourly wage and multiplied that figure by the estimated lowest number of hours necessary to prepare a preclearance submission. Assuming that some supervisory review will be necessary, the CRB then identified the relevant supervisory/managerial occupation with the lowest median hourly wage, and added a review time equal to 25 percent of the time needed to complete the task, to arrive at the final low-end cost estimate. The lowest median hourly wage of the selected line-level New York occupations is $16.01, for “office and administrative support workers, all others.” The CRB’s low-end hourly estimate to complete a submission is 1.6 hours. The CRB’s cost estimate for completion of this task is therefore $25.62. The CRB then identified “legislators” as the supervisory/managerial occupation with the lowest median hourly wage, at $47.37 per hour. Assuming that it would take a supervisor an additional 0.4 hours to review the prepared submission, the CRB added $18.95 of personnel costs, making the total anticipated low-end cost of a preclearance submission $44.56.
   2. To calculate the estimated high-end cost of a preclearance submission, the CRB identified the relevant line-level occupation with the highest median hourly wage and multiplied that figure by the estimated highest number of hours necessary to prepare a preclearance submission. Assuming that some supervisory review will be necessary, the CRB then identified the relevant supervisory/managerial occupation with the highest median hourly wage, and added a review time equal to 25 percent of the time needed to complete the task, to arrive at the final high-end cost estimate. The highest median hourly wage of the selected line-level New York occupations is $61.96, for “data scientists.” The CRB’s high-end hourly estimate to complete a submission is 29.1 hours. The CRB’s cost estimate for completion of this task is therefore $1,803.04. The CRB then identified “chief executives” as the supervisory/managerial occupation with the highest median hourly wage, at $102.38 per hour. Assuming that it would take a supervisor just under 7.3 hours to review the prepared submission, the CRB added $744.81 of personnel costs, making the total anticipated high-end cost of a preclearance submission $2,574.85.[9] 
6. Economic and technical feasibility. The requirements in the rule are technologically feasible for local governments, as they involve only minimal technological requirements. The option to mail, hand-deliver, or otherwise submit hard copies of submissions is available for those who do not have access to a computer or the internet. Compliance is also economically feasible.
7. Minimizing adverse impact. The rule minimizes the adverse impact that compliance with the statute’s preclearance requirements may have on a covered entity’s election or governmental processes. The rule also requires the CRB to directly accept public comment on administrative preclearance requests and manage the process for receipt and consideration of such comments, allowing local government officials to focus on their other duties throughout the review period. The CRB will allow preclearance submissions to be submitted electronically, to ensure that the process is conducted as efficiently as possible and allow jurisdictions to avoid costs associated with printing and postage. However, the option to mail, hand-deliver, or otherwise submit hard copies of submissions will be available, to ensure sufficient access for covered entities that have difficulty accessing the internet or a computer. Additionally, as authorized by section 17-210(4)(f)(iv) of the NYVRA, the rule includes an expedited process for emergency preclearance in the event of a change occurring shortly before an election as a result of a disaster or exigent circumstances, which will minimize the administrative burden on jurisdictions faced with the need to make changes quickly on short notice due to circumstances beyond their control.
8. Small business and local government participation. To ensure that local governments have an opportunity to participate in the rulemaking process as required by section 202-b(6) of the State Administrative Procedure Act, a copy of the proposed rule will be sent to relevant government associations and officials, including representatives of all jurisdictions that have been identified as covered entities. A copy of the proposed rule will also be published on the OAG website. Additionally, prior to issuing this NPRM, the CRB issued preliminary guidance related to administrative preclearance and solicited feedback from members of the public and officials from covered entities specifically; conducted a webinar for officials from covered entities, where the CRB provided additional detail on and responded to questions regarding the preliminary guidance; solicited information from covered entities regarding election administration practices; and has engaged directly in other ways with officials from jurisdictions identified as covered entities on issues relevant to preclearance. Through this outreach and education campaign, the CRB gathered information relevant to preclearance implementation that has been considered and incorporated into the drafting of this proposed rule. The CRB has also invited members of the public to sign up to receive updates via email regarding administrative preclearance, including submissions and determinations. The proposed rule will be sent to all who have elected to receive such notifications.