Regulatory Impact Statement

Preclearance pursuant to the New York Voting Rights Act

  1. Statutory authority: Section 17-210(7) of the New York Voting Rights Act (“NYVRA”) authorizes the Office of the New York Attorney General’s (“OAG”) Civil Rights Bureau(“CRB”) to promulgate rules to effectuate preclearance.

  2. Legislative objectives: The stated purpose of the NYVRA is to encourage participation in the elective franchise by all eligible voters to the maximum extent and ensure 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, and especially to exercise the elective franchise. See N.Y. Elec. Law § 17-200.

    The objective of this rule is to facilitate administration of and compliance with the preclearance section of the NYVRA. N.Y. Elec. Law § 17-210. The Attorney General has concluded that the proposed rule is the most effective means available to educate the public, and local jurisdictions subject to the NYVRA’s preclearance requirements, as to how those requirements will be implemented and enforced.

  3. Needs and benefits: The NYVRA is designed to protect the voting rights of New Yorkers. The statute’s preclearance requirements are designed to protect against voting- and election-related policy changes that may diminish the ability of members of a protected class to participate in the political process and elect their preferred candidates to office. By requiring that certain jurisdictions receive approval from CRB or a designated court before such changes can go into effect, preclearance prevents the right to vote from being denied or abridged and helps jurisdictions avoid costly and time-intensive voting rights litigation. Preclearance accounts for the fact that voting and elections take place over a short period of time, making it difficult for a lawsuit to help protect voters’ rights in time to cast their ballots.

    This rule clarifies certain components of the NYVRA’s preclearance section and explains how the CRB will administer the preclearance requirements.

  4. Costs:
    1. Costs to regulated parties: The OAG does not anticipate any additional costs to covered entities, because this rule merely proposes the standard and procedures by which the CRB will accept and review administrative preclearance submissions. To the extent that covered entities may incur costs associated with preclearance, such costs are imposed not by this rule, but by the requirements set forth in the NYVRA. However, in the interest of providing maximum transparency and guidance, the OAG provides an estimated range of potential compliance and professional costs that some local jurisdictions may incur in the Regulatory Flexibility Analysis and Rural Area Flexibility Analysis.
    2. Costs to agency, the state, and local governments: The OAG does not anticipate any additional costs to itself or other state entities as a result of this rule. As noted herein, the potential costs to local governments regulated by this rule are estimated in the Regulatory Flexibility Analysis and Rural Area Flexibility Analysis.
    3. Information and methodology upon which the estimate is based: The estimated costs to regulated parties, the agency, and the state and local governments are based on the assessment of the OAG. The methodology used to calculate these estimates is detailed in the Regulatory Flexibility Analysis and Rural Area Flexibility Analysis.
  5. Local government mandates: The proposed rule does not impose any new programs, services, duties, or responsibilities beyond those already imposed by the NYVRA.
  6. Paperwork: While some jurisdictions may choose to make preclearance submissions via hard copy, the rule allows for, but does not require, submissions to be sent and received electronically. Accordingly, no printing or postage requirements will be imposed upon regulated parties by this proposed rule. The requirement for covered entities to submit covered policies for preclearance review is imposed by the statute. This rule clarifies the manner in which such submissions may be made, including the types of information that may be required to demonstrate that a covered policy should be precleared. To the extent that any of that information is not ordinarily maintained by the jurisdiction, there may be additional recordkeeping requirements imposed by the rule for any given submission.
  7. Duplication: There is no operative federal preclearance requirement. Section 5 of the federal Voting Rights Act (the “VRA”) historically required various jurisdictions to submit election law changes for preclearance, either to the federal Department of Justice or a federal district court in Washington, D.C. See 52 U.S.C.A. § 10304. However, in 2013, the Supreme Court held that the preclearance coverage formula in Section 4(b) of the VRA was unconstitutional. Shelby Cnty. Ala. v. Holder, 570 U.S. 529 (2013). As a result, while Section 5 itself was not invalidated, no jurisdictions are currently subject to the requirements of Section 5. The proposed rule does not conflict with federal law.
  8. Alternatives: The OAG considered taking no regulatory action. However, as detailed above, this rule will ensure transparency and efficiency in the preclearance process and provide regulated parties with the information necessary to comply with the NYVRA’s preclearance requirement.
  9. Federal standards: The proposed rule does not exceed any minimum standards of the federal government for the same or similar subject.
  10. Compliance schedule: The proposed rule will go into effect immediately upon publication of a Notice of Adoption in the New York State Register.