Summary of proposed rule

Preclearance pursuant to the New York Voting Rights Act

The John R. Lewis Voting Rights Act of New York (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 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 hereby proposes the attached rule for public comment. A summary of the proposed rule is below.1

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 proposed 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.

[1] The summary of proposed rule published in the State Register on June 12, 2024, available here, makes reference to Sections 500.1 (General provisions), 500.2 (Submission and review procedures), 500.3 (Legal standard), 500.4 (Covered entities), and 500.5 (Covered policies). These references should be to Part 500 (General provisions) and Sections 501.1 (Submission and review procedures), 501.2 (Legal standard), 501.3 (Covered entities), and 501.4 (Covered policies). On June 24, 2024, this summary on the OAG website was updated to accurately reflect the numbering of the Notice of Proposed Rulemaking (NPRM). No other changes have been made, as the substance of the summary published in the State Register accurately reflected the substance of the NPRM.