§ 17-206 — Prohibitions on voter disenfranchisement

§ 17-206. Prohibitions on voter disenfranchisement. 1. Prohibition\nagainst voter suppression. (a) No voting qualification, prerequisite to\nvoting, law, ordinance, standard, practice, procedure, regulation, or\npolicy shall be enacted or implemented by any board of elections or\npolitical subdivision in a manner that results in a denial or\nabridgement of the right of members of a protected class to vote.\n (b) A violation of paragraph (a) of this subdivision shall be\nestablished upon a showing that, based on the totality of the\ncircumstances, members of a protected class have less opportunity than\nthe rest of the electorate to elect candidates of their choice or\ninfluence the outcome of elections.\n 2. Prohibition against vote dilution. (a) No board of elections or\npolitical subdivision shall use any method of election, having the\neffect of impairing the ability of members of a protected class to elect\ncandidates of their choice or influence the outcome of elections, as a\nresult of vote dilution.\n (b) A violation of paragraph (a) of this subdivision shall be\nestablished upon a showing that a political subdivision:\n (i) used an at-large method of election and either: (A) voting\npatterns of members of the protected class within the political\nsubdivision are racially polarized; or (B) under the totality of the\ncircumstances, the ability of members of the protected class to elect\ncandidates of their choice or influence the outcome of elections is\nimpaired; or\n (ii) used a district-based or alternative method of election and that\ncandidates or electoral choices preferred by members of the protected\nclass would usually be defeated, and either: (A) voting patterns of\nmembers of the protected class within the political subdivision are\nracially polarized; or (B) under the totality of the circumstances, the\nability of members of the protected class to elect candidates of their\nchoice or influence the outcome of elections is impaired.\n (c) For the purposes of demonstrating that a violation of paragraph\n(a) of this subdivision has occurred, evidence shall be weighed and\nconsidered as follows: (i) elections conducted prior to the filing of an\naction pursuant to this subdivision are more probative than elections\nconducted after the filing of the action; (ii) evidence concerning\nelections for members of the governing body of the political subdivision\nare more probative than evidence concerning other elections; (iii)\nstatistical evidence is more probative than non-statistical evidence;\n(iv) where there is evidence that more than one protected class of\neligible voters are politically cohesive in the political subdivision,\nmembers of each of those protected classes may be combined; (v) evidence\nconcerning the intent on the part of the voters, elected officials, or\nthe political subdivision to discriminate against a protected class is\nnot required; (vi) evidence that voting patterns and election outcomes\ncould be explained by factors other than racially polarized voting,\nincluding but not limited to partisanship, shall not be considered;\n(vii) evidence that sub-groups within a protected class have different\nvoting patterns shall not be considered; (viii) evidence concerning\nwhether members of a protected class are geographically compact or\nconcentrated shall not be considered, but may be a factor in determining\nan appropriate remedy; and (ix) evidence concerning projected changes in\npopulation or demographics shall not be considered, but may be a factor,\nin determining an appropriate remedy.\n 3. In determining whether, under the totality of the circumstances, a\nviolation of subdivision one or two of this section has occurred,\nfactors that may be considered shall include, but not be limited to: (a)\nthe history of discrimination in or affecting the political subdivision;\n(b) the extent to which members of the protected class have been elected\nto office in the political subdivision; (c) the use of any voting\nqualification, prerequisite to voting, law, ordinance, standard,\npractice, procedure, regulation, or policy that may enhance the dilutive\neffects of the election scheme; (d) denying eligible voters or\ncandidates who are members of the protected class to processes\ndetermining which groups of candidates receive access to the ballot,\nfinancial support, or other support in a given election; (e) the extent\nto which members of the protected class contribute to political\ncampaigns at lower rates; (f) the extent to which members of a protected\nclass in the state or political subdivision vote at lower rates than\nother members of the electorate; (g) the extent to which members of the\nprotected class are disadvantaged in areas including but not limited to\neducation, employment, health, criminal justice, housing, land use, or\nenvironmental protection; (h) the extent to which members of the\nprotected class are disadvantaged in other areas which may hinder their\nability to participate effectively in the political process; (i) the use\nof overt or subtle racial appeals in political campaigns; (j) a\nsignificant lack of responsiveness on the part of elected officials to\nthe particularized needs of members of the protected class; and (k)\nwhether the political subdivision has a compelling policy justification\nthat is substantiated and supported by evidence for adopting or\nmaintaining the method of election or the voting qualification,\nprerequisite to voting, law, ordinance, standard, practice, procedure,\nregulation, or policy. Nothing in this subdivision shall preclude any\nadditional factors from being considered, nor shall any specified number\nof factors be required in establishing that such a violation has\noccurred.\n 4. Standing. Any aggrieved person, organization whose membership\nincludes aggrieved persons or members of a protected class, organization\nwhose mission, in whole or in part, is to ensure voting access and such\nmission would be hindered by a violation of this section, or the\nattorney general may file an action against a political subdivision\npursuant to this section in the supreme court of the county in which the\npolitical subdivision is located.\n 5. Remedies. (a) Upon a finding of a violation of any provision of\nthis section, the court shall implement appropriate remedies to ensure\nthat voters of race, color, and language-minority groups have equitable\naccess to fully participate in the electoral process, which may include,\nbut shall not be limited to:\n (i) a district-based method of election;\n (ii) an alternative method of election;\n (iii) new or revised districting or redistricting plans;\n (iv) elimination of staggered elections so that all members of the\ngoverning body are elected on the same date;\n (v) reasonably increasing the size of the governing body;\n (vi) moving the dates of regular elections to be concurrent with the\nprimary or general election dates for state, county, or city office as\nestablished in section eight of article three or section eight of\narticle thirteen of the constitution, unless the budget in such\npolitical subdivision is subject to direct voter approval pursuant to\npart two of article five or article forty-one of the education law;\n (vii) transferring authority for conducting the political\nsubdivision's elections to the board of elections for the county in\nwhich the political subdivision is located;\n (viii) additional voting hours or days;\n (ix) additional polling locations;\n (x) additional means of voting such as voting by mail;\n (xi) ordering of special elections;\n (xii) requiring expanded opportunities for voter registration;\n (xiii) requiring additional voter education;\n (xiv) modifying the election calendar;\n (xv) the restoration or addition of persons to registration lists; or\n (xvi) retaining jurisdiction for such period of time on a given matter\nas the court may deem appropriate, during which no redistricting plan\nshall be enforced unless and until the court finds that such plan does\nnot have the purpose of diluting the right to vote on the basis of\nprotected class membership, or in contravention of the voting guarantees\nset forth in this title, except that the court's finding shall not bar a\nsubsequent action to enjoin enforcement of such redistricting plan.\n (b) The court shall consider proposed remedies by any parties and\ninterested non-parties, but shall not provide deference or priority to a\nproposed remedy offered by the political subdivision. The court shall\nhave the power to require a political subdivision to implement remedies\nthat are inconsistent with any other provision of law where such\ninconsistent provision of law would preclude the court from ordering an\notherwise appropriate remedy in such matter.\n 6. Procedures for implementing new or revised districting or\nredistricting plans. The governing body of a political subdivision with\nthe authority under this title and all applicable state and local laws\nto enact and implement a new method of election that would replace the\npolitical subdivision's at-large method of election with a\ndistrict-based or alternative method of election, or enact and implement\na new districting or redistricting plan, shall undertake each of the\nsteps enumerated in this subdivision, if proposed subsequent to receipt\nof a NYVRA notification letter, as defined in subdivision seven of this\nsection, or the filing of a claim pursuant to this title or the federal\nvoting rights act.\n (a) Before drawing a draft districting or redistricting plan or plans\nof the proposed boundaries of the districts, the political subdivision\nshall hold at least two public hearings over a period of no more than\nthirty days, at which the public is invited to provide input regarding\nthe composition of the districts. Before these hearings, the political\nsubdivision may conduct outreach to the public, including to\nnon-English-speaking communities, to explain the districting or\nredistricting process and to encourage public participation.\n (b) After all draft districting or redistricting plans are drawn, the\npolitical subdivision shall publish and make available for release at\nleast one draft districting or redistricting plan and, if members of the\ngoverning body of the political subdivision would be elected in their\ndistricts at different times to provide for staggered terms of office,\nthe potential sequence of such elections. The political subdivision\nshall also hold at least two additional hearings over a period of no\nmore than forty-five days, at which the public shall be invited to\nprovide input regarding the content of the draft districting or\nredistricting plan or plans and the proposed sequence of elections, if\napplicable. The draft districting or redistricting plan or plans shall\nbe published at least seven days before consideration at a hearing. If\nthe draft districting or redistricting plan or plans are revised at or\nfollowing a hearing, the revised versions shall be published and made\navailable to the public for at least seven days before being adopted.\n (c) In determining the final sequence of the district elections\nconducted in a political subdivision in which members of the governing\nbody will be elected at different times to provide for staggered terms\nof office, the governing body shall give special consideration to the\npurposes of this title, and it shall take into account the preferences\nexpressed by members of the districts.\n 7. Notification requirement and safe harbor for judicial actions.\nBefore commencing a judicial action against a political subdivision\nunder this section, a prospective plaintiff shall send by certified mail\na written notice to the clerk of the political subdivision, or, if the\npolitical subdivision does not have a clerk, the governing body of the\npolitical subdivision, against which the action would be brought,\nasserting that the political subdivision may be in violation of this\ntitle. This written notice shall be referred to as a "NYVRA notification\nletter" in this title. The NYVRA notification letter shall specify the\npotential violation or violations alleged and shall contain a statement\nof facts to support such allegation; provided, however, that failure to\nso specify shall not be a basis for dismissal of such judicial action,\nbut may affect the calculation of reimbursement pursuant to paragraph\n(e) of this subdivision. The prospective plaintiff shall also send by\nfirst class mail or email a copy of the NYVRA notification letter to the\ncivil rights bureau. For actions against a school district or any other\npolitical subdivision that holds elections governed by the education\nlaw, the prospective plaintiff shall also send by certified mail a copy\nof the NYVRA notification letter to the commissioner of education.\n (a) A prospective plaintiff shall not commence a judicial action\nagainst a political subdivision under this section within fifty days of\nsending to the political subdivision a NYVRA notification letter.\n (b) Before receiving a NYVRA notification letter, or within fifty days\nof mailing of a NYVRA notification letter, the governing body of a\npolitical subdivision may pass a resolution affirming: (i) the political\nsubdivision's intention to enact and implement a remedy for a potential\nviolation of this title; (ii) specific steps the political subdivision\nwill undertake to facilitate approval and implementation of such a\nremedy; and (iii) a schedule for enacting and implementing such a\nremedy. Such a resolution shall be referred to as a "NYVRA resolution"\nin this title. If a political subdivision passes a NYVRA resolution,\nsuch political subdivision shall have ninety days after such passage to\nenact and implement such remedy, during which a prospective plaintiff\nshall not commence an action to enforce this section against the\npolitical subdivision. For actions against a school district, the\ncommissioner of education may order the enactment of a NYVRA resolution\npursuant to the commissioner's authority under section three hundred\nfive of the education law. Within seven days of passing a NYVRA\nresolution, the political subdivision shall send by first class mail or\nemail a copy of the resolution to the civil rights bureau.\n (c) If the governing body of a political subdivision lacks the\nauthority under this title or applicable state law or local laws to\nenact or implement a remedy identified in a NYVRA resolution, or fails\nto enact or implement a remedy identified in a NYVRA resolution, within\nninety days after the passage of the NYVRA resolution, or if the\npolitical subdivision is a covered entity as defined under section\n17-210 of this title, the governing body of the political subdivision\nshall undertake the steps enumerated in the following provisions:\n (i) The governing body of the political subdivision may approve a\nproposed remedy that complies with this title and submit such a proposed\nremedy to the civil rights bureau no later than one hundred twenty days\nafter the passage of the NYVRA resolution. Such a submission shall be\nreferred to as a "NYVRA proposal" in this title.\n (ii) Prior to passing a NYVRA proposal, the political subdivision\nshall hold at least one public hearing, at which the public shall be\ninvited to provide input regarding the NYVRA proposal. Before this\nhearing, the political subdivision may conduct outreach to the public,\nincluding to non-English-speaking communities, to encourage public\nparticipation.\n (iii) Within sixty days of receipt of a NYVRA proposal, the civil\nrights bureau shall grant or deny approval of the NYVRA proposal. The\ncivil rights bureau may invoke an extension of up to twenty days to\nreview the proposal.\n (iv) The civil rights bureau shall only grant approval to the NYVRA\nproposal if it concludes that: (A) the political subdivision may be in\nviolation of this title; (B) the NYVRA proposal would remedy any\npotential violation of this title cited in the NYVRA notification letter\nand would not give rise to any other violation of this title; (C) the\nNYVRA proposal is unlikely to violate the constitution or any relevant\nfederal law; and (D) implementation of the NYVRA proposal is feasible.\n (v) If the civil rights bureau grants approval, the NYVRA proposal\nshall be enacted and implemented immediately, notwithstanding any other\nprovision of law, including any other state or local law.\n (vi) If the political subdivision is a covered entity as defined under\nsection 17-210 of this title, the political subdivision shall not be\nrequired to obtain preclearance for the NYVRA proposal pursuant to such\nsection upon approval of the NYVRA proposal by the civil rights bureau.\n (vii) If the civil rights bureau denies approval, the NYVRA proposal\nshall not be enacted or implemented. The civil rights bureau shall\nexplain the basis for such denial and may, in its discretion, make\nrecommendations for an alternative remedy for which it would grant\napproval.\n (viii) If the civil rights bureau does not respond, the NYVRA proposal\nshall not be enacted or implemented.\n (d) A political subdivision that has passed a NYVRA resolution may\nenter into an agreement with the prospective plaintiff providing that\nsuch prospective plaintiff shall not commence an action pursuant to this\nsection against the political subdivision for an additional ninety days.\nSuch agreement shall include a requirement that either the political\nsubdivision shall enact and implement a remedy that complies with this\ntitle or the political subdivision shall pass a NYVRA proposal and\nsubmit it to the civil rights bureau.\n (e) If, pursuant to a process commenced by a NYVRA notification\nletter, a political subdivision enacts or implements a remedy or the\ncivil rights bureau grants approval to a NYVRA proposal, a prospective\nplaintiff who sent the NYVRA notification letter may, within thirty days\nof the enactment or implementation of the remedy or approval of the\nNYVRA proposal, demand reimbursement for the cost of the work product\ngenerated to support the NYVRA notification letter. A prospective\nplaintiff shall make the demand in writing and shall substantiate the\ndemand with financial documentation, such as a detailed invoice for\ndemography services or for the analysis of voting patterns in the\npolitical subdivision. A political subdivision may request additional\ndocumentation if the provided documentation is insufficient to\ncorroborate the claimed costs. A political subdivision shall reimburse a\nprospective plaintiff for reasonable costs claimed, or in an amount to\nwhich the parties mutually agree. The cumulative amount of\nreimbursements to all prospective plaintiffs, except for actions brought\nby the attorney general, shall not exceed forty-three thousand dollars,\nas adjusted annually to the consumer price index for all urban\nconsumers, United States city average, as published by the United States\ndepartment of labor. To the extent a prospective plaintiff who sent the\nNYVRA notification letter and a political subdivision are unable to come\nto a mutual agreement, either party may file a declaratory judgment\naction to obtain a clarification of rights.\n (f) Notwithstanding the provisions of this subdivision, in the event\nthat the first day for designating petitions for a political\nsubdivision's next regular election to select members of its governing\nboard has begun or is scheduled to begin within thirty days, or in the\nevent that a political subdivision is scheduled to conduct any election\nwithin one hundred twenty days, a plaintiff alleging any violation of\nthis title may commence a judicial action against a political\nsubdivision under this section, provided that the relief sought by such\na plaintiff includes preliminary relief for that election. Prior to or\nconcurrent with commencing such a judicial action, any such plaintiff\nshall also submit a NYVRA notification letter to the political\nsubdivision. In the event that a judicial action commenced under this\nprovision is withdrawn or dismissed for mootness because the political\nsubdivision has enacted or implemented a remedy or the civil rights\nbureau has granted approval of a NYVRA proposal pursuant to a process\ncommenced by a NYVRA notification letter, any such plaintiff may only\ndemand reimbursement pursuant to this subdivision.\n 8. Coalition claims permitted. Members of different protected classes\nmay file an action jointly pursuant to this title in the event that they\ndemonstrate that the combined voting preferences of the multiple\nprotected classes are polarized against the rest of the electorate.\n