§ 17-210 — Preclearance

New York § 17-210

• Jurisdiction: New York
• Law ELN: Election
• Title 2: John R Lewis Voting Rights Act of New York
• Art. 17: Protecting the Elective Franchise

Text

§ 17-210. Preclearance. 1. Preclearance. To ensure that the right to\nvote is not denied or abridged on account of race, color, or\nlanguage-minority group, the enactment or implementation of a covered\npolicy by a covered entity, as defined in subdivisions two and three of\nthis section respectively, shall be subject to preclearance by the civil\nrights bureau or by a designated court as set forth in this section.\n 2. Covered policies. A "covered policy" shall include any new or\nmodified voting qualification, prerequisite to voting, law, ordinance,\nstandard, practice, procedure, regulation, or policy concerning any of\nthe following topics:\n (a) Method of election;\n (b) Form of government;\n (c) Annexation of a political subdivision;\n (d) Incorporation of a political subdivision;\n (e) Consolidation or division of political subdivisions;\n (f) Removal of voters from enrollment lists or other list maintenance\nactivities;\n (g) Number, location, or hours of any election day or early voting\npoll site;\n (h) Dates of elections and the election calendar, except with respect\nto special elections;\n (i) Registration of voters;\n (j) Assignment of election districts to election day or early voting\npoll sites;\n (k) Assistance offered to members of a language-minority group; and\n (l) Any additional topics designated by the civil rights bureau\npursuant to a rule promulgated under the state administrative procedure\nact, upon a determination by the civil rights bureau that a new or\nmodified voting qualification, prerequisite to voting, law, ordinance,\nstandard, practice, procedure, regulation, or policy concerning such\ntopics may have the effect of denying or abridging the right to vote on\naccount of race, color, or language-minority group.\n 3. Covered entity. A "covered entity" shall include: (a) any political\nsubdivision which, within the previous twenty-five years, has become\nsubject to a court order or government enforcement action based upon a\nfinding of any violation of this title, the federal voting rights act,\nthe fifteenth amendment to the United States constitution, or a\nvoting-related violation of the fourteenth amendment to the United\nStates constitution; (b) any political subdivision which, within the\nprevious twenty-five years, has become subject to at least three court\norders or government enforcement actions based upon a finding of any\nviolation of any state or federal civil rights law or the fourteenth\namendment to the United States constitution concerning discrimination\nagainst members of a protected class; (c) any county in which, based on\ndata provided by the division of criminal justice services, the combined\nmisdemeanor and felony arrest rate of voting age members of any\nprotected class consisting of at least ten thousand citizens of voting\nage or whose members comprise at least ten percent of the citizen voting\nage population of the county, exceeds the proportion that the protected\nclass constitutes of the citizen voting age population of the county as\na whole by at least twenty percentage points at any point within the\nprevious ten years; (d) any political subdivision in which, based on\ndata made available by the United States census, the dissimilarity index\nof any protected class consisting of at least twenty-five thousand\ncitizens of voting age or whose members comprise at least ten percent of\nthe citizen voting age population of the political subdivision, is in\nexcess of fifty with respect to non-Hispanic white individuals within\nthe political subdivision at any point within the previous ten years;\n(e) any political subdivision in which a board of elections has been\nestablished, if such political subdivision contains a covered entity\nfully within its borders; or (f) any board of elections that has been\nestablished in a political subdivision that is a covered entity pursuant\nto paragraph (a), (b), (c), (d) or (e) of this subdivision.\n 4. Preclearance by the attorney general. A covered entity may obtain\npreclearance for a covered policy from the civil rights bureau pursuant\nto the following process:\n (a) The covered entity shall submit the covered policy in writing to\nthe civil rights bureau. If the covered entity is a county or city board\nof elections, it shall contemporaneously provide a copy of the covered\npolicy to the state board of elections.\n (b) Upon submission of a covered policy for preclearance, as soon as\npracticable but no later than within ten days, the civil rights bureau\nshall publish the submission on its website.\n (c) After publication of a submission, there shall be an opportunity\nfor members of the public to comment on the submission to the civil\nrights bureau within the time periods set forth below. To facilitate\npublic comment, the civil rights bureau shall provide an opportunity for\nmembers of the public to sign up to receive notifications or alerts\nregarding submission of a covered policy for preclearance.\n (d) Upon submission of a covered policy for preclearance, the civil\nrights bureau shall review the covered policy, and any public comment,\nand shall, within the time periods set forth below, provide a report and\ndetermination as to whether, under this title, preclearance should be\ngranted or denied to the covered policy. Such time period shall run\nconcurrent with the time periods for public comment. The civil rights\nbureau shall not make such determination until the period for public\ncomment is closed. The civil rights bureau may request additional\ninformation from a covered entity at any time during its review to aid\nin developing its report and recommendation. The failure to timely\ncomply with reasonable requests for more information may be grounds for\nthe denial of preclearance. The civil rights bureau's reports and\ndetermination shall be posted publicly on its website.\n (e) In any determination as to preclearance, the civil rights bureau\nshall identify in writing whether it is approving or rejecting the\ncovered policy; provided, however, that the civil rights bureau may, in\nits discretion, designate preclearance as "preliminary" in which case\nthe civil rights bureau may deny preclearance within sixty days\nfollowing the receipt of submission of the covered policy.\n (i) The civil rights bureau shall grant preclearance only if it\ndetermines that the covered policy will not diminish the ability of\nprotected class members to participate in the political process and to\nelect their preferred candidates to office. If the civil rights bureau\ngrants preclearance, the covered entity may enact or implement the\ncovered policy immediately.\n (ii) If the civil rights bureau denies preclearance, the civil rights\nbureau shall interpose objections explaining its basis and the covered\npolicy shall not be enacted or implemented.\n (iii) If the civil rights bureau fails to respond within the required\ntime frame as established in this section, the covered policy shall be\ndeemed precleared and the covered entity may enact or implement such\ncovered policy.\n (f) The time periods for public comment, civil rights bureau review,\nand the determination of the civil rights bureau to grant or deny\npreclearance on submission shall be as follows:\n (i) For any covered policy concerning the designation or selection of\npoll sites or the assignment of election districts to poll sites,\nwhether for election day or early voting, the period for public comment\nshall be five business days. The civil rights bureau shall review the\ncovered policy, including any public comment, and make a determination\nto deny or grant preclearance for such covered policy within fifteen\ndays following the receipt of such covered policy.\n (ii) The civil rights bureau may invoke an extension of up to twenty\ndays to make a determination pursuant to this paragraph, if the civil\nrights bureau determines that good cause exists for such extension.\n (iii) For any other covered policy, the period for public comment\nshall be ten business days. The civil rights bureau shall review the\ncovered policy, including any public comment, within fifty-five days\nfollowing the receipt of such covered policy and make a determination to\ndeny or grant preclearance for such covered policy. The civil rights\nbureau may invoke up to two extensions of ninety days each.\n (iv) The civil rights bureau is hereby authorized to promulgate rules\nfor an expedited, emergency preclearance process in the event of a\ncovered policy occurring during or imminently preceding an election as a\nresult of any disaster within the meaning of section 3-108 of this\nchapter or other exigent circumstances. Any preclearance granted under\nthis provision shall be designated "preliminary" and the civil rights\nbureau may deny preclearance within sixty days following receipt of the\ncovered policy.\n (g) Appeal of any denial by the civil rights bureau may be heard in\nthe supreme court for the county of New York or the county of Albany in\na proceeding commenced against the civil rights bureau, pursuant to\narticle seventy-eight of the civil practice law and rules, from which\nappeal may be taken according to the ordinary rules of appellate\nprocedure. Due to the frequency and urgency of elections, actions\nbrought pursuant to this section shall be subject to expedited pretrial\nand trial proceedings and receive an automatic calendar preference on\nappeal.\n 5. Preclearance by a designated court. A covered entity may obtain\npreclearance for a covered policy from a court pursuant to the following\nprocess:\n (a) The covered entity shall submit the covered policy in writing to\nthe following designated court in the judicial department within which\nthe covered entity is located: (i) first judicial department: New York\ncounty; (ii) second judicial department: Westchester county; (iii) third\njudicial department: Albany county; and (iv) fourth judicial department:\nErie county. If the covered entity is a county or city board of\nelections, it shall contemporaneously provide a copy of the covered\npolicy to the state board of elections.\n (b) The covered entity shall contemporaneously provide a copy of the\ncovered policy to the civil rights bureau. The failure of the covered\nentity to provide a copy of the covered policy to the civil rights\nbureau will result in an automatic denial of preclearance.\n (c) The court shall grant or deny preclearance within sixty days\nfollowing the receipt of submission of the covered policy.\n (d) The court shall grant preclearance only if it determines that the\ncovered policy will not diminish the ability of protected class members\nto participate in the political process and to elect their preferred\ncandidates to office. If the court grants preclearance, the covered\nentity may enact or implement the covered policy immediately.\n (e) If the court denies preclearance, or fails to respond within sixty\ndays, the covered policy shall not be enacted or implemented.\n (f) Appeal of any denial may be taken according to the ordinary rules\nof appellate procedure. Due to the frequency and urgency of elections,\nactions brought pursuant to this section shall be subject to expedited\npretrial and trial proceedings and receive an automatic calendar\npreference on appeal.\n 6. Failure to seek or obtain preclearance. If any covered entity\nenacts or implements a covered policy without seeking preclearance\npursuant to this section, or enacts or implements a covered policy\nnotwithstanding the denial of preclearance, either the civil rights\nbureau or any other party with standing to bring an action under this\ntitle may bring an action to enjoin the covered policy and to seek\nsanctions against the political subdivision and officials in violation.\n 7. Notification. (a) Any political subdivision that becomes subject to\na court order or government enforcement action as provided in paragraph\n(a) or (b) of subdivision three of this section shall notify the civil\nrights bureau within thirty days of the issuance of such order or\nenforcement action.\n (b) Any political subdivision that becomes involved in litigation\nconcerning voting shall notify the civil rights bureau within thirty\ndays of the commencement of such litigation.\n (c) No more than thirty days after publication of a list of covered\nentities by the civil rights bureau, each covered entity included in\nsuch list shall notify the civil rights bureau of the name, email\naddress, and telephone number of an individual with the authority to\nsubmit covered policies for preclearance on behalf of the covered\nentity. Each such covered entity shall notify the civil rights bureau\nwithin thirty days of any material change to the information required\npursuant to this paragraph.\n