N.Y. Election Law § 17-206: Prohibitions on voter disenfranchisement

§ 17-206. Prohibitions on voter disenfranchisement. 1. Prohibition

against voter suppression. (a) No voting qualification, prerequisite to

voting, law, ordinance, standard, practice, procedure, regulation, or

policy shall be enacted or implemented by any board of elections or

political subdivision in a manner that results in a denial or

abridgement of the right of members of a protected class to vote.

(b) A violation of paragraph (a) of this subdivision shall be

established upon a showing that, based on the totality of the

circumstances, members of a protected class have less opportunity than

the rest of the electorate to elect candidates of their choice or

influence the outcome of elections.

2. Prohibition against vote dilution. (a) No board of elections or

political subdivision shall use any method of election, having the

effect of impairing the ability of members of a protected class to elect

candidates of their choice or influence the outcome of elections, as a

result of vote dilution.

(b) A violation of paragraph (a) of this subdivision shall be

established upon a showing that a political subdivision:

(i) used an at-large method of election and either: (A) voting

patterns of members of the protected class within the political

subdivision are racially polarized; or (B) under the totality of the

circumstances, the ability of members of the protected class to elect

candidates of their choice or influence the outcome of elections is

impaired; or

(ii) used a district-based or alternative method of election and that

candidates or electoral choices preferred by members of the protected

class would usually be defeated, and either: (A) voting patterns of

members of the protected class within the political subdivision are

racially polarized; or (B) under the totality of the circumstances, the

ability of members of the protected class to elect candidates of their

choice or influence the outcome of elections is impaired.

(c) For the purposes of demonstrating that a violation of paragraph

(a) of this subdivision has occurred, evidence shall be weighed and

considered as follows: (i) elections conducted prior to the filing of an

action pursuant to this subdivision are more probative than elections

conducted after the filing of the action; (ii) evidence concerning

elections for members of the governing body of the political subdivision

are more probative than evidence concerning other elections; (iii)

statistical evidence is more probative than non-statistical evidence;

(iv) where there is evidence that more than one protected class of

eligible voters are politically cohesive in the political subdivision,

members of each of those protected classes may be combined; (v) evidence

concerning the intent on the part of the voters, elected officials, or

the political subdivision to discriminate against a protected class is

not required; (vi) evidence that voting patterns and election outcomes

could be explained by factors other than racially polarized voting,

including but not limited to partisanship, shall not be considered;

(vii) evidence that sub-groups within a protected class have different

voting patterns shall not be considered; (viii) evidence concerning

whether members of a protected class are geographically compact or

concentrated shall not be considered, but may be a factor in determining

an appropriate remedy; and (ix) evidence concerning projected changes in

population or demographics shall not be considered, but may be a factor,

in determining an appropriate remedy.

3. In determining whether, under the totality of the circumstances, a

violation of subdivision one or two of this section has occurred,

factors that may be considered shall include, but not be limited to: (a)

the history of discrimination in or affecting the political subdivision;

(b) the extent to which members of the protected class have been elected

to office in the political subdivision; (c) the use of any voting

qualification, prerequisite to voting, law, ordinance, standard,

practice, procedure, regulation, or policy that may enhance the dilutive

effects of the election scheme; (d) denying eligible voters or

candidates who are members of the protected class to processes

determining which groups of candidates receive access to the ballot,

financial support, or other support in a given election; (e) the extent

to which members of the protected class contribute to political

campaigns at lower rates; (f) the extent to which members of a protected

class in the state or political subdivision vote at lower rates than

other members of the electorate; (g) the extent to which members of the

protected class are disadvantaged in areas including but not limited to

education, employment, health, criminal justice, housing, land use, or

environmental protection; (h) the extent to which members of the

protected class are disadvantaged in other areas which may hinder their

ability to participate effectively in the political process; (i) the use

of overt or subtle racial appeals in political campaigns; (j) a

significant lack of responsiveness on the part of elected officials to

the particularized needs of members of the protected class; and (k)

whether the political subdivision has a compelling policy justification

that is substantiated and supported by evidence for adopting or

maintaining the method of election or the voting qualification,

prerequisite to voting, law, ordinance, standard, practice, procedure,

regulation, or policy. Nothing in this subdivision shall preclude any

additional factors from being considered, nor shall any specified number

of factors be required in establishing that such a violation has

occurred.

4. Standing. Any aggrieved person, organization whose membership

includes aggrieved persons or members of a protected class, organization

whose mission, in whole or in part, is to ensure voting access and such

mission would be hindered by a violation of this section, or the

attorney general may file an action against a political subdivision

pursuant to this section in the supreme court of the county in which the

political subdivision is located.

5. Remedies. (a) Upon a finding of a violation of any provision of

this section, the court shall implement appropriate remedies to ensure

that voters of race, color, and language-minority groups have equitable

access to fully participate in the electoral process, which may include,

but shall not be limited to:

(i) a district-based method of election;

(ii) an alternative method of election;

(iii) new or revised districting or redistricting plans;

(iv) elimination of staggered elections so that all members of the

governing body are elected on the same date;

(v) reasonably increasing the size of the governing body;

(vi) moving the dates of regular elections to be concurrent with the

primary or general election dates for state, county, or city office as

established in section eight of article three or section eight of

article thirteen of the constitution, unless the budget in such

political subdivision is subject to direct voter approval pursuant to

part two of article five or article forty-one of the education law;

(vii) transferring authority for conducting the political

subdivision's elections to the board of elections for the county in

which the political subdivision is located;

(viii) additional voting hours or days;

(ix) additional polling locations;

(x) additional means of voting such as voting by mail;

(xi) ordering of special elections;

(xii) requiring expanded opportunities for voter registration;

(xiii) requiring additional voter education;

(xiv) modifying the election calendar;

(xv) the restoration or addition of persons to registration lists; or

(xvi) retaining jurisdiction for such period of time on a given matter

as the court may deem appropriate, during which no redistricting plan

shall be enforced unless and until the court finds that such plan does

not have the purpose of diluting the right to vote on the basis of

protected class membership, or in contravention of the voting guarantees

set forth in this title, except that the court's finding shall not bar a

subsequent action to enjoin enforcement of such redistricting plan.

(b) The court shall consider proposed remedies by any parties and

interested non-parties, but shall not provide deference or priority to a

proposed remedy offered by the political subdivision. The court shall

have the power to require a political subdivision to implement remedies

that are inconsistent with any other provision of law where such

inconsistent provision of law would preclude the court from ordering an

otherwise appropriate remedy in such matter.

6. Procedures for implementing new or revised districting or

redistricting plans. The governing body of a political subdivision with

the authority under this title and all applicable state and local laws

to enact and implement a new method of election that would replace the

political subdivision's at-large method of election with a

district-based or alternative method of election, or enact and implement

a new districting or redistricting plan, shall undertake each of the

steps enumerated in this subdivision, if proposed subsequent to receipt

of a NYVRA notification letter, as defined in subdivision seven of this

section, or the filing of a claim pursuant to this title or the federal

voting rights act.

(a) Before drawing a draft districting or redistricting plan or plans

of the proposed boundaries of the districts, the political subdivision

shall hold at least two public hearings over a period of no more than

thirty days, at which the public is invited to provide input regarding

the composition of the districts. Before these hearings, the political

subdivision may conduct outreach to the public, including to

non-English-speaking communities, to explain the districting or

redistricting process and to encourage public participation.

(b) After all draft districting or redistricting plans are drawn, the

political subdivision shall publish and make available for release at

least one draft districting or redistricting plan and, if members of the

governing body of the political subdivision would be elected in their

districts at different times to provide for staggered terms of office,

the potential sequence of such elections. The political subdivision

shall also hold at least two additional hearings over a period of no

more than forty-five days, at which the public shall be invited to

provide input regarding the content of the draft districting or

redistricting plan or plans and the proposed sequence of elections, if

applicable. The draft districting or redistricting plan or plans shall

be published at least seven days before consideration at a hearing. If

the draft districting or redistricting plan or plans are revised at or

following a hearing, the revised versions shall be published and made

available to the public for at least seven days before being adopted.

(c) In determining the final sequence of the district elections

conducted in a political subdivision in which members of the governing

body will be elected at different times to provide for staggered terms

of office, the governing body shall give special consideration to the

purposes of this title, and it shall take into account the preferences

expressed by members of the districts.

7. Notification requirement and safe harbor for judicial actions.

Before commencing a judicial action against a political subdivision

under this section, a prospective plaintiff shall send by certified mail

a written notice to the clerk of the political subdivision, or, if the

political subdivision does not have a clerk, the governing body of the

political subdivision, against which the action would be brought,

asserting that the political subdivision may be in violation of this

title. This written notice shall be referred to as a "NYVRA notification

letter" in this title. The NYVRA notification letter shall specify the

potential violation or violations alleged and shall contain a statement

of facts to support such allegation; provided, however, that failure to

so specify shall not be a basis for dismissal of such judicial action,

but may affect the calculation of reimbursement pursuant to paragraph

(e) of this subdivision. The prospective plaintiff shall also send by

first class mail or email a copy of the NYVRA notification letter to the

civil rights bureau. For actions against a school district or any other

political subdivision that holds elections governed by the education

law, the prospective plaintiff shall also send by certified mail a copy

of the NYVRA notification letter to the commissioner of education.

(a) A prospective plaintiff shall not commence a judicial action

against a political subdivision under this section within fifty days of

sending to the political subdivision a NYVRA notification letter.

(b) Before receiving a NYVRA notification letter, or within fifty days

of mailing of a NYVRA notification letter, the governing body of a

political subdivision may pass a resolution affirming: (i) the political

subdivision's intention to enact and implement a remedy for a potential

violation of this title; (ii) specific steps the political subdivision

will undertake to facilitate approval and implementation of such a

remedy; and (iii) a schedule for enacting and implementing such a

remedy. Such a resolution shall be referred to as a "NYVRA resolution"

in this title. If a political subdivision passes a NYVRA resolution,

such political subdivision shall have ninety days after such passage to

enact and implement such remedy, during which a prospective plaintiff

shall not commence an action to enforce this section against the

political subdivision. For actions against a school district, the

commissioner of education may order the enactment of a NYVRA resolution

pursuant to the commissioner's authority under section three hundred

five of the education law. Within seven days of passing a NYVRA

resolution, the political subdivision shall send by first class mail or

email a copy of the resolution to the civil rights bureau.

(c) If the governing body of a political subdivision lacks the

authority under this title or applicable state law or local laws to

enact or implement a remedy identified in a NYVRA resolution, or fails

to enact or implement a remedy identified in a NYVRA resolution, within

ninety days after the passage of the NYVRA resolution, or if the

political subdivision is a covered entity as defined under section

17-210 of this title, the governing body of the political subdivision

shall undertake the steps enumerated in the following provisions:

(i) The governing body of the political subdivision may approve a

proposed remedy that complies with this title and submit such a proposed

remedy to the civil rights bureau no later than one hundred twenty days

after the passage of the NYVRA resolution. Such a submission shall be

referred to as a "NYVRA proposal" in this title.

(ii) Prior to passing a NYVRA proposal, the political subdivision

shall hold at least one public hearing, at which the public shall be

invited to provide input regarding the NYVRA proposal. Before this

hearing, the political subdivision may conduct outreach to the public,

including to non-English-speaking communities, to encourage public

participation.

(iii) Within sixty days of receipt of a NYVRA proposal, the civil

rights bureau shall grant or deny approval of the NYVRA proposal. The

civil rights bureau may invoke an extension of up to twenty days to

review the proposal.

(iv) The civil rights bureau shall only grant approval to the NYVRA

proposal if it concludes that: (A) the political subdivision may be in

violation of this title; (B) the NYVRA proposal would remedy any

potential violation of this title cited in the NYVRA notification letter

and would not give rise to any other violation of this title; (C) the

NYVRA proposal is unlikely to violate the constitution or any relevant

federal law; and (D) implementation of the NYVRA proposal is feasible.

(v) If the civil rights bureau grants approval, the NYVRA proposal

shall be enacted and implemented immediately, notwithstanding any other

provision of law, including any other state or local law.

(vi) If the political subdivision is a covered entity as defined under

section 17-210 of this title, the political subdivision shall not be

required to obtain preclearance for the NYVRA proposal pursuant to such

section upon approval of the NYVRA proposal by the civil rights bureau.

(vii) If the civil rights bureau denies approval, the NYVRA proposal

shall not be enacted or implemented. The civil rights bureau shall

explain the basis for such denial and may, in its discretion, make

recommendations for an alternative remedy for which it would grant

approval.

(viii) If the civil rights bureau does not respond, the NYVRA proposal

shall not be enacted or implemented.

(d) A political subdivision that has passed a NYVRA resolution may

enter into an agreement with the prospective plaintiff providing that

such prospective plaintiff shall not commence an action pursuant to this

section against the political subdivision for an additional ninety days.

Such agreement shall include a requirement that either the political

subdivision shall enact and implement a remedy that complies with this

title or the political subdivision shall pass a NYVRA proposal and

submit it to the civil rights bureau.

(e) If, pursuant to a process commenced by a NYVRA notification

letter, a political subdivision enacts or implements a remedy or the

civil rights bureau grants approval to a NYVRA proposal, a prospective

plaintiff who sent the NYVRA notification letter may, within thirty days

of the enactment or implementation of the remedy or approval of the

NYVRA proposal, demand reimbursement for the cost of the work product

generated to support the NYVRA notification letter. A prospective

plaintiff shall make the demand in writing and shall substantiate the

demand with financial documentation, such as a detailed invoice for

demography services or for the analysis of voting patterns in the

political subdivision. A political subdivision may request additional

documentation if the provided documentation is insufficient to

corroborate the claimed costs. A political subdivision shall reimburse a

prospective plaintiff for reasonable costs claimed, or in an amount to

which the parties mutually agree. The cumulative amount of

reimbursements to all prospective plaintiffs, except for actions brought

by the attorney general, shall not exceed forty-three thousand dollars,

as adjusted annually to the consumer price index for all urban

consumers, United States city average, as published by the United States

department of labor. To the extent a prospective plaintiff who sent the

NYVRA notification letter and a political subdivision are unable to come

to a mutual agreement, either party may file a declaratory judgment

action to obtain a clarification of rights.

(f) Notwithstanding the provisions of this subdivision, in the event

that the first day for designating petitions for a political

subdivision's next regular election to select members of its governing

board has begun or is scheduled to begin within thirty days, or in the

event that a political subdivision is scheduled to conduct any election

within one hundred twenty days, a plaintiff alleging any violation of

this title may commence a judicial action against a political

subdivision under this section, provided that the relief sought by such

a plaintiff includes preliminary relief for that election. Prior to or

concurrent with commencing such a judicial action, any such plaintiff

shall also submit a NYVRA notification letter to the political

subdivision. In the event that a judicial action commenced under this

provision is withdrawn or dismissed for mootness because the political

subdivision has enacted or implemented a remedy or the civil rights

bureau has granted approval of a NYVRA proposal pursuant to a process

commenced by a NYVRA notification letter, any such plaintiff may only

demand reimbursement pursuant to this subdivision.

8. Coalition claims permitted. Members of different protected classes

may file an action jointly pursuant to this title in the event that they

demonstrate that the combined voting preferences of the multiple

protected classes are polarized against the rest of the electorate.