Bill Text: NY S01046 | 2021-2022 | General Assembly | Amended
Bill Title: Relates to the John R. Lewis Voting Rights Act of New York; establishes rights of actions for denying or abridging the right of any member of a protected class to vote; provides assistance to language-minority groups; provides for preclearance of certain voting policies; makes related provisions.
Spectrum: Partisan Bill (Democrat 34-0)
Status: (Passed) 2022-06-20 - APPROVAL MEMO.8 [S01046 Detail]
Download: New_York-2021-S01046-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1046--E 2021-2022 Regular Sessions IN SENATE January 6, 2021 ___________ Introduced by Sens. MYRIE, BAILEY, BIAGGI, BRESLIN, BRISPORT, BROUK, CLEARE, COMRIE, COONEY, FELDER, GAUGHRAN, GIANARIS, GOUNARDES, HINCHEY, HOYLMAN, JACKSON, KAPLAN, KAVANAGH, KENNEDY, KRUEGER, LIU, MANNION, MAY, MAYER, PARKER, RAMOS, REICHLIN-MELNICK, RIVERA, SALAZAR, SANDERS, SEPULVEDA, SERRANO, STAVISKY, THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Elections -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Elections in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said commit- tee and committed to the Committee on Finance -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said committee and committed to the Committee on Rules -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the election law, in relation to establishing the John R. Lewis Voting Rights Act of New York, establishing rights of action for denying or abridging of the right of any member of a protected class to vote, providing assistance to language-minority groups, requiring certain political subdivisions to receive preclearance for potential violations of the NYVRA, and creating civil liability for voter intimidation The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "John R. 2 Lewis Voting Rights Act of New York (NYVRA)". EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02423-24-2S. 1046--E 2 1 § 2. Sections 17-100 through 17-170 of article 17 of the election law 2 are designated title 1 and a new title heading is added to read as 3 follows: 4 VIOLATIONS OF THE ELECTIVE FRANCHISE 5 § 3. The article heading of article 17 of the election law is amended 6 to read as follows: 7 [VIOLATIONS OF] PROTECTING THE ELECTIVE FRANCHISE 8 § 4. Article 17 of the election law is amended by adding a new title 2 9 to read as follows: 10 TITLE 2 11 JOHN R. LEWIS VOTING RIGHTS ACT OF NEW YORK 12 Section 17-200. Legislative purpose and statement of public policy. 13 17-202. Interpretation of laws related to the elective fran- 14 chise. 15 17-204. Definitions. 16 17-206. Prohibitions on voter disfranchisement. 17 17-208. Assistance for language-minority groups. 18 17-210. Preclearance. 19 17-212. Prohibition against voter intimidation, deception or 20 obstruction. 21 17-214. Authority to issue subpoenas. 22 17-216. Expedited judicial proceedings and preliminary relief. 23 17-218. Attorneys' fees. 24 17-220. Applicability. 25 17-222. Severability. 26 § 17-200. Legislative purpose and statement of public policy. In 27 recognition of the protections for the right to vote provided by the 28 constitution of the state of New York, which substantially exceed the 29 protections for the right to vote provided by the constitution of the 30 United States, and in conjunction with the constitutional guarantees of 31 equal protection, freedom of expression, and freedom of association 32 under the law and against the denial or abridgement of the voting rights 33 of members of a race, color, or language-minority group, it is the 34 public policy of the state of New York to: 35 1. Encourage participation in the elective franchise by all eligible 36 voters to the maximum extent; and 37 2. Ensure that eligible voters who are members of racial, color, and 38 language-minority groups shall have an equal opportunity to participate 39 in the political processes of the state of New York, and especially to 40 exercise the elective franchise. 41 § 17-202. Interpretation of laws related to the elective franchise. 42 In further recognition of the protections for the right to vote provided 43 by the constitution of the state of New York, all statutes, rules and 44 regulations, and local laws or ordinances related to the elective fran- 45 chise shall be construed liberally in favor of (a) protecting the right 46 of voters to have their ballot cast and counted; (b) ensuring that 47 eligible voters are not impaired in registering to vote, and (c) ensur- 48 ing voters of race, color, and language-minority groups have equitable 49 access to fully participate in the electoral process in registering to 50 vote and voting. The authority to prescribe or maintain voting or 51 elections policies and practices cannot be so exercised as to unneces- 52 sarily deny or abridge the right to vote. Policies and practices thatS. 1046--E 3 1 burden the right to vote must be narrowly tailored to promote a compel- 2 ling policy justification that must be supported by substantial 3 evidence. 4 § 17-204. Definitions. For the purposes of this title: 5 1. "At-large" method of election means a method of electing members to 6 the governing body of a political subdivision: (a) in which all of the 7 voters of the entire political subdivision elect each of the members to 8 the governing body; (b) in which the candidates are required to reside 9 within given areas of the political subdivision and all of the voters of 10 the entire political subdivision elect each of the members to the 11 governing body; or (c) that combines at-large elections with district- 12 based elections, unless the only member of the governing body of a poli- 13 tical subdivision elected at-large holds exclusively executive responsi- 14 bilities. For the purposes of this title, at-large method of election 15 does not include ranked-choice voting, cumulative voting, and limited 16 voting. 17 2. "District-based" method of election means a method of electing 18 members to the governing body of a political subdivision using a 19 districting or redistricting plan in which each member of the governing 20 body resides within a district or ward that is a divisible part of the 21 political subdivision and is elected only by voters residing within that 22 district or ward, except for a member of the governing body that holds 23 exclusively executive responsibilities. 24 3. "Alternative" method of election means a method of electing members 25 to the governing body of a political subdivision using a method other 26 than at-large or district-based, including, but not limited to, ranked- 27 choice voting, cumulative voting, and limited voting. 28 4. "Political subdivision" means a geographic area of representation 29 created for the provision of government services, including, but not 30 limited to, a county, city, town, village, school district, or any other 31 district organized pursuant to state or local law. 32 5. "Protected class" means a class of eligible voters who are members 33 of a race, color, or language-minority group. 34 5-a. "Language minorities" or "language-minority group" means persons 35 who are American Indian, Asian American, Alaskan Natives or of Spanish 36 heritage. 37 6. "Racially polarized voting" means voting in which there is a diver- 38 gence in the candidate, political preferences, or electoral choice of 39 members in a protected class from the candidates, or electoral choice of 40 the rest of the electorate. 41 7. "Federal voting rights act" means the federal Voting Rights Act of 42 1965, 52 U.S.C. § 10301 et seq., as amended. 43 8. The "civil rights bureau" means the civil rights bureau of the 44 office of the attorney general. 45 9. "Government enforcement action" means a denial of administrative or 46 judicial preclearance by the state or federal government, pending liti- 47 gation filed by a federal or state entity, a final judgment or adjudi- 48 cation, a consent decree, or similar formal action. 49 10. "Deceptive or fraudulent device, contrivance, or communication" 50 means one that contains false information pertaining to: (a) the time, 51 place, and manner of any election; (b) the qualifications or 52 restrictions on voter eligibility for such election; or (c) a statement 53 of endorsement by any specifically named person, political party, or 54 organization. 55 § 17-206. Prohibitions on voter disenfranchisement. 1. Prohibition 56 against voter suppression. (a) No voting qualification, prerequisite toS. 1046--E 4 1 voting, law, ordinance, standard, practice, procedure, regulation, or 2 policy shall be enacted or implemented by any board of elections or 3 political subdivision in a manner that results in a denial or abridge- 4 ment of the right of members of a protected class to vote. 5 (b) A violation of paragraph (a) of this subdivision shall be estab- 6 lished upon a showing that, based on the totality of the circumstances, 7 members of a protected class have less opportunity than the rest of the 8 electorate to elect candidates of their choice or influence the outcome 9 of elections. 10 2. Prohibition against vote dilution. (a) No board of elections or 11 political subdivision shall use any method of election, having the 12 effect of impairing the ability of members of a protected class to elect 13 candidates of their choice or influence the outcome of elections, as a 14 result of vote dilution. 15 (b) A violation of paragraph (a) of this subdivision shall be estab- 16 lished upon a showing that a political subdivision: 17 (i) used an at-large method of election and either: (A) voting 18 patterns of members of the protected class within the political subdivi- 19 sion are racially polarized; or (B) under the totality of the circum- 20 stances, the ability of members of the protected class to elect candi- 21 dates of their choice or influence the outcome of elections is impaired; 22 or 23 (ii) used a district-based or alternative method of election and that 24 candidates or electoral choices preferred by members of the protected 25 class would usually be defeated, and either: (A) voting patterns of 26 members of the protected class within the political subdivision are 27 racially polarized; or (B) under the totality of the circumstances, the 28 ability of members of the protected class to elect candidates of their 29 choice or influence the outcome of elections is impaired; or 30 (c) For the purposes of demonstrating that a violation of paragraph 31 (a) of this subdivision has occurred, evidence shall be weighed and 32 considered as follows: (i) elections conducted prior to the filing of an 33 action pursuant to this subdivision are more probative than elections 34 conducted after the filing of the action; (ii) evidence concerning 35 elections for members of the governing body of the political subdivision 36 are more probative than evidence concerning other elections; (iii) 37 statistical evidence is more probative than non-statistical evidence; 38 (iv) where there is evidence that more than one protected class of 39 eligible voters are politically cohesive in the political subdivision, 40 members of each of those protected classes may be combined; (v) evidence 41 concerning the intent on the part of the voters, elected officials, or 42 the political subdivision to discriminate against a protected class is 43 not required; (vi) evidence that voting patterns and election outcomes 44 could be explained by factors other than racially polarized voting, 45 including but not limited to partisanship, shall not be considered; 46 (vii) evidence that sub-groups within a protected class have different 47 voting patterns shall not be considered; (viii) evidence concerning 48 whether members of a protected class are geographically compact or 49 concentrated shall not be considered, but may be a factor in determining 50 an appropriate remedy; and (ix) evidence concerning projected changes in 51 population or demographics shall not be considered, but may be a factor, 52 in determining an appropriate remedy. 53 3. In determining whether, under the totality of the circumstances, a 54 violation of subdivision one or two of this section has occurred, 55 factors that may be considered shall include, but not be limited to: (a) 56 the history of discrimination in or affecting the political subdivision;S. 1046--E 5 1 (b) the extent to which members of the protected class have been elected 2 to office in the political subdivision; (c) the use of any voting quali- 3 fication, prerequisite to voting, law, ordinance, standard, practice, 4 procedure, regulation, or policy that may enhance the dilutive effects 5 of the election scheme; (d) denying eligible voters or candidates who 6 are members of the protected class to processes determining which groups 7 of candidates receive access to the ballot, financial support, or other 8 support in a given election; (e) the extent to which members of the 9 protected class contribute to political campaigns at lower rates; (f) 10 the extent to which members of a protected class in the state or poli- 11 tical subdivision vote at lower rates than other members of the elector- 12 ate; (g) the extent to which members of the protected class are disad- 13 vantaged in areas including but not limited to education, employment, 14 health, criminal justice, housing, land use, or environmental 15 protection; (h) the extent to which members of the protected class are 16 disadvantaged in other areas which may hinder their ability to partic- 17 ipate effectively in the political process; (i) the use of overt or 18 subtle racial appeals in political campaigns; (j) a significant lack of 19 responsiveness on the part of elected officials to the particularized 20 needs of members of the protected class; and (k) whether the political 21 subdivision has a compelling policy justification that is substantiated 22 and supported by evidence for adopting or maintaining the method of 23 election or the voting qualification, prerequisite to voting, law, ordi- 24 nance, standard, practice, procedure, regulation, or policy. Nothing in 25 this subdivision shall preclude any additional factors from being 26 considered, nor shall any specified number of factors be required in 27 establishing that such a violation has occurred. 28 4. Standing. Any aggrieved person, organization whose membership 29 includes aggrieved persons or members of a protected class, organization 30 whose mission, in whole or in part, is to ensure voting access and such 31 mission would be hindered by a violation of this section, or the attor- 32 ney general may file an action against a political subdivision pursuant 33 to this section in the supreme court of the county in which the poli- 34 tical subdivision is located. 35 5. Remedies. (a) Upon a finding of a violation of any provision of 36 this section, the court shall implement appropriate remedies to ensure 37 that voters of race, color, and language-minority groups have equitable 38 access to fully participate in the electoral process, which may include, 39 but shall not be limited to: 40 (i) a district-based method of election; 41 (ii) an alternative method of election; 42 (iii) new or revised districting or redistricting plans; 43 (iv) elimination of staggered elections so that all members of the 44 governing body are elected on the same date; 45 (v) reasonably increasing the size of the governing body; 46 (vi) moving the dates of regular elections to be concurrent with the 47 primary or general election dates for state, county, or city office as 48 established in section eight of article three or section eight of arti- 49 cle thirteen of the constitution, unless the budget in such political 50 subdivision is subject to direct voter approval pursuant to part two of 51 article five or article forty-one of the education law; 52 (vii) transferring authority for conducting the political subdivi- 53 sion's elections to the board of elections for the county in which the 54 political subdivision is located; 55 (viii) additional voting hours or days; 56 (ix) additional polling locations;S. 1046--E 6 1 (x) additional means of voting such as voting by mail; 2 (xi) ordering of special elections; 3 (xii) requiring expanded opportunities for voter registration; 4 (xiii) requiring additional voter education; 5 (xiv) modifying the election calendar; 6 (xv) the restoration or addition of persons to registration lists; or 7 (xvi) retaining jurisdiction for such period of time on a given matter 8 as the court may deem appropriate, during which no redistricting plan 9 shall be enforced unless and until the court finds that such plan does 10 not have the purpose of diluting the right to vote on the basis of 11 protected class membership, or in contravention of the voting guarantees 12 set forth in this title, except that the court's finding shall not bar a 13 subsequent action to enjoin enforcement of such redistricting plan. 14 (b) The court shall consider proposed remedies by any parties and 15 interested non-parties, but shall not provide deference or priority to a 16 proposed remedy offered by the political subdivision. The court shall 17 have the power to require a political subdivision to implement remedies 18 that are inconsistent with any other provision of law where such incon- 19 sistent provision of law would preclude the court from ordering an 20 otherwise appropriate remedy in such matter. 21 6. Procedures for implementing new or revised districting or redis- 22 tricting plans. The governing body of a political subdivision with the 23 authority under this title and all applicable state and local laws to 24 enact and implement a new method of election that would replace the 25 political subdivision's at-large method of election with a district- 26 based or alternative method of election, or enact and implement a new 27 districting or redistricting plan, shall undertake each of the steps 28 enumerated in this subdivision, if proposed subsequent to receipt of a 29 NYVRA notification letter, as defined in subdivision seven of this 30 section, or the filing of a claim pursuant to this title or the federal 31 voting rights act. 32 (a) Before drawing a draft districting or redistricting plan or plans 33 of the proposed boundaries of the districts, the political subdivision 34 shall hold at least two public hearings over a period of no more than 35 thirty days, at which the public is invited to provide input regarding 36 the composition of the districts. Before these hearings, the political 37 subdivision may conduct outreach to the public, including to non-Engl- 38 ish-speaking communities, to explain the districting or redistricting 39 process and to encourage public participation. 40 (b) After all draft districting or redistricting plans are drawn, the 41 political subdivision shall publish and make available for release at 42 least one draft districting or redistricting plan and, if members of the 43 governing body of the political subdivision would be elected in their 44 districts at different times to provide for staggered terms of office, 45 the potential sequence of such elections. The political subdivision 46 shall also hold at least two additional hearings over a period of no 47 more than forty-five days, at which the public shall be invited to 48 provide input regarding the content of the draft districting or redis- 49 tricting plan or plans and the proposed sequence of elections, if appli- 50 cable. The draft districting or redistricting plan or plans shall be 51 published at least seven days before consideration at a hearing. If the 52 draft districting or redistricting plan or plans are revised at or 53 following a hearing, the revised versions shall be published and made 54 available to the public for at least seven days before being adopted. 55 (c) In determining the final sequence of the district elections 56 conducted in a political subdivision in which members of the governingS. 1046--E 7 1 body will be elected at different times to provide for staggered terms 2 of office, the governing body shall give special consideration to the 3 purposes of this title, and it shall take into account the preferences 4 expressed by members of the districts. 5 7. Notification requirement and safe harbor for judicial actions. 6 Before commencing a judicial action against a political subdivision 7 under this section, a prospective plaintiff shall send by certified mail 8 a written notice to the clerk of the political subdivision, or, if the 9 political subdivision does not have a clerk, the governing body of the 10 political subdivision, against which the action would be brought, 11 asserting that the political subdivision may be in violation of this 12 title. This written notice shall be referred to as a "NYVRA notification 13 letter" in this title. For actions against a school district or any 14 other political subdivision that holds elections governed by the educa- 15 tion law, the prospective plaintiff shall also send by certified mail a 16 copy of the NYVRA notification letter to the commissioner of education. 17 (a) A prospective plaintiff shall not commence a judicial action 18 against a political subdivision under this section within fifty days of 19 sending to the political subdivision a NYVRA notification letter. 20 (b) Before receiving a NYVRA notification letter, or within fifty days 21 of mailing of a NYVRA notification letter, the governing body of a poli- 22 tical subdivision may pass a resolution affirming: (i) the political 23 subdivision's intention to enact and implement a remedy for a potential 24 violation of this title; (ii) specific steps the political subdivision 25 will undertake to facilitate approval and implementation of such a reme- 26 dy; and (iii) a schedule for enacting and implementing such a remedy. 27 Such a resolution shall be referred to as a "NYVRA resolution" in this 28 title. If a political subdivision passes a NYVRA resolution, such poli- 29 tical subdivision shall have ninety days after such passage to enact and 30 implement such remedy, during which a prospective plaintiff shall not 31 commence an action to enforce this section against the political subdi- 32 vision. For actions against a school district, the commissioner of 33 education may order the enactment of a NYVRA resolution pursuant to the 34 commissioner's authority under section three hundred five of the educa- 35 tion law. 36 (c) If the governing body of a political subdivision lacks the author- 37 ity under this title or applicable state law or local laws to enact or 38 implement a remedy identified in a NYVRA resolution, or fails to enact 39 or implement a remedy identified in a NYVRA resolution, within ninety 40 days after the passage of the NYVRA resolution, or if the political 41 subdivision is a covered entity as defined under section 17-210 of this 42 title, the governing body of the political subdivision shall undertake 43 the steps enumerated in the following provisions: 44 (i) The governing body of the political subdivision may approve a 45 proposed remedy that complies with this title and submit such a proposed 46 remedy to the civil rights bureau. Such a submission shall be referred 47 to as a "NYVRA proposal" in this title. 48 (ii) Prior to passing a NYVRA proposal, the political subdivision 49 shall hold at least one public hearing, at which the public shall be 50 invited to provide input regarding the NYVRA proposal. Before this 51 hearing, the political subdivision may conduct outreach to the public, 52 including to non-English-speaking communities, to encourage public 53 participation. 54 (iii) Within forty-five days of receipt of a NYVRA proposal, the civil 55 rights bureau shall grant or deny approval of the NYVRA proposal.S. 1046--E 8 1 (iv) The civil rights bureau shall only grant approval to the NYVRA 2 proposal if it concludes that: (A) the political subdivision may be in 3 violation of this title; (B) the NYVRA proposal would remedy any poten- 4 tial violation of this title; (C) the NYVRA proposal is unlikely to 5 violate the constitution or any federal law; (D) the NYVRA proposal 6 would not diminish the ability of protected class members to participate 7 in the political process and to elect their preferred candidates to 8 office; and (E) implementation of the NYVRA proposal is feasible. 9 (v) If the civil rights bureau grants approval, the NYVRA proposal 10 shall be enacted and implemented immediately, notwithstanding any other 11 provision of law, including any other state or local law. 12 (vi) If the political subdivision is a covered entity as defined under 13 section 17-210 of this title, the political subdivision shall not be 14 required to obtain preclearance for the NYVRA proposal pursuant to such 15 section upon approval of the NYVRA proposal by the civil rights bureau. 16 (vii) If the civil rights bureau denies approval, the NYVRA proposal 17 shall not be enacted or implemented. The civil rights bureau shall 18 explain the basis for such denial and may, in its discretion, make 19 recommendations for an alternative remedy for which it would grant 20 approval. 21 (viii) If the civil rights bureau does not respond, the NYVRA proposal 22 shall not be enacted or implemented. 23 (d) A political subdivision that has passed a NYVRA resolution may 24 enter into an agreement with the prospective plaintiff providing that 25 such prospective plaintiff shall not commence an action pursuant to this 26 section against the political subdivision for an additional ninety days. 27 Such agreement shall include a requirement that either the political 28 subdivision shall enact and implement a remedy that complies with this 29 title or the political subdivision shall pass a NYVRA proposal and 30 submit it to the civil rights bureau. 31 (e) If, pursuant to a process commenced by a NYVRA notification 32 letter, a political subdivision enacts or implements a remedy or the 33 civil rights bureau grants approval to a NYVRA proposal, a prospective 34 plaintiff who sent the NYVRA notification letter may, within thirty days 35 of the enactment or implementation of the remedy or approval of the 36 NYVRA proposal, demand reimbursement for the cost of the work product 37 generated to support the NYVRA notification letter. A prospective plain- 38 tiff shall make the demand in writing and shall substantiate the demand 39 with financial documentation, such as a detailed invoice for demography 40 services or for the analysis of voting patterns in the political subdi- 41 vision. A political subdivision may request additional documentation if 42 the provided documentation is insufficient to corroborate the claimed 43 costs. A political subdivision shall reimburse a prospective plaintiff 44 for reasonable costs claimed, or in an amount to which the parties mutu- 45 ally agree. The cumulative amount of reimbursements to all prospective 46 plaintiffs, except for actions brought by the attorney general, shall 47 not exceed forty-three thousand dollars, as adjusted annually to the 48 consumer price index for all urban consumers, United States city aver- 49 age, as published by the United States department of labor. To the 50 extent a prospective plaintiff who sent the NYVRA notification letter 51 and a political subdivision are unable to come to a mutual agreement, 52 either party may file a declaratory judgment action to obtain a clarifi- 53 cation of rights. 54 (f) Notwithstanding the provisions of this subdivision, in the event 55 that the first day for designating petitions for a political subdivi- 56 sion's next regular election to select members of its governing boardS. 1046--E 9 1 has begun or is scheduled to begin within thirty days, or in the event 2 that a political subdivision is scheduled to conduct any election within 3 one hundred twenty days, a plaintiff alleging any violation of this 4 title may commence a judicial action against a political subdivision 5 under this section, provided that the relief sought by such a plaintiff 6 includes preliminary relief for that election. Prior to or concurrent 7 with commencing such a judicial action, any such plaintiff shall also 8 submit a NYVRA notification letter to the political subdivision. In the 9 event that a judicial action commenced under this provision is withdrawn 10 or dismissed for mootness because the political subdivision has enacted 11 or implemented a remedy or the civil rights bureau has granted approval 12 of a NYVRA proposal pursuant to a process commenced by a NYVRA notifica- 13 tion letter, any such plaintiff may only demand reimbursement pursuant 14 to this subdivision. 15 8. Coalition claims permitted. Members of different protected classes 16 may file an action jointly pursuant to this title in the event that they 17 demonstrate that the combined voting preferences of the multiple 18 protected classes are polarized against the rest of the electorate. 19 § 17-208. Assistance for language-minority groups. 1. Political subdi- 20 visions required to provide language assistance. A board of elections or 21 a political subdivision that administers elections shall provide 22 language-related assistance in voting and elections to a language-minor- 23 ity group in a political subdivision if, based on data from the American 24 community survey, or data of comparable quality collected by a public 25 office, that: 26 (a) more than two percent, but in no instance fewer than three hundred 27 individuals, of the citizens of voting age of a political subdivision 28 are members of a single language-minority group and are limited English 29 proficient. 30 (b) more than four thousand of the citizens of voting age of such 31 political subdivision are members of a single language-minority group 32 and are limited English proficient. 33 (c) in the case of a political subdivision that contains all or any 34 part of a Native American reservation, more than two percent of the 35 Native American citizens of voting age within the Native American reser- 36 vation are members of a single language-minority group and are limited 37 English proficient. For the purposes of this paragraph, "Native Ameri- 38 can" is defined to include any persons recognized by the United States 39 census bureau or New York as "American Indian" or "Alaska Native". 40 2. Language assistance to be provided. A board of elections or poli- 41 tical subdivision required to provide language assistance to a partic- 42 ular language-minority group pursuant to this section shall provide 43 voting materials in the covered language of an equal quality of the 44 corresponding English language materials, including registration or 45 voting notices, forms, instructions, assistance, or other materials or 46 information relating to the electoral process, including ballots. Any 47 registration or voting notices, forms, instructions, assistance, or 48 other materials or information relating to the electoral process, 49 including ballots, in a covered political subdivision, shall be provided 50 in the language of the applicable language-minority group as well as in 51 the English language, provided that where the language of the applicable 52 language-minority group is historically oral or unwritten, the board of 53 elections or political subdivision shall only be required to furnish 54 oral instructions, assistance, or other information relating to regis- 55 tration and voting.S. 1046--E 10 1 3. Action for declaratory judgment for English-only voting materials. 2 A board of elections or political subdivision subject to the require- 3 ments of this section which seeks to provide English-only materials may 4 file an action against the state for a declaratory judgment permitting 5 such provision. The court shall grant the requested relief if it finds 6 that the determination was unreasonable or an abuse of discretion. 7 4. Standing. Any aggrieved persons, organization whose membership 8 includes aggrieved persons or members of a protected class, organization 9 whose mission, in whole or in part, is to ensure voting access and such 10 mission would be hindered by a violation of this section, or the attor- 11 ney general may file an action pursuant to this section in the supreme 12 court of the county in which the alleged violation of this section 13 occurred. 14 5. This section shall not apply to special districts as defined by 15 section one hundred two of the real property tax law. 16 § 17-210. Preclearance. 1. Preclearance. To ensure that the right to 17 vote is not denied or abridged on account of race, color, or language- 18 minority group, the enactment or implementation of a covered policy by a 19 covered entity, as defined in subdivisions two and three of this section 20 respectively, shall be subject to preclearance by the civil rights 21 bureau or by a designated court as set forth in this section. 22 2. Covered policies. A "covered policy" shall include any new or modi- 23 fied voting qualification, prerequisite to voting, law, ordinance, stan- 24 dard, practice, procedure, regulation, or policy concerning any of the 25 following topics: 26 (a) Method of election; 27 (b) Form of government; 28 (c) Annexation of a political subdivision; 29 (d) Incorporation of a political subdivision; 30 (e) Consolidation or division of political subdivisions; 31 (f) Removal of voters from enrollment lists or other list maintenance 32 activities; 33 (g) Number, location, or hours of any election day or early voting 34 poll site; 35 (h) Dates of elections and the election calendar, except with respect 36 to special elections; 37 (i) Registration of voters; 38 (j) Assignment of election districts to election day or early voting 39 poll sites; 40 (k) Assistance offered to members of a language-minority group; and 41 (l) Any additional topics designated by the civil rights bureau pursu- 42 ant to a rule promulgated under the state administrative procedure act, 43 upon a determination by the civil rights bureau that a new or modified 44 voting qualification, prerequisite to voting, law, ordinance, standard, 45 practice, procedure, regulation, or policy concerning such topics may 46 have the effect of denying or abridging the right to vote on account of 47 race, color, or language-minority group. 48 3. Covered entity. A "covered entity" shall include: (a) any political 49 subdivision which, within the previous twenty-five years, has become 50 subject to a court order or government enforcement action based upon a 51 finding of any violation of this title, the federal voting rights act, 52 the fifteenth amendment to the United States constitution, or a voting- 53 related violation of the fourteenth amendment to the United States 54 constitution; (b) any political subdivision which, within the previous 55 twenty-five years, has become subject to at least three court orders or 56 government enforcement actions based upon a finding of any violation ofS. 1046--E 11 1 any state or federal civil rights law or the fourteenth amendment to the 2 United States constitution concerning discrimination against members of 3 a protected class; (c) any county in which, based on data provided by 4 the division of criminal justice services, the combined misdemeanor and 5 felony arrest rate of members of any protected class consisting of at 6 least ten thousand citizens of voting age or whose members comprise at 7 least ten percent of the citizen voting age population of the county, 8 exceeds the proportion that the protected class constitutes of the citi- 9 zen voting age population of the county as a whole by at least twenty 10 percent at any point within the previous ten years; or (d) any political 11 subdivision in which, based on data made available by the United States 12 census, the dissimilarity index of any protected class consisting of at 13 least twenty-five thousand citizens of voting age or whose members 14 comprise at least ten percent of the citizen voting age population of 15 the political subdivision, is in excess of fifty with respect to non- 16 Hispanic white citizens of voting age within the political subdivision 17 at any point within the previous ten years. If any covered entity is a 18 political subdivision in which a board of elections has been estab- 19 lished, that board of elections shall also be deemed a covered entity. 20 If any political subdivision in which a board of elections has been 21 established contains a covered entity fully within its borders, that 22 political subdivision and that board of elections shall both be deemed a 23 covered entity. 24 4. Preclearance by the attorney general. A covered entity may obtain 25 preclearance for a covered policy from the civil rights bureau pursuant 26 to the following process: 27 (a) The covered entity shall submit the covered policy in writing to 28 the civil rights bureau. If the covered entity is a county or city board 29 of elections, it shall contemporaneously provide a copy of the covered 30 policy to the state board of elections. 31 (b) Upon submission of a covered policy for preclearance, as soon as 32 practicable but no later than within ten days, the civil rights bureau 33 shall publish the submission on its website. 34 (c) After publication of a submission, there shall be an opportunity 35 for members of the public to comment on the submission to the civil 36 rights bureau within the time periods set forth below. To facilitate 37 public comment, the civil rights bureau shall provide an opportunity for 38 members of the public to sign up to receive notifications or alerts 39 regarding submission of a covered policy for preclearance. 40 (d) Upon submission of a covered policy for preclearance, the civil 41 rights bureau shall review the covered policy, and any public comment, 42 and shall, within the time periods set forth below, provide a report and 43 determination as to whether, under this title, preclearance should be 44 granted or denied to the covered policy. Such time period shall run 45 concurrent with the time periods for public comment. The civil rights 46 bureau shall not make such determination until the period for public 47 comment is closed. The civil rights bureau may request additional infor- 48 mation from a covered entity at any time during its review to aid in 49 developing its report and recommendation. The failure to timely comply 50 with reasonable requests for more information may be grounds for the 51 denial of preclearance. The civil rights bureau's reports and determi- 52 nation shall be posted publicly on its website. 53 (e) In any determination as to preclearance, the civil rights bureau 54 shall identify in writing whether it is approving or rejecting the 55 covered policy; provided, however, that the civil rights bureau may, in 56 its discretion, designate preclearance as "preliminary" in which caseS. 1046--E 12 1 the civil rights bureau may deny preclearance within sixty days follow- 2 ing the receipt of submission of the covered policy. 3 (i) The civil rights bureau shall grant preclearance only if it deter- 4 mines that the covered policy will not diminish the ability of protected 5 class members to participate in the political process and to elect their 6 preferred candidates to office. If the civil rights bureau grants 7 preclearance, the covered entity may enact or implement the covered 8 policy immediately. 9 (ii) If the civil rights bureau denies preclearance, the civil rights 10 bureau shall interpose objections explaining its basis and the covered 11 policy shall not be enacted or implemented. 12 (iii) If the civil rights bureau fails to respond within the required 13 time frame as established in this section, the covered policy shall be 14 deemed precleared and the covered entity may enact or implement such 15 covered policy. 16 (f) The time periods for public comment, civil rights bureau review, 17 and the determination of the civil rights bureau to grant or deny 18 preclearance on submission shall be as follows: 19 (i) For any covered policy concerning the designation or selection of 20 poll sites or the assignment of election districts to poll sites, wheth- 21 er for election day or early voting, the period for public comment shall 22 be five business days. The civil rights bureau shall review the covered 23 policy, including any public comment, and make a determination to deny 24 or grant preclearance for such covered policy within fifteen days 25 following the receipt of such covered policy. 26 (ii) Upon a showing of good cause, the civil rights bureau may receive 27 an extension of up to twenty days to make a determination pursuant to 28 this paragraph. 29 (iii) For any other covered policy, the period for public comment 30 shall be ten business days. The civil rights bureau shall review the 31 covered policy, including any public comment, within fifty-five days 32 following the receipt of such covered policy and make a determination to 33 deny or grant preclearance for such covered policy. The civil rights 34 bureau may invoke up to two extensions of ninety days each. 35 (iv) The civil rights bureau is hereby authorized to promulgate rules 36 for an expedited, emergency preclearance process in the event of a 37 covered policy occurring during or imminently preceding an election as a 38 result of any disaster within the meaning of section 3-108 of this chap- 39 ter or other exigent circumstances. Any preclearance granted under this 40 provision shall be designated "preliminary" and the civil rights bureau 41 may deny preclearance within sixty days following receipt of the covered 42 policy. 43 (g) Appeal of any denial by the civil rights bureau may be heard in 44 the supreme court for the county of New York or the county of Albany in 45 a proceeding commenced against the civil rights bureau, pursuant to 46 article seventy-eight of the civil practice law and rules, from which 47 appeal may be taken according to the ordinary rules of appellate proce- 48 dure. Due to the frequency and urgency of elections, actions brought 49 pursuant to this section shall be subject to expedited pretrial and 50 trial proceedings and receive an automatic calendar preference on 51 appeal. 52 5. Preclearance by a designated court. A covered entity may obtain 53 preclearance for a covered policy from a court pursuant to the following 54 process: 55 (a) The covered entity shall submit the covered policy in writing to 56 the following designated court in the judicial department within whichS. 1046--E 13 1 the covered entity is located: (i) first judicial department: New York 2 county; (ii) second judicial department: Westchester county; (iii) 3 third judicial department: Albany county; and (iv) fourth judicial 4 department: Erie county. If the covered entity is a county or city 5 board of elections, it shall contemporaneously provide a copy of the 6 covered policy to the state board of elections. 7 (b) The covered entity shall contemporaneously provide a copy of the 8 covered policy to the civil rights bureau. The failure of the covered 9 entity to provide a copy of the covered policy to the civil rights 10 bureau will result in an automatic denial of preclearance. 11 (c) The court shall grant or deny preclearance within sixty days 12 following the receipt of submission of the covered policy. 13 (d) The court shall grant preclearance only if it determines that the 14 covered policy will not diminish the ability of protected class members 15 to participate in the political process and to elect their preferred 16 candidates to office. If the court grants preclearance, the covered 17 entity may enact or implement the covered policy immediately. 18 (e) If the court denies preclearance, or fails to respond within sixty 19 days, the covered policy shall not be enacted or implemented. 20 (f) Appeal of any denial may be taken according to the ordinary rules 21 of appellate procedure. Due to the frequency and urgency of elections, 22 actions brought pursuant to this section shall be subject to expedited 23 pretrial and trial proceedings and receive an automatic calendar prefer- 24 ence on appeal. 25 6. Failure to seek or obtain preclearance. If any covered entity 26 enacts or implements a covered policy without seeking preclearance 27 pursuant to this section, or enacts or implements a covered policy 28 notwithstanding the denial of preclearance, either the civil rights 29 bureau or any other party with standing to bring an action under this 30 title may bring an action to enjoin the covered policy and to seek sanc- 31 tions against the political subdivision and officials in violation. 32 7. Rules and regulations. The civil rights bureau may promulgate such 33 rules and regulations as are necessary to effectuate the purposes of 34 this section. 35 § 17-212. Prohibition against voter intimidation, deception or 36 obstruction. 1. (a) No person, whether acting under color of law or 37 otherwise, may engage in acts of intimidation, deception, or obstruction 38 that affects the right of voters to access the elective franchise. 39 (b) A violation of paragraph (a) this subdivision shall be established 40 if: 41 (i) a person uses or threatens to use any force, violence, restraint, 42 abduction or duress, or inflicts or threatens to inflict any injury, 43 damage, harm or loss, or in any other manner practices intimidation that 44 causes or will reasonably have the effect of causing any person to vote 45 or refrain from voting in general or for or against any particular 46 person or for or against any proposition submitted to voters at such 47 election; to place or refrain from placing their name upon a registry of 48 voters; or to request or refrain from requesting an absentee ballot; or 49 (ii) a person knowingly uses any deceptive or fraudulent device, 50 contrivance or communication, that impedes, prevents or otherwise inter- 51 feres with the free exercise of the elective franchise by any person, or 52 that causes or will reasonably have the effect of causing any person to 53 vote or refrain from voting in general or for or against any particular 54 person or for or against any proposition submitted to voters at such 55 election; to place or refrain from placing their name upon a registry of 56 voters; or to request or refrain from requesting an absentee ballot; orS. 1046--E 14 1 (iii) a person obstructs, impedes, or otherwise interferes with access 2 to any polling place or elections office, or obstructs, impedes, or 3 otherwise interferes with any voter in any manner that causes or will 4 reasonably have the effect of causing any delay in voting or the voting 5 process, including the canvassing and tabulation of ballots. 6 2. Standing. Any aggrieved persons, organization whose membership 7 includes aggrieved persons or members of a protected class, organization 8 whose mission, in whole or in part, is to ensure voting access and such 9 mission would be hindered by a violation of this section, or the attor- 10 ney general may file an action pursuant to this section in the supreme 11 court of the county in which the alleged violation of this section 12 occurred. 13 3. Remedies. Upon a finding of a violation of any provision of this 14 section, the court shall implement appropriate remedies that are 15 tailored to remedy the violation, including but not limited to providing 16 for additional time to cast a ballot that may be counted in the election 17 at issue. Any party who shall violate any of the provisions of the 18 foregoing section or who shall aid the violation of any of said 19 provisions shall be liable to any prevailing plaintiff party for 20 damages, including nominal damages for any violation, and compensatory 21 or punitive damages for any intentional violation. 22 § 17-214. Authority to issue subpoenas. In any action or investigation 23 to enforce any provision of this title, the attorney general shall have 24 the authority to take proof and determine relevant facts and to issue 25 subpoenas in accordance with the civil practice law and rules. 26 § 17-216. Expedited judicial proceedings and preliminary relief. 27 Because of the frequency of elections, the severe consequences and irre- 28 parable harm of holding elections under unlawful conditions, and the 29 expenditure to defend potentially unlawful conditions that benefit 30 incumbent officials, actions brought pursuant to this title shall be 31 subject to expedited pretrial and trial proceedings and receive an auto- 32 matic calendar preference. In any action alleging a violation of this 33 section in which a plaintiff party seeks preliminary relief with respect 34 to an upcoming election, the court shall grant relief if it determines 35 that: (a) plaintiffs are more likely than not to succeed on the merits; 36 and (b) it is possible to implement an appropriate remedy that would 37 resolve the alleged violation in the upcoming election. 38 § 17-218. Attorneys' fees. In any action to enforce any provision of 39 this title, the court shall allow the prevailing plaintiff party, other 40 than the state or political subdivision thereof, a reasonable attorneys' 41 fee, litigation expenses including, but not limited to, expert witness 42 fees and expenses as part of the costs. A plaintiff will be deemed to 43 have prevailed when, as a result of litigation, the defendant party 44 yields much or all of the relief sought in the suit. Prevailing defend- 45 ant parties shall not recover any costs, unless the court finds the 46 action to be frivolous, unreasonable, or without foundation. 47 § 17-220. Applicability. The provisions of this title shall apply to 48 all elections for any elected office or electoral choice within the 49 state or any political subdivision. The provisions of this title shall 50 apply notwithstanding any other provision of law, including any other 51 state law or local law; provided, however, that school districts and 52 libraries shall continue to conduct their elections under the education 53 law, subject to and not inconsistent with the provisions of this title, 54 to ensure voters of race, color, and language-minority groups have equi- 55 table access to fully participate in the electoral process.S. 1046--E 15 1 § 17-222. Severability. If any provision of this title or its applica- 2 tion to any person, political subdivision, or circumstance is held 3 invalid, the invalidity shall not affect other provisions or applica- 4 tions of this title which can be given effect without the invalid 5 provision or application, and to this end the provisions of this title 6 are severable. 7 § 5. This act shall take effect immediately; provided, however, that 8 paragraph (c) of subdivision seven of section 17-206 of the election law 9 as added by section four of this act shall take effect one year after it 10 shall have become a law; and provided further, however, that section 11 17-208 of the election law as added by section four of this act shall 12 take effect three years after it shall have become a law; and provided 13 further, however, that section 17-210 of the election law, as added by 14 section four of this act, shall take effect one year after the attorney 15 general certifies that the office of the attorney general is prepared to 16 execute the duties assigned in section four of this act, if after the 17 expiration of one year the attorney general requires more time to certi- 18 fy that the office of the attorney general is prepared to execute the 19 duties assigned in section four of this act, the attorney general, may, 20 for good cause shown, apply to the governor for such an extension of 21 time. The governor may grant or deny an extension of up to one year 22 according to his or her discretion. The attorney general shall notify 23 the legislative bill drafting commission upon the occurrence of the 24 enactment of the legislation provided for in section four of this act in 25 order that the commission may maintain an accurate and timely effective 26 data base of the official text of the laws of the state of New York in 27 furtherance of effectuating the provisions of section 44 of the legisla- 28 tive law and section 70-b of the public officers law.