By Lasalle, P.J.; Chambers, Taylor, Golia, JJ.
ORAL CLARKE, ET AL., res, v. TOWN OF NEWBURGH, ET AL., app — (Index No. 2460/24) APPEAL by the defendants, in an action pursuant to Election Law §17-206, from an order of the Supreme Court (Maria S. Vazquez-Doles, J.), dated May 17, 2024, and entered in Orange County. The order denied the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint. Troutman Pepper Hamilton Sanders LLP, New York, NY (Misha Tseytlin and Bennet J. Moskowitz of counsel), for appellants. Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino, Lisa Colosi Florio, David Imamura, and Steven Still of counsel), for respondents. Letitia James, Attorney General, New York, NY (Barbara D. Underwood, Ester Murdukhayeva, Sandra Park, Lindsay McKenzie, Derek Borchardt, Edward Fenster, Vivian Costandy Michael, and Bethany Perskie of counsel), amicus curiae pro se. CHAMBERS, J. In a case of first impression, the central issue stated broadly is whether the contents of a resolution passed by a political subdivision pursuant to the New York Voting Rights Act (see Election Law §17-206[7][b]), in which the political subdivision purported to affirm its intent to enact and implement a remedy to a potential voting rights violation, were sufficient to trigger the 90-day safe harbor provision of that statute. For the reasons set forth below, we affirm the Supreme Court’s determination that the resolution failed to satisfy the statutory criteria to trigger the 90-day safe harbor provision, and, accordingly, the court properly denied the defendants’ motion to dismiss the complaint. I. Overview of the New York Voting Rights Act The John R. Lewis Voting Rights Act of New York (hereinafter the NYVRA) was enacted in 2022 and went into effect on July 1, 2023 (see L 2022, ch 226). The NYVRA declares that it is the public policy of New York to “[e]ncourage participation in the elective franchise by all eligible voters to the maximum extent” and “[e]nsure that eligible voters who are members of racial, color, and language-minority groups shall have an equal opportunity to participate in the political processes of the state of New York, and especially to exercise the elective franchise” (Election Law §17-200[1], [2]). It provides that “all statutes, rules and regulations, and local laws or ordinances related to the elective franchise shall be construed liberally in favor of (a) protecting the right of voters to have their ballot cast and counted; (b) ensuring that eligible voters are not impaired in registering to vote, and (c) ensuring voters of race, color, and language-minority groups have equitable access to fully participate in the electoral process in registering to vote and voting” (id. §17-202). The NYVRA prohibits any “political subdivision” in New York, which includes towns in New York, from “us[ing] 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” (id. §17-206[2][a]). The statute provides that a violation of this provision of the NYVRA may be established, inter alia, by a showing that a political subdivision uses “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” (id. §17-206[2][b][i][A]-[B]). An aggrieved person may file an action in the Supreme Court against a political subdivision alleging a violation of this provision of the NYVRA (see id. §17-206[4]). Upon finding a violation, the court shall implement appropriate remedies, which may include, but are not limited to, the specific remedies listed in the NYVRA (see id. §17-206[5]). The proposed remedies listed in the NYVRA include implementing a “district-based method of election” (id. §17-206[5][a][i]), implementing an “alternative method of election” (id. §17-206[5][a][ii]), such as “ranked-choice voting, cumulative voting, [or] limited voting” (id. §17-204[3]), eliminating “staggered elections so that all members of a governing body are elected on the same date” (id. §17-206[5][a][iv]), or “reasonably increasing the size of the governing body” (id. §17-206[5][a][v]). Before commencing a judicial action against a political subdivision pursuant to the NYVRA, a prospective plaintiff must send the political subdivision a letter “asserting that the political subdivision may be in violation of this title” (id. §17-206[7]). Such a letter is referred to in the statute as a “NYVRA notification letter” (id.) The NYVRA notification letter must “specify the potential violation or violations alleged and shall contain a statement of facts to support such allegation” (id.). A prospective plaintiff must not commence a judicial action against the political subdivision within 50 days of sending the NYVRA notification letter (see id. §17-206[7][a]). Before receiving such a letter, or within the 50-day period after the mailing of such a letter, the political subdivision may pass a resolution affirming the following: “(i) the political subdivision’s intention to enact and implement a remedy for a potential violation of [the NYVRA]; (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” (id. §17-206[7][b]). If the political subdivision passes such a resolution, referred to in the statute as a “NYVRA resolution,” then the political subdivision shall have a safe harbor period of 90 days after passage “to enact and implement such remedy,” during which a prospective plaintiff may not commence an enforcement action against the political subdivision (id.). When the governing body of the political subdivision either “lacks the authority” or “fails to enact or implement a remedy identified in a NYVRA resolution” within 90 days after passage of the NYVRA resolution, it must follow specific procedures to submit a “NYVRA proposal” to the Civil Rights Bureau of the Office of the New York State Attorney General for its approval (id. §17-206[7][c][i]). A political subdivision that has passed a NYVRA resolution may enter into an agreement with a prospective plaintiff to extend the safe harbor period for an additional 90 days (see id. §17-206[7][d]). Such an agreement must include a requirement that the political subdivision shall either enact and implement a remedy or submit a NYVRA proposal to the Civil Rights Bureau of the Office of the New York State Attorney General (see id.). Against the backdrop of this statutory scheme, we turn to the case before us. II. Facts Relevant to the Instant Appeal
