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THE DEFENDANT TOWN DID NOT MEET THE REQUIREMENTS OF THE NEW YORK VOTING RIGHTS ACT (NYVRA) AND WAS THEREFORE INELIGIBLE FOR THE 90-DAY “SAFE HARBOR” EXTENSION TO ADDRESS THE VIOLATION OF THE NYVRA ALLEGED BY PLAINTIFF-CITIZENS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, determined that the defendant Town of Newburgh’s motion to dismiss the complaint alleging a violation of the New York Voting Rights Act (NYVRA) was properly denied. The so-called “safe harbor” provision of the NYVRA extends the time allowed for a town to address an alleged violation for 90 days. Here the Second Department held that the actions taken by the town were not sufficient to trigger the 90-day extension:

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. * * *

On January 26, 2024, a law firm representing the plaintiffs sent the Town a NYVRA notification letter, alleging that the Town’s use of an at-large method for electing the members of the Town Board violated the NYVRA by diluting the votes of Hispanic and African-American voters. * * *

… [T]he defendants’ interpretation of the NYVRA seems to prioritize prolonging the process, potentially to strategize their position, over the underlying intent and purpose of the statute. They interpret the NYVRA as requiring a political subdivision to do nothing more than pass a resolution reciting some of the language from the statute after spending 50 days deciding whether it is worthwhile to do so. Then, after passage of a contentless resolution that commits a political subdivision to do nothing unless it unilaterally decides that a NYVRA violation “may” exist, a political subdivision enjoys a 90-day immunity from suit, regardless of whether it does anything further and even when it has conclusively decided to take no further action. These positions are irreconcilable with both the text and the purpose of the NYVRA. For all of the foregoing reasons, the Supreme Court properly determined that the defendants failed to satisfy the safe harbor provision of Election Law § 17-206(7) … . Clarke v Town of Newburgh, 2025 NY Slip Op 00517, Second Dept 1-30-25

Practice Point: Consult this decision for a discussion of the criteria for a 90-day “safe harbor” extension to allow a town to address a complaint by citizens alleging violation of the New York Voting Rights Act.

 

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THERE IS A QUESTION OF FACT WHETHER THE “INSANITY” TOLL OF THE STATUTE... HERE THE DEFENDANT TOWN DID NOT DEMONSTRATE AS A MATTER OF LAW THAT COMPLIANCE...