In the face of declining enforcement of the federal Voting Rights Act, New York has adopted its own voting protections designed to provide voters with additional protections beyond those offered at the federal level. The Second Department recently decided two important issues under the New York Voting Rights Act, rejecting a facial challenge to the NYVRA’s vote dilution protections and clarifying what a political subdivision must do to take advantage of the NYVRA’s 90-day safe harbor to adopt or propose election system changes. Let’s take a look at those opinions and what else has been happening in New York’s appellate courts over the past week.
Appellate Division, Second Department
Clarke v Town of Newburgh, 2025 NY Slip Op 00518 (2d Dept Jan. 30, 2025)
Election Law, New York Voting Rights Act
Issue: Do the vote dilution provisions of the John R. Lewis Voting Rights Act of New York (L 2022, ch 226), intended to ensure that a numerical minority’s voice is not removed from local government, facially violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?
Facts: Although the United States Supreme Court has rendered sections 4 and 5 of the federal Voting Rights Act unenforceable until Congress acts to update those sections, section 2’s protections against vote dilution remain in effect. In particular, section 2 of the federal Voting Rights Act provides that a vote dilution violation occurs “if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [racial] class of citizens . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population” (52 USC § 10301[b]).
“In interpreting section 2, the United States Supreme Court developed the Gingles test for deciding section 2 claims. The Gingles test focuses on vote dilution accomplished through cracking or packing, i.e., the dispersal of a protected class of voters into districts in which they constitute an ineffective minority of voters or from the concentration of those voters into districts where they constitute an excessive majority. To succeed in proving a § 2 violation under Gingles, plaintiffs must satisfy three preconditions. First, the minority group must be sufficiently large and geographically compact to constitute a majority in a reasonably configured district. A district will be reasonably configured . . . if it comports with traditional districting criteria, such as being contiguous and reasonably compact. Second, the minority group must be able to show that it is politically cohesive. And third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred candidate. Finally, a plaintiff who demonstrates the three preconditions must also show, under the totality of the circumstances, that the political process is not equally open to minority voters.”
Following the Supreme Court’s recent Voting Rights Act precedent, New York adopted its own voting rights protections to exceed those provided at the federal level. “In 2022, the Legislature enacted the NYVRA in order to ‘encourage participation in the elective franchise by all eligible voters to the maximum extent’ (Election Law § 17-200[1]) and to ‘ensure 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’ (id. § 17-200[2]).” The NYVRA, like similar laws in California and Washington, also contains vote dilution protections that prohibit political subdivisions from using at-large election methods or district-based election methods that impair the ability of protected classes—“members of a race, color, or language-minority group”—to elect the candidates of their choice. “[T]he major differences between the vote dilution provisions of the FVRA and the NYVRA are that the NYVRA, like the California and Washington statutes, permits ‘influence’ claims, and does not require the first Gingles precondition, i.e., that the minority group must be sufficiently large and geographically compact to constitute a majority in a reasonably configured district. The NYVRA, like the California and Washington statutes, also allows for non-district based remedies, such as ranked-choice voting, cumulative voting, limited voting, and the elimination of staggered terms.”
“In March 2024, the plaintiffs commenced this action against the Town [of Newburgh] and the Town Board alleging vote dilution in violation of Election Law § 17-206 and seeking a judgment ordering the implementation of a new method of election for the Town Board that includes either a districting plan or an alternative method of election. The complaint alleges that Black and Hispanic communities comprise approximately 25 percent and 15 percent, respectively, of the Town’s population, yet every person ever elected to the Town Board has been white. The defendants moved for summary judgment dismissing the complaint, arguing that the NYVRA’s vote dilution provisions violate the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and the New York Constitution or, in the alternative, that the Town’s at-large voting system complied with the NYVRA.” Supreme Court granted the motion, holding that “the NYVRA was facially unconstitutional in violation of the Equal Protection Clause,” and struck the law in its entirety, enjoining its enforcement everywhere in the state.
Holding: The Second Department, in a thorough opinion, reversed the Supreme Court judgment, holding that the Town had not shown that the vote dilution protections of the NYVRA are facially unconstitutional. The Court explained, “statute should be construed as allowing members of all racial groups, including white voters, to bring vote dilution claims, including when white voters constitute a minority in a political subdivision, as is the case in certain jurisdictions in New York” and, thus, “strict scrutiny does not apply to all applications of the vote dilution provisions of the NYVRA.” The Court reasoned that the statute is facially race neutral because “race-based districting is only one of the possible remedies under the NYVRA; the NYVRA also contemplates remedies that do not sort voters based on race, such as ranked-choice voting, cumulative voting, limited voting, and the elimination of staggered terms. Even if a district-based system is used as a remedy, strict scrutiny would only apply if race is the predominant factor in drawing district lines.” Because the NYVRA does not facially require political subdivisions to choose remedies that would violate the Equal Protection Clause, it could not be held unconstitutional in every application and, thus, survived the Town’s facial constitutional challenge. That’s not to say, the Court noted, that an as-applied challenge based upon a specific race-based remedy would necessarily survive strict scrutiny, once such a situation was actually presented.
The Court further held that “the NYVRA need not contain the first Gingles precondition, that the minority group be sufficiently large and geographically compact to constitute a majority in a reasonably configured district, to survive a facial challenge to its constitutionality under the Equal Protection Clause. The United States Supreme Court has never said that the Gingles test was required by the constitution, as opposed to resulting from a statutory interpretation of section 2 of the FVRA . . . The reason that the United States Supreme Court included the first Gingles precondition was because of its conclusion that if the minority group were unable to demonstrate that it was sufficiently large and geographically compact to constitute a majority in a single-member district, ‘the multi-member form of the district could not be responsible for minority voters’ inability to elect its candidates.’ Gingles was not contemplating influence districts or remedies such as ranked-choice voting, cumulative voting, limited voting, or the elimination of staggered terms . . . Since the NYVRA specifically allows for remedies that might allow for minorities to elect their candidates of choice or influence the outcome of elections without their constituting a majority in a single-member district, it was rational for the New York Legislature to not include the first Gingles precondition as a precondition to liability under the NYVRA.”
Clarke v Town of Newburgh, 2025 NY Slip Op 00517 (2d Dept Jan. 30, 2025)
Election Law, New York Voting Rights Act
Issue: Are the contents of a resolution passed by a political subdivision pursuant to the New York Voting Rights Act, in which the political subdivision purported to affirm its intent to enact and implement a remedy to a potential voting rights violation, sufficient to trigger the 90-day safe harbor provision of that statute?
Facts: As a follow up to the constitutional challenge above, “[t]he NYVRA prohibits any ‘political subdivision’ in New York, which includes towns in New York, from ‘using 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]).”
Before an aggrieved party may bring a NYVRA suit, they must send the political subdivision a NYVRA notification letter that specifies “the potential violation or violations alleged and shall contain a statement of facts to support such allegation.” Once a NYVRA notification letter is sent, the aggrieved party must not commence a NYVRA action until 50 days elapse. In the meantime, “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]).”
Here, “[o]n January 26, 2024, . . . 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. The letter asserted . . . that the Town had never ‘elected an African American or Hispanic candidate to Town office, despite the fact that African Americans and Hispanics represent 14.6% and 23.6% of the Town’s population respectively.’” In response, on March 15, 2024, the Town Board passed a NYVRA resolution directing its lawyers to determine if the Town’s electoral system violates the NYVRA and, if it was determined that a violation did exist, the Town Board affirmed its intention to implement a remedy. The Town Board resolution also stated that it would be taking advantage of the 90-day NYVRA safe harbor to make these determinations. Shortly after the March 2024 Town Board resolution, the plaintiffs filed this action alleging vote dilution and that the Town Board resolution was insufficient to trigger the 90-day NYVRA safe harbor. The Town moved to dismiss, arguing that the March 2024 NYVRA resolution was sufficient, and Supreme Court denied the motion.
Holding: The Second Department affirmed. The Court explained, the NYVRA contains three requirements for a political subdivision’s resolution to be sufficient to trigger the 90-day safe harbor: “first, that the resolution affirm the political subdivision’s intention to enact and implement a remedy for a potential violation of the NYVRA; second, that it set forth specific steps the political subdivision will undertake to facilitate approval and implementation of such a remedy; and third, that it set forth a schedule for enacting and implementing such a remedy.”
“[T]he Town’s resolution failed to satisfy the first of the three criteria for a NYVRA resolution, which required the Town to ‘affirm’ its intention to enact and implement a remedy for a potential violation of the NYVRA. The plain language of the statute requires an expression of an unconditional intention to enact and implement a remedy, not a conditional one. Certainly, had the Legislature wanted to explicitly carve out room for political subdivisions to make their intention conditional, it could have done so.” Here, however, “the Town affirmed only a conditional intent to enact and implement a remedy, ‘if, after considering the findings and evaluation and any other information that may become available to the Town . . . the Town Board concludes that there may be a violation of the NYVRA.’ The conditional nature of the March 2024 resolution failed to trigger the 90-day safe harbor period.” The Town’s March 2024 resolution also “failed to satisfy the second and third criteria for a valid NYVRA resolution, as it failed to identify any specific remedy that the Town Board intended to implement and therefore failed to set forth either ‘specific steps’ or a ‘schedule’ for implementing any such remedy. While the March 2024 resolution purports to set forth a schedule for implementation of a remedy, the schedule is both conditional and contentless. The schedule is conditional because the March 2024 resolution provides that most of the steps need not be followed at all if the Town Board, in its own judgment, determines that no NYVRA violation has occurred. The schedule is contentless because the Town Board has provided deadlines without any specificity as to what is to be accomplished by those deadlines.”
Appellate Division, Third Department
People v Contompasis, 2025 NY Slip Op 00500 (3d Dept Jan. 30, 2025)
Criminal Law
Issue: Did the People sufficiently disprove the justification defense asserted by a counterprotestor at the January 6, 2021 protests outside the State Capitol in Albany?
Facts: “On January 6, 2021, a group protesting the results of the 2020 Presidential Election gathered outside the State Capitol in the City of Albany. A group of counter-protestors gathered nearby, with defendant among them. Tension between the groups escalated to an all-out brawl in the early afternoon and, in the aftermath, law enforcement discovered that two protestors had suffered stab wounds. The two victims provided descriptions of the assailant and, with the aid of surveillance cameras in the vicinity of the Capitol, law enforcement pursued and stopped defendant’s vehicle as he left the scene. Defendant was arrested, and he was arraigned on a felony complaint the following day. He was later charged in a multicount indictment with one count of assault in the first degree and one count of attempted assault in the first degree as to the first victim, with one count of attempted assault in the first degree and one count of assault in the second degree as to the second victim, and with criminal possession of a weapon in the third degree. Following a jury trial where defendant raised a justification defense as to counts 1 through 4, defendant was found guilty as charged. Supreme Court sentenced defendant to an aggregate prison term of 20 years, to be followed by five years of postrelease supervision.”
Holding: The Third Department rejected the defendant’s argument that the conviction was against the weight of the evidence because the People failed to disprove his justification defense. The Court explained, “a defendant’s use of deadly physical force is justified in response to another person’s use or imminent use of deadly physical force, unless a defendant knows that retreating would avoid the necessity of such force and ensure complete safety to himself, herself and others. Further, where a defendant alleges that he or she used physical force against another person in defense of himself, herself or a third party, such use of force is not justified when the defendant or the third party provoked the other person’s conduct or when the defendant or the third party was the initial aggressor. At trial, it is the People’s burden to demonstrate beyond a reasonable doubt that the defendant did not believe deadly physical force was necessary or that a reasonable person in the same situation would not have perceived that deadly physical force was necessary.”
Here, “defendant testified that he brought the knife to the protest because he believed that members of the Proud Boys, a political group, would be present. Defendant explained that he believed the group was violent and that his belief was heightened when he saw that some of the protestors were equipped with steel-toed boots, motorcycle gloves, sharpened sticks and flagpoles . . . Defendant asserted that his friend, a counter-protestor depicted wearing a white puffy coat in the surveillance video, got into an argument with some protestors who were antagonizing him. According to defendant, the friend was soon surrounded by a group of protestors. When one of the protestors — the first victim’s brother — tased defendant’s friend, defendant explained that he pulled out the knife and moved to protect his friend, but the first victim intercepted him by punching him and knocking him to the ground. Defendant testified that as he was on the ground, the first victim kept punching him to the point that he nearly blacked out. He asserted that he then began to swing the knife at the first victim to protect himself, causing the first victim to flee. Defendant stated that he then saw the second victim hitting a counter-protestor who was on the ground, so he used the knife against the second victim.”
The video and photographic evidence, however, told a different story. The Court noted that “videos show that, contrary to defendant’s assertion, the protestors were backing away from defendant’s friend as the friend continued a verbal altercation with the protestors. When the friend was tased, defendant, who was nearby watching the argument, joined the ensuing frenzy and began swinging the knife at the protestors immediately.” Although a different verdict finding that defendant was justified in using deadly force would not have been unreasonable, the Court held, the jury’s contrary determination that defendant acted with criminal intent was supported by the weight of the evidence and could not be overturned.
New York Appeals 