Clarke v. Town of Newburgh: Municipal “Capacity” Limits and Facial Constitutional Challenges to the New York Voting Rights Act

I. Introduction

In Clarke v. Town of Newburgh, 2025 NY Slip Op 06359 (Nov. 20, 2025), the New York Court of Appeals addressed a foundational question at the intersection of state constitutional structure and voting rights enforcement: may a town, as a subordinate political subdivision of the State, mount a facial constitutional challenge to the vote-dilution provision of the New York Voting Rights Act (NYVRA), Election Law § 17‑200 et seq.?

Six Town of Newburgh voters sued their town and its Town Board, asserting that Newburgh’s at-large system for electing Town Board members unlawfully dilutes the votes of Black and Hispanic residents in violation of NYVRA Election Law § 17‑206. The Town responded not only by denying liability, but by launching a sweeping facial attack on the statute itself, arguing that the NYVRA’s vote-dilution prohibition is unconstitutional under the Equal Protection Clauses of both the U.S. and New York Constitutions.

The Court of Appeals, per Chief Judge Wilson, does not reach the merits of that constitutional attack. Instead, the Court holds that Newburgh, as a political subdivision “created by, divisible by and even extinguishable by the State Legislature,” lacks the capacity to bring this facial constitutional challenge. In doing so, the Court reinforces and elaborates New York’s longstanding rule that subordinate governmental entities generally may not sue to invalidate state statutes, and clarifies the narrow reach of the so‑called “dilemma” exception to that rule.

The decision’s practical effect is that the NYVRA’s vote-dilution provision remains intact and enforceable; Newburgh must defend the underlying vote-dilution claim on the merits in Supreme Court without relying on its facial constitutional challenge. More broadly, the case tightens the doctrinal constraints on municipalities seeking to use constitutional litigation to resist statewide regulatory schemes, particularly in the election-law context.

II. Factual and Procedural Background

A. The Parties and the NYVRA Claim

The plaintiffs are six voters residing in the Town of Newburgh, a political subdivision in Orange County with a population of approximately 32,000. According to the complaint, as of 2022 about 15% of the Town’s population was Black and 25% was Hispanic. The Town Board—Newburgh’s legislative and policymaking authority—has five members, elected via at-large elections: each registered voter in the Town may vote for each Board seat. The complaint alleges the Town Board has never included a Black or Hispanic member.

The plaintiffs sued the Town and its Town Board under the NYVRA’s vote-dilution provision, Election Law § 17‑206. They allege that:

Voting in Newburgh is racially polarized (§§ 17‑204[6]; 17‑206[2][b][i][A])—that is, the electoral preferences of Black and Hispanic voters diverge from those of the rest of the electorate; and
Under the totality of circumstances, the at-large system effectively disenfranchises Black and Hispanic voters, who cannot elect candidates of choice or influence election outcomes (§ 17‑206[2][b][i][B]).

They seek declaratory and injunctive relief: a ruling that Newburgh’s at-large system violates § 17‑206 and an order requiring a district-based or alternative election method for the 2025 Town Board election.

B. The NYVRA’s Vote-Dilution Framework and Remedies

Section 17‑206 prohibits any “political subdivision” from using an election method that dilutes the votes of members of a protected class. PlaINTIFFS may prove such a violation by showing:

Racially polarized voting—a divergence between protected-class voters and the rest of the electorate in candidates or electoral choices (§§ 17‑204[6]; 17‑206[2][b][i][A]); and/or
Under the totality of the circumstances, the protected class’s ability to elect candidates of choice or influence election outcomes is impaired by vote dilution (§ 17‑206[2][b][i][B]).

If a violation is found, the trial court must “implement appropriate remedies” to ensure equitable access to the political process (§ 17‑206[5][a]). The Act provides a non-exclusive list of examples—such as additional voting hours, additional polling places, or voter-education measures—but explicitly leaves courts with broad remedial discretion: the remedies listed are illustrative, not exhaustive.

C. Supreme Court: Town’s Summary Judgment and Facial Invalidation of the NYVRA

Newburgh moved for summary judgment on two grounds:

Facial constitutional challenge: Section 17‑206 is unconstitutional on its face under the Equal Protection Clauses of the U.S. and New York Constitutions.
Compliance defense: Its at-large system allegedly complies with the NYVRA.

Supreme Court (Orange County) granted summary judgment for Newburgh and dismissed the complaint (2024 NY Slip Op 34184[U]). On the threshold issue of municipal capacity, the court recognized the general rule that municipalities ordinarily cannot challenge state laws, but held that Newburgh could proceed under the “dilemma” exception: the Town claimed it could not comply with the NYVRA without itself violating equal protection (id. at *12–13).

Supreme Court then held the NYVRA’s vote-dilution prohibition facially unconstitutional (id. at *16) and went further: it struck the NYVRA “in its entirety,” despite the Town’s challenge being directed only at part of the Act.

D. Appellate Division: Reversal and Narrowing of Municipal Capacity

The Appellate Division, Second Department, reversed and denied Newburgh’s summary judgment motion (237 AD3d 14). It held that:

Newburgh, as a legislative entity, lacked capacity to bring this constitutional challenge because it could not demonstrate that compliance with the NYVRA would necessarily require it to violate equal protection (id. at 17, 29–30); and thus
Newburgh could not invoke any exception to the general rule that political subdivisions cannot sue to invalidate state laws (id.).

The Appellate Division also held Supreme Court erred by striking down the NYVRA in toto (id. at 39–40). Newburgh did not appeal that aspect of the decision.

The Appellate Division granted Newburgh leave to appeal, certified the question whether its order was properly made, and stayed the Supreme Court proceedings.

III. Summary of the Court of Appeals’ Opinion

The Court of Appeals affirmed the Appellate Division and answered the certified question in the affirmative. The Court holds:

Capacity bar reaffirmed: As a legislatively created political subdivision, Newburgh generally cannot sue to invalidate a state statute, and that limitation is grounded in separation-of-powers principles, not merely in procedural capacity rules.
“Dilemma” exception does not apply to Town’s facial challenge:
- Newburgh invokes only the narrow fourth exception (the “dilemma” exception), under which a municipality might be allowed to sue if compliance with a statute would force it to violate a constitutional proscription.
- The Court finds no New York case in which a municipal entity has ever successfully invoked this exception to sue the State; the exception is narrow and unproven in application.
- Whatever its possible contours for an as-applied challenge, the exception cannot support the facial challenge Newburgh brings here.
Facial challenge especially incompatible with municipal capacity:
- Newburgh seeks to invalidate the entire vote-dilution provision (§ 17‑206) in all applications, even before trial and before any remedy is ordered.
- Given the NYVRA’s broad remedial flexibility, Newburgh cannot plausibly show that every conceivable application of § 17‑206 would compel it to act unconstitutionally, as required for a facial invalidity claim.
Rejection of Newburgh’s three specific arguments:
- The capacity bar applies even when the political subdivision is a defendant; it is not limited by CPLR 3211(a)(3). The bar arises from separation of powers, not from ordinary procedural capacity to sue or be sued.
- The Supremacy Clause does not override New York’s internal capacity rule; Newburgh cites no authority for the proposition that local governments may invoke federal supremacy to gain capacity to sue their creator.
- The mere finding of liability under the NYVRA does not itself force the Town into a constitutional “dilemma,” especially because possible remedies (such as longer polling hours or voter education) may not involve race-based changes to election structures at all.
No ruling on the constitutionality of the NYVRA:
- Because the Town lacks capacity to bring this facial challenge, the Court expressly declines to reach the merits of Newburgh’s equal protection arguments against the NYVRA.

The result is that the NYVRA’s vote-dilution provision stands; the case returns to Supreme Court for further proceedings on the voters’ claims, unencumbered by the Town’s facial constitutional attack.

IV. Analysis

A. Precedents and Doctrinal Foundations

1. Municipal Corporations as “Creatures of the State”

The Court’s analysis is anchored in a line of cases stressing that political subdivisions have no constitutional rights against the State that created them. Citing City of New York v State of New York, 86 NY2d 286 (1995), the Court reiterates that municipalities:

exist[] by virtue of the exercise of the power of the State through its legislative department.

This echoes the U.S. Supreme Court’s classic formulation in Williams v Mayor of Baltimore, 289 US 36 (1933) (Cardozo, J.), also quoted by the Court:

A municipal corporation . . . has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.

New York law has long adopted this “creature of the State” doctrine. In Black River Regulating Dist. v Adirondack League Club, 307 NY 475 (1954), the Court stated that “political power conferred by the Legislature confers no vested right as against the government itself.” Thus, a municipality’s ability to sue must stem from:

the relevant enabling legislation or some other concrete statutory predicate.

(quoting Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 NY3d 377, 384 (2017), itself quoting Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 156 (1994)).

2. The Municipal Capacity Bar and Separation of Powers

The capacity bar is not a mere technical pleading rule: it is a “necessary outgrowth” of New York’s separation-of-powers doctrine (City of New York, 86 NY2d at 295–96). The Court emphasizes that allowing subordinate governmental units to challenge state statutes in court risks:

Transforming the judiciary into an arbiter of “internal political disputes between the State and its subdivisions” (World Trade Ctr., 30 NY3d at 385), and
Interfering with the Legislature’s exclusive authority to organize, empower, alter, or even dissolve subordinate entities.

Thus, as the Court explains, the capacity bar:

expresses the extreme reluctance of courts to intrude in the political relationships between the Legislature, the State and its governmental subdivisions.

(City of New York, 86 NY2d at 295–96).

3. The Four Narrow Exceptions from City of New York

In City of New York, the Court identified four narrow exceptions under which a political subdivision might be able to sue to challenge state action:

Express statutory authorization to bring the suit.
Proprietary interest in a specific fund of money affected by the legislation.
Statute impinges on the municipality’s constitutional Home Rule powers.
Compliance with the statute would force the municipality to violate a constitutional proscription.

The present case is about the fourth exception, often described as the “dilemma” exception: the idea that a municipality might sue when faced with an irreconcilable choice between obeying a state statute and violating the Constitution.

The Court notes, however, that in City of New York itself, and in Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283 (1977), the governmental entities did not successfully invoke such an exception; and in Board of Educ. of Cent. School Dist. No. 1 v Allen, 20 NY2d 109 (1967), the Court did not discuss capacity at all—only the plaintiffs’ standing and the constitutionality of the statute.

The upshot: the “dilemma” exception is described in prior cases, but the Court underscores that it has never actually been used to permit a municipality to sue the State. Moreover, in World Trade Ctr., the Court cautioned that these exceptions are “narrow,” and extended the capacity bar to public benefit corporations as well (30 NY3d at 387, 939).

B. The Court’s Legal Reasoning in Clarke

1. Capacity Must Be Assessed in Light of the Relief Sought

The Court applies a key principle from World Trade Ctr.: a legislative entity’s challenge to a statute must be assessed “with a view towards the relief sought” (30 NY3d at 386 n3). Here, Newburgh is not asking for a narrower, tailored ruling about a specific application of the NYVRA to its particular electoral structure. Instead, it seeks to invalidate “the entire vote-dilution provision under Election Law § 17‑206.”

That is a facial challenge: the Town claims the statute is unconstitutional in all its applications. This posture is crucial to the Court’s reasoning.

2. Facial vs. As-Applied Challenge and the “Dilemma” Exception

The Court carefully distinguishes between:

A potential as-applied challenge, where a municipality might argue that a specific, concrete command imposed by the statute (or a court order enforcing it) forces the municipality to take unconstitutional action; and
The facial challenge that Newburgh actually brings, which attacks the statute in its entirety, regardless of the specific remedy that might later be ordered.

Chief Judge Wilson notes:

Whatever might be said as to a municipality’s ability to bring an as-applied challenge, showing that it will be forced to take a course of action that is unconstitutional, Newburgh is pursuing a facial invalidity claim.

That distinction is dispositive. For a facial challenge, Newburgh must show that the statute is unconstitutional “in every conceivable application”—a demanding standard drawn from McGowan v Burstein, 71 NY2d 729, 733 (1988). Given the NYVRA’s broad remedial flexibility, that is essentially impossible.

Because § 17‑206 allows trial courts to consider a wide array of remedies—some purely procedural or administrative (like longer polling hours or voter education)—Newburgh cannot plausibly contend that every possible remedy a court might impose after a finding of vote dilution would force it to violate the Equal Protection Clause.

Thus, Newburgh’s attempt to fit its facial challenge into the “dilemma” exception collapses: the alleged “dilemma” is hypothetical, speculative, and not tethered to any necessarily unconstitutional command.

3. Separation of Powers and Judicial Restraint in Facial Challenges

The Court emphasizes that judicial restraint is particularly important when a subordinate governmental unit challenges a state law on its face:

For a facial constitutional challenge, principles of “judicial restraint” counsel strongly against permitting subordinate units of state government from using the judiciary to second-guess the wisdom of enacted legislation.

The Court evokes its earlier statement in World Trade Ctr. that the capacity bar reflects the “manifest improbability” that the Legislature would:

breathe constitutional rights into a public entity and then equip it with authority to police state legislation on the basis of those rights.

(World Trade Ctr., 30 NY3d at 385, quoting City of New York, 86 NY2d at 293).

In other words, the Court is unwilling to transform municipalities into quasi-constitutional watchdogs capable of invoking equal protection to invalidate statewide legislation that the Legislature has enacted to regulate them.

4. Rejection of Newburgh’s Three Novel Arguments

a. Capacity Bar Applies Even When Municipality Is a Defendant

Newburgh argued that the capacity bar should not apply because it is not the plaintiff—it is merely a defendant raising a constitutional defense. It relied on CPLR 3211(a)(3), which allows a defendant to challenge a plaintiff’s capacity to sue, and reasoned that since it is a defendant, its capacity is not in question.

The Court decisively rejects this argument. The municipal capacity bar is grounded in separation of powers, not in the ordinary procedural notion of “legal capacity to sue” under CPLR 3211(a)(3). The question is not whether the Town generally can “sue or be sued”—it can—but whether it may use the courts to attack its creator’s legislation on constitutional grounds.

The Court holds that the State can invoke this constitutional capacity bar regardless of the municipality’s procedural posture; a town cannot circumvent the doctrine simply by styling its constitutional attack as a defense or counterclaim.

b. Supremacy Clause Does Not Override the Capacity Bar

Newburgh next contended that because the NYVRA allegedly conflicts with the U.S. Constitution, the Supremacy Clause should override New York’s internal capacity rule. In essence, the Town argued that a municipality must have the ability to raise federal constitutional objections to state law.

The Court notes that Newburgh offers “no authority” for this proposition. Recognizing such a principle would effectively:

Allow every local government to challenge any state statute on federal constitutional grounds,
Upend the creature-of-the-state doctrine, and
Invite widespread municipal litigation against state-level policy choices.

The Court refuses to create such a Supremacy Clause exception to the capacity bar, thereby preserving the basic constitutional hierarchy within the State: municipalities cannot use federal constitutional claims as a vehicle to obtain capacity they otherwise lack.

c. Mere Finding of Liability Is Not a Constitutional “Dilemma”

Finally, Newburgh argued that:

any alteration of its race-neutral, at-large election system in order to comply with the NYVRA’s vote-dilution provisions would be unconstitutional.

At oral argument, Town counsel reportedly clarified that the Town believes even a mere finding of liability would force it to “violat[e] the Constitution or obey[] the order of the court”—even though, at present, no remedial order exists.

The Court responds that:

No trial has been held, and it is not yet known whether Newburgh will be found liable for vote dilution.
Even if liability is eventually found, courts have broad remedial discretion; not all remedies would involve altering the at-large system, much less in a constitutionally problematic way.
Some statutory examples—like longer polling hours or enhanced voter education—do not affect the basic structure of elections at all.

Thus, Newburgh has not shown that it faces any present, inescapable conflict between compliance with a concrete statutory mandate and adherence to constitutional norms. The claimed “dilemma” is speculative, contingent, and insufficient to trigger the fourth exception.

C. Impact on Future Cases and the NYVRA

1. Reinforcement of the Municipal Capacity Bar

Clarke significantly strengthens and clarifies New York’s municipal capacity doctrine in several respects:

It confirms that the capacity bar applies equally when the municipality is a defendant raising a constitutional challenge in defense.
It reiterates that the four City of New York exceptions are narrow, and underscores that the “dilemma” exception has never been successfully applied in New York.
It strongly suggests that municipal facial challenges to state statutes are particularly disfavored—even if, in some hypothetical future case, a limited as-applied challenge might be entertained.

This will constrain local governments that wish to resist statewide regulatory regimes—especially those involving complex policy judgments—by suing the State on constitutional grounds. They must instead look for express statutory authorizations, proprietary interests, Home Rule guarantees, or a truly inescapable constitutional dilemma tied to a concrete command. And even then, Clarke signals that courts will scrutinize such claims with skepticism.

2. Practical Consequences for the NYVRA and Voting Rights Litigation

For the New York Voting Rights Act specifically, Clarke has several important implications:

Preservation of the NYVRA’s vote-dilution framework: The Court leaves § 17‑206 intact and does not opine on its constitutionality. Plaintiffs (i.e., voters or other authorized parties) may continue to bring vote-dilution suits under the statute.
Limits on municipal defenses: Municipal defendants cannot derail NYVRA cases by mounting sweeping facial constitutional challenges premised on their own equal-protection “rights.” They must instead litigate the statutory elements—such as racially polarized voting, totality of circumstances, and appropriate remedies.
Central role of voters and the Attorney General: Since political subdivisions cannot easily challenge the NYVRA’s validity, enforcement and constitutional testing of the statute will largely occur via suits brought by voters, civil-rights organizations, and the State (e.g., the Attorney General), not by local governments.

The decision thus strengthens the institutional architecture of the NYVRA: it ensures that the statute’s design and constitutionality will be primarily contested in cases where the State’s regulatory authority and individual voters’ protections are at stake, rather than as a battleground for local government resistance to statewide voting-rights policy.

3. Broader Implications Beyond Voting Rights

Outside the voting-rights context, Clarke reinforces the principle that:

Subordinate entities are implementers, not adversaries, of statewide policy, absent narrow and well-defined exceptions.
Courtrooms are not the proper forum for resolving many “internal” State–local political disputes; such disputes should generally be resolved politically, through legislation or executive oversight.

While individuals and private entities remain free to challenge state laws on constitutional grounds, municipalities and other public corporations will find it increasingly difficult to use litigation as a tool to resist or reshape state policy—including in areas like labor law, environmental regulation, and public finance, where local and state interests often diverge.

V. Complex Concepts Simplified

A. “Capacity to Sue” vs. “Standing”

The opinion revolves around capacity, not standing:

Standing asks whether the plaintiff has suffered a legally cognizable injury that gives it a sufficient stake in the controversy.
Capacity asks whether the entity is legally authorized to appear in court at all to assert that type of claim—especially against its creator, the State.

A municipality like Newburgh may have standing (it is affected by the statute) but still lack capacity to sue the State to invalidate that statute.

B. Facial vs. As-Applied Constitutional Challenges

Facial challenge: The challenger argues the statute is unconstitutional in all or almost all of its conceivable applications. This is what Newburgh attempted. Under McGowan v Burstein, the challenger must show the law is unconstitutional “in every conceivable application.”
As-applied challenge: The challenger concedes that the law may be valid in general, but claims that its application to a specific set of facts or a particular party is unconstitutional.

The Court hints that, even if an as-applied challenge might someday fall within the “dilemma” exception, facial challenges by political subdivisions are especially at odds with the capacity bar.

C. Vote Dilution and Racially Polarized Voting

Under the NYVRA:

Vote dilution occurs when an election system (e.g., at-large voting) weakens the voting strength of a protected racial or ethnic group, so they cannot elect candidates of their choice or influence election outcomes, even though they are numerous and politically cohesive.
Racially polarized voting describes a pattern where protected-class voters consistently prefer one set of candidates, while the rest of the electorate prefers another. This divergence can, in combination with the electoral system structure, produce dilution.

The plaintiffs in Clarke allege that Newburgh’s at-large system, in the context of racially polarized voting, effectively prevents Black and Hispanic voters from electing or influencing Town Board representation.

D. Separation of Powers and “Creatures of the State”

The decision rests heavily on separation-of-powers principles:

The New York Constitution divides power among the legislative, executive, and judicial branches.
Local governments are created by the Legislature to perform delegated functions; they have no independent constitutional status against the State.
If courts freely entertained municipal constitutional challenges, they would undermine the Legislature’s control over its own creations and risk entangling the judiciary in intra-governmental political disputes.

Hence, the general rule: political subdivisions may not sue to overturn state statutes, subject only to narrow exceptions.

E. The “Dilemma” Exception

The fourth City of New York exception—sometimes called the “dilemma” exception—contemplates the rare situation where:

A statute commands a municipality to do something, and
Complying with that command would itself violate a constitutional prohibition.

In such a scenario, a municipality might argue that it must be allowed to sue the State, or else be forced to choose between obeying the statute and violating the Constitution.

In Clarke, the Court stresses that:

The exception has never actually been applied in a New York case to authorize a municipal challenge; and
Newburgh’s claim does not trigger it, because no specific, inevitable unconstitutional command is currently being imposed—and facially, § 17‑206 can be enforced through remedies that do not require any constitutional violation.

VI. Conclusion

Clarke v. Town of Newburgh is a structurally important decision for New York public law and voting-rights enforcement. The Court of Appeals reaffirms that towns, cities, and other political subdivisions—“creatures of the State”—generally lack the capacity to use constitutional litigation to invalidate state statutes that regulate them. It underscores that the narrow exceptions to this capacity bar, particularly the “dilemma” exception, cannot be stretched to accommodate broad facial challenges like the one Newburgh attempted against the NYVRA.

By holding that Newburgh cannot maintain a facial equal-protection challenge to the NYVRA’s vote-dilution provision, the Court:

Leaves the NYVRA fully intact and enforceable.
Signals that constitutional scrutiny of the NYVRA, if any, will primarily occur in suits brought by voters, civil-rights groups, or the State—not by the municipalities being regulated.
Reinforces separation-of-powers principles, preventing courts from becoming arbiters of internal State–local political disputes.

At the same time, the decision explicitly leaves the merits of the NYVRA’s constitutionality unresolved. The underlying claims—that Newburgh’s at-large system unlawfully dilutes Black and Hispanic votes—will proceed in Supreme Court, where evidence of racially polarized voting, demographic patterns, and potential remedies will be tested. But whatever happens on the merits, Clarke will stand as a leading precedent on the limited capacity of New York’s political subdivisions to wield constitutional challenges against state legislation, especially in the context of comprehensive civil-rights reforms like the New York Voting Rights Act.