(c) Standard of review. A covered policy will be precleared only if it will not diminish the ability of members of any protected class to participate in the political process and to elect their preferred candidates to office.

1. (1) A covered policy will not diminish the ability of members of a protected class to participate in the political process and to elect their preferred candidates to office if it will not lead to a retrogression in the position of members of a protected class (i.e., it will not make members of such a group worse off than they had been before the change) with respect to their ability to participate in the political process and to elect their preferred candidates to office.
2. (2) A change will be deemed retrogressive as to a protected class’s ability to participate in the political process where: (i) the individuals who will be burdened by the change are disproportionately likely to be members of one or more protected classes; and (ii) the change imposes a burden material enough that it will likely cause some members of such protected classes not to vote or otherwise participate in the political process.
3. (3) Retrogression is assessed with respect to all impacted protected classes.

(d) Benchmark.

1. (1) In determining whether a covered policy submission is retrogressive, the CRB will compare the submitted change to the voting qualification, prerequisite to voting, law, ordinance, standard, practice procedure, regulation or policy (hereafter “policy”) in force or effect at the time of the submission.
2. (2) If the existing policy at the time of the submission was not in force or effect on the covered entity’s applicable date for coverage, it cannot serve as a benchmark, and the comparison shall be with the policy most recently in force or effect.
3. (3) In determining the appropriate benchmark, the CRB will evaluate the proposed change in light of all relevant conditions existing at the time of the submission, including whether an electoral contest other than the most recent one held provides a more appropriate benchmark. In making this determination, the CRB may consider, among other factors, the offices on the ballot and whether the proposed change involves a primary, general, or special election.
4. (4) The implementation and use of a covered policy that has not been precleared does not operate to make that practice a benchmark for any subsequent covered policy submitted by the covered entity.

(e) Burden of proof.

1. (1) Although information dispositive of whether preclearance should be granted or denied may be provided by third-party individuals or entities or obtained by the CRB’s own independent analysis, the burden of demonstrating that preclearance should be granted rests at all times with the covered entity submitting the proposed change.

2. (2) The covered entity must provide:

   1. (i) sufficient information by which the CRB can determine the benchmark against which to compare the proposed covered policy; and
   2. (ii) information sufficient to demonstrate that, as compared with that benchmark, the ability of any protected class present in the political subdivision to participate in the political process and to elect their preferred candidates to office will not be diminished as a result of enactment or implementation of the proposed change.