A write-in primary election for the Democratic nomination for City Council will be held in the thirty-first district pursuant to court order. Two candidates for the City Council in that district, Sal F. Albanese, a Democrat, and Stephen Maresca, a Republican, are participating in the New York City Campaign Finance Program. Prior to the issuance of the court order, there appeared to be no possibility of a primary election for City Council in the thirty-first district, because these two candidates sought different party nominations and no other candidate filed designating petitions. The Board has determined to issue an opinion on the following questions raised by the court ordered write-in primary election:
1) Do contribution and expenditure limits apply separately for the primary and general elections in the case of a candidate in a write-in primary election?
2) May a participating candidate in a primary election, running solely as a write-in candidate, qualify for matching public funds in the primary election?
1) Contribution and Expenditure Limits
In the "declaration of office sought" forms (#DEC/205-1 and DEC/205-2) originally filed with the Board pursuant to Campaign Finance Board Rule 205, Mr. Albanese stated that he sought the Democratic and Liberal party nominations for City Council, whereas Mr. Maresca indicated that he sought nomination by the Republican and Conservative parties. These forms also provide a "write in/primary election" box, which neither candidate checked. The relevant instructions provide:
If a candidate chooses to run solely as a write-in in a party primary, check appropriate box, and enter name of party in the space provided.
Thus, neither candidate initially notified the Board that he was a write-in candidate in the Democratic primary. On September 7, 1989, Mr. Albanese filed a new "declaration of office sought" form, indicating that he is a write-in candidate in the Democratic primary.
When a write-in primary is held, not on the basis of petitions requesting an opportunity to ballot filed pursuant to New York Election Law §6-164, but solely as a court-ordered remedy, candidates who choose to seek a party's nomination as a write-in candidate following the issuance of the court order should, as a matter of fairness, have an opportunity to demonstrate to the Board that they are write-in candidates. In these circumstances, an amended declaration of office form, indicating a write-in candidacy, may therefore be filed with the Board not later than seven days after the issuance of the court order or this opinion, whichever is later. Compare Campaign Finance Board Rule 205.
A person who seeks a party nomination by write-in balloting is a candidate in a primary election. A write-in primary candidate participating in the Campaign Finance Program is permitted to accept contributions for the primary election which do not exceed the limit applicable under New York City Administrative Code §3-703(1) (f). Contributions previously accepted by the candidate for the general election may be "carried back" for expenditure in the write-in primary under Campaign Finance Board Rule 401(a) (4). Contributions carried back for the primary must be deposited in an account separate from that in which general election contributions are deposited. Rule 401(a) (1).
Expenditures made by candidates seeking an office for which no party nomination is contested in a primary election are attributed to the general election expenditure limit of Administrative Code §3-706. See Advisory Opinions Nos. 1988-4, dated December 30, 1988, and 1989-21, dated May 24, 1989. New York Election Law §6-164 provides, however, that in a write-in election, the "office or position shall be deemed contested" and the primary ballots of the party shall afford an opportunity to vote thereon. As a result of the court-ordered write-in primary, the Democratic nomination for City Council in the thirty-first district is thus deemed contested.
Because a primary election contest now exists in the thirty-first district, both Mr. Albanese and Mr. Maresca may make expenditures subject to a separate primary election expenditure limit, regardless whether they both seek the Democratic nomination as write-in candidates. Advisory Opinion No. 1988-4. Expenditures made prior to the date that application was made for a court-ordered write-in primary, however, are subject to the general election expenditure limit, unless the candidate previously had a reasonable basis for anticipating a primary election in the thirty-first district. See Advisory Opinion No. 1989-21. Expenditure reports previously filed with the Board on behalf of these candidates may be amended to reflect the foregoing analysis.
2) Qualification for Public funds
The Campaign Finance Act provides, among the other requirements for public financing, that a candidate must "meet all the requirements of law to have his or her name on the ballot." Administrative Code §3-703(1) (a). New York Election Law §1-104(20) defines a write-in ballot as "a vote cast for a person whose name does not appear on the ballot labels." See also Election Law §8-308(1). Furthermore, no write-in ballot may be voted or counted for any person whose name appears on the voting machine. Election Law §8-308(2).
Thus, under State law, a candidate who seeks nomination or election by write-in balloting is one who has not met the legal requirements for having his or her name on the official voting machine ballot. Accordingly, Mr. Albanese and Mr. Maresca may not qualify for public financing in the Democratic write-in primary, as neither has met the legal requirements for having his name on the ballot in that election.
NEW YORK CITY CAMPAIGN FINANCE BOARD