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1997-10: Effects on the Campaign Finance Program Requirements When an Anticipated Runoff Primary Election for Mayor Will Not Take Place

Thursday, September 18, 1997

Re: Administrative Code §3-703(1) (f);3-704; 3-705(5); 3-706(1) (b), (4); 3-709.5(1); Campaign Finance Board Rules 1-04(c) (2) (i), (iii), (iv), (o); 1-08(c) (2) (i), (ii), (iii), (iv), (d); 2-06(c) (1); 3-02(c) (d); Op. No. 1997-10

On the basis of September 9, 1997 election night vote counts by the Board of Elections it has appeared that a runoff primary election would be taking place between two mayoral candidates participating in the New York City Campaign Finance Program, Ruth Messinger and Al Sharpton. It now appears that, based on a pending final count by the Board of Elections of all paper and machine ballots cast in the Democratic mayoral primary election, it is possible that a runoff primary election will not be held. This advisory opinion outlines Campaign Finance Program requirements in the event the Board of Elections concludes that its official count results in a primary election winner and no runoff primary election will be held. In addition, the opinion addresses the following question posed on behalf of the Giuliani campaign:

If the Board of Elections were to complete the canvass and certify that Ms. Messinger received at least 40% of the vote; and Rev. Sharpton then commenced a judicial proceeding pursuant to Election Law Sec. 16-106 to review the canvass, including the canvass of paper ballots, would the Campaign Finance Board extend the period within which expenditures could be allocated to the runoff spending limit until the date of final judicial determination or the runoff election?1

The following requirements apply if a runoff primary election takes place for mayor, and will be adjusted as described below in the event the Board of Elections declares that a primary election winner and runoff election will not take place:

1. Contribution Limits. The $7,700 contribution limit for participating candidates on the ballot in a runoff is increased by 50 percent (or $3,850) for a total of $11,500 per contributor. New York City Administrative Code §3-703(1) (f). The contribution limits for all other mayoral candidates remain the same. In the event the runoff does not take place, the candidates who expected to be in the runoff must demonstrate that any portion of contributions accepted from a single source, which exceeds $7,700 but not $11,550, may be reasonably attributed to expenses incurred for the runoff prior to its cancellation. If this demonstration is made, the acceptance of that amount will not be treated as a violation of the Campaign Finance Act's contribution limit. See Advisory Opinion No. 1991-8 (October 30, 1991) (cancellation of court-ordered re-run elections), codified in Campaign Finance Board Rule 1-04(o) 2. The candidates may not, however, accept contributions over $7,700 to use for expenses incurred in litigation concerning the Board of Elections' final canvass of the primary election, because these expenses are not incurred for a runoff election3. Thus, the candidates may not attribute the portion of previously accepted contributions that exceeds $7,700 to such expenses.

2. Public Funds. Candidates on the ballot for a runoff election are eligible to receive public funds grants equal to 25 percent of public funds payments they received for the primary election, if any. Administrative Code §3-705(5). If the runoff does not take place, the candidate must return to the Board the portion of any grant received that exceeds qualified campaign expenditures incurred for the runoff after the primary election and before the Board of Elections announced that the runoff would not take place. See Administrative Code §3-704, regarding the use of public funds. In addition, a participating candidate may not account for the use of the runoff grant with expenses that are attributed to contributions over $7,700, as described above.

3. Financial Disclosure. A financial disclosure statement must be filed 10 days after a runoff on behalf of both candidates in the runoff. See Rule 3-02(c) , (d) . If the runoff is not held, the candidate who is not on the general election ballot need not file this additional disclosure statement.

4. Debates. Participating candidates on the ballot in a runoff election must meet in two additional debates for the runoff election. Administrative Code §3-709.5(1). The debate law does not, however, require participating candidates to appear in a runoff debate after the date the Board of Elections announces a primary election winner, with the result that no runoff election is held. The fact that litigation is commenced challenging the Board of Elections' final canvass would not alter this conclusion.

5. Expenditure Limits. An additional runoff expenditure limit of $2,366,000 applies for all mayoral candidates on the ballot either for the runoff election or the general election, including participating candidates who would not have been on the ballot in the runoff. Administrative Code §3-706(1) (b); Campaign Finance Board 1-08(c) (2) (ii). In addition, expenses incurred for a runoff primary election before the Board of Elections announces its ultimate conclusion remain subject to this separate runoff expenditure limit. Advisory Opinion No. 1991-8, supra. Rule 1-08(c) (2) (iii), (iv).

Expenses incurred by participating candidates who would have been in the runoff, in connection with a judicial proceeding under Election Law §16-106, or any other action seeking to overturn a Board of Elections determination that a runoff primary election will not take place, are exempt from the Act's spending limits under Administrative Code §3-706(4), but public funds may not be used for these expenses. Administrative Code §3-704(2) (h). Advisory Opinion No. 1991-7 (October 9, 1991); Advisory Opinion No. 1996-3 (December 12, 1996) 4.

The remaining question is whether the separate runoff expenditure limit would be extended for all mayoral candidates from the date the Board of Elections cancels the runoff through the date of a final judicial determination or the runoff election, whichever is later. Rule 1-08(c) (2) provides, in relevant part:

(i) If there is no contested primary election for an office, expenditures made by a participant seeking that office are subject to the general election expenditure limit...

(iii) Notwithstanding subparagraph (i), if a participant demonstrates to the Board that for a period preceding the primary election the participant reasonably anticipated a primary election in any party for the office the participant seeks, the participant may attribute expenditures made before and during that period to the primary election expenditure limit...

Unlike ballot petition litigation prior to a primary election, the remedy sought here would be to overturn the results of a previous primary election, as declared by the Board of Elections. It is the Campaign Finance Board's view that it cannot be reasonably anticipated at the time the action is brought that such extraordinary relief will be granted. Thus, the period covered by the runoff expenditure limit will not extend beyond the Board of Elections' determination that a runoff will not be held, unless and until a court of competent jurisdiction overrules the Board of Elections by declaring that the runoff election will take place.



1 This question was asked by Lawrence A. Mandelker, by letter dated September 16, 1997.

2 This allowance for the acceptance of contributions in excess of $7,700 has no bearing on whether the participating candidate violated the contribution limit prior to the primary election.

If the runoff does not take place, contributions accepted in excess of $7,700 per contributor may be returned to contributors even after the participating candidate has received public funds. Rule 1-04(c) (2) (i), (iii), (iv). Contrary language in Rule 2-06(c) (1) does not restrict the return of the contributions because that language would be applicable only if the runoff took place.

3 The sense of Administrative Code §3-703(1) (f) is that runoff candidates receive an increased contribution limit for a runoff election that appears to be taking place, not for a court proceeding commenced to bring about a runoff election that would not otherwise be taking place.

4See also Rule 1-08(d) regarding expenses incurred by the participating candidate who will not be on the general election ballot.