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2001-1: Runoff Election in 2001 Democratic Mayoral Primary is "Reasonably Anticipated"

Tuesday, March 13, 2001

Re: Election Law §6-162; Administrative Code §3-703(1)(f); Campaign Finance Board Rules 1-04(q); 2-06(c); Advisory Opinion No. 1993-8; Advisory Opinion No. 1999-1; Op. No. 2001-1

Several candidates expecting to participate in the Campaign Finance Program have requested that the Board make a determination that a Democratic mayoral runoff election is "reasonably anticipated."1

Under Rule 1-04(q), once the Board makes a determination that a primary is "reasonably anticipated," participating candidates for citywide office may accept contributions for that runoff election up to one-half the amount of the applicable limitation for citywide office, as provided in section 3-703(1)(f) of the New York City Campaign Finance Act (the "Act").2 The current contribution limit for participating mayoral candidates is $4,500. New York City Administrative Code §3-703(1)(f). Mayoral candidates could thus accept additional contributions of up to $2,250 for a runoff election. Id. The solicitation and use of such contributions are subject to a number of restrictions set forth in Rules 1-04(q) and 2-06(c), such as the requirement that each runoff primary contribution be placed in a separate account, subject to certain restrictions on use, and that until a primary election is held, each solicitation of runoff primary contributions shall expressly state that such contributions are being solicited only for a runoff primary election that may not occur.

As there has never been a runoff election since passage of the Act, the Board has had little occasion to provide guidance concerning when a runoff primary will be considered "reasonably anticipated." The Board has stated that "it would appear that a runoff election will not take place if fewer than three candidates file designating petitions for a party nomination." Advisory Opinion No. 1993-8, n.5. The Board has also stated that it "expects it would be very difficult to make this demonstration early in the election cycle, when the intentions and likely competitiveness of prospective opponents are less clear. * * * In determining whether it is reasonable for a candidate to anticipate a runoff primary, the Board would look for the prospective candidate to produce evidence of a sufficient number of bona fide prospective opponents for that political party nomination. A history of runoff primaries in a particular party for the office at issue might also be relevant." Advisory Opinion No. 1999-1.

It would appear consistent with the plain language and intent of Rule 1-04(q) to interpret the "reasonably anticipated" standard in light of two distinct meanings associated with the term "reasonableness" in the law. First, the "reasonably anticipated" standard refers to the burden of proof placed upon candidates, implying that this is a lesser burden than, for example, proving that a runoff is "probable." Second, the requirement that a candidate must demonstrate that a runoff is "reasonably anticipated" implies that the Board must ground its determination in objective facts.

There are at present four candidates, among others, who have raised significant funds for a Democratic Party mayoral primary race, and there is no incumbent eligible to run for this office. Polls indicate that, as of now, no candidate could command the 40 percent vote needed to avoid a runoff primary.3 The possibility that any of these candidates would abandon the race for mayor may be diminished compared with similar situations in years past because of the opportunity provided by public matching funds, and because term limits preclude these candidates from running for their current offices. The press reporting at this time seem uniform in their expectation that there will be a runoff primary.

Based on information now available in this unusual election year, the Board determines that a runoff election in the Democratic primary is "reasonably anticipated" within the meaning of Rule 1-04(q). It should be noted that the allowance for accepting contributions for a runoff election is not open-ended. Rule 1-04(q) provides that "runoff contributions may not be accepted once it is no longer reasonable to anticipate such a runoff primary." Should that time arrive, any person may apply to the Board for a finding that a runoff primary is no longer reasonably anticipated, and the Board may so find on its own initiative.

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 The Board received letters dated February 6, 2001, March 1, 2001, and March 7, 2001, from an attorney representing Mark Green, a letter dated February 14, 2001 from Friends of Hevesi, and a letter dated March 1, 2001 from Vallone 2001.

2  When no candidate for citywide office in New York City receives more than 40 percent of the vote in a primary election, the two leading candidates participate in a runoff primary election. Election Law §6-162.

3 There is some history of runoff elections in Democratic mayoral primary races. Runoffs occurred in 1973 and 1977. In 1997, the result of the primary was sufficiently unclear that for a time it appeared there would be a runoff primary. In 1981, 1985, and 1993, the primary elections were won by an incumbent.