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2009-5: Democratic Party Public Advocate Primary Runoff Election is "Reasonably Anticipated"

Sunday, July 19, 2009

Re:  Election Law § 6-162; Administrative Code §§ 3-703(1)(f), (h), (1-a), 3-703(2)(a)(ii); Campaign Finance Board Rules 1-04(q), 2-06(c); Campaign Finance Board Advisory Opinion Nos. 1993-8, 1999-1, 2001-1, 2001-3, 2001-10, 2005-2, 2008-5; Op. No. 2009-5.

The New York City Campaign Finance Board (the "Board") has been asked by Gioia for New York (the "Campaign")1, the 2009 principal committee for Eric Gioia's 2009 campaign for public advocate, to make a determination that a Democratic Party runoff primary election2in 2009 for the position of public advocate is "reasonably anticipated."

A Candidate Must Provide Concrete Evidence to Meet the Burden to Demonstrate that a Runoff Election is "Reasonably Anticipated"

Board Rule 1-04(q) provides that "a candidate seeking the nomination of a political party … may not accept contributions for a runoff primary election … unless the candidate has previously demonstrated to the Board that a runoff election is reasonably anticipated."3  The candidate has the burden to show that a runoff election is reasonably anticipated, by producing "evidence of a sufficient number of bona fide prospective opponents for that political nomination."  Advisory Opinion No. 1999-1 (January 7, 1999).  This standard "is a lesser burden than, for example, proving that a runoff is ‘probable.'"  Advisory Opinion No. 2001-3 (May 17, 2001).  Further, "the requirement that a candidate must demonstrate that a runoff is ‘reasonably anticipated' implies that the Board must ground its determination in objective facts."  Id.  Board Rule 1-04 (q) also provides that contributions for a runoff election "may not be accepted once it is no longer reasonable to anticipate such a runoff election."4

The Campaign's request, which consists of a five-page letter and three-page exhibit, notes: 1) there is no incumbent candidate in the race; 2) in 2001, there was a runoff election for the office of public advocate;  3) in a press report, a candidate is cited as stating that he believes there will be a runoff election; 4) polling indicates the likelihood that a runoff election will be held; 5) it is late enough in the campaign season to make a determination that a runoff election is "reasonably anticipated;" 6) the two candidates trailing in the public polls have raised the most contributions; and 7) four candidates have been circulating nominating petitions.  The Campaign also submitted a memorandum analyzing public polling data.  The letter and supporting material provide concrete evidence of four prospective opponents for the Democratic Party nomination for the office of public advocate.

A Finding that a Runoff Primary is "Reasonably Anticipated" is Based on Objective Facts

In assessing whether a runoff election was "reasonably anticipated," the Board has considered facts including: 1) "a history of runoff primaries in a particular party for the office at issue" (Advisory Opinion No. 1999-1); 2) media reports discussing the likelihood of a runoff primary (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10 (August 23, 2001)); 3) polling information (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10); 4) how close to the date of the primary the request for a determination is made (Advisory Opinion Nos. 1999-1, 2001-3, 2001-10, 2008-5); 5) whether an incumbent is in the race (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10); 6) the number of candidates running (Advisory Opinion Nos. 1993-8 (July 20, 1993), 2001-1, 2001-3, 2001-10, 2005-2); and 7) the amount of funds raised by the candidates (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10, 2005-2, 2008-5).

Of the four elections for the office of public advocate, one has had a primary runoff election.  One media report speculates that a runoff Democratic Party primary election for public advocate is likely because of anticipated low turnout for the Democratic Party primary election, the endorsements received by the candidates, and recent polls.  Other media reports indicate that each of the four candidates in two recent polls has received numerous endorsements from other politicians and political clubs and organizations.  One poll indicates that for four of the five potential Democratic Party primary candidates, support is at 35 percent, 14 percent, 10 percent, and 5 percent, with 34 percent of those surveyed remaining undecided.  The most recent poll showed these four candidates at 39 percent, 16 per cent, 9 percent, and 8 percent, with 28 percent of those surveyed remaining undecided.  Notably, the candidate with 35 percent and 39 percent support in the two recent polls is not one of the two candidates who have raised the most campaign funds.

The request for this advisory opinion was submitted eleven weeks before the date of the scheduled Democratic Party primary election.  There is no incumbent in the current race.   As noted above, there are five potential Democratic Party primary candidates for public advocate, and the Campaign has asserted that four of them have been circulating nominating petitions.  As of disclosure statement eight (May 15, 2009), gross reporting indicates two of these candidates have each raised more than $1 million, and two others have raised lesser amounts, but still significant funds.5  It appears unlikely that any of the four candidates in the two recent polls will leave the race before the potential primary date. 

In light of the polling numbers, number of candidates, lack of an incumbent candidate, endorsements made to the candidates, contributions raised, and point in the campaign season, the Board concludes that a runoff election in the Democratic Party primary for public advocate is "reasonably anticipated."6

NEW YORK CITY CAMPAIGN FINANCE BOARD

1   The Board received a letter from John Siegal, attorney for the Campaign, dated June 26, 2009.  In the letter, the Campaign requests permission to begin raising funds for an anticipated Democratic Party runoff election for the 2009 public advocate's race.  Mr. Gioia has filed a Certification with the Board for the office of public advocate for the 2009 elections.

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

3   Under Board Rule 1-04(q), once the Board makes a determination that a runoff 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").  The contribution limit for participating candidates running for public advocate is $4,950.  New York City Administrative Code § 3-703(1)(f).  Thus, participating candidates running for public advocate could accept additional contributions of up to $2,475 for a runoff election.  Id.; see also Advisory Opinion Nos. 2001-1 (March 13, 2001), 2008-5 (July 10, 2008).   

4   The Board may make a finding that a runoff primary is no longer "reasonably anticipated" based upon a submitted request or on its own initiative.  Advisory Opinion No. 2005-2 (July 7, 2005).

5   The threshold requirement for participating candidates running for public advocate consists of a minimum of $125,000 in matchable contributions raised from at least 500 New York City residents.  New York City Administrative Code § 3-703(2)(a)(ii).  Both of the candidates who raised less than $1 million have reported raising total contributions in excess of $125,000.

6   There are very specific rules regarding the raising and spending of funds for the runoff.  Board Rule 1-04(q) requires that: 1) contributions raised for a runoff election must be deposited into a separate account in accordance with Board Rule 2-06(c); 2) solicitations for contributions for a runoff election must state expressly that those contributions  are being solicited for a runoff election that might not occur; 3) the contribution limits described in New York City Administrative Code §§ 3-703(1)(f) and (h) apply; and 4) a candidate's disclosure statements must include a copy of the most recent bank statement for the runoff election account.  In relevant part, Board Rule 2-06(c) requires that: 1) no withdrawals or transfers may be made from the runoff account, except to return contributions to contributors until the first public funds for the runoff election are received; and 2) receipts for the runoff election may not be comingled with other funds or used for any election other than the runoff election.  Further,  New York City Administrative Code § 3-703(1-a) prohibits participating candidates running for public advocate from accepting aggregate contributions for a runoff primary election in excess of $200 from individuals who have business dealings with the City as defined by New York City Administrative Code § 3-702(18).