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2013-3: Runoff primary in the Democratic Party election for public advocate is "reasonably anticipated"

Thursday, 08/15/2013


Re: New York State Election Law § 6-162; New York City Administrative Code ("Admin. Code") §§ 3-703(1)(f), (h), (1-a), 3-703(2)(a)(ii), 3-705(5); Campaign Finance Board Rules ("Board Rules") 1-03(b), 1-04(q), 2-06(c), 5-01(j); Campaign Finance Board Advisory Opinion Nos. 1993-8, 1997-2, 1997-10, 1999-1, 2001-1, 2001-3, 2001-10, 2001-11, 2005-2, 2008-5, 2009-5, 2009-6, 2013-2; Op. No. 2013-3.

The New York City Campaign Finance Board (the "Board") has been asked by Squadron for New York (the "Campaign")1, the 2013 principal committee for Daniel Squadron's 2013 campaign for public advocate, to make a determination that a Democratic Party runoff primary election2 in 2013 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 party 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 notes that the incumbent public advocate is not seeking reelection; that four or more candidates will likely be on the primary election ballot, all of whom have raised significant funds; that a public opinion poll indicates a likelihood that no one candidate will receive at least 40 percent of the vote in the primary election; that the primary election is scheduled for four weeks from the submission of the request; and that media commentary suggests that a runoff primary election is likely.

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 Nos. 1999-1, 2009-5 (July 16, 2009), 2009-6 (August 6, 2009), 2013-2 (June 20, 2013)); 2) media reports discussing the likelihood of a runoff primary (Advisory Opinion Nos. 2001-1 (March 13, 2001), 2001-3, 2001-10 (August 23, 2001), 2009-5, 2009-6, 2013-2); 3) polling information (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10, 2009-5, 2009-6, 2013-2); 4) the proximity to the date of the primary (Advisory Opinion Nos. 1999-1, 2001-3, 2001-10, 2008-5 (July 10, 2008), 2009-5, 2009-6, 2013-2); 5) whether an incumbent is in the race (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10, 2009-5, 2009-6, 2013-2); 6) the number of candidates running (Advisory Opinion Nos. 1993-8 (July 20, 1993), 2001-1, 2001-3, 2001-10, 2005-2 (July 7, 2005), 2009-5, 2009-6, 2013-2); 7) the amount of funds raised by the candidates (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10, 2005-2, 2008-5, 2009-5, 2009-6, 2013-2); and 8) endorsements made to the candidates (Advisory Opinion Nos. 2009-5, 2009-6).

  1. Of the five elections for the office of public advocate since the office was established in 1993, two have had runoff primary elections (2001 and 2009).
  2. The Campaign's request references media reports from The New York Times and Politicker stating that the Democratic primary election for public advocate appears to be "wide open," with a significant percentage of voters remaining undecided.
  3. A poll published on June 26, 2013 indicated that none of the public advocate candidates had more than 17 percent support among Democrats. The Campaign's request notes that the two candidates who have raised the most funds to date (Squadron and Reshma Saujani) were not leading in the June 26 poll, "further indicating the volatility" of the contest.
  4. The request for this advisory opinion was submitted four weeks before the date of the scheduled Democratic Party primary election.
  5. There is no incumbent in the current race. As noted in the Campaign's request, since the office of public advocate was established, runoff primaries for the Democratic nomination for public advocate have been held in two of three instances in which there was no incumbent.
  6. As noted above, there are at least four potential Democratic Party primary candidates for public advocate.
  7. As of disclosure statement ten (August 9, 2013), gross reporting indicates that three of these candidates have each raised more than $1.4 million, including public matching funds, and one other candidate has raised more than $250,000. It appears unlikely that any of the top four candidates in the June 26 poll will leave the race before the primary date.

In light of the recent poll and media reports, the lack of an incumbent in the race, and the large number of viable candidates, the Board concludes that a runoff election in the Democratic Party primary for public advocate is "reasonably anticipated."5

Program participants in a runoff election are eligible to receive public funds grants equal to 25 percent of the public funds payments they received for the primary election, if any. Admin. Code §3-705(5); Board Rule 5-01(j); Advisory Opinion Nos. 2001-11 (September 7, 2001), 1997-10 (September 18, 1997). Pursuant to Board Rule 5-01(j), the Board shall make these runoff primary public funds grants "within four business days after the date of the preceding election or as soon thereafter as practicable." Runoff election public funds grants must be deposited in a segregated runoff election account. Board Rules 1-04(q), 2-06(c). Disbursements, withdrawals, or transfers from a runoff election account may not be made until the day after the primary election for which the runoff primary is held. See Rule 2-06(c); Advisory Opinion Nos. 2001-11, 1999-1. If a runoff primary is not held, or a participant is not on the ballot for a runoff election, the runoff primary election account will be treated like an account established for an election not subject to the Act, so that its use in the primary and general elections is prohibited, and the use of the account is frozen until the first January 12 after the election. See Advisory Opinion Nos. 2001-11, 1997-2 (May 15, 1997); see also Board Rules 1-03(b), 2-06(c)(1)(iii). Further, expenditures incurred after the primary will be subject to the general election spending limit if the participant is in the general election.6 Contributions received for a runoff primary may not be returned to contributors after the participant receives public funds for the runoff primary unless the runoff primary is not held or the participant is not on the ballot for the runoff primary. See Board Rules 1-04(c)(2), 2-06(c); Advisory Opinion Nos. 2001-11, 1997-10, fn. 2.

If the official results of the primary election are unduly delayed, the Board will entertain applications to issue public funds grants to those Program participants on the ballot in a primary election who show that they reasonably anticipate that they will be on the ballot for a runoff primary election, pursuant to Admin. Code §3-705(5) and Board Rule 5-01(j). See Advisory Opinion No. 2001-11; cf. Rule 5-01(i)(2). These grants will be issued by the Board as soon as the Board determines who, if anyone, is reasonably anticipated to be in a runoff primary. See Rule 5-01(j). Relevant considerations for the Board's determination will include the number of candidates whose status is uncertain and the apparent closeness of the primary election results. See Advisory Opinion No. 2001-11. If the Board of Elections ("BOE") determines that a participant who has already received a runoff primary public funds grant is not on the runoff primary ballot (or that a runoff primary will not be held), then the participant must return to the Fund the portion of any grant received that exceeds qualified campaign expenditures incurred for the runoff primary up to the date of the BOE's determination. See Advisory Opinion Nos. 2001-11, 1997-10; see also Admin. Code §3-704.




1 The Board received a letter (available at http://www.nyccfb.info/PDF/aor/aor-ao-2013-08-lellis.pdf) from the Campaign, dated August 13, 2013. In the letter, the Campaign requests permission to begin raising funds for an anticipated Democratic Party runoff election for the 2013 public advocate race. Squadron has filed a Certification with the Board for the office of public advocate for the 2013 elections.

2 When no candidate for citywide office receives at least 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," candidates running in that election may accept additional contributions for the anticipated runoff election up to one-half the amount of the applicable limitation, as provided in section 3-703(1)(f) of the New York City Campaign Finance Act (the "Act"). The contribution limit for candidates running for public advocate is $4,950. Admin. Code § 3-703(1)(f), (7). Thus, candidates running in the Democratic Party primary election for nomination for public advocate could accept additional contributions of up to $2,475 for a runoff election from contributors who have already given $4,950. Id.; see also Advisory Opinion Nos. 2009-5 (July 16, 2009), 2008-5 (July 10, 2008), 2001-1 (March 13, 2001). Pursuant to Admin. Code § 3-703(1-a), such additional contributions received from individuals who have business dealings with the City as defined by Admin. Code § 3-702(18) may not exceed $200.

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. See Advisory Opinion No. 2005-2.

5 There are very specific rules regarding the raising and spending of funds for the runoff. Board Rule 1-04(q) provides 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) no single contribution check shall be accepted in an amount that exceeds the limit applicable for the primary and general election, or a special election, under Admin. Code § 3-703(1)(f) or (h); 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) provides that: 1) no withdrawals may be made from the runoff account prior to the day of the preceding primary, except to return contributions to contributors prior to the date on which the first public funds for the runoff election are received; 2) no expenditure may be made from the runoff account until the day of the primary; and 3) receipts accepted for a runoff primary may not be commingled in any account with any receipts accepted for any other election, or used for a primary or general election held in the year that the runoff primary is held or anticipated.

6 Otherwise, no spending limit will apply (except as otherwise provided in the Act and Board Rules for an expenditure that is an in-kind contribution to another participant). See Board Rule 1-08(d); Advisory Opinion Nos. 2001-11, 1997-2.