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2001-10: Runoff Election in 2001 Democratic Public Advocate Primary is "Reasonably Anticipated"

August 23, 2001

Re: Election Law §6-162; Administrative Code §3-703(1)(f); Campaign Finance Board Rules 1-04(q), 2-06(c); Advisory Opinions Nos. 2001-1, 2001-3; Op. No. 2001-10.

Participants in the Campaign Finance Program1 have requested a determination from the Campaign Finance Board (the "Board") that a Democratic Party runoff primary election for Public Advocate is "reasonably anticipated" within the meaning of Rule 1-04(q).2

Under Rule 1-04(q), once the Board makes a determination that a runoff primary election3 is "reasonably anticipated," participating candidates for citywide office may accept additional contributions for that runoff election totaling up to one-half the amount of the applicable contribution limit for citywide office, as provided in Section 3-703(1)(f) of the New York City Administrative Code (the "Administrative Code"). The current contribution limit for participating Public Advocate candidates is $4,500. Administrative Code §3-703(1)(f). Participating Public Advocate 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), including that participants may not raise funds for a runoff election unless the Board has determined that a runoff is "reasonably anticipated," that each runoff primary contribution must be placed in a separate account, that disbursements from that account generally may not be made prior to the day of the primary, and that until a primary election is held, each solicitation of runoff primary contributions must expressly state that such contributions are being solicited only for a runoff primary election that may not occur.

The Board has had two occasions this year to provide guidance concerning when a runoff primary will be considered "reasonably anticipated," and in each advisory opinion has interpreted this as an objective standard with a lesser burden of proof placed upon candidates than proving that a runoff is "probable." Advisory Opinions Nos. 2001-1 (March 13, 2001), 2001-3 (May 17, 2001). In Advisory Opinion No. 2001-3, the Board determined that a runoff election was not reasonably anticipated "at this stage in the Democratic Party primary race for Public Advocate." However, the Board stated that candidates may submit another request for a determination at such time in the future as the race has sufficiently evolved to enable them to demonstrate with concrete evidence that a runoff is "reasonably anticipated." At the time of the earlier opinion, there were six known candidates for Public Advocate, but the Board noted the lack of polling information made available to the Board and that "few observers have commented on the possibility of a runoff election." Since that time, one new candidate has emerged, all seven candidates both have submitted designating petitions with the Board of Elections seeking the Democratic Party nomination and have joined the Campaign Finance Program, and five of them have exceeded the threshold to receive public matching funds. In addition, although the Public Advocate race has not attracted a great deal of media attention, and no polling organization has published polling results for this office, there has been recent comment on the tightness and intensity of the race and the unusually large amounts of funds raised by the Democratic Primary candidates, suggesting the likelihood of a runoff primary.

In Advisory Opinion No. 2001-1, the Board determined that a Democratic Party Mayoral runoff primary was "reasonably anticipated" in 2001. In making its determination, the Board considered both polling information indicating that no candidate could command the 40 percent vote needed to avoid a runoff primary and press reporting which uniformly predicted a runoff primary. Further, the Board noted that four candidates for the Democratic Party nomination for Mayor had raised significant funds, there is no incumbent eligible to run for the office, and "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." Advisory Opinion No. 2001-1.

As with the Democratic Party Mayoral primary race, the race in question involves no eligible incumbent, at least five candidates who have demonstrated their ability to obtain public matching funds, and at least two candidates who are precluded by term limits from running for their current offices. The possibility of candidates abandoning the race at this stage in the election cycle, less than three weeks before the primary, is much lessened by the passage of time and the demonstration of commitment and ability to compete in the race by the amount in contributions these candidates have raised. Cf. Advisory Opinion No. 2001-3.

Based on the information now available, the Board concludes that the race has now sufficiently evolved that a runoff election in the Democratic Public Advocate primary is "reasonably anticipated" within the meaning of Rule 1-04(q) at this time. 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.


1 Mark Benoit, Campaign Manager for the Committee for Betsy Gotbaum, and Marc Andrew Landis, Treasurer for A Lot of People for Scott Stringer, each requested the determination.

2 Rule 1-04(q) provides, in pertinent part, that "a participant seeking the nomination of a political party may not accept contributions for a runoff primary election, unless the participant has previously demonstrated to the Board that a runoff primary for such party nomination is reasonably anticipated."

3 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. N.Y.S. Election Law §6-162.