2013-29597. Date of Political Party Nominations of Candidates for Special Primary Elections in New York

AGENCY:

Federal Election Commission.

ACTION:

Notice of interpretive rule.

SUMMARY:

The Federal Election Commission is clarifying its interpretation of its rules for determining the date of a special primary election as those rules apply to nominations conducted under New York statutes that provide for a candidate to be nominated for a special election by a vote of a state or county party committee.

DATES:

December 16, 2013.

FOR MORE INFORMATION CONTACT:

Robert M. Knop, Assistant General Counsel, or Cheryl A.F. Hemsley, Attorney, 999 E Street NW., Washington, DC 20463, [phone] or [phone].

SUPPLEMENTARY INFORMATION:

This Notice clarifies that, for purposes of the Federal Election Campaign Act of 1971, as amended (the “Act”), and Commission regulations, the date of a special primary election under New York law is the date on which the political party committee votes to nominate the party's candidate for the special general election, not the date on which the certification of that vote is filed. Because the Act and Commission regulations provide for separate contribution limits for each “election,” ^[1] the Commission issues this clarification to assist candidates and their authorized committees in distinguishing contributions for special primary elections in New York from contributions for special general elections.

The Act provides that an “election” includes “a general, special, primary, or runoff election . . . [or] a convention or caucus of a political party which has authority to nominate a candidate.” 2 U.S.C. 431(1)(A), (B). Commission regulations define a “primary election” as an “election which is held prior to a general election, as a direct result of which candidates are nominated, in accordance with applicable State law, for election to Federal office in a subsequent election.” 11 CFR 100.2(c)(1).^[2] A “special election” is an election to fill a vacancy in a Federal office and may be a primary, general, or runoff election. 11 CFR 100.2(f). Under the Act and Commission regulations, therefore, a special primary election is an election, convention, or caucus with the authority to nominate candidates in accordance with applicable state law for a subsequent general election that is held to fill a vacancy in a Federal office.

New York election law generally provides that “[p]arty nominations for an office to be filled at a special election shall be made in the manner prescribed by the rules of the party.” N.Y. Elec. Law 6-114. New York Democratic and Republican State party committee rules provide that the county committees within a vacant congressional district nominate candidates for a special election to the U.S. House of Representatives; and that the state committees nominate candidates for a special election to the U.S. Senate. See Party Rules New York State Democratic Committee, Art. VI, Sec. 2 (2012); and Rules of the New York Republican State Committee, Art. VII, Rule 1 (June 9, 2011). Similarly, when a vacancy in an elected office occurs too late for candidates to participate in a regularly scheduled primary, New York election law requires a party to nominate its candidate by a vote of the appropriate state or county party committee. See N.Y. Elec. Law 6-116. After a party committee votes to nominate a candidate, a “certificate of nomination shall be filed” with the appropriate election board certifying the committee's vote. Id.; see also id. 6-144, 6-156. Failure to file this certification is “a fatal defect” in the nomination. Id. 1-106.

Sections 6-114 and 6-116 vest special election nominating authority in the party committees, either directly or by operation of state party rules. Under these provisions, therefore, candidates are placed on the general election ballot “in accordance with applicable state law” as “a direct result” of the relevant party committee vote. See 11 CFR 100.2(c)(1). Accordingly, the party committee vote is a “primary election” within the meaning of the Act and Commission regulations. See Advisory Opinion 2004-20 (Farrell for Congress) (determining that party convention constituted primary election where convention's endorsement of only one candidate caused candidate to be placed directly on general election ballot); Advisory Opinion 1992-25 (Owens for Senate Committee) (concluding that party convention constituted primary election where candidate would be placed directly on general election ballot if candidate received at least 70% of votes at convention). The subsequent filing of a certification formalizes the nomination, but such a filing is not the primary election itself. See FEC v. Citizens for Senator Wofford, No. 1:CV-94-2057, slip op. at 8-10 (M.D. Pa. Sept. 27, 1995) (holding that state party convention constituted “primary election” under Act and Commission regulations even though state law required party to file subsequent certificate of nomination with state).

For the foregoing reasons, the Commission issues this interpretive rule to clarify that the date of a special primary election held pursuant to N.Y. Elec. Law 6-114 or 6-116 is the date of the party committee's nomination vote. To the extent that other states' nominating procedures for special elections are materially indistinguishable from those of New York, the Commission anticipates that this interpretation would apply to such other states as well.

This interpretive rule clarifies the Commission's interpretation of existing statutory and regulatory provisions and therefore does not constitute an agency action subject to notice and comment requirements or a delayed effective date under the Administrative Procedure Act. See 5 U.S.C. 553. The provisions of the Regulatory Flexibility Act, which apply when notice and comment are required by the Administrative Procedure Act or another statute, do not apply. See 5 U.S.C. 603(a). The Commission is not required to submit this interpretive rule for congressional review. See 2 U.S.C. 438(d)(1), (4).

Dated: December 5, 2013.

On behalf of the Commission,

Ellen L. Weintraub,

Chair, Federal Election Commission.

Footnotes

1.  See 2 U.S.C. 441a(a)(1)(A); 11 CFR 110.1(b)(1), 110.2(b)(1).

2.  Because the date of a special primary election for an independent or minor-party candidate is governed by different regulatory criteria, see 11 CFR 100.2(c)(4), this Notice encompasses only nominations by a major political party, which is a party whose candidate for President received at least 25 percent of the popular vote in the preceding presidential election. 26 U.S.C. 9002(6).