Draft interpretive rule regarding date of nominations for New York special primary elections

On November 22, 2013, the Commission posted for public comment a draft interpretive rule to clarify that—consistent with state law—the date of a special primary election in New York is the date on which the political party committee votes to nominate the party’s candidate for the special election, and not the date on which the certification of that vote is filed.  

Comments on the draft interpretive rule are due by Noon (EST), December 4, 2013.

Background

Under the Federal Election Campaign Act (the Act) and Commission regulations, 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. See 2 U.S.C. §431(1)(A),(B) and 11 CFR 100.2(c)(1) and (f). 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); Rules of the New York Republican State Committee, Art. VII, Rule 1 (June 9, 2011). Also, if 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.

Based on those legal provisions and party rules, candidates in New York 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 in these situations is a "primary election" within the meaning of the Act and Commission regulations. See Advisory Opinions (AOs) 2004-20 (Farrell for Congress) and 1992-25 (Owens for Senate Committee). Although the party’s subsequent filing of a certification formalizes the nomination, 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).

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.

Instructions for commenting

The draft interpretive rule was published on the Commission’s website on November 22, 2013. Public comments are due by Noon (EST) on December 4, 2013, and should be addressed to the Commission Secretary, 999 E Street, NW, Washington, DC 20463, via fax to 202-208-3333 or email to secretary@fec.gov. All comments should reference Agenda Document 13-48.

Resources:

• Draft interpretive rule [PDF]
• Commission consideration of draft [mp3]