[Federal Register Volume 78, Number 241 (Monday, December 16, 2013)]
[Rules and Regulations]
[Pages 76032-76033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29597]


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FEDERAL ELECTION COMMISSION

11 CFR Part 100

[Notice 2013-16]


Date of Political Party Nominations of Candidates for Special 
Primary Elections in New York

AGENCY: Federal Election Commission.

ACTION: Notice of interpretive rule.

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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, (202) 694-1650 or (800) 424-9530.

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

[[Page 76033]]

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.
[FR Doc. 2013-29597 Filed 12-13-13; 8:45 am]
BILLING CODE 6715-01-P