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ADVISORY OPINION NO. 2009-5 (July 16, 2009)SUMMARY
Based on the information now available, the Board has determined that a DemocraticParty public advocate run-off election is “reasonably anticipated.” Candidates seekingnomination for election in the 2009 Democratic Party public advocate primary thereforemay accept contributions for a run-off election to be deposited in a separate run-off account. Allowance for accepting contributions for a run-off election is not open-ended.Once it is no longer reasonable to anticipate a run-off election, the Board may sodetermine.
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Re: Election Law § 6-162; Administrative Code §§ 3-703(1)(f), (h), (1-a), 3-703(2)(a)(ii); Campaign Finance Board Rules 1-04(q), 2-06(c); Campaign Finance BoardAdvisory Opinion Nos. 1993-8, 1999-1, 2001-1, 2001-3, 2001-10, 2005-2, 2008-5; Op. No. 2009-5.The New York City Campaign Finance Board (the “Board”) has been asked by Gioia for  New York (the “Campaign”)
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, the 2009 principal committee for Eric Gioia’s 2009campaign for public advocate, to make a determination that a Democratic Party run-off  primary election
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in 2009 for the position of public advocate is “reasonably anticipated.”
A Candidate Must Provide Concrete Evidence to Meet the Burden to Demonstratethat a Run-Off 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 thecandidate has previously demonstrated to the Board that a runoff election is reasonablyanticipated.”
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The candidate has the burden to show that a run-off election is reasonablyanticipated, by producing “evidence of a sufficient number of bona fide prospectiveopponents for that political nomination.” Advisory Opinion No. 1999-1 (January 7,1999). This standard “is a lesser burden than, for example, proving that a run-off is‘probable.’” Advisory Opinion No. 2001-3 (May 17, 2001). Further, “the requirementthat a candidate must demonstrate that a run-off is ‘reasonably anticipated’ implies thatthe Board must ground its determination in objective facts.” Id. Board Rule 1-04 (q) also provides that contributions for a run-off election “may not be accepted once it is nolonger reasonable to anticipate such a runoff election.”
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 The Campaign’s request, which consists of a five-page letter and three-page exhibit,notes: 1) there is no incumbent candidate in the race; 2) in 2001, there was a run-off election for the office of public advocate; 3) in a press report, a candidate is cited asstating that he believes there will be a run-off election; 4) polling indicates the likelihoodthat a run-off election will be held; 5) it is late enough in the campaign season to make adetermination that a run-off election is “reasonably anticipated;” 6) the two candidates
 
trailing in the public polls have raised the most contributions; and 7) four candidates have been circulating nominating petitions. The Campaign also submitted a memorandumanalyzing public polling data. The letter and supporting material provide concreteevidence of four prospective opponents for the Democratic Party nomination for theoffice of public advocate.
A Finding that a Run-Off Primary is “Reasonably Anticipated” is Based onObjective Facts
 In assessing whether a run-off election was “reasonably anticipated,” the Board hasconsidered facts including: 1) “[a] history of run-off primaries in a particular party for theoffice at issue” (Advisory Opinion No. 1999-1); 2) media reports discussing thelikelihood of a run-off primary (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10 (August23, 2001)); 3) polling information (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10); 4)how close to the date of the primary the request for a determination is made (AdvisoryOpinion Nos. 1999-1, 2001-3, 2001-10, 2008-5); 5) whether an incumbent is in the race(Advisory Opinion Nos. 2001-1, 2001-3, 2001-10); 6) the number of candidates running(Advisory Opinion Nos. 1993-8 (July 20, 1993), 2001-1, 2001-3, 2001-10, 2005-2); and7) the amount of funds raised by the candidates (Advisory Opinion Nos. 2001-1, 2001-3,2001-10, 2005-2, 2008-5).Of the four elections for the office of public advocate, one has had a primary run-off election. One media report speculates that a run-off Democratic Party primary electionfor public advocate is likely because of anticipated low turnout for the Democratic Party primary election, the endorsements received by the candidates, and recent polls. Other media reports indicate that each of the four candidates in two recent polls has receivednumerous endorsements from other politicians and political clubs and organizations. One poll indicates that for four of the five potential Democratic Party primary candidates,support is at 35 percent, 14 percent, 10 percent, and 5 percent, with 34 percent of thosesurveyed remaining undecided. The most recent poll showed these four candidates at 39 percent, 16 per cent, 9 percent, and 8 percent, with 28 percent of those surveyedremaining undecided. Notably, the candidate with 35 percent and 39 percent support inthe two recent polls is not one of the two candidates who have raised the most campaignfunds.The request for this advisory opinion was submitted eleven weeks before the date of thescheduled Democratic Party primary election. There is no incumbent in the current race.As noted above, there are five potential Democratic Party primary candidates for publicadvocate, and the Campaign has asserted that four of them have been circulatingnominating petitions. As of disclosure statement eight (May 15, 2009), gross reportingindicates two of these candidates have each raised more than $1 million, and two othershave raised lesser amounts, but still significant funds.
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It appears unlikely that any of thefour candidates in the two recent polls will leave the race before the potential primarydate.
 
In light of the polling numbers, number of candidates, lack of an incumbent candidate,endorsements made to the candidates, contributions raised, and point in the campaignseason, the Board concludes that a run-off election in the Democratic Party primary for  public advocate is “reasonably anticipated.”
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NEW YORK CITYCAMPAIGN FINANCE BOARDENDNOTES
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