FEDERAL ELECTION COMMISSION

 WASHINGTON, D.C. 20463

MEMORANDUM

TO: The Commission

FROM: Lisa J. Stevenson

Acting General Counsel 

Lorenzo Holloway 

Assistant General Counsel

Compliance Advice

Jennifer G. Waldman

Attorney

SUBJECT: Request for Consideration of a Legal Question Submitted by Friends of Mike Lee 

(LRA #1044) 

I. REQUEST FOR CONSIDERATION OF A LEGAL QUESTION: MAY THE

COMMITTEE RETAIN CONTRIBUTIONS THAT WERE DESIGNATED

FOR A PRIMARY ELECTION THAT DID NOT OCCUR

On April 24, 2017, the Commission received a Request for Consideration of a Legal 

Question (“Request”) from counsel on behalf of Friends of Mike Lee (the “Committee”), the 

principal campaign committee of United States Senator Mike Lee from the State of Utah

(“Candidate”).1

 See Attachment 1. 

The Request addresses a determination by the Reports Analysis Division, based on 

informal guidance provided by the Office of General Counsel, that the Committee must refund 

certain contributions designated for the primary election that it accepted and spent before it was 

determined that there would not be a primary election. 

1 At least two Commissioners agreed to consider this Request pursuant to the Policy Statement 

Regarding a Program for Requesting Consideration of Legal Questions by the Commission. 81 Fed. Reg. 29861 

(May 13, 2016).

May 22, 2017
Memorandum to Commission

Friends of Mike Lee (LRA #1044)

Page 2 of 6

As of 2016, a candidate seeking to appear on the primary ballot in Utah has two methods 

to obtain primary ballot access under Utah law. See Senate Bill 54 (2014): Frequently Asked 

Questions, Prepared by the Office of the Lieutenant Governor (Oct. 19, 2015); UT Code § 20A9-403; 406 (2016). First, the candidate may be nominated at his or her party’s convention. UT 

Code § 20A-9-406 (2016). In addition, Utah law permits candidates to use a petition process to 

bypass the convention and advance to a primary election. UT Code § 20A-9-403(3)(a) (2016). 

If a candidate gathers a sufficient number of signatures on his or her petition by a certain date, 

the candidate’s name will be placed on the ballot for a primary election to be held after the 

convention. UT Code § 20A-9-403(3)(b), (4)(a)(ii), and (5)(c) (2016). If a candidate is 

nominated at the party convention and no other candidates gain access to the primary election 

ballot, the party-nominated candidate becomes that party’s candidate for the general election 

without participating in a primary election. UT Code § 20A-9-403-5(c) (2016). 

The Candidate used both methods to gain access to the primary ballot. The Committee’s 

disclosure reports show that the Committee received two types of designated contributions: 

contributions designated for the convention and contributions designated for the primary 

election. 

On April 23, 2016, the Candidate became the Republican Party’s nominee for the United 

States Senate at the conclusion of the Utah Republican Party convention. The Candidate also 

gained enough signatures on his petition to appear on the primary election ballot. The Candidate 

learned five days before the nominating convention that he was the only candidate to qualify for 

the primary ballot through the petition method. Attachment 2 at 4. Once the Candidate became 

the party nominee at the party convention and no other candidates qualified for the ballot via the 

petitioning process, Utah determined there was no need for a Republican primary election. As a 

result, Utah cancelled the Republican primary election. UT Code § 20A-9-403-5(c) (2016).

Since Utah cancelled the primary election, the Reports Analysis Division requested that 

the Committee refund or redesignate the contributions that contributors had designated for the 

primary election. The Committee refunded all of the primary contributions received after April 

23, 2016, the date of the convention, but it retained the $453,583.78 in primary election 

contributions that it received before the convention. 2

The Committee contends that to gain primary election ballot access, it was forced to 

spend money on the nominating convention as well as on the gathering of signatures to appear on 

the primary ballot. Attachment 3 at 4. The Committee claims that it spent over $200,000 to 

gather signatures. 3 Id. The Committee argues that it was required to proceed along both tracks 

because the signatures were not certified until April 18, 2016 and had the Committee not 

 2 The Committee had $254,492 cash on hand as of March 31, 2017.

3 While the Committee claims that it spent $200,000 to gather the signatures, the Committee does not state in 

its written response to RAD whether it actually spent its primary election contributions on the petition effort. See

Attachment 3. Since the Committee cites this as its reason for declining to refund the primary election contributions 

it accepted before the convention, however, we are assuming solely for the purpose of this analysis that it spent the 

primary election contributions on this effort. 
Memorandum to Commission

Friends of Mike Lee (LRA #1044)

Page 3 of 6

collected the mandatory number of valid signatures, it would have been too late to attempt to 

gain ballot access via the nominating convention. See Attachment 1. Due to uncertainty 

surrounding the new law allowing for two paths for a candidate to appear on the primary election 

ballot, the Lieutenant Governor (the chief election officer in Utah) issued guidance 

recommending that all candidates seek both the nomination at their party convention and the 

petitioning process. Voter and Candidate Clarification Issued by State of Utah (Jan. 19, 2016). 

The Committee asserts that because it spent the money on gaining access to the primary election, 

which at the time it did not know would not occur, the Committee was following the 

recommendations of the Lieutenant Governor. 

The Committee relies on Advisory Opinion 2004-20 (Farrell) to support its arguments. 

In Farrell, the Commission considered contributions in connection with Connecticut elections, 

which, similarly to Utah, offered two paths for a potential congressional candidate to gain access 

to the ballot – through the party’s nominating convention or through a signature-gathering 

petition process. Advisory Opinion 2004-20. The Farrell for Congress committee inquired as to 

whether the committee could continue to accept undesignated primary election contributions 

after the candidate was nominated during a party convention and the primary election was 

cancelled. Id. The Commission concluded that Farrell for Congress could not accept 

undesignated primary contributions following the date of the party convention. Id. 

In reaching this conclusion, the Commission recognized Connecticut’s nominating 

convention and the primary election were two different elections for the purpose of applying the

contribution limits. Advisory Opinion 2004-20. Because Ms. Farrell, however, did not 

participate in the primary election, and the nominating convention was the only election she 

participated in during the primary process, the Commission concluded that the committee must 

treat the undesignated contributions received after the convention as contributions for the general 

election. See Advisory Opinion 2004-20 (Farrell). 

The Committee argues that, similar to Connecticut, the Utah nominating convention and 

the primary election are two separate elections with separate contribution limits, and as a result, 

the Committee may raise and spend contributions for the nominating convention and for 

gathering signatures for the primary election. Attachment 2, at 3. 

As a general legal matter, we agree that Utah’s nominating convention and its primary 

election are two separate elections, but we conclude that the Committee cannot retain the 

contributions that the contributors designated for the primary election because the primary 

election was cancelled. 

II. THE COMMITTEE CANNOT RETAIN PRIMARY ELECTION 

CONTRIBUTIONS BECAUSE THE PRIMARY ELECTION WAS 

CANCELLED 

The Federal Election Campaign Act of 1971 (the “Act”) places limitations on the 

aggregate amount of contributions that any person or multicandidate political committee may 

make to a candidate with respect to any election for federal office. 52 U.S.C. § 30116(a)(1) and 

(2). These limitations apply separately with respect to each election. 52 U.S.C. § 30116(a)(6); 
Memorandum to Commission

Friends of Mike Lee (LRA #1044)

Page 4 of 6

11 C.F.R. §§ 110.1(j) and 110.2(i). Here, because the convention had the authority to nominate a 

candidate, it qualified as an election separate from the anticipated primary election. See 52 

U.S.C. § 30101(1)(A) and (B); 11 C.F.R. § 100.2(e) (defining “election” in pertinent part to 

include a convention or caucus with the authority to nominate a candidate.). See also Advisory 

Opinion 1992-25 (Owens) (concluding that Utah convention is a separate election)4; UT Code § 

20A-9-403(1)(b)(2016).

The issue here is that Utah cancelled the anticipated primary election. In Advisory 

Opinion 1980-68 (Miller), the Commission recognized that accepting contributions for an 

election at a time before the necessity of such an election is determined -- in this case, a primary 

run-off election -- is “analogous to accepting general contributions before the primary election.” 

AO 1980-68, p 2; see also AO 2009-15 (Bill White for Texas). Thus, given that the convention 

and the primary election would constitute separate elections, the Committee here was permitted 

under these authorities to accept contributions for both elections before the date of the 

convention. At the same time, however, contributions designated for an election that does not 

occur, or in which a person is not a candidate, must be refunded, redesignated for another 

election in which the candidate has participated or is participating, or reattributed to another 

contributor. 11 C.F.R. §§ 102.9(e)(3), 110.1(b)(5) and (k)(3); see AOs 1980-68; 1982-49

(Weicker); 2009-15. A candidate may not be accorded a separate contribution limit for an 

election in which he or she does not participate. AOs 2009-15; 1986-17 (Green).

In this case, the Committee and the Candidate chose to pursue both routes to the primary 

ballot available to them under Utah law – seeking the nomination from the party convention and 

circulating and gathering signatures to petition their way onto the ballot. The Committee 

contends that it spent over $200,000 on its signature gathering effort and the Office of the 

Lieutenant Governor certified the petition, qualifying the Candidate to appear on the primary 

ballot. Attachment 3 at 3. As noted above, however, the Candidate became the nominee 

designated by the convention at its conclusion on April 23, 2016, thus obviating the need to hold 

a subsequent primary election, which was then cancelled. 

We do not agree with the Committee’s argument that its advance spending of the primary 

election funds immunized it from the requirement to refund, reattribute or redesignate those 

contributions once it was determined that the primary election would not be held. See 

Attachment 3. If a candidate does not participate in an election, he or she is not entitled to a 

separate contribution limit for that election and the spending of contributions collected in 

advance does not change this determination. See AO 1986-17 (Green). The Commission’s 

regulations provide that a primary election which is not held because a candidate was nominated 

by a caucus or convention with authority to nominate is not considered a separate election for the 

 4 The petition process was added in 2016 and thus was not considered by the Commission in rendering its 

conclusion in Advisory Opinion 1992-25 (Owens). The petition process does not undermine that conclusion, 

however, because the Commission has concluded that the “authority to nominate” requirement is satisfied even 

when there is a possibility that the convention decision might be upset under relevant state law. See Advisory 

Opinion 1976-58 (Peterson)(concluding that the possibility of post-convention primary election if candidate gained 

at least 20 percent of vote did not compromise the state convention’s character as separate election). While it is 

possible that a post-convention primary election featuring multiple candidates on the ballot could be held, the Utah 

state party convention still has the authority to nominate under Utah law.
Memorandum to Commission

Friends of Mike Lee (LRA #1044)

Page 5 of 6

purpose of applying the contribution limits. 11 C.F.R. § 110.1(j)(4); see also AOs 2009-15 

(White)(addressing only scheduled elections in which candidates are unopposed or that are not 

held because the candidate is unopposed or received the majority of votes in a previous election); 

1986-12 (Ferraro)(concluding that contributions to a candidate with respect to an election in 

which she does not participate as a candidate must be refunded to the contributors). 

The Commission recently reaffirmed the general principle that candidates are required to 

refund contributions for elections in which the candidate does not subsequently participate. In a 

Request for Consideration of a Legal Question submitted by the Cantor for Congress committee, 

the Cantor for Congress committee argued that it was not required to return general election 

contributions that had been spent in anticipation of participating in the general election, after the 

candidate lost the primary election. Memorandum from Lisa J. Stevenson to Commission,

Request for Consideration of a Legal Question by the Commission by Cantor for Congress (LRA 

#980) (Jan. 27, 2015). The Commission concluded that the Cantor for Congress committee was 

required to refund all contributions designated for the general election, even those spent in 

anticipation of participating in the general election. Vote Certification, Cantor for Congress 

(LRA #980) (Mar. 18, 2015). Similarly, in another Request for Consideration of a Legal 

Question by the David Vitter for U.S. Senate Committee, the Commission agreed that “while 

candidates may choose to spend some or all of the general election contributions they collect 

before the primary election takes place, they do so at the risk that if they do not participate in the 

general election, they will be required to refund the general election contributions.” 

Memorandum from Lisa J. Stevenson, to Commission, Request for Consideration of a Legal 

Question by the Commission by David Vitter for U.S. Senate (LRA #1027) (Sept. 29, 2016),

Vote Certification, David Vitter for U.S. Senate (LRA #1027) (Oct. 27, 2016). See also

Memorandum from Christopher Hughey, to Commission, Request for Consideration of a Legal 

Question by the Commission by Michael Williams for U.S. Senate (LRA #872) (Mar. 19, 2012), 

Certification of Commission in matter of Michael Williams for U.S. Senate (LRA #872) (Apr. 

10, 2012) (candidate is required to refund or redesignate contributions designated for special 

election that does not occur).

Under these same principles, the Committee cannot retain the contributions designated 

for the primary election that it spent in its effort to gain access to the ballot, for an election that 

was not held. The Committee permissibly solicited designated contributions for the convention 

and the primary election in advance of the convention. However, once it was known that the 

primary election would not be held, the Committee was required to return or receive permission 

to re-designate all contributions designated for that primary election. 11 C.F.R. § 110.1(b)(5) 

and (k)(3); see AOs 1980-68; 1980-22; 1982-49; 2009-15. 

III. RECOMMENDATION

For the reasons noted above, we recommend that the Commission conclude that the 

Committee cannot retain any contributions that were designated for the primary election. 
Memorandum to Commission

Friends of Mike Lee (LRA #1044)

Page 6 of 6

Attachments –

1. Request for Legal Consideration from Friends of Mike Lee, dated April 24, 

2017.

2. Supplement to Request for Legal Consideration from Friends of Mike Lee, 

dated May 8, 2017.

3. Response to Request for Additional Information, dated December 2, 2016.
ATTORNEYS AT LAW

WASHINGTON HARBOUR

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SUITE 600

WASHINGTON, D.C. 20007-5109

202.672.5300 TEL

202.672.5399 FAX

WWW.FOLEY.COM

WRITER’S DIRECT LINE

202.295.4081

cmitchell@foley.com EMAIL 

 

CLIENT/MATTER NUMBER

999100-0100

BOSTON

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DETROIT

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LOS ANGELES

MADISON

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NEW YORK

ORLANDO 

SACRAMENTO

SAN DIEGO

SAN FRANCISCO

SHANGHAI 

SILICON VALLEY

TALLAHASSEE

TAMPA 

TOKYO

WASHINGTON, D.C.

April 24, 2017 

Via electronic mail: LegalRequestProgram@fec.gov

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

ATTN: Secretary to the Commission 

Re: Friends of Mike Lee, C00473827, Request for Legal 

Determination 

To the Commissioners of the Federal Election Commission: 

The undersigned serves as counsel to Friends of Mike Lee, the principal authorized 

campaign committee of Mike Lee, United States Senator from Utah, FEC ID #C00473827 (“the 

Committee”). 

The Committee received a Request for Additional Information (“RFAI”) from the 

Reports Analysis Division (“RAD”) on October 11, 2016, with regard to the Committee’s July 2016 

Quarterly Report. RAD directed the Committee to return all contributions received by the 

Committee designated for the Utah primary in June 2016. The Committee provided a response to 

RAD on December 2, 2016, in which the Committee pointed out that the 2016 Utah primary election 

and the 2016 Utah GOP nominating convention were separate elections under Utah state law and, 

pursuant to the Commission’s regulations and prior legal precedent, the Committee was permitted to 

raise and spend funds for both the primary election and the state party nominating convention, up to 

the time when the convention was concluded and Sen. Lee was officially nominated as the 

Republican candidate for the United States Senate to appear on the November 2016 General Election 

ballot in Utah. 

RAD advised the Committee on April 20, 2017 that it had been informally advised by 

the Office of General Counsel to reject the Committee’s submission. No information regarding the 

basis on which the OGC rendered such advise has been provided to the Committee. 

The request from RAD to refund all primary contributions received by the Committee 

is contrary to and otherwise inconsistent with prior Commission matters and advisory opinions 

dealing with the same issue. 

Attachment #1 

Page 1 of 3 
April 24, 2017 

Page 2 

FOLEY & L ARDN ER LLP

Please consider this a request for legal determination by the Commission with regard 

to the question of whether funds raised for both a primary election and a state nominating convention 

are separate elections, allowing the Committee to solicit funds for both. This request for legal 

determination is warranted under the Commission’s Legal Request Program. See Federal Election 

Commission Notice 2016-02, 81 Fed. Reg. No. 93 39861, Friday, May 13, 2016. 

The facts of this matter are not disputed and are described more specifically in the 

Committee’s submission to RAD. See Attached Exhibit, December 2, 2016 Letter to RAD from the 

Committee. 

Prior to the GOP Nominating Convention, the Committee raised and spent substantial 

funds both for the Nominating Convention as well as gathering signatures to qualify for the 2016 

Utah Primary ballot, which followed the advice rendered by the Utah Lieutenant Governor’s office 

to all prospective candidates in January 2016. The Committee treated the Nominating Convention 

and the primary election signature gathering as two separate elections which, under Utah state law, 

they were. The Committee was not certain until April 23, 2016, at the conclusion of the GOP 

Nominating Convention, whether there was or was not going to be a contested primary election. 

After that date, the Committee accepted no further contributions designated for the 2016 primary. 

The scenario that unfolded in Utah in 2016 is identical to the situation in Connecticut 

described in FEC Advisory Opinion 2004-20. 

The Committee returned any / all contributions for the Utah 2016 primary received 

after the GOP Nominating Convention. However, it is contrary to law and Commission precedent to 

require the Committee to return primary contributions received before the convention during the 

time when a primary election was still a real possibility. Only after the GOP Nominating 

convention did it become clear that the primary election would not take place with regard to 

nominating the GOP candidate for the United States Senate. 

The Committee requests that any legal analysis provided to RAD and to the 

Commission in this matter be disclosed to the Committee with the opportunity for our formal 

response prior to the Commission’s consideration of this matter. We have no idea what legal 

authority can possibly exist for RAD’s directive that the Committee refund primary contributions 

received before the date when a primary election was still scheduled to occur. 

Accordingly, the Committee requests the Commission issue its legal decision 

directing RAD to withdraw its prior notice to the Committee requiring the return of primary 

contributions received prior to the 2016 GOP nominating convention. 

Please contact me at (202) 431-1950 or cmitchell@foley.com should the Commission 

need additional information. 

Attachment #1 

Page 2 of 3 
April 24, 2017 

Page 3 

FOLEY & L ARDN ER LLP

Thank you for your consideration of this Request for Legal Determination. 

Sincerely, 

/c/ Cleta Mitchell

Cleta Mitchell, Esq., Counsel

Friends of Mike Lee 

Attachment – December 2, 2016 Committee Submission to RAD 

Attachment #1 

Page 3 of 3 
ATTORNEYS AT LAW

WASHINGTON HARBOUR

3000 K STREET, N.W.

SUITE 600

WASHINGTON, D.C. 20007-5109

202.672.5300 TEL

202.672.5399 FAX

WWW.FOLEY.COM

WRITER’S DIRECT LINE

202.295.4081

cmitchell@foley.com EMAIL 

CLIENT/MATTER NUMBER

999100-0100

BOSTON

BRUSSELS

CHICAGO

DETROIT

JACKSONVILLE 

LOS ANGELES

MADISON

MIAMI

MILWAUKEE 

NEW YORK

ORLANDO 

SACRAMENTO

SAN DIEGO

SAN FRANCISCO

SHANGHAI 

SILICON VALLEY

TALLAHASSEE

TAMPA 

TOKYO

WASHINGTON, D.C.

May 8, 2017 

Via electronic mail: LegalRequestProgram@fec.gov

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

ATTN: Secretary to the Commission 

Re: Friends of Mike Lee, C00473827, Supplement to Request for 

Legal Determination 

To the Commissioners of the Federal Election Commission: 

Please consider this a supplement to the April 24, 2017 Request for Legal 

Determination submitted by Friends of Mike Lee (“the Committee”). 

I spoke last week with Jennifer Waldman from the Office of General Counsel in an 

effort to come to some agreement about this matter. During the course of the conversation, it 

became clear that the attorneys in OGC are basing their conclusions on advisory opinions that are 

not exactly on point with regard to the current situation. 

As I indicated in my submission, prior to 2014, the only way a candidate could 

become the nominee of his/her party on the general election ballot was through the state party 

nominating conventions. The Utah legislature in 2014 changed the path to the general election, by 

creating a separate route to securing the nomination. The legislation, SB 54, created an additional or 

alternative manner for appearing on the state’s primary ballot, which was through a petition / 

signature gathering process. The new law was challenged in court in January 2016 by the Utah 

Republican party and there was a great deal of uncertainty surrounding the status of the law and its 

application to candidates in the 2016 election cycle. 

The Utah chief elections officer is the Lieutenant Governor. To address the many 

questions from candidates in January 2016, Lt. Gov. Spencer J. Cox issued a public advisory to all 

candidates and would-be candidates, in which he responded to a number of the inquiries that were 

being asked of his office. The question below is applicable to the present situation involving Sen. 

Lee’s route to the nomination in 2016: 

Attachment #2 

Page 1 of 5
May 8, 2017 

Page 2 

FOLEY & L ARDN ER LLP

“Question #6: In light of the uncertainty surrounding potential litigation, do you 

have a recommendation on which path a candidate should take to ensure access 

to the ballot? 

“This is the question I receive most often from candidates. The decision 

and calculation on which path to choose will be different and personal 

for each campaign. While there are many different reasons to choose 

one path over another, I can only speak to ballot access. While I am 

attempting to provide as much information and clarity as possible to 

help candidates make an informed decision, I recognize that additional 

litigation makes a final outcome difficult to predict. Although judges 

are historically averse to removing candidates from the ballot, it is 

impossible to know with 100% certainty whether a judge could 

invalidate the signature path or remove the party’s QPP status, thus 

eliminating the caucus/convention path. In short, while I can ensure 

ballot access for either ballot paths, a judge could alter that 

determination. As such, it appears that the only way to completely 

guarantee ballot access, regardless of any judicial outcome, would be 

for candidates to choose BOTH routes (gathering signatures AND 

participating in the caucus/convention)...” ( emphasis added) 

In other words, because of the changes in the statute, coupled with pending litigation 

involving aspects of the new law, the chief elections officer of the state advised all candidates 

to seek the nomination of their party using both the petitioning process and the party 

nominating conventions. Two separate elections, each having the potential to select the 

party’s nominee. 

That is what Sen. Lee did. He followed the advice of the Lieutenant Governor’s office 

and expended resources for both the party nominating convention and the primary ballot 

access petitioning process. 

Only after the nominating convention was concluded did Sen. Lee know for certain that 

he was the GOP nominee and that no candidate would be challenging him on the primary 

ballot. That is because no other Republican candidate gathered and submitted sufficient 

signatures to appear on the primary ballot. 

Sen. Lee did what he was instructed to do. Through no actions of his own, the 

Lieutenant Governor’s office decided not to incur the expense of conducting a primary 

election for the Republican nomination, because that had been determined on April 23, 2016

and no other candidate had secured the signatures to force a primary election for the 

Republican nomination. 

Attachment #2 

Page 2 of 5
May 8, 2017 

Page 3 

FOLEY & L ARDN ER LLP

That was not within the power of Sen. Lee to change. He qualified for the primary 

ballot and then he won the state party’s nomination at the convention. He had no control 

whatsoever over the decision of the state elections officer to decide, after the conclusion of the 

party nominating convention, that holding a primary for this nominee was not necessary. That 

was purely within the province of the Lieutenant Governor as the election official of the state 

of Utah. 

The advisory opinions on which the Office of General Counsel is relying are 

inapplicable to these facts and this situation. 

First, the OGC mistakenly relies upon the Request for Legal Determination LRA980 

involving the expenditure of general election funds by a candidate who lost a primary 

election. Clearly, that situation is wholly inapposite to the facts here. There, the candidate 

knew in advance of the primary election that he might not move to the next election, but 

nonetheless chose to expend general election funds prior to the date of the primary, on an 

assumption that he would be the party nominee in November. He was not. 

That is not the situation here. The facts of this situation are that there were two 

elections scheduled, either of which had the legal authority under state law to nominate the 

general election candidate. The Commission has historically advised that whether or not an 

election is a ‘separate election’, for which a separate contribution limit is allowable, is a 

matter of state law. See Advisory Opinions 1984-16, 1981-19, 1976-58 and 1978-30. In 

each of these cases, the Commission’s decision turned on whether the law of the state 

established procedures whereby party nominees were legally determined by a convention, as 

well as a primary. Where each process can independently nominate the candidate to appear 

on the general election ballot, then each is a separate election, with separate contribution 

limits. 

That is precisely what happened in Utah in 2016. The chief elections officer of the 

state advised all candidates to seek their party nomination through both the convention and the 

primary to be held in June, both of which procedures had legal authority to nominate the 

candidates. Sen. Lee heeded that advice, then raised and spent funds for two elections, in both 

of which he qualified to participate. On April 18, 2016, Sen. Lee was declared eligible to 

appear on the primary ballot, based on the signatures gathered and submitted on the 

nominating petitions. Then, following the party nominating convention on April 23, 2016, 

the state elections office determined that a primary was not going to be held but that decision

was beyond Sen. Lee’s control and certainly was not Sen. Lee’s decision. Had the primary 

election been held, Sen. Lee would have been on the ballot because he had gathered the 

requisite number of signatures and had previously been declared eligible to appear on the 

primary ballot. 

Attachment #2 

Page 3 of 5
May 8, 2017 

Page 4 

FOLEY & L ARDN ER LLP

The Commission would be acting in a manner contrary to its historic precedent 

applying state law to the determination of whether a convention and a primary are separate 

elections. Where, as here, a candidate follows the dictates of state law, where both a primary 

and a convention have power to nominate the general election candidate, the Commission has 

recognized separate limits for each. In addition, in this case, Sen. Lee followed the directive 

of the chief state elections official in seeking parallel routes to the ballot, and Sen. Lee was 

declared eligible for the primary ballot prior to his nomination at the state party convention. 

Those were two separate elections under Utah law, as evidenced by the public advisory from 

the Lieutenant Governor’s office. And, in fact, the Democratic nominee for the United States 

Senate failed to receive 70% of the Democratic Party vote at the state Democratic Party 

convention and was forced to appear on the primary ballot in order to secure the nomination 

for the General Election. Sen. Lee, who qualified for the Republican primary ballot, won the 

nomination by receiving over 70% of the party’s votes at the state party convention in April –

and no other candidate for the Republican nomination filed sufficient signatures to force a 

primary election for the GOP nomination. That fact was not known until April 18, 2016, 

when the Lieutenant Governor issued the list of candidates who had qualified for the 

respective primary ballots.

With respect, the Commission would be departing from longstanding authority and 

historic precedent to now determine that the State of Utah’s primary election wasn’t a separate 

election. The Lieutenant Governor’s decision to recognize the outcome of the nominating 

convention and to dispense with the Republican primary election after only one candidate –

Sen. Lee – qualified for the primary by submitting the required signatures within the allotted 

time frame, is no different from the situation with many incumbents who face no primary 

opposition, but who are nonetheless allowed to raise and spend funds in connection with a 

primary election. 

The facts of this matter most closely align with the Commission’s decision in AO 2004-

20. The statutory route to the nomination in Connecticut is closely parallel to that adopted by

the Utah legislature in 2014. Where the parties formerly had sole authority to nominate

candidates, state laws were changed to allow for an alternative route to the nomination,

namely, petitioning to appear on the primary ballot, held some months after the nominating

convention. In that case, the Commission determined that the primary and the convention

were two separate elections, to-wit:

“The Commission concludes that, despite the change in Connecticut’s law, party 

conventions in Connecticut continue to be separate elections under the Act. However, 

because Ms. Farrell is not on the ballot for the August 10, 2004, primary, and because 

the convention is the only election in which Ms. Farrell is participating during the 

primary process, Farrell for Congress may not accept undesignated primary 

contributions after May 10, 2004, the date of the Democratic district convention.”

Attachment #2 

Page 4 of 5
May 8, 2017 

Page 5 

FOLEY & L ARDN ER LLP

That is precisely the procedure followed by Sen. Lee and Friends of Mike Lee. Before the 

nominating convention, there were two separate elections in Utah in 2016. Sen. Lee qualified

for both. After he won his party’s nomination at the state convention, he returned any 

primary contributions received after that date.

The directive from the Reports Analysis Division completely disregards the prior 

decisions of the Commission that should be applied here. 

Friends of Mike Lee respectfully requests that the Commission determine that the

contributions received by the Committee prior to the state nominating convention in 2016

were received lawfully for an election separate from the state convention and that no refunds 

should be required. 

Please contact me at (202) 431-1950 if you have additional questions. Thank you. 

Sincerely, 

/s/ Cleta Mitchell

Cleta Mitchell, Esq., Counsel 

Friends of Mike Lee

Attachment #2 

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Attachment #3 

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