i MOIRAL tLECTlCN 

CCMMiSSiCN 

SECRETARIAT 

FEDERAL ELECTION COMMISSION 2CI3JUL 12 PM |:G3 

VVASI IINC.rON. D.C. i04() J. 

m Jul y 12 , 201.3 

MEMORANDUM 

SENSITIVE T O: The Commission 

FROM: Lisa J. Stevenson ^ "J <^ \^ ^A ^ ' i 

Deputy General Counsel - Law 

Lorenzo Holloway 

Assistant General Counsel 

Compliance Adviiee 

Margaret J. Forman ' Vv^ :^ 3 

Attomey 

SUBJECT: Request for Consideration of a Legal Question - Kathy Hochul for Congress 

(LRA 849) 

I. INTRODUCTION 

On June 13, 2013, the Commission received a Request for Consideration of a Legal 

Question ("Request") from counsel on behalf of Kathy Hochul for Congress ("the Committee") 

(C00494013), the principal campaign committee of Kathy Hochul.' Attachment 1. 

The Request addresses a determination by the Reports Analysis Division (RAD), based 

on informal guidance provided by the Office of General Counsel (OGC), that the primary 

election date for the 2011 Special Primary Election in New York's 26"* Congressional District 

("2011 Special Election") was March 19, 2011. The effective primary date is relevant because if 

it falls prior to March 21, 2011, the date the Committee asserts is correct, the Committee may 

have accepted impermissible contributions. Based on OGC's review of the record, the New 

York State Democratic Party ("Party") nominated Kathy Hochul as its candidate for the special 

general election on March 19, 2011, as confirmed by the Party's Certificate of Nomination filed 

with the New York State Board of Election, the candidate's notarized Certificate of Nomination, 

and the Party's Certificate of Authorization. OGC, therefore, concluded that March 19, 2011, 

was the effective primary election date for the 2011 Special Election. 

' 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, 76 Fed. Reg. 45798-45799 (Aiig. 1 

2011). 
Memorandum to the Commission 

Request for Consideration of a Legal Question- Kathy Hochul (LRA 849) 

Page 2 of4 

The issue presented in the Committee's Request is whether March 19, 2011 or March 21, 

2011, is "the dale of 201] Democratic special primary election in New York's 26''^ 

[Congressional] District." Attachment 1 at 1. 

II. THE NEW YORK STATE DEMOCRATIC PARTY NOMINATED KATHY 

HOCHUL ON MARCH 19, 2011 

The Federal Election Campaign Act, as amended (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). The 

Commission's regulations define a primary election as an election "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 C.F.R. § 100.2(c)(1) 

(emphasis added). Since the election at issue here is a special election. New York state law 

provides that "party nominations ... shall be made in the manner prescribed by the rules of the 

party." N.Y. Elect. Law Section 6-114." The New York Democratic Party rules require a 

meeting of the appropriate party members to vote to nominate the Party's candidate for art office 

to be filled at a special election. Party Rules, New York State Democratic Committee, Article 

IV, § 2; Article VI, §§ I-2.'' It is at this meeting that the Party votes to nominate its candidate. 

Id. And under section 100.2(c), it is the actual date of the party's nomination that is relevant. 11 

C.F.R. § 100.2(c)(1). 

Here, the Certificate of Nomination filed by the Party confirms that Kathy Hochul was 

nominated by the Party on March 19,2011. Attachment 2. The Certificate of Nomination 

provides that the Presiding Officer and Secretary, at "a meeting held of the members of the 26"' 

Congressional District of New York State Nomination Cominittee ... held at 17 Main Street, 

Geneseo, NY 14454 on March 19> 2011. do hereby certify [Kathy Hochul] was nominated to be 

the candidate of the Democratic Party for the public office of Member of US House of 

Representatives in the New York State, 26'*' Congressional District at the Special Election...." 

Id, at 1 (emphasis in original). Also on March 19, 2011, Kathy Hochul signed her notarized 

Certificate of Acceptance, "having been designated/nominated by the Democratic Party as a 

^ New York state law presumes that the nomination occurs at a party nominating meeting. New York state 

law provides that "a party nomination of a candidate for election to fill a vacancy in an elective office required to be 

filled at the next general eleclion. occurring ... after the holding of the meeting or convention to nominate or 

designate candidates for such, shall be made, ... by a majority vote of a quorum of the members of a county 

committee or committees last elected in the political subdivision in which such a vacancy is to be filled, or by a 

n^ajority of such other committee as the rules of the parly may provide." N.Y. Elect. Law Section 6-116, Article 6 

(emphasis added). State law also provides that "[a] certificate of nomination shall be filed as provided for herein." 

Id. This provision, however, applies to candidates nominated by a party for the general election. 

The New York Democratic Party rules also provide that special meetings require ten days prior written 

notice. Party Rules, -Article IV, § 2. The March 19. 2011, meeting where party officials met and nominated Kathy 

Hochul as their candidaie fpr the special general election to fill the 26"* congressional seat, is ten days after the 

Governor's March 9, 2011 proclamation, for the .special election. See Dems Tap Hochul for NY Special Election, 

supra at 1; Memorandum from Robert A. Brehm to Commissioners of Elections, Special Election - 26"' 

Congressional District (Mar- 9, 2011). 
Memorandum to the Commission 

Request for Consideration of a Legal Question^ Kathy Hochul (LRA 849) 

Page 3 of4 

candidate for the office of [Congressional] 26"' District. Id. at 3. Again on March 19, 2011, the 

Party issued a Certificate of Authorization, which certifies that "at a meeting of the [political 

subdivisions within the 26*'' Congressional District] Committee of the Democratic Party held on 

the 19 day of March, 2011, a quorum being present, said committee, by majority vote of the 

members present, did consent and authorize the nomination/'designation of Kathy Courtney 

Hochul ... for the office of NY 26'^ Congressional District as a candidate of the Democratic 

Party for public office indicated, at the Special Election to be held on May 24, 2011." Id. at 4. 

The Committee admits that the Party executed the certificate of nomination on Saturday, 

March 19, 2011, and that the candidate, Kathy Hochul, signed her certificate of acceptance on 

March 19. The Committee asserts, however, that March 21, 2011, the date on which the two 

certificates were filed with the NY State Board of Elections, should be the effective primary 

election date because the Party "remained able to select a different nominee unfil it filed the 

certificate." Attachment 1 at 2. But the Committee's argument disregards both New York state 

law and the New York New York Democratic Party rules, which indicate that the party's 

nomination is effectuated by a meeting at which a majority of the party votes for the candidate. 

N.Y. Elect. Law Sections 6-114, 6-146, and 6-156, Article 6; Party Rules, New York State 

Democratic Committee, Article VI, §§ 1-2; Cf. N.Y. Elect. Law Section 6-116. Nothing in New 

York state law or the Party's rules suggests that the filing of the certificate of nomination with 

the State election board constitutes the Party's nomination, as the Committee argues. Rather, the 

certificate of nomination appears to be the manner in which the party communicates and 

confirms with the State election board that it has nominated its candidate. 

Additionally, the Committee, by referencing the Party's ability to "select a different 

nominee until it filed the certificate," is referencing an event that never occurred. Ms. Hochul 

remained the candidate. Even if the Party had changed its mind after March 19, 2011, and 

nominated a different candidate on March 21, 2011, the March 21, 2011 effective primary 

election date would apply to that different candidate, not Ms. Hochul. See 11 C.F.R. § 100.2(a) 

("Election means the process by which individuals^ whether opposed or unopposed, seek 

nomination for election, or elecfion, to Federal office." (emphasis added)). The effective 

primary election date of March 19, 2011, is specific to Ms. Hochul's nomination. 

The Committee cites, in support of its case, MUR 4850 (Fossella) in which OGC stated 

that "the actual date that Mr. Fossella was nominated by the Republican Party is unclear."'' 

Attachment 1 at 2, (quoting MUR 4850, First General Counsel's Report at note 3). MUR 4850 

(Fossella) involved an investigafion as to whether a New York Congressional candidate and his 

committee accepted prohibited, and excessive coritributions in a 1997 "Special Primary Elecfion." 

See MUR 4850 (Fossella), First General Counsel's Report at note 3. In that matter, OGC 

expressly noted that the actual nomination date was unclear and, as a result, recommended 

treating the last day of filing the certification of nominafion with the New York State Elections 

* The Committee also references correspondence in the form of a Request for Additional Information 

(RFAI) sent by RAD lo a separate committee in a completely different election. Aitachmeni I at 2. Whether RAD 

mistakenly told a separate committee in 2009 about whether the party nomination constituted a separate election has 

nothing to do with the date that the New York State Democratic Party nominated Kathy Hochul. 
Memorandum to the Commission 

Request for Consideration of a Legal Question- Kathy Hochul (LRA 849) 

Page 4 of 4 

Board as the effective priniary election. Id. This recommendation was based on the 

understanding that the applicable party's rules govern the selection process and that the 

Republican party's rules, as they applied to the timing of the special election process in MUR 

4850, provided that a meeting would take place after the state primary (which took place on 

September 9, 1997), but no later than September 16, 1997. See N.Y. Elect. Law Section 6-114. 

The party had the period of September 10, 1997 to September 16, 1997 to choose its nominee 

and file with the appropriate New York election board. MUR 4850 at note 3. OGC selected the 

last day that the party could have filed the certification with the New York State Election Board 

as the effective date solely due to the uncertainty in the actual date of the party's nomination, as 

there was no evidence in the record as to when the required meeting took place. See MUR 4850 

(Fossella), First General Counsel's Report at note 3. The record indicates the Commission 

accepted OGC's recommendation. Commission.Certification dated March 19, 2002, GCR #3; 

Commission Certification dated June 11, 2002. 

Unlike iri Fossella, the available information here shows a specific date that the 

nominafion took place, in accordance with State law and the Party's rules. Specifically, the facts 

clearly show that Kathy Hochul was nominated by her party on March 19, 2011. See Attachment 

2, Certificate of Nomination (certifies Party nominated candidate on March 19, 2011); Certificate 

of Acceptance (signed by candidate Kathy Hochul on March 19, 2011); Certificate of 

Authorization (certifies on March 19, 2011, the Party nominafing committee met and authorized 

the nominafion of candidate Kathy Hochul). 

We conclude that the Party nominated Kathy Hochul as its candidate for the special 

general election on March 19, 2011, and, therefore, March 19, 2011 , is the effective primary 

election date. 

III. RECOMMENDATION 

The Office.of General Courisel recommends that the Comririission determine the New 

York Democratic Party nominated Kathy Hochul on March 19, 2011, and therefore, March 19, 

2011, is the effective primary election date. 

Attachments 

1. Request for Legal Considerafion from Kathy Hochul for Congress 

2. Kathy Hochul Certi ficate of Nominafion 
TEDERA

.!;L:.LIV£

L ELECTIO

D 

N ' /-^ •" Perkins Coie 

20!3 JUN 13 Ar;iS: C5 

700 Thirteenth Street. N.W., Suite 600 •!3 JU:^ 13 A Ih 32 .1 L. ^ . tA^i L Lfi: •« ! \..n Washington. D.C. 20005-3960 

\inan G. Svoboda PMONC. 203.654.6300 

most (202)-»34.1654 fM 202.654.6311 

K*.v (202) 654-9150 www.pcrkinscoie.com EviAiL BSvoboda^perkinscnie com 

June 13, 2013 

Ms. Shawn Woodhead Werth 

Commission Secretary 

Federal Election Commission 

999 E Streei, NW 

Washington, DC 20463 

Dear Ms. Wenh: 

I write on behalf of my client, Kathy Hochul for Congress ("the C(3mmitiee"), pursuant to the 

Policy Staiement Regarding a Program for Requesting Conisideralion of Legal Questions by the 

Commission, 76 Fed. Reg. 45,798 (2011). There is a dispute over the dale of the 2011 

Democratic special primary election in New York's 26th District. The Commission should 

affirm lhat the date of that election was March 21, 2011, and not March 19 as the Reports 

Analysis Division has contended. 

Representative Chris Lee resigned from Congress on February 9, 2011. On March 9, New York 

Governor Andrew Cuomo issued a proclamation calling for a special election to be held for the 

seal on .May 24. See 

hllp:/. ww\\.cleciions.nv.eov,^YSBOE/Elections/2011/Special/201 ISpecialElec 

ar.pdf. On .March 23, the Commission published a notice of filing dates for the special eleclion. 

Filing Dates for the New York Special Eleclion in the 26th Congressional District, 76 Fed. Reg. 

16,419 (2011). The notice referred only to the special general election; it did not refer to the 

parties' respective primary elections. Id. 

New York law provided that, when the Governor calls a special eleclion, party nominations 

"shall be made in the manner prescribed by the rules of the party." N.Y. Elec. Law § 6-114 

(McKinney 2011). Under New York Democranc Party rules, nomination for a special election to 

Congress was made by a congressional district nomination committee, consisting of ihe chairs of 

each couniy Democraiic polilical party within the congressional district. See Rules, New York 

State Democraiic Committee, an. VI, § 2, available ai. htip:.Vi;omvd.com/unloads.^ew-YorkState-Democratic-Partv-Rules.pdfi see also id., art. IL ^ 3 (defining membership of the 

congressional district committee). The committee nominated its candidaie by voting, e-xeculing 

Attachment 1, page 1 of 3 

76857-0001/LFG.AL26939189 I 

iSCHOSfiC f BE D N C ar..f\'O E 30.5 : (MICAf. O OA..A S :ifNvf R .O S ANCflE S MAOISO N M W YOK K 

'a. O Ali o PMOfVl C POR'.AN D S&NUtC O S.". NISANCSC O SfAT'. . ? S>..'. NC.H A FAiP H Was-iNO'C N 3 C 

Perkins Coie HP 
Ms. Shawn Woodhead Werth 

June 13,2013 

Page 2 

and filing a certificate of nomination with the State Board of Elections. See N.Y. Elec. Law § 6-

158(6). The committee remained able to select a different nominee until it filed the certificate. 

The candidate was then required to file a certificate of acceptance. In this instance, the 

committee executed a certificate of nomination on Saturday, March 19, and filed it on Monday, 

March 21. The candidaie, Kathy Hochul, executed a certificate of acceptance on March 19, .see 

id. § 6-158(7), which was filed also on March 21. 

Ms. Hochul's primary day was March 21, the dale on which her party, under state law, 

irrevocably selected her to appear on the special eleclion ballot by filing its certificate of 

nomination. Under Commission rules, an election is the process by which individuals seek 

nomination or election to federal office. See 11 C.F.R. § 100.2(a) (2011). A primary election is 

an election held prior to a general election, "as a direct result of which candidates are nominated 

in accordance with applicable State law..." Id. § 100.2 (c)(l). 

In an enforcement action involving New York's 1997 special election of Vito Fossella to 

Congress, the Firsl General Counsel's Report treated "the certification of Fossella's nomination 

by the appropriate Republican committce(s) for the 13th Congressional Dislrict" on September 

16, 1997 "as the date of the 1997 Primary Election for purposes of contribution limits..." First 

General Counsel's Report, MUR 4850, al 3. The report eited FEC v. Citizens for Sen. Wofford, 

No. cv-94-2057 (E.D. Pa. Jan. 31, 1996), for the general proposition that it was the "selection 

date, not later certification," that constituted the primary eleclion. Id. at 3 n.3. However, it said 

that "ihc actual date that Mr. Fossella was nominated by the Republican Party is unclear." Id. It 

noted that "media accounts indicate that Mr. Fossella was effectively selected as the Republican 

nominee as early as the first week of June." Id. 

The Commission has since given no indication that any date, other than the filing of the 

certificate of nomination, should be treated as the primary date in a New York special election, 

when a party selects its special election nominee through its own rules. This is not the first time 

the Reports Analysis Division has offered a legal interpreianon that differed from the one in the 

Fossella matter. In 2009, apparently unaware of that matter, RAD told one New York special 

election candidate in a Request for Additional Infonmation that "only a Special General Election 

exists for New York's 20th Congressional District ..." See 

httD://v\AvAv.tec.|iov/fecvievver/CandC.mteFilinL;sPDFDo\vnload.do?imat»eNumber=29030062084 

&pdtURL=htlp://imaties.nictusa.com/pd0'084/29030062084/29O3QQ62084.pdl'. 

Besides Commission precedent, there were many sound reasons to treat the certificate of 

nomination's March 21 filing, and not its March 19 adoption and execution, as the date of the 

2011 special primary election. Firsl, Ms. Hochul's nomination was not effective under state law 

until March 21. Under state law and its own rules, until the party filed the certificate, il remained 

free lo select a different nominee. Such fiexibiliry was especially important to the party in a race 

like that in the 26th District, where the incumbent was forced to resign because of an abrupt 

Attachment 1, page 2 of 3 76857-000)/l.hGAl.26939l89 I 
Ms. Shawn Woodhead Werth 

June 13,2013 

Page 3 

media scandal. Second, New York operated under an extraordinarily tight timetable for 

certifying its nominees. Unlike the Wofford case, where three months elapsed between the 

candidate's selection and his asserted dale of nomination, there was only one day between the 

filing of the certificate and the initial action to authorize it, and the primary contributions 

involved were comparably insubstantial. 

To the best of the campaign's knowledge and belief, this question which seems to have 

persisted internally within the Commission for nearly iwo years now -- is the lone matter 

preveniing a now-defunct campaign from terminaiing its registration with the Commission. 

Going forward, there is ample opportunity for the Commission to reevaluate and restate when 

primary elections are deemed to occur in New York special elections. But looking backwards, 

with the campaign and party having acted reasonably and consistently with the available 

authority, the Commission should not now change the rules to their disadvantage. The 

Commission should follow its own past reasoning and New York state law, and affirm that the 

2011 Democraiic primary in New York's 26th District occurred on March 21, 2011, when the 

Democratic Party took the action necessary under New York state law to certify Kathy Hochul as 

its nominee. 

Very truly yours. 

Brian G. Svoboda 

Counsel lo Kathy Hochul for Congress 

Attachment 1, page 3 of 3 

76857.000l''LnG.'\L26939l89.l 
CERTIFICATE OF NOMINATION 

For use by State and County Committees 

(Section 6-156), Election Law 

We, the undersigned, Presiding Officer and Secretary of a meeting held of the 

members of the 26^" Coneressional District of New York State Nominat^ffp 

Cominittee. for Erie. Genesee. Livingston. Monroe. Niagara. Orleans, and 

Wyoming counties' Democratic Committees for Member of US House of 

Representatives in the New York State, 26**^ Congressional.District, held at 17 Main 

Street. Geneseo. NY 14454 on March 19.2011. do hereby certify the following 

person was nominated to be the candidate of the Democratic Party for the public 

office of Member of US House of Representatives in the New York State, 26*'* 

Congressional District at the Special Election to be held on Mav 24.2011. 

Title of Office Name of Candidate Address of Candidate 

Member of US House Kathy Courtney-Hochul 4521 Copperfield Dr. 

of Representatives In Hamburg, NY 14075 

New York State, 

26'^ District 

We also certily tliat the following were appointed as a committee to fill Vacancy: 

Address , . 

ame Address ^ . ^ ' jP^/ 

Address ^ 

Address 

/33 D£EmElLde..?^rMiTEfi NY /V60f 

Address 

Name Address 

Attachment 2, page 1 of 4 
Name Address 

,81eiiaturc of Presiding Officer Date 

Signature of^S<?a'etary Date 

j/^t-ir f.f oo-.)'..)?. 

t-i-.u,ry f'u;,,,.:. , . ^ ; ,„.'oi New YiJfl' I , . I ; 

-'• • •./ 

Attachment 2, page 2 of 4 
CERTIFICATE OF ACCEPTANCE 

(Section 6-146, Election Law) 

, residing at ' (dandidate'8 Name) I 

(Address) 

having been designated/nominated by the P Crw^t l C Party, (Namfl ot Party). 

as a candidate for the office of 

(ntle of Office and Polilical Subdivision) 

2JU district, do hereby ACCEPT such designation/nomination 

(District Number if any) 

and consent to be such candidate of such party at a ^ CC< 

(Special/Primary/General) 

election to be held on 00os>| .20 ll . 

i i /<!atL CLJ: lUM 

lOate) (SjtflTature of Caijiidate) 

STATE OF NEW YORK 

COUNTY OF ^tbi\ j • / : ss: 

On this day of /7y2l/y A . 20 / / , before me personally 

appeared KC[j\^^ >^i( /; ii./ to me known and known to me to be thiB individual 

described therein, and who executed the foregoing instrument, and acknowledged to me that h^she 

executed the same. y, A / . 

JANE M. DODDS 

Notary Public in the State of New Yo * 

No.4951960 Notary Public UVINGSTON COUNTY i 

Commission Expires June 5, 20 / ^ 

(11/99) f:\fiies\form8\Bccept 

SAMPLE PREPARED BY STATE BOARD OF ELECTIONS 

Attachment 2, page 3 of 4 

14 
CERTIFICATE O F AUTHORIZATION 

(Section 6-120, Election Law) 

and 

(Presiding Officer) (Secretary) 

Presiding Officer and Secretary of the meeting of the \~^e n^ OCgG>. V i C- Party 

of 'j Ir^ C f) AJo |Y^> c icM f^;^r\t. DO HEREBY CERTIFY THAT: at a meeting of the 

(Politica] bubdivision) 

Cl?,f (. 

/6.H<,A£^ (J< /f*i/vs ^ LL^y ^ Committee of the ^--^ VVNC C.V^^'^^C Party 

a) Subdivision) / 

held on the ^ ^ day of A^»^rc- /\ 20 ll . a quorum being present, said committee, by 

majority vote of the members present, did consent and authorize the nomination/designation of 

,1^^ ^VZ .0-1 ^"^"^ ^; _residtng at '/^^^^£<PQ^> {'^' 0'' 

(Nnmc ot C^ndKlalc) / (Flat* 01 Residence) 

.l/-f)mlh.,.\' . l0 9 J'/C'ys for the office of ^^V .^r'"" (!^.^. .-..s J 0^^^'^^ 

a candidate of the D^t-y? r,r P c Party for public ojpfice indicated, at the 

, "^P^' g-Kl Election to be held on OOAV/ JIS ^ JXi ) I (Special/Fnmaiy/Uenerol) /(ualeo"i tiecuon) 

Said nomination/designation is authorized pursuant to the provisions of Section 6-120 of 

the New York State Election Law. 

IN WITNESS WHERE OF, we have set our hands this day of. 

20. 

/Residing Officer 

On this 1^ day of Yf\Ql\fJ/\ , 20_li before me pcreonally came 

and 

to me known and known to me to be the persons described in and who executed the foregoing 

instrument and ^^^^j^^^^J^^g^^^^^B^ ^ he/she executed the same. 

Notary Public in the State ot New Yotic 

No. 4951960 

LIVINGSTON COUNT/ . 

Commission Expires June 5, 20 /( ^ « < .• 

|(n/99)f:fito\fonws\author Notary Public 

(Sample prepared by the State Board of Elections) ( 

Attachment 2, page 4 of 4