Recount

Federal Election Rules

Not everyone starts from the position that elections must be accurate. Various roadblocks are put in place to discourage recounts.

Federal law permits a Political Party to raise funds for a recount. These rules relax some of the coordination rules if the Party marks the contributes as for a recount. These funds may be used in any Federal Recount. It is permitted but not required to coordinate with candidates.

Some Sample Elections that had Election irregularities are as follows:

• 2004 US Presidential
• 2011 Wisconsin
• 2016 Austrian Presidential Vote (Revote required because may be the voters didn't mean to vote Green)
• 2016 Presidential
• 2017 Pennsylvania House District 197 Special Election

Although actual recounts may be rare, they do happen. An argument could be made to have a fund in reserve.

1. Did people miss the post card from the Election's division in 2017?
2. Do we want to be prepared if a panel starts to look into the election with the goal of voter suppression?

Attribution

Attribution is the FEC term for assigning donations. The Treasurer has the responsibility to insure that it done legally and to the correct election. One description did not fit all donors. Some examples might help to understand.

Donor J

Donor J writes recount on his check for the donation. This is a recount donation because it is written on the check. It a good thing because we need something to open the account before we can send a donation via pay pal.

Donor Z

Donor Z sends a donations via a donation link but gives an overseas address. This may not be legal because State and Federal Law prohibit donations from people without the correct Federal paperwork. The Treasurer determined that it was a dues payment and a donation to the State Fund. The State (OCPF) allows a follow up email to confirm that the donor has the correct paper work. Understandable the donor is a little upset by the request of a reason for being overseas.

Donor B

Donor B sends a donation via the donation link for election integrity but gives an overseas address. Given the publiticy focused on the 2016 Presidential race, the Treasurer determined that it was a Federal Donation. Federal rules provide protection for the Party and Treasurer if they get and keep a copy of the person's passport. In this case, the person refused and the donation was returned. The person was upset that he didn't take part.

Donor S

Donor S sends a donation via the donation link for election integrity. The Treasurer research leads him to believe that spirit of taking money from officers of for profit corporations is in question. After consulting with with different people, the donation is returned with the somewhat polite statement that due to the success will not need his money.

Donor M

Donor M is aware that the recount is in the works. Goes to our web site and donations. This is a Federal donation that wants to help through the state party and is reported as a recount donation.

Donor F

Donor F is unaware about the recount and is asked to create a web page for election integrity. He then makes a sustaining donation. This is determined be a State Donation. The Treasurer keeps a paper account for these donation.

Donor T

Donor T is a know Libertarian. The links were no longer public, but after the Treasurer's appearance on Fox, he donated.

Why Would the Treasurer Volunteer

• The treasurer perceived he was asked
• He believed that the Party would benefit from his

Possible Deposition of the Funds

Not much really exists in guidance except for the unlikely event of a recount. The rare written dissenting opinion in AO 2006-24 stated the decision of the majority made a recount unlikely if impossible.

Probably

• Expenses having to do with a recount in any Federal election such as legal even in coordination with a candidate.
• Expenses in preperation for a recount for any Federal election such as research on the legal rules. [See AO 2010-14]

Possibly

• Voluntary reimburse some local election authorities for local recount expenses
• Legal action resulting on action by the State based on a Federal Election (for example, the card)
• Expenses related to any Federal investigation into the 2016 election

Unlikely

• Any expenses related to State Elections
• Reallocating to other Federal Elections other than Recount based on donors approval. This typically must be done in 60 days of receipt although the FEC allowed an exception in AO 2010-18. One would need to find a reason for an exception.
• The FEC has not come to conclusion if allowable without the donors approval.
• Transfer to a candidate's General Election Fund

Questions You Might Want to Ask

• How would you feel if the a donation was returned to you with a limited explanation?
• Would you want to be the one to deny a donor their wishes?
• How would you feel if the money was returned?
• Significant (over 20,000) amount of money has been used as a retainer to attorneys does anyone have a specific a concern that may stated specifically to allow a question to be asked of the FEC?
• Why was the Green-Rainbow Party denied after volunteering to on the action
• Are you doing because someone that is opponent like Dan Backer started the idea?

Conclusion

Coordination will a candidate is different than the candidate being able to dictate what is done. The candidate was or should have been aware that the any Funds deposited in the Party's account were under control of the Party and not the candidate. That said State Parties do something

References

Federal Election Commission Campaign Guide: Political Party

Currently, this guide may be found at http://www.fec.gov/pdf/partygui.pdf.

A party committee may establish a recount fund to conduct recount activities in support of the party’s federal candidate. Although they are not considered contributions under the Act, any funds solicited, received, directed, transferred or spent in connection with a recount of an election are subject to the amount limitations, source prohibitions and reporting requirements of the Act. See 100.91 and 300.30(b)(3)(iii). This means that the normal contribution limits, reporting requirements and source restrictions apply. Donations to the party committee’s recount fund, however, will not be aggregated with contributions from the same individuals to the party committee for the calendar year. Similarly, the aggregate biennial contribution limits do not apply to individuals’ donations to recount funds. 52 U.S.C. §30116(a)(3). For more information and reporting instructions, see AOs 2006-24, 2009- 04, 2010-14, and 2011-03. [Page 39]

Reporting Recount-Related Donations and Disbursements

[http://www.fec.gov/info/guidance/recountreporting.shtml]

A party committee must include amounts received for a recount in its total for "Other Receipts," recorded on Line 17 of the Form 3X Detailed Summary Page. As illustrated below, the committee must itemize the donation on Schedule A for Line 17 if the aggregate receipts from that donor exceed $200 for the calendar year. Note "recount" in the amount box (if using software, use the transaction description field to enter text).

Federal Election Commission Advisory Opinions

The complete text of these and other Advisory Opinions may be retrieved from the Federal Election Commission, currently at http://saos.fec.gov/saos/searchao.

AO 2004-35 Kerry Edwards

With regard to the first question, the Commission concludes that using permissible contributions made to the GELAC [General Election Legal and Accounting Compliance Fund ] for recount expenses arising from the November 2004 presidential general election is consistent with 11 CFR 9003.3(a)(2)

AO 2006-24 Response to Others and Republican State Committee of Pennsylvania (“State Party”)

Yes, payments for recount activities involving Federal races are disbursements in connection with a Federal election. Under 11 CFR 102.5(a)(1)(i) and 300.30(b)(3)(iii), the State Party must use funds in a Federal account to pay for these recount activities. [Page 7]

...recount funds are not considered “contributions” or “expenditures” under Commission regulations …[Page 8]

The State Party must establish a separate Federal account to pay for all Federal recount activity. [Page 8]

Yes, the State Party may involve a Federal candidate and the candidate’s agents in the decisions concerning the State Party’s recount fund before, on, and after Election Day. The limitations on coordinated spending by the State Party for a particular candidate are not applicable to a State Party’s recount fund. [Page 9]

Yes, the State Party’s recount fund may pay attorney’s fees and other litigation costs of a Federal candidate involved in a recount or election contest. [Page 9]

If a Federal candidate or State Party in fact has excess funds in a recount fund after the election, the candidate or party may wish to resubmit this question for Commission consideration with specific proposed plans for the excess funds. [Page 11]

AO 2009-04 May the Democratic Senatorial Campaign Committee create a Recount Fund

AO 2010-14 Disbursements by the Democratic Senatorial Campaign Committee from Recount Fund

The Commission concludes that the DSCC may use its recount funds to pay for recount-related expenses that it will incur before the date of the general election as it prepares for recounts that may occur after the general election. The Commission also concludes that the DSCC may allocate the cost of certain expenses that are attributable to both recount activities and campaign activities between the main account that it uses for campaign activities (its “principal campaign account”) and its recount fund. Both of these conclusions are subject to certain conditions [Page 1]

AO 2010-18 Request by Minnesota Democratic-Farmer-Labor Party

We are responding to your advisory opinion request on behalf of the Minnesota Democratic-Farmer-Labor Party (the “DFL”), concerning the application of the Federal Election Campaign Act of 1971, as amended (the “Act”), and Commission regulations to the use of recount funds, raised for a 2008 recount and election contest, for future elections and recounts. The Commission concludes that the DFL may request, in writing, that donors to the recount fund redesignate their donations as contributions to the Federal campaign account for the 2010 election. The Commission further concludes that the DFL may use recount funds raised for the 2008 recount and election contest involving Senator Al Franken and then-Senator Norm Coleman to pay for recount activities relating to future recounts. [Page 1] [No decision due to a tie vote was reached on if a written conformation was required.]

AO 2011-03 Request by National Parties to use Recount Funds in Litigation

Yes, the National Party Committees may use their recount funds to finance costs associated with the Janvey Litigation. [Page 3]

AO 2013-16 PoliticalRefund.org by Dan Backer, Esq.

PoliticalRefund.org asks about the application of the Federal Election Campaign Act of 1971, as amended (the “Act”), and Commission regulations to its proposal to use data obtained from filings with the Commission to contact persons who have made contributions to candidates, to inform those contributors of their right to seek a refund of their contributions, and to facilitate requests for refunds.