I face an interesting dilemma involving a City Council candidate I advise. We want to include material advocating his position on a very important ballot issue – Proposition No. 1 (“Prop 1”) – voters get to weigh in on this November 8 when voters will also find him on the general election ballot. Four years ago, voters chose him with 96.8% the general election following a bruising multi-candidate primary for an open seat. The year he prevailed in a two candidate race with more than 3/4 of the votes. With most incumbents expected to get re-elected, concern exists that too many voters in the district will hang home rather than exercise their important franchise.

Prop 1 states, “Calling a State Constitutional Convention.” Voters vote Yes or No. Since this blog remains non partisan, I refer you to my social media to ascertain my view (also consistent with that of my client. We designed a general election mailing one side about him and the other recommending how to vote on Prop 1 – and why.

So when we meet early last week to consider the budget, the candidate raises an email from New York City Campaign Finance Board (“CFB”). The week before last CFB emailed candidates, their treasurers and designated advisors/ consultants/ campaign managers that material advocating a position on a ballot issue would be considered a non-qualified expenditure. That means CFB in a post election campaign audit would rule a campaign must pay back (at a time when little or no funds may be left in a campaign account month or years after the November 2017 election) the expenditure and face a fine.

Funny thing, CFB is wrong – not unusual – on the law it was created to enforce. I know we would prevail later on. I emailed the proposed mailer to a CFB compliance expert who I rely on and frankly knows the law better that the staff that rotates through the CFB. He concurred with my opinion. He did suggest reaching out to the CFB for an opinion anyway. Of course the CFB advised that one-half of the piece would be considered non-qualified.

So we face a tough decision, put out the message the way we want or face defending it later.

So with no real electoral contests, the real battle would involve the propositions that receive far less attention. It is also in my client’s interest to win not just convincingly but with as large a turnout of voters as possible. Including material on Prop 1 certainly gives voters a reason to vote in an election many view as fait accompli concerning the public offices involved.

So how does including material about a ballot issue designed to increase voter awareness and thus turnout, which would benefit the candidate also promoted on the mailer make it non-qualified (according to the CFB)?

Stay tuned.