August 17, 2004
By: Jennifer Gelb, Associate Attorney
You asked if any state prohibits push polling.
A “push poll” is a persuasive poll, typically (1) conducted over the telephone; (2) of short duration; (3) contacting a large number of potential voters; (4) disseminating hypothetical negative, often false, information about a candidate for political office; (5) not for the purpose of collecting information for analysis; and (6) designed to change the respondent's mind by “pushing” him away from one candidate and toward another. No state currently prohibits push polling, but several states regulate these polls by requiring callers to provide certain information during the poll. Other states have recently considered adopting similar legislation. An outright ban on push polling, which is arguably a form of political speech, raises First Amendment concerns and would likely not pass constitutional muster.
STATES REGULATING PUSH POLLING
Florida's election law requires telephone calls “supporting or opposing a candidate, elected official, or ballot proposal [to] identify the persons or organizations sponsoring the call by stating either: 'paid for by ______' (insert name of persons or organizations sponsoring the call) or 'paid for on behalf of ______' (insert name of persons or organizations authorizing call.” This provision applies only to calls that are part of a series of like telephone calls consisting of 1,000 or more completed calls and averaging 2 minutes or less in duration (Fla. Stat. Ch. 106.147).
If a person, candidate, political party, or political committee asks or pays someone to conduct persuasive polls by telephone or to produce automated telephone messages to conduct persuasive polls about a candidate, Idaho law requires the person conducting the poll to disclose, at the end of the poll, the name and telephone number of the person, candidate, party, or committee that requested or paid the person for the poll. Idaho defines a persuasive poll as canvassing people, by a means other than an established method of scientific sampling, through questions or information designed to advocate a candidate's or measure's election, approval, or defeat. A poll conducted to measure the public's opinion about or reaction to an issue, fact, or theme is not a persuasive poll.
A person who violates these provisions is guilty of a misdemeanor and subject to a fine of up to $250 for an individual (up to $2,500 if not an individual) and up to six months in prison (Idaho Code § 67-6629).
Maine defines a “push poll” as a paid telephone survey or series of surveys that are similar in nature and reference a candidate or group of candidates other than in a basic preference question. Additionally, in a push poll:
1. a list or directory is used to select respondents based on demographic or political information such as race, age, sex, ethnicity, party affiliation, or like characteristics;
2. the survey fails to ask demographic questions such as age, household income, or status as a likely voter sufficient to allow for result tabulation based on a relevant subset of the population consistent with standard polling industry practices;
3. the pollster or polling organization does not collect or tabulate survey results;
4. the survey prefaces a question regarding support for a candidate on the basis of an untrue statement; and
5. the survey is primarily for the purpose of suppressing or changing the call recipient's voting position.
Maine prohibits anyone from authorizing, committing, conducting, or administering a push poll unless during each call the caller identifies the person or organization sponsoring or authorizing the call by stating, “This is a paid political advertisement by (name of person or organization)” and identifies the organization making the call, if different from the sponsor, by stating, “This call is conducted by (name of organization).” If the person sponsoring or authorizing the call has not filed any documents with election officials, the caller must also disclose the person's or organization's valid, current, publicly listed telephone number and address. If anyone sponsoring or authorizing the call is affiliated with a candidate, the candidate's name and office sought must also be disclosed during the call.
The Maine law also requires people conducting push polls to register and to designate an agent in the state for service of process (Me. Rev. Stat. Ann. Title 21A § 1014-B).
If a candidate, political party, committee sponsored by a political party, or a political action committee asks or pays a person to (1) conduct or cause to be conducted a persuasive telephone poll about a candidate or (2) produce automated or computerized messages by telephone to conduct a persuasive poll concerning a candidate, Nevada's law requires the person conducting the poll, at the end of the call, to disclose the name and telephone number of the candidate, political party, or committee that requested or paid the person for the poll. The law defines a “persuasive poll” as the use of unscientific means to canvass people by asking questions or offering information about a candidate that is designed to provide negative or derogatory information about the candidate or his family. It does not include a poll that is conducted only to measure the public's opinion about or reaction to an issue, fact, or theme (Nev. Rev. Stat. § 294A.341).
West Virginia's election law allows candidates and political party committees to spend money to conduct public opinion polls, which it defines as “the gathering, collection, collation, and evaluation of information reflecting public opinion, needs, and preferences as to any candidate, group of candidates, party, issue, or issues.” It prohibits these polls from being “deceptively designed or intentionally conducted or calculated to influence any person or persons so polled to vote for or against any candidate, group of candidates, proposition, or other matter to be voted on by the public at any election” (W.Va. Code § 3-8-9(10)).
According to the National Conference of State Legislatures, 13 state legislatures carried over or defeated 37 bills regarding push polling between 2001 and 2004. These bills concerned (1) political do-not-call lists; (2) the definition of a push or persuasive poll; (3) disclosure of the entity sponsoring, authorizing, or paying for the poll; (4) identification of the entity making the call; (5) requiring the caller to give the respondent the name, address, and telephone number of a person he can contact for further information regarding the call; (6) prohibitions on making knowingly untrue, deceptive, or misleading statements; (7) filing with the state the identity of people and entities making the calls; (8) filing call schedules and scripts with the state; (9) informing the person contacted that the call is being made on behalf, of, in support of, or in opposition to a particular candidate or public question and identifying the candidate or question; (10) prohibiting computerized or automated calls; and (11) authorizing penalties and fines for violations of these provisions.