An Obscure Lawsuit Could Skew Polls In Favor Of Republicans

Stock photo of a woman speaking on a cell phone. Chances are she’s not speaking to a pollster. CREDIT: SHUTTERSTOCK
Stock photo of a woman speaking on a cell phone. Chances are she’s not speaking to a pollster. CREDIT: SHUTTERSTOCK

A $12 million legal settlement could send tremors throughout the polling industry, significantly increasing the cost of conducting an accurate poll — or potentially even causing pollsters to release results that do not account for nearly half of the nation.

The lawsuit concerns how pollsters are allowed to contact voters who rely exclusively on a cell phone to make and receive telephone calls from their homes. Forty-four percent of American adults live in cell phone-only households, according to a recent survey, and these voters behave very differently at the polls than the rest of the electorate. According to one dataset, cell phone-only voters preferred Democrats to Republicans by 11 points in 2012, while voters reached on landlines only preferred Democrats by 2 points.

A class action lawsuit against the Gallup Organization claims that Gallup violated a federal law prohibiting it from making “any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice” to a cell phone. Gallup claims that “has not, and will never, auto-dial a respondent on a cell phone,” but it settled the lawsuit nonetheless. Though the named plaintiff sought $2000 per call for each call Gallup allegedly made in violation of the law, the $12 million Gallup agreed to pay as a settlement amounts to an estimated “$25 to $80 per claim,” according to an official notice of settlement.

Especially if Gallup is telling the truth when they say that they never auto-dialed a poll respondent on their cell phone, this settlement could have profound implications for the reliability of opinion polling because it could deter pollsters from calling cell phone-only voters. These voters are not simply more likely to support Democrats over Republicans than other voters. They are also younger and more likely to be Latino. A survey last April determined that 64 percent of Millennials are in cellphone-only households, while only 13 percent of voters born before 1945 fit this bill. Sixty percent of Hispanic adults are in cell-phone only households.


It is likely, moreover, that the segment of the population that relies exclusively on cell phones will rapidly eclipse those that still use landlines. The portion of the population relying exclusively on cell phones grew 70 percent between 2010 and 2014. That means that it will grow harder and harder for pollsters to compensate if they are unable to poll a critical mass of cell phone-only voters. It also means that polls which do not account for these voters will grow more and more inaccurate.

Inaccurate polls, it should also be noted, could shape the results of real elections. Donors, party loyalists and reporters often look to polls to decide which candidates have a shot at prevailing in a primary or general election. And they are more likely to lavish money, attention or coverage on candidates who seem to have a fair shot of prevailing.

Thus, if a particular primary candidate polls especially well among Latinos, polls that do not account for cell phone-only households are likely to understate that candidate’s support and prevent them from garnering campaign donations and media coverage. Meanwhile, a candidate who performs especially well among older white voters could receive far more attention than their early poll numbers deserve — and this attention could enable that candidate to win an election that they would have had no shot at winning if key players had received a more accurate picture of the race early on.

Similarly, a sitting lawmaker trying to decide whether to take a tough vote in favor of a bill that benefits relatively young voters may decide not to cast that vote if the polls understate support for the bill, while another lawmaker considering a bill that benefits older voters might support it even though the bill is far more unpopular than the polls suggest.

The federal statute that underlies the lawsuit against Gallup is the Telephone Consumer Protection Act, which was enacted primarily to shield consumers from harassment by telemarketers and other unsolicited phone calls. Calls to cell phones receive special protection against such unsolicited calls because “the costs of receiving autodialed or prerecorded telemarketing calls to wireless numbers often rests with the wireless subscriber,” who may only be able to use their phone for a certain number of “minutes” every month before they face surcharges.


It’s unlikely that a regulatory solution that weakens this law across the board will be popular with voters — few cell phone users are likely to be pleased if they are bombarded with telemarketing calls due to reforms intended to benefit pollsters. Yet it may prove challenging for lawmakers or regulators to create a solution that exempts pollsters while still blocking telemarketing calls to cell phones. Among other things, if the law contained a “pollster exception,” telemarketers might try to take advantage of this fact by including a superfluous opinion poll in their marketing scripts.

Nevertheless, there is one group that has a particularly strong interest in accurate opinion polls — politicians. That gives the people with the greatest power to ease the legal burdens on pollsters a particular incentive to do so.