NEWS23 July 2013

New Hampshire appeals dismissal of push poll case

Legal North America

US — New Hampshire’s new attorney general is continuing to pursue the push poll case started by his predecessor, which industry bodies say risks persecuting legitimate campaign research.

AG Joseph Foster, who took office in May, has filed an appeal against a June court ruling which dismissed the case against former congressman Charlie Bass’s campaign committee.

Foster’s predecessor Michael Delaney charged that surveys paid for by the Bass committee fit New Hampshire’s definition of push polls, and, as such, they should have disclosed the name of the sponsor during the survey.

However, New Hampshire’s definition of a push poll – as any survey that asks questions about an election candidate’s character, status, political stance or record – is a definition that also applies to legitimate message testing work, and companies carrying out legitimate studies do not disclose the name of the sponsor for fear of biasing results.

In dismissing the case, the Merrimack County Superior Court looked to advisory opinions produced by the Federal Election Commission, one of which stated that federal law supersedes state law – meaning that New Hampshire could not force federal election candidates like Bass to identify themselves when conducting research that fits the state’s loose description of push polling.

AG Foster says he chose to mount the appeal “to preserve the right of New Hampshire to govern how its citizens elect their federal officials”.

Foster acknowledged that the state’s own legislature was reviewing the push poll law “to see if amendments would help clarify and enhance compliance”. However, Howard Fienberg, director of government affairs for the Marketing Research Association, said: “It appears that Attorney General Foster is doubling down on a failed law.”