Wildly Off Iowa Presidential Poll Doesn’t Equate to Consumer Fraud

​Does an inaccurate poll constitute consumer fraud? That’s the question at issue in an Iowa lawsuit in which President-elect Donald Trump is taking pollster J. Ann Selzer and The Des Moines Register to court for a pre-election poll indicating a slight Harris advantage in the Hawkeye State. This late bit of news in the election buoyed the Democrats and sent a ripple of worry through the Republican camp. And for good reason – late campaign news like that has the potential to affect turnout.
 
It is easy to see why Donald Trump is miffed – he won Iowa by 13.2 percent, a landslide.
 
Selzer is a Des Moines-based pollster once described as “the best pollster in politics” by FiveThirtyEight, which also awarded her company an A+ for accuracy. In both 2016 and 2020, Selzer correctly predicted Trump’s Iowa victories. But polling is increasingly an inexact science (just ask FiveThirtyEight), and the prognosticators now get it wrong more often than not. Often very wrong. This is the new reality of polling in an age of social media and spam filters.
 
After the race, Selzer said she had made the “biggest miss of my career.” She publicly shared her poll’s crosstabs of demographic and attitudinal groups, as well as her methodology. This did not deter the lawsuit. Now, the Foundation for Individual Rights and Expression (FIRE) has announced it will be defending the pollster. Is FIRE right to do so?
 
President-elect Trump alleges that Selzer is biased against him. While Selzer’s record would tend to disprove that, President-elect Trump is well within his rights to think so given how far off this poll was. The deeper question is: What if Selzer is biased against Donald Trump? Many polls on the left and right are considered more as expressions of political activism than as the kind of professional polling that Selzer does. Even if you buy the notion that Selzer is a partisan hack, however, the First Amendment would still protect her.
 
President-elect Trump’s argument is a legal square peg failing to fit a statutory round hole. His lawsuit asserts that Selzer violated the Iowa Consumer Fraud Act, which requires the president-elect to “identify a fraudulent or deceptive statement ‘in connection with the advertisement, sale, or lease of consumer merchandise, or the solicitation of contributions for charitable purposes ...’”
 
Putting aside the obvious joke about a “bill of goods,” it’s readily apparent that Selzer’s poll had nothing to do with selling merchandise or soliciting contributions.
 
FIRE says that President-elect Trump’s lawsuit amounts to a “strategic lawsuit against public participation” (SLAPP). Such lawsuits, they say, “are filed purely for the purpose of imposing punishing litigation costs on perceived opponents, not because they have any merit or stand any chance of success.”
 
There is widespread bias across the media landscape, especially in unfair reporting about things Donald Trump has allegedly done or said. No question. But if we were to grant politicians power against media bias, perceived and real, that power would inevitably lead to the kind of official censorship that Donald Trump campaigned to end. After future elections, such a grant of power to politicians is guaranteed to end with results that Trump supporters will not like. Fox News could be targeted during Democratic administrations just as CBS could be targeted during Republican administrations.
 
Selzer, for her part, owned up to her bad call. She has been transparent, showing once again that sunlight remains the best disinfectant. We advise President-elect Trump to bask in the glory of winning the electoral college, the national popular vote, and Iowa – by a country mile.

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