September 23, 2014

By electronic and regular mail

Risa Sugarman, Esq.
Chief Enforcement Counsel
Division of Election Law Enforcement
NYS Board of Elections
40 North Pearl Street, Suite 5
Albany, NY 12207-2729
enforcement@elections.ny.gov
In recent days, Republican attorney general candidate John Cahill blatantly flouted
the Fair Campaign Code by releasing to the public select internal poll results and then
refusing to reveal poll questions that may have influenced the results he chose to
selectively disclose. As a candidate for the states top law enforcement office, it is
incumbent on Cahill to abide by the letter and the spirit of the law. Having failed to do so,
we request you, as Chief Enforcement Counsel, to act swiftly, obtain and review the whole
opinion poll, and determine whether Cahill must file the complete results of the poll and
whether sanctions are appropriate.
Background
On Monday, September 15, 2014, Ken Lovett, writing for the New York Daily
News, reported on a memo received by supporters of John Cahill (Candidate Cahill)
which itself details certain results of an internal poll. The selectively disclosed results of
the poll, and the accompanying writing in the memo, convey to the reader that the race had
suddenly tightened and that Candidate Cahill now had a clear path to victory. (See
Attachment A.)
Later the same day, Lovett reported Candidate Cahills campaign claimed it did
not need to make any disclosures to BOE regarding the poll. In the same piece, he quoted
BOE spokesperson John Conklin as saying the campaign must file the poll now that it has
been released to donors and the public. (See Attachment B.)
Having been publically reprimanded, Candidate Cahill relented and made a
submission to BOE that quoted two questions from the poll and noted the results to those
questions. He did not, however, file the complete results of the poll. (See Attachment C.)
Two days later, Candidate Cahill filed another submission to BOE that revealed in
memo form three additional questions and results but again did not submit the poll in its
original form and sequence. (See Attachment D.) In fact, Candidate Cahills campaign
later confirmed that it had only provided five (of at least 15 questions) and that those they
had provided were presented to BOE out of order. (See Attachment E (Reisman))
Argument
As of this filing, Candidate Cahill is still in clear violation of New York Election
Law as neither BOE nor the public know the contents of the poll, the number or sequence
of questions therein, or whether questions presented in the poll were designed to or had the
effect of influencing the results of subsequent questions.
The Fair Campaign Code, promulgated pursuant to NYS Election Law 3-106,
governs the Use of Public Opinion Polls and seeks to prohibit the very type of selective
disclosure of poll results on display here by Candidate Cahill. The relevant provision
states:
No candidate, political party or committee shall attempt to promote the success or
defeat of a candidate by directly or indirectly disclosing or causing to be disclosed
the results of a poll relating to a candidate for such an office or position, unless
within 48 hours after such disclosure, they provide the following information
concerning the poll to the board or officer with whom statements or copies of
statements of campaign receipts and expenditures are required to be filed by the
candidate to whom such poll relates:
(a) The name of the person, party or organization that contracted for or who
commissioned the poll and/or paid for it.
(b) The name and address of the organization that conducted the poll.
(c) The numerical size of the total poll sample, the geographic area covered
by the poll and any special characteristics of the population included in the
poll sample.
(d) The exact wording of the questions asked in the poll and the sequence of
such questions.
(e) The method of polling whether by personal interview, telephone, mail
or other.
(f) The time period during which the poll was conducted.
(g) The number of persons in the poll sample: the number contacted who
responded to each specific poll question; the number of persons contacted
who did not so respond.
(h) The results of the poll.
9 NYCRR 6201.2. The plain language of the section suggests the BOE and the public
require a holistic view of the poll in order to understand its import and to protect against
misstatements or manipulation of poll results. Hence the reference in subpart (d) to
disclosure of the exact wording of the questions and also their sequence so a
determination can be made as to whether the order of questions influenced subsequent
results. Id.
This textual reading is supported by BOEs own interpretation of 6201.2, which
requires candidates to file both the questions that yielded the disclosed poll results and all
those questions in the poll which are related to the results disclosed. NYS Board of
Elections 1984 Opinion #1 (May 3, 1984) (emphasis added). This includes but is not
limited to any initial questions (and their results) that might indicate how those
preparatory questions may have influenced the answer to the main question. Id. Based on
this interpretation, at least all those questions preceding the questions on which the
disclosed results are based need to be filed with BOE and made accessible to the public.
Not only is fulsome disclosure supported by the text of the rule and BOEs own
interpretation, it is also common sense. One can easily imagine so-called push-poll
questions questions meant to influence the respondents opinion preceding seemingly
objective questions, such that the answers to the objective questions are skewed. Neither
the public nor the BOE will have the benefit of knowing the whole truth, which is the
precise purpose of the regulation in the first place.
Indeed, concealing the whole truth from the public may be Candidate Cahills true
intention here, which is why BOE intervention is so important.
Respectfully submitted,
Karen Scharff
Executive Director
Citizen Action of New York
94 Central Avenue
Albany, NY 12206