The “Who’s Sure?” State

Why is Indiana’s primary such a mystery? It has to do with a law passed in 1988.

Republican presidential candidate Sen. Ted Cruz greets people during a campaign stop at the Bravo Cafe on May 2, 2016 in Osceola, Indiana.
Ted Cruz greets people during a campaign stop at the Bravo Cafe on Monday in Osceola, Indiana, where polls are hard to come by.

Joe Raedle/Getty Images

For such a decisive contest, the Indiana Republican presidential primary was fairly late in sneaking onto the political intelligentsia’s radar. It was presumed to be Trump-friendly in March following his wins in neighboring Illinois and, well, just about everywhere else. Then, in early April, Cruz buried Trump in nearby Wisconsin, prompting prognosticators to revisit their assumptions about its fellow Midwestern state. Only now, due to a few very recent polls, have prognosticators swung back and considered Tuesday’s primary the event during which Trump could effectively seal the nomination.

It was this inability to determine which way Indiana would go that made the state so important, since its results couldn’t be baked into any hard evidence-based delegate forecasts well in advance. So Indiana’s status as a true turning point in this grinding slog of a primary can be attributed, in no small part, to one factor: It’s a really expensive state to poll, and few outlets bothered to do so until recently.

A grand total of zero (0) polls of likely Indiana Republican primary voters were released prior to April 22, a mere 11 days before the climactic contest. Compare that with the polling frequency of other recently important states. Pennsylvania, which voted April 26, was polled dozens of times with some regularity going back to March 2015. Pollsters surveyed New York Republicans 20 times between mid-March and the April 19 primary. California Republicans, who don’t vote until June 7, have already been polled eight times since the beginning of March.

Indiana’s polling paucity traces back to a 1988 state law that, with certain exceptions, banned auto-dialed calls, or “robocalls.” Though largely targeted at unwanted sales calls, it’s also banned similarly annoying political campaign calls—along with the interactive caller surveys that many low-cost pollsters this cycle use to gather their results. The penalty for violations, according to a release the Indiana attorney general’s office sent out in March as a warning to politicos about to descend on the state, is “up to $5,000 per call.”

For polling purposes, this means that all surveys of the state must be “live-caller,” i.e. real human beings calling other human beings in order to collect their opinions. Those get pricey. Patrick Murray, director of the Monmouth University Polling Institute—a prolific pollster this campaign season that hasn’t bothered with Indiana—estimates that automated surveys are roughly “as much as 10 times cheaper” to commission than live-caller ones. Public Policy Polling’s director, Tom Jensen, backs up this estimate. “You’re talking the difference between a poll costing $2,500 to $3,000 and $25,000 to $30,000,” he says.

“A lot of the public polling that gets released over the course of primary season is polling companies doing it out of their own pocket as a public service, but you just can’t do that when you’re talking that kind of expense,” Jensen, whose firm also hasn’t surveyed Indiana, adds. “So at that point it falls to media organizations being willing to make that kind of expenditure, and obviously in this day and age most outlets don’t have that kind of money to commission a poll.”

Indiana isn’t the only state that regulates robocalls, but it is one of the strictest. “Indiana’s the only [state] that I know of that has that total prohibition” on such calls, Murray says. Jensen says that, “the only other state with laws as restrictive as Indiana’s is North Dakota,” which doesn’t hold a Republican primary. The law is consistently under assault from political groups, but so far to no avail. It was less than one month ago that Patriotic Veterans Inc., a political action committee, lost another round in its years-in-the-works court battle arguing that the auto-dialer law violates its First Amendment rights.

Banning irritating commercial and/or political robocalls would seem to be a no-brainer for any legislative body. Who enjoys having dinner interrupted by some nosy robot asking personal questions? It seems, at first, that most states would have such prohibitive laws. But lawmaking is never quite as simple as distilling the will of the voters into corresponding legislation. Market-research firms lobby heavily against such laws. And politicians might hesitate to ban automated calls because that takes a major tool out of their arsenal. Lobbies can usually bat away these laws “because of politicians who use these for their own campaigns,” Murray says. Private-sector lobbyists plus lawmakers looking out for their personal campaign interests make, as ever, a strong coalition.

So why Indiana? It’s hard to trace to any particular incident; occasionally a legislative push to protect people’s privacy squeaks through. Paul Helmke, a former three-term Republican mayor of Fort Wayne who now teaches at Indiana University’s School of Environmental and Public Affairs, remembers the prominence of the debate in the 1980s. “I remember people running ads when they were running for office, and this was one of their campaign planks,” he says. “You know, showing the couple at dinner getting call after call after call—a ‘vote for me and I’ll get rid of this’ kind of thing.” He adds that incumbents justified supporting it by believing that they could muster the resources to do “traditional polling,” so “who cares if the challenger can’t do it?”

Which brings us to 2016, when the Indiana Republican presidential primary suddenly matters, but few had a clue until recently how the contest was shaping up. A few major news outlets with the resources at their disposal (Fox News, CBS, NBC, and the Wall Street Journal) scrounged up the change to commission surveys, as have a few other, less reliable outfits (Gravis, American Research Group, some Republican operation called Clout Research). There’s no doubt now that Trump, who holds a 9.3-percentage-point advantage in RealClearPolitics’ polling average, is the front-runner heading into Tuesday’s contest. It may be that he’s earned a jolt of momentum following his six consecutive blowout Northeastern wins, but momentum has mattered much less than geography this cycle. Indiana may have always been Trump country, and its primary outcome far less than the mystery it’s been treated as. But discovering that was never going to be cheap.    

Read more Slate coverage of the Democratic primary.