I wouldn’t have guessed President Donald Trump’s lawsuit over the pre-election Iowa Poll could assert claims any more outlandish than the original court filing in December.
Enter U.S. Representative Mariannette Miller-Meeks and former State Senator Brad Zaun.
The Des Moines Register’s William Morris was first to report on February 4 that Miller-Meeks and Zaun signed on as plaintiffs in Trump’s case against J. Ann Selzer, her polling company, the Des Moines Register, and its parent company Gannett. The suit alleges that the inaccurate poll (which suggested Democratic nominee Kamala Harris was leading Trump in Iowa) was an “unfair act or practice” under Iowa’s consumer fraud statute. It further claims defendants “engaged in this misconduct to improperly influence the outcome of the 2024 Presidential Election.”
Adding plaintiffs who are Iowa residents will help Trump get the case moved back to state court, where he originally filed. Attorneys for Gannett used a legal maneuver in December to remove the case to federal court.
For Miller-Meeks, there’s political upside as well: demonstrating her allegiance to Trump may help her fend off a second primary challenge from MAGA Republican David Pautsch.
But let’s be clear: Miller-Meeks and Zaun have even less basis to claim the Iowa Poll harmed them than Trump does.
The Des Moines Register uploaded the amended complaint.
All of the points Bleeding Heartland explained here apply equally to the updated lawsuit. The claims misapply Iowa’s consumer fraud law, which wasn’t enacted as a way to police the content of news reporting.
The plaintiffs are still offering a selective history of Selzer’s polls, wrongly implying that they typically skewed toward Democratic candidates.
The suit also misstates the possible sources of polling error, to suggest Selzer and the Des Moines Register must have deliberately overstated Harris’ support. Plaintiffs offer no evidence of motive either, simply presenting their theories as facts. For instance: “Selzer quitting polling is an admission of her guilt and liability for the Defendant Polls.”
Plaintiffs continue to use “the Harris Poll” as a shorthand reference for the pre-election Iowa Poll, even though The Harris Poll is a different company with no connection to Selzer.
Hilariously, the court filing still misspells the surname of Iowa GOP state chair Jeff Kaufmann throughout.
It’s worth taking a moment to walk through additional absurdities in the revised lawsuit.
PROBLEMS WITH MILLER-MEEKS’ CASE
There are at least five problems with the legal arguments Miller-Meeks is making.
Miller-Meeks received the product she purchased
The revised court filing notes that Miller-Meeks “is a regular reader of the Des Moines Register, read the election coverage at issue in this action, and purchased the Des Moines Register newspaper issue containing the election coverage at issue.” Those facts are supposed to bolster the idea that she was “lied to, deceived, and maligned” by the poll.
But as Bill Brauch, the longtime head of the Consumer Protection Division in the Iowa Attorney General’s office, observed in December, “the suit does not allege any deception, misrepresentation or unfair practices in the Register’s advertisement or sales of its newspapers. The purchasers here got what they paid for—a newspaper.”
The Iowa Poll didn’t name Miller-Meeks
The lawsuit wrongly asserts that the Iowa Poll “purported to show that incumbent Representative Miller-Meeks trailed by sixteen points (53%-37%) against Democrat challenger Christina Bohannan in the race for Iowa’s 1st Congressional District.”
However, Selzer’s survey did not ask respondents about Miller-Meeks or any other named Congressional candidates. As was Selzer’s longstanding practice, the Iowa Poll asked a generic ballot question (do you prefer a Democrat or a Republican in the U.S. House race). The Register reported the results for each Congressional district.
It’s reasonable to question the editorial decision to publish district-level findings that have a large margin of error (due to small sample sizes) and reflect a generic ballot. But whether or not you agree with that approach, such campaign coverage is not consumer fraud.
Selzer had used the same methods for many other polls
During a podcast organized by Julie Gammack the day before the presidential election, I asked Selzer whether the district-level numbers raised questions about having too many Democrats in the sample. (The relevant portion starts around 8:00 on this recording.)
She responded,
Well, I would have no way to know. The way that I conduct the poll is for—to collect my data in a way that it will reveal to me what this future electorate is. So I don’t know what the right number of Democrats is, in terms of what the future electorate looks like.
I do not do what I call ‘polling backward,’ which would be to look at past elections and make my data look like that. Because while the best predictor of future behavior is past behavior, the Selzer caveat is: until there’s change. So I do not weight by past—anything from the past.
She said the Congressional district-level poll numbers are “meant to be directional.” Specifically regarding the first district, where respondents preferred a Democratic candidate by a wide margin, Selzer said since “that race has been so heavily focused on abortion, it made sense to us that this could be one of the things that’s happening statewide, and that is boosting the Democrat in the third district as well.”
Selzer has used similar methods for many previous polls, which often were close to the mark.
No proof of intent
Pollsters and news organizations highly value a reputation for accuracy. They would have no incentive to doctor the numbers. Nevertheless, the lawsuit claims—without any supporting facts— that defendants “hoped” the pre-election poll “would create a false narrative of inevitability for Harris in the final week of the 2024 Presidential Election, to drive down enthusiasm among Republicans; they had similar hopes for the Congressional Poll.” From the amended filing:
The odds of a pollster with Selzer’s experience and track record innocently missing both President Trump’s and Representative Miller-Meeks’ races by the same margin, sixteen points, and favoring the Democrat candidates with both “misses,” are outside any reasonable range of error.
On the contrary: it’s easy to explain why the poll was off by roughly the same margin for both the presidential race and the Congressional districts.
The Iowa Poll respondents were not representative of the 2024 electorate. That could happen by chance even with perfect sampling methods. In this case, several factors probably contributed to the miss: “response bias” (Republicans or Trump fans being less likely to participate in a poll); not weighting by education or recalled 2020 presidential vote; and using random digit dialing instead of registered voter lists to find respondents.
You would expect a surplus of Harris voters in the sample to affect the findings for all races.
It would be more odd if Selzer’s numbers were way off for the presidential race but on target at the Congressional district level.
No evidence the poll produced “headwinds” for Miller-Meeks
The court filing mentions “immense harm” caused to plaintiffs “as individual candidates and as individual consumers.” It claims Miller-Meeks “never should have been subjected to a recount — and a costly recount at that — and would not have been if not for the combined impact of the Harris Poll and the Congressional Poll on her race.” It hails the Republican’s “hard-fought victory despite substantial headwinds caused by the Congressional Poll.”
What headwinds? It’s equally plausible that massive news coverage of the surprising poll motivated infrequent Republican voters to show up for Trump. That in turn could have dragged Miller-Meeks—one of the most underperforming House Republicans in the country—over the line.
MORE MISDIRECTION ON BEHALF OF ZAUN
Zaun doesn’t claim to have purchased the Des Moines Register edition with the poll numbers; the suit says only that he “read the election coverage at issue in this action.” So now plaintiffs are saying you can claim consumer fraud even if you didn’t buy the product in question.
There are at least three other logical flaws.
The Iowa Poll didn’t ask about any state legislative candidates or races
The court filing asserts with no evidence, “As intended, Selzer’s manipulated Harris Poll impacted many other elections,” including the race in Iowa Senate district 22, which Zaun lost to Democrat Matt Blake.
But the Iowa Poll had no questions or findings related to Zaun’s campaign, or any other state legislative elections.
The presidential result in Zaun’s district was what we would expect
It’s hard to win a legislative race in a district where voters prefer the other party’s presidential candidate. Only seven candidates for the Iowa House or Senate managed that in 2020, and only seven did so in 2024.
Across the country, suburban areas swung less toward Trump compared to 2020 than urban areas did. That trend played out in Senate district 22, anchored in the northwest suburbs of Des Moines. In the 2020 election, voters living in precincts that are now part of Senate district 22 favored Joe Biden over Trump by 53.2 percent to 44.7 percent. Bleeding Heartland’s analysis of precinct-level results indicates that the district’s voters preferred the 2024 Democratic nominee by a smaller margin: 52.4 percent for Harris, 45.7 percent for Trump.
Zaun lost to Blake by 52.4 percent to 47.5 percent, meaning he did outperform the top of the GOP ticket, as he had done in 2020. But not by enough to win this time. And the main factor was baked into this race years ago.
More than anything else, redistricting sank Zaun
Plaintiffs assert “upon information and belief” that Blake won “fueled by momentum from the Harris Poll.”
But months before Blake launched his Iowa Senate campaign in 2023, Bleeding Heartland flagged a big problem for Zaun: the areas that had provided his margin of victory in 2020 (Grimes and Jefferson township) were no longer part of his Senate district.
In other words, Zaun probably would have lost his seat in the legislature four years earlier if he’d been running in a district that looked like Senate district 22.
There’s no evidence the Iowa Poll affected Zaun’s political fate.
A “LITIGATION TACTIC”—AND A POLITICAL ONE
Nick Klinefeldt, who is representing the Des Moines Register and Gannett in this litigation and a similar case filed in January, told the Register’s Morris last week that refiling the suit with new plaintiffs “adds nothing of value and is little more than a litigation tactic devised by [Trump’s] lawyers to avoid an early dismissal of his claims by the federal court. Gannett and the Des Moines Register will continue to vigorously defend this baseless lawsuit in standing up for First Amendment liberties.”
The Foundation for Individual Rights and Expression (which is representing Selzer) said in a statement from chief counsel Bob Corn-Revere, “Mr. Trump’s lawsuit, now joined by two others, does not change the core truth that the First Amendment protects speech about elections.”
In the coming weeks, plaintiffs will ask the federal court to return this lawsuit to the Polk County District Court, a motion that will presumably be granted.
Then defendants will likely move to dismiss this case and a Des Moines Register subscriber’s consumer fraud lawsuit against the same parties. If they succeed, plaintiffs could appeal the dismissal to the Iowa Supreme Court.
Whatever happens in the courts, Miller-Meeks can use this case to show she’s on the president’s side. She employed Trump-like language in a written statement her campaign released on February 4.
“Proud to join President Donald J. Trump in a lawsuit against DM Register Pollster Ann Selzer and media enablers for manipulative, dishonest, and fake election polls. President Trump won in a landslide and I beat Selzer’s prediction by 16 points. We have to hold these Radical Democrats accountable!”
That doesn’t sound like how Miller-Meeks actually talks. And it won’t stop her GOP primary rival in the first Congressional district, David Pautsch, from lambasting her as a phony and a RINO.
But being Trump’s co-plaintiff may help Miller-Meeks secure the president’s endorsement in the IA-01 primary, or at least deter his allies from intervening to take the incumbent down. Also worth noting: the local counsel for Trump on this case, Alan Ostergren, did legal work for the Miller-Meeks campaign before and after the November election.
Appendix: February 4 news release from the Miller-Meeks campaign:
Congresswoman Mariannette Miller-Meeks released the following statement today after joining President Trump’s lawsuit against the Des Moines Register and its former pollster J. Ann Selzer:
“Proud to join President Donald J. Trump in a lawsuit against DM Register Pollster Ann Selzer and media enablers for manipulative, dishonest, and fake election polls. President Trump won in a landslide and I beat Selzer’s prediction by 16 points. We have to hold these Radical Democrats accountable!”
Selzer’s 2024 prediction on Iowa’s 1st Congressional Race: “Now, voters prefer a Democratic candidate by a 16-point margin in the 1st District, where Democrat Christina Bohannan, a law professor and former state representative, is in a rematch with Republican U.S. Rep. Mariannette Miller-Meeks, who is seeking her third term.”
In a nod to Harry Truman holding up the “Dewey Defeats Truman” paper, Miller-Meeks held up the Des Moines Register with the Selzer poll when declaring victory in her race.