Political Advertisers Have Discovered A Way Around Election Day Laws Thanks To Smartphones

pollplaceimgIt’s illegal to display political ads or messages, solicit supporters, hand out campaign paraphernalia or try to affect voters’ preferences in almost any way once they’re within a roughly 100-foot radius of a polling location.

But sophisticated location-based mobile advertising has exposed a loophole in those laws, wherein campaigns target mobile ads to people while they wait in line to vote.

One of Google’s most popular product packages this campaign season has been its Mobile Blast, which places aggressive mobile-only bids on behalf of political buyers on Election Day or during early voting periods, said Lee Dunn, head of Google’s campaigns and elections team.

Google doesn’t geofence polling locations or use beacons to identify people within a given distance of a voting booth – it instead blankets a state or district – but Dunn isn’t shy about the product’s selling point: “We saw a lot of voters waiting in line, and what do people do while they’re in line waiting to vote? They’re on their phones, reading news articles and watching videos.”

The liberal ad tech firm DSPolitical offers a competitive product called Last Word that, as the name implies, serves mobile messages to voters waiting in line.

Products like Mobile Blast and Last Word are fueled by Election Day ad buys that defy the notion of rational spending.

“If it’s the last day you have for expenditures and you have the money, why not blanket that target area with your message?” said Trace Anderson, founder and president of the Republican data analytics firm CFB Strategies.

Ray Kingman, CEO of the nonpartisan DMP Semcasting, said he also sees political clients in a rush to get their money out the door in the final days of the election.

And since targeting only voters waiting in line heavily restricts reach, Semcasting and other vendors pursue all known supporters of a campaign at the precinct or state level, often with mobile messages that instruct voters how to get to their polling location.

Kingman said he’d be concerned about ending up on the wrong side of regulatory or legal action if he aimed only for people waiting in line to vote: “Does a phone qualify as in the line of sight [a typical legal standard for political messages around a voting booth]? I don’t know.”

The FEC is just now “grappling with smartphones that can receive messages whenever and wherever you are,” said Michael Toner, a former FEC chairman who now heads up election law at the firm Wiley Rein LLP.

But it isn’t up to the FEC to set laws on what can and cannot be displayed around polling locations. That responsibility falls to individual states.

“It doesn’t mean it won’t happen in the future, but as a practical matter I haven’t seen states investigate” mobile poll location targeting, Toner said.

Enforcement would be difficult, he added, since many ads won’t be visible to others – thereby slipping under the voting booth “line of sight.”

And targeting votes in line might not be that useful, according to some nonpartisan industry sources, since a person who shows up to vote probably has a candidate in mind already.

Except “there’s lots of political research and polling to demonstrate that small numbers of voters do show up unsure of how they’ll vote,” said Keegan Goudiss, a partner at the liberal ad agency Revolution Messaging and former director of digital advertising for Bernie Sanders’ presidential campaign.

And some local elections or Electoral College wins, Goudiss pointed out, come down to a sliver of a percent of all voters.  “Elections are about marginal gains,” he said.

The Sanders campaign deployed Google’s Mobile Blast, and Goudiss also worked with vendors who provide geofencing or more exact poll location targeting, though those specific location analytics pilots weren’t just about serving ads.

Location technologies also helped with attribution, or to confirm whether potential voters who had received certain ads ended up casting a ballot.

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