Sep. 17

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New Senate: DEM 50     Ties 1     GOP 49

New polls: AK KS NC NH
Dem pickups: (None)
GOP pickups: AR LA MT SD WV

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Kansas Supreme Court Hears Oral Arguments in Taylor Withdrawal Case

Yesterday the Kansas Supreme Court heard oral arguments in the case of Chad Taylor, the former Democratic nominee for the Senate in Kansas, who tried to drop out of the race. The Kansas secretary of state, Kris Kobach (R), refused to remove him from the ballot, nominally because Taylor failed to specifically state in his letter of resignation that he was incapable of fulfilling the duties of the office, the only valid reason to get off the ballot in Kansas. Taylor did cite the statute however, and said his withdrawal was pursuant to the statute, but Kobach didn't accept this, knowing full well that having Taylor's name on the ballot would help Sen. Pat Roberts (R-KS) in his battle against independent Greg Orman.

Prof. Rick Hasen of the University of California at Irvine, one of the country's top election law specialists, has analyzed what the justices said. After a disclaimer of "you never know what they are going to do," he ventured a guess that the questioning by the justices seemed to indicate that they believed Taylor's wording of "pursuant to" the statute implicitly meant that he felt he was incapable of fulfilling the duties of the office. Hasen expects a quick decision because the ballots have to printed Saturday. A complication is that the law also says that the party of the withdrawn candidate must hold a convention to name a new candidate, but there is no time before Saturday to hold a convention so it is not clear what happens if the Kansas Democratic Party simply does not provide a name by Saturday.

The Witchita Eagle has a good story about the case and what the justices asked and the answers they got. A key issue is how the declaration of incapability has to be made and to whom. To make it clear that the declaration of incapability has to be made in the letter of resignation, Kobach's lawyer asked the justices if a candidate could declare his inability to serve to his goldfish at home.

The most recent poll of Kansas (see below) shows Orman winning. If the court orders Kobach to remove Taylor's name, that will only help Orman more. It is entirely possible that control of the Senate could hang on this race, so the court's decision is extremely important. After Bush v. Gore, people are used to the Supreme Court deciding presidential elections, but the Kansas Supreme Court deciding control of the Senate is new. If this keeps up, someday a municipal judge somewhere will temporarily recess a case about someone spitting on the sidewalk to determine control of the House.

Even Voters Helped by the ACA Will Vote to Repeal It

Many pundits wonder why people who got health insurance for the first time under the ACA are planning to vote for someone who wants to repeal it. The New York Times sent a reporter to Kentucky, which has probably the best-functioning ACA Website in the country, to find out. In her story, the reporter cites the case of a woman making $9 an hour as a warehouse packer who has multiple serious illnesses and who rarely saw a doctor until she got coverage this year. About the law she said: "I'm tickled to death with it." Yet she is planning to vote for Sen. Mitch McConnell (R-KY), who has led the fight to repeal the law. Her reasoning: "Nobody don't care for nobody no more," which she blames on Obama. Clearly the Republicans' strategy of demonizing Obama personally has paid off big time, with people voting to have their own health insurance being taken away.

On the other hand, while many people thought the ACA would be the dominant factor in the midterms this year, that doesn't appear to the be case. Many people have the stopped paying attention and it is becoming part of the background noise rather than the main attraction. A lot of people have the attention span of a flea and the crisis du jour (ISIS, ebola) gets most of their attention.

Michael Grimm Leading on Staten Island Despite Indictments

While we are on the subject of unusual voter behavior, there is the case of Staten Island's representative, Michael Grimm (R-NY), who is under federal indictment for evading $1 million in taxes, perjury, and other charges, but is leading his Democratic opponent 44% to 40% in a recent Siena College poll. One voter said: "Everyone's allowed to be human," sort of implying that evading $1 million in taxes is something that could happen to anyone if he is not careful. Another voter said: "Nobody is perfect. He didn't murder anyone." In Alaska in 2008, former senator Ted Stevens came within 4000 votes of being reelected, despite having been convicted of seven federal felonies. Grimm has only been indicted. His trial is in December. If he is convicted and imprisoned, there will be a special election to fill his seat.

Campaigns Are Even More Negative than Before

It probably won't come as a surprise to many television viewers, but a new study from Wesleyan University has shown that the television ads during the past 2 weeks were more negative than the ads during the same period in 2012 and 2010. In Senate races this year, 55% of the ads were negative, meaning the entire focus was attacking the opponent. Another 17.5% contrasted the candidates and only 27.5% were positive ads, praising the character or achievements of the favored candidate. Research shows that people tend to remember negative ads more than positive ads and campaign managers have gotten the word.

Would Susana Martinez Be the Best Republican Veep Candidate?

Yesterday we had an item about Martin O'Malley running for the Democratic nomination for Vice President, so today we have one about a top Republican Veep candidate. A very good case can be made for Gov. Susana Martinez (R-NM). She is a women, a Latina, and comes from a swing state in a critical region. She could campaign in New Mexico, Nevada, and Colorado, all more-or-less swing states. She could also campaign in states with large Latino populations, such as Florida. Having a woman on the ticket would help neutralize Hillary Clinton's pull on women. It was widely rumored that Mitt Romney wanted her on his ticket in 2012 but she refused because she had to stay in New Mexico to care for her disabled sister and ailing father.

On the other hand, she probably knew that as a good-looking woman whose political experience was limited to two years as a governor of an empty state, she would be compared to other Republican Vice Presidential candidates that had the same credentials. Also working against her is that the fact that she can be petty, vindictive, and weak on policy, an accusation that has also been leveled at previous female Republican Vice Presidential candidates. Most of all, she has never been tested on the national stage. Still, she is an intriguing possibility, at least on paper. Mother Jones has a long piece on her Vice Presidential prospects.

All this notwithstanding, the effect of the Vice Presidential candidate is marginal. Rep. Paul Ryan (R-WI), Mitt Romney's running mate in 2012 didn't even bring in his own state, for example.

Many Candidates Who Were Supposed to Win Didn't

Every election year holds surprises. In 2000, a dead man was elected to the Senate. In 2006, an author, Jim Webb, defeated an incumbent senator, George Allen, in Virginia. In 2012, a relatively unknown Democrat, Heidi Heitkamp was elected to the Senate from deep red North Dakota, a race the Democrats had long since given up on. No doubt there will be surprises in 2014, but we can't pinpoint them now. If we knew, they obviously wouldn't be surprises. One possibility that is becoming more plausible by the day though is Sen. Kay Hagan (D-NC) winning a resounding victory in a race that both parties had assumed would go to the Republicans. Another "surprise" might be the Republican candidate for the Senate in Kansas losing. Larry Sabato has an interesting story about many surprises since 2000 in Politico.

Today's Senate Polls

A fifth poll in less than a week has Sen. Kay Hagan (D-NC) ahead of Thom Tillis (R). A victory by her and by Sen. Mark Begich (D-AK) would probably be enough for the Democrats to hold the Senate, with some help from Vice President Biden, who would have to actually preside over the Senate as tie breaker. However, polling Alaska is controversial. The problem is not so much that people in far-flung villages don't have telephone service (they do), but that not all pollsters use random digit dialing. Some buy lists of representative voters from commercial companies and use them and Alaska is too marginal for these companies to bother keeping the lists up to date.

State Democrat D % Republican R % I I % Start End Pollster
Alaska Mark Begich* 41% Dan Sullivan 36%     Sep 13 Sep 14 Hays Research
Kansas Chad Taylor 6% Pat Roberts* 34% Greg Orman 41% Sep 11 Sep 14 PPP
North Carolina Kay Hagan* 44% Thom Tillis 40%     Sep 11 Sep 14 PPP
New Hampshire Jeanne Shaheen* 50% Scott Brown 45%     Sep 12 Sep 15 ARG

* Denotes incumbent

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