Sep. 19

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New Senate: DEM 48     Ties 1     GOP 51

New polls: CO GA MA OR
Dem pickups: (None)

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No More Hanging Chads

Chad Taylor is no longer running for the Senate. The Kansas Supreme Court unanimously ruled yesterday that the Democrat had lawfully withdrawn from the Senate race. The Kansas secretary of state, Kris Kobach (R), had refused to take Taylor's name off the ballot after he withdrew, nominally because he did not literally say "because I am incapable of fulfilling the duties of the office" as required by state law. He did, however, say he was withdrawing "pursuant to the statute" and the court found that since the statute cited the reasons for a lawful withdrawal, he had met the requirements. Of course, in reality, Kobach, one of the most partisan secretaries of state in the country, wants to keep Taylor's name on the ballot because polls have shown that 5-10% of the voters continue to support Taylor, which helps Sen. Pat Roberts (R-KS) in his real fight, which is against self-funding independent Greg Orman.

State law also says that if a candidate withdraws, his party shall hold a convention to name a successor. However, the chairwoman of the Kanasa Democratic Party, Joan Wagnon, said: "Until the court tells me to do something, I'm not going to do anything." So the ball is in Kobach's court. He has given Wagnon eight days to find a replacement. In court, Kobach said it was necessary to print the ballots tomorrow in order to get them to the overseas voters on time. Now he claims he can wait another 8 days. People have been convicted for perjury in weaker cases, but the Kansas attorney general, Derek Schmidt, is a Republican and is unlikely to take action.

In principle, no party has to run a candidate in every jurisdiction. The Democrats, for example, are not fielding a candidate for the Senate in Alabama, so Sen. Jeff Sessions (R-AL) is running unopposed. Had there not been an independent (and also a Libertarian) in the Kansas race, Kobach would no doubt have been pleased to print a ballot with no Democrat on it. This whole incident shows how partisan even technical and administrative offices have become.

At this point we have reached the "what if" stage. Suppose Wagnon waits until 4:55 P.M. next Friday and then shoots Kobach an email saying: "Sorry, Kris, but we couldn't find a candidate." Or worse yet, suppose she shows up at his office then with a nicely printed and officially signed letter naming him as the Democratic candidate. The statute doesn't put any requirements on who the Democrats run so they could name anyone who is constitutionally eligible for the office (no 10-year-olds, convicted felons, dead people, etc). Secretaries of state run for the Senate all the time. In Kentucky and West Virginia this year, the Democratic candidates are secretaries of state. Kobach would fume and probably refuse to put his own name on the ballot, but what then? Go to court? The clock is ticking and if he doesn't get the absentee ballots out on time, there will be lawsuits later from overseas voters who will claim that he denied them the right to vote for partisan reasons. As an aside, if you are an overseas voter and haven't registered yet, you should click on the Vote from Abroad banner ad on top of this page to find out how to register. Time is running out.

Control of the Senate May Not Be Known on Election Day

Larry Sabato's Crystal Ball has five reasons control of the Senate may not be known on election day. First many of the races are close. There may be recounts in some of them. In 2008, the Minnesota recount in the Senate race between now-senator Al Franken (D-MN) and former senator Norm Coleman took 6 months and Franken wasn't seated until July 2009.

Second, Louisiana has a jungle primary system in which all the candidates run in a giant primary on Nov. 4. If no candidate gets 50%, and currently that seems extremely likely, the top two will meet in a runoff on Dec. 6. Most likely they will be Sen. Mary Landrieu (D-LA) and Rep. Bill Cassidy (R-LA). The likelihood of a runoff is increased by the presence of several other candidates, including a tea party candidate backed by Sarah Palin.

Third, Georgia has the same runoff system as Louisiana. While David Perdue (R) seems ahead of Michelle Nunn (D) in recent polls, he has yet to crack 50% due to the presence of Libertarian Party candidate Amanda Swafford on the ballot. But even worse than Louisiana, the Georgia runoff is on Jan. 6, the day after the new Senate convenes. So it is entirely possible we won't know which party controls the Senate when it convenes. If that happens, all the senators present get to vote, but when the Georgia winner is certified, control could change. Something analogous happened in 2001. When the Senate convened, it was split 50-50, so Al Gore, who was still Vice President until Jan. 20, cast his vote for the Democrats. When Dick Cheney was sworn in on Jan. 20, control switched. Then when Jim Jeffords became an independent caucusing with the Democrats, it switched again.

Fourth, independent Greg Orman of Kansas could be the deciding vote and he hasn't said which party he will caucus with. He has said he doesn't like either Sen. Harry Reid (D-NV) or Sen. Mitch McConnell (R-KY) and could force one of the parties to pick a new leader before joining its caucus.

Fifth, some senator could switch parties. Jeffords did it in 2001, and other senators have done it in the past. Sen. Angus King (I-ME) is a possible candidate, but no doubt he would extract a heavy price from the Republicans to join them.

Finally, parts of Alaska are five time zones from the East Coast and since the Alaska Senate race is expected to be close, that result may not be known until the day after election day, even without a recount.

Oppo Research Is Front and Center

Candidates hate to talk about the actual issues facing them because they are invariably controversial and no matter what they say, it will alienate some voters for whom that issue is the only thing they care about (ISIS? climate change? Who cares when our country is facing an abortion crisis?) As a result, each candidate and party does a tremendous amount of opposition research. A new Republican PAC is going to spend about $10 million digging up dirt on Democratic candidates. A lot of it is grunt work. Oppo researchers go through everything they can find about the candidate and often the candidate's family, friends, donors, supporters, and even minister (remember Rev. Jeremiah Wright?). The biggest catch this year was the discovery that then-candidate John Walsh plagiarized part of his masters thesis. This discovery caused him to drop out of the Montana Senate race and handed the seat to the Republicans. Normally masters theses written long ago don't decide Senate elections. When it became known the Sen. Pat Roberts (R-KS) used his D.C. mailing address for small travel reimbursements, his primary opponents began yelling "Toto, I've a feeling he's not in Kansas anymore" (with apologies to Dorothy).

Abortion Dominates Colorado Senate Race

"Those who live by the sword shall die by the sword" has gotten new meaning in Colorado this year. For years, Republicans used the abortion issue to rev up their base and get voters to the polls. This year, Democrats are pummeling Rep Cory Gardner (R-CO) with it in libertarian Colorado. They are basically saying a woman's decision to get an abortion is none of the government's business, a view that tends to resonate in much of the West. Polls have repeatedly shown that Colorado women strongly oppose restrictions on abortion, so at least four major pro-choice groups are pouring money into the state trying to attack Gardner on this point. He thought he could get off the hook by coming out in favor of having birth control pills be sold over the counter instead of by prescription only, but was instantly attacked for trying to shift the cost (about $600 a year) from insurance companies (which routinely pay for prescription medicine) to women. The race is extremely close and issues like this can make a difference.

Election Reform Measures Are on the Ballot in Five States

While state legislatures have been in the news a lot for requiring ID to vote and shortening early voting, in five states the voters will be asked about changes to election laws. In Illinois, voters will get to decide on a constitutional amendment that would establish higher legal protections for racial, ethnic, religious, or income minorities. Then future state legislatures could not tamper with them.

In Connecticut, under current law, voters can obtain an absentee ballot only if they have a good reason. The ballot measure would change that and let anyone who wanted an absentee ballot to just ask for it, no questions asked.

In Missouri, a constitutional amendment would create a six-day early voting period, either by mail or in person. Groups that favor early and easy voting feel it doesn't go far enough though.

In Arkansas, the ballot measure would make it harder for citizen-initiated ballot measures to qualify. It would require that 75% of the signatures that are submitted be valid on the first try.

Finally, in Montana, a ballot measure would stop last-minute voter registration by requiring a voter to be registered by the Friday before election day. A similar measure failed in Maine in 2011.

Today's Senate Polls

A new Colorado poll from Quinnipiac University puts Rep. Cory Gardner (R) ahead of Sen. Mark Udall (D-CO). This is so out of line with all other polls that it is certainly a statistical fluke. The race has been very close until now and nothing major has happened there this week.

State Democrat D % Republican R % I I % Start End Pollster
Colorado Mark Udall* 40% Cory Gardner 48%     Sep 10 Sep 15 Quinnipiac U.
Georgia Michelle Nunn 41% David Perdue 46%     Sep 15 Sep 16 Rasmussen
Massachusetts Ed Markey* 49% Brian Herr 31%     Sep 16 Sep 17 Rasmussen
Massachusetts Ed Markey* 53% Brian Herr 27%     Sep 14 Sep 16 Social Sphere
Oregon Jeff Merkley* 42% Monica Wehby 34%     Sep 09 Sep 11 Polling Company

* Denotes incumbent

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