Legal Daily News Feature

Election Wrap Up
By Joshua Nave Its a little after midnight here on the west coast and three Senate races are still undecided. Well talk about those in a minute, but first lets go through the numbers. As expected, Republicans had a big night, taking control of the House of Representatives by a large margin, and picking up several Senate seats, although not enough to take over there. Republicans have also posted large gains in Governorships, particularly in some very key states.

11/04/10 With 21 House races still undecided, Republicans have picked up 59 seats and are expected to take roughly half the remainder. In the Senate, they have gained 3 seats. Of the 3 undecided races, two are Democrat seats and Alaska will remain in Republican hands - we just dont know which Republican. Nine state houses are still up for grabs, but so far the Republicans have added nine to their column including Ohio and Pennsylvania. If Florida stays in Republican hands, that will give them control of the top three swing states for the 2012 presidential election. Lets look first at tonights big winners: Harry Reid - the Majority Leader of the Senate, Harry Reid, will not only keep his job as Senator, he will hold on to a narrow majority in the Senate. With most of the conservative Democrats gone, he will be working with a much more united party against a fractured minority, but still lacks the votes to push through any major legislation. There were a couple of surprises in the Nevada senate results. Most scenarios envisioned by pundits going into election day that ended in a Reid victory focused on him scoring a plurality with large numbers of people disenchanted with both candidates voting for the none of these candidates option. Instead, Reid picked up a hair over 50% of the votes, a higher percentage than his own favorability ratings inside the state. This is probably due to a combination of his impressive get out the vote effort and discomfort with Sharron Angle as a candidate. Its also worth mentioning that his son Rory took a drubbing in the Governors race even though nearly every other statewide race went Democrat, leading me to believe that as I suggested last week, many voters angry with Reid took it out on his son. Also surprising was how quickly the race was called. I fully expected that with the exception of Alaska, this would be the race that took the longest to find a clear winner, but only two and half hours after the polls closed, the major

news outlets had all called the race for Reid. Unfortunately for the Democrats, Reid was not able to carry Dina Titus, the Congresswoman from the 3rd District, across the line with him. In a squeaker, decided by .8%, Joe Heck will replace Titus in House of Representatives. California Democrats - In two races where Republicans thought they had a realistic shot at winning, Democrats won by comfortable margins. Barbara Boxer will return to Washington for another six years as Senator, and Jerry Brown will be the once and future Governor, recapturing that state house for Democrats. With over 50 congressional districts in California, control of the state house in a redistricting year could have had a large impact on the future makeup of Congress, but California also passed a ballot measure removing elected representatives from the redistricting process. Although they had a big night across the board, its not clear that the Republicans are big winners over all. Several key elections that they could and should have won fell to Democrats and others where they expected blow outs were decided by very narrow margins. The new Republican majority in the House will have to deal with ideological purists on the right who are unwilling to compromise - useful when youre the minority party trying to block legislation but a clear liability when the onus is on you to govern. This brings us to tonights big losers: Sarah Palin - With several races still undecided, Palin endorsees are about 50/50. While this seems like a respectable number, Republicans lost several seats that they could and should have won after Palin backed Tea Party candidates beat establishment candidates in the primary. Most notable of these are the Senate seats in Nevada and Delaware, spots where establishment candidates would likely have won by large margins. Delaware may particularly rankle Republican insiders where Mike Castle gave up a safe House seat to run in the Senate primary, and after Christine ODonnell upset the apple cart, Republicans lost both the Senate and the House

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seat. In next door Pennsylvania, Republican Pat Toomey beat Joe Sestak by less than 80,000 votes out of 3.9 million cast in a race that had been a blowout a few weeks ago. Eastern Pennsylvania shares media outlets with Delaware, and with all the attention paid to ODonnells campaign, its entirely possible that voters soured on the Republican party in general. In Alaska, Palin endorsee Joe Miller is down 5% to a write in candidate, presumably Senator Lisa Murkowski, with 75% of the votes cast. There have been rumors floating around for weeks about establishment Republican discomfort with Palin, and tonights results will only intensify that. Russ Feingold - although not entirely unexpected, the defeat of liberal lion Russ Feingold in Wisconsin is a particularly bitter pill for progressives. Feingold was dramatically outspent by businessman Ron Johnson and his own turbulent relationship with Democrat leadership cost him as the party more or less abandoned him to his fate. President Obama won Wisconsin by 14% two years ago, but today his unfavorable ratings are higher than his favorable and exit polls show that this really was a referendum on him. Congressional Democrats - Chris Matthews made the point tonight that if youre the party that believes in government, then it is incumbent on you to show that government can be effective. For the last two years, despite having a supermajority in the Senate for much of the time and large margins in the House, Democrats have failed to prove the first tenet of democratic politics - that government is for and by the people. Infighting within the party delayed health care reform until passage of the bill became a pyrrhic victory at best, and then the party tried to hide from it instead of getting out and selling it. The result is that although majorities are in favor of nearly every provision of the overall bill when asked about it on a provision by provision basis, the watered down weak bill has become identified with an out of touch overreaching government. President Obama - The President carries much of the blame for tonights scoreboard. Something that nobody is talking about is the number of Democrats that Obama pulled out of elected positions in Republican leaning areas of the country to serve in his administration. In several key places, those offices are now held by Republicans. Kathleen Sebelius and Janet Napolitano left the Kansas and Arizona Governorships, now both in Republican hands. Thomas Vilsack, former Governor of Iowa, was replaced by Democrat Chet Culver who lost his bid for reelection tonight to Republican Terry Branstad. Kenneth Salazar left his Colorado Senate seat, which is at this hour too close to call. Obamas own Senate seat was captured tonight by Republican Steven Kirk, narrowly beating

out Alexi Giannoulias. Vice President Joe Bidens Senate seat was saved only due to the primary win of Christine ODonnell. The President also miscalculated in early dealings with congressional Republicans in thinking that he could meet them halfway on issues ranging from the stimulus to health care, and as a result gave away quite a bit in an unsuccessful effort to bring them to the table. This cost him, and by extension Democrats, support from the base of the party. Certainly it is to be expected that the presidents party will lose seats in midterm elections, but this will be seen by many as a repudiation of the politics and policies he has advanced in the first two years of his administration. Finally, the loss of so many governorships in a redistricting year, particularly in key swing states like Ohio and Pennsylvania (Florida is at this hour still too close to call) will cost him in two years when he runs for reelection. Before I close, lets take a look at four races that are still up in the air. In Colorado, both Senate candidates have gone home for the night. With 76% of the votes counted, the margin is 9,500 votes, or .6%, with Republican Ken Buck taking a slim lead. However, large blocks of votes in Democratic strongholds like Boulder remain uncounted. It remains much too close to call, but Im going to predict that Democrat Michael Bennet, who was appointed when Ken Salazar joined the Cabinet, will pull out a squeaker. Colorado also elected a Democrat, John Hickenlooper, to the governorship, with independent candidate Tom Tancredo coming in second and Republican Dan Maes finishing a distant third. In Washington, Democrat incumbent Patty Murray is holding on to a 1% lead with 62% of the votes counted. The majority of Washington votes by mail, and many of those ballots wont even arrive until later today, so we may not have a clear winner until sometime Thursday. Even then, if this race is as close as the last two gubernatorial contests there, we could be headed for recounts and lawsuits. In Florida, the Governors Mansion is up for grabs and it appears that Republican Rick Scott, with a 50,000 vote lead out of nearly 5 million cast, will hold on to beat Democrat Alex Sink. But with nearly every uncounted vote coming out of Palm Beach County, this could still flip. And finally we get to Alaska, where the current leader is the generic write-in candidate. Under Alaska law, write-in votes are not opened and counted unless the write-in candidate is winning. So although we can presume that most write in votes are for Lisa Murkowski, nobody knows with any certainty until it is determined that none of the candidates on the ballot received a plurality of votes. This means that the process of counting the write in votes wont even begin for another two weeks, presuming that the current trend continues as the remaining votes are counted. At that point, every ballot is going to be scrutinized by representatives of the various campaigns and this is almost

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certainly headed into court. The only thing that is certain is that this seat will stay in Republican hands, as Democrat nominee Scott McAdams is running a distant 3rd. One last thing I want to mention, as an advocate of judicial independence, is Nevada ballot measure 1 which would give the power to appoint judges to the Governor followed by public yes or no votes in a general election. This would replace the current system of open elections for judges in the state. This ballot measure was soundly defeated. Judicial elections

are nearly always a function of who can raise the most money for the most billboards and signs posted in vacant lots, as virtually no media attention is paid to the campaigns. The people donating money to judicial elections are most often the same people that have business before the court, further degrading the independence and integrity of the judicial system. Its telling that although a majority of Nevadans voted in favor of having judicial elections, less than 75% of voters actually cast a ballot in many of the judicial races this year.

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