The Fight for the Senate: Who Will Win Control?

The main talk of the 2014 election has been which political party will control the Senate after the votes have been counted.  Democrats have been on defense throughout most of the country as President Obama’s approval rating has been low. So with just a little more than a week to go, where do I think the numbers will fall?


Colored: Safe Seats; Gray: Toss-Ups

In this election cycle, Democrats have 38 seats that are safe or not up for reelection while Republicans have 42. So that is where my numbers start.

Democrats are projected to win the elections in Illinois (Durbin), Michigan, Minnesota (Franken), New Jersey (Booker), New Mexico (Udall), Oregon (Merkley), and Virginia (Warner).  Republicans are safe in the elections in Mississippi (Cochrane), South Dakota, and West Virginia.  This brings the total to 45-45 with 10 states that will determine the balance of the Senate.

In their latest forecast as of the time of writing this column, Nate Silver and those at give the Republicans a 62.1% chance of retaking the Senate.  The race is on for either side to grab 6 of the 10 toss-up seats.  It is going to be close, and it might just hinge on one thing we would not have predicted even 6-months ago.

It seems likely that Republicans will win seats currently held by Democrats in Alaska, Arkansas, Iowa, and Louisiana.  Though in Louisiana, Democratic Senator Mary Landrieu will win on November 4, she will not cross the 50% threshold sending the top 2 into a run-off in December in which she will fall.  Republicans will also hold onto their seat in Kentucky.  This gives the GOP a total of 50 seats.

So what about the Democrats?  I believe they will hold onto their seats in New Hampshire and North Carolina.  I’ve watched over the polls of Colorado, and they have given me a headache just as they did during the 2012 election.  I will go out on a limb that Colorado will stay in the Democratic column but just barely.  There is still a state that was a surprise for this grouping.  Even a month ago, I had not included it here but my gut tells me to do so now.  Georgia.  Again, I believe this will be extremely close, but that the Democrat will come out on top.  Total for the Democrats… 49.

This leaves one seat remaining.  Republicans need it for control; Democrats need it for a tie with Vice-President Biden (Democrat) being the tie-breaker.  I hinted at this earlier, and it is Kansas.  As the election year started, Republicans saw Sen. Pat Roberts as a safe seat.  He had a tea-party challenge in the primary which he defeated.  He was being challenged by the Democrats and an Independent candidate Greg Orman.  Then the Democrat, basically seeing the writing on the wall, dropped out leaving only Orman to challenge Sen. Roberts.  The race has tightened up, but I’m predicting that Orman will pull off the upset and join Independents Bernie Sanders (VT) and Angus King (ME) in the Senate.  So it will come down to where he caucuses: with the Republicans to give them majority, or with the Democrats to give them a tie (and thus majority off the tie-breaker).

My 2014 Prediction

My 2014 Prediction

This is how close it is going to be.  The Senate will be 50-50 or 51-49 Republican.  The Senate may need to learn how to compromise and function a little bit better with the chamber so evenly divided.  Despite all the polls and predictions, it will all still be determined by who shows up to vote.  So make sure to vote on November 4.

** This column is my sole opinion based off examining various polls.
** Special thanks to RealClearPolitics for allowing me to create my own map.


Reforming the Electoral College

The way we elect the President and Vice-President in the US is quite unique compared to the way we elect every other elected office.  We don’t elect them directly. Instead, we vote for Electors who then cast votes for President and Vice-President.

Electors from each state are supposed to cast their votes for whichever candidate won that state’s popular vote… “Winner Take All.”  Every once in awhile there is a rogue Elector that casts a different vote.  It doesn’t matter how many votes a candidate won the popular vote of a state, that candidate will receive all the Electoral Votes, except in the states of Nebraska and Maine which reward their votes based on whichever candidate won the congressional district.  The extra two votes are then given to the winner of the state’s popular vote.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Article 2, Section 1, Clause 2 of the US Constitution

Only four times in American history has the Electoral Vote and the Popular Vote been different… 1824, 1876, 1888, and 2000.  There have been numerous calls for Electoral reform since the 2000 election but nothing has gained a lot of attraction.  To completely abolish the Electoral College, there would have to be a constitutional amendment.  But to make changes to how those electors are awarded (without abolishing the Electoral College) could be easily done without changing the Constitution as each state has the right to determine how it rewards the Electors.

After the 2008 election, Republican legislatures in several states which did include several swing states like Virginia tried to change how their state’s would cast their ballots.  Their plan was similar to Nebraska and Maine but with a little tweak.  The Electors would be determined by whoever won the congressional districts.  The difference would lie in how the other two Electors (the ones that represent a state’s Senators) would be chose by whichever candidate won the most districts instead of the candidate that won the popular vote of the state.  This did not sit well with Democrats and nothing came from these plans in any of the states.

There is a movement that is gaining traction though.  It’s called the National Popular Vote (NPV).  This would require a state’s Electors to vote for whichever candidate won the national popular vote in an election.  This way the winner of the popular vote would not lose to the winner of the Electoral College as happened last in 2000.

As of now, 11-states plus DC have enacted NPV legislation. (The Hill) It accounts for 165 Electoral Votes in total so far and needs only 270 in order for it to become active in the states that have passed the legislation.  Of the states that have enacted such legislation, most of liberal-leaning such as Illinois, California, Massachusetts, Maryland, etc.


2012 Election Results by Congressional Districts

But as this new debate continues in other states, there is the question as to whether this is any better than the current system.  Each state is separate from the others.  The Founding Fathers wanted there to be state autonomy and unification under the federal government.  Each state gets to choose how it decides its Electors in the broader election.  But is it fair to have a state’s Electors cast their votes for a candidate that the people of that state didn’t choose simply because more voters throughout the rest of the country voted for the other candidate?

As of April 15, 2014, Oklahoma was one of a half-dozen states considering NPV legislation.  Can anyone imagine that state casting is Electoral Votes for a Democrat despite the people of the state voting for the Republican candidate in large numbers?  Oklahoma is one of the “reddest” states out there.

Yes, NPV is an effort to make sure that every vote counts and not just those in swing states as our current system does.  But it almost sounds as though the NPV would overrule a state who’s population disagreed with the popular vote.  And without most states (more than 270 Electoral Votes) being a part of this plan, it would focus all of the attention on to the states that do have such a law enacted should it become so.

According to a 2007 Washington Post Poll, 78% of Democrats support direct popular vote in future presidential elections.  60% of Republicans and 73% of Independents also support such a move.  But would a direct popular vote shift focus to the major cities and away from the rural areas since that is where the bulk of the population lives?

Maybe states should consider what Nebraska and Maine have.  Rewarding Electors by the popular vote of each congressional district and giving the candidate that wins the popular vote of the state the extra 2 votes.  Though it has only happened once in the two states that currently use this method (Nebraska-02 in 2008), most states have districts that swing in the opposite direction of a state’s typical Electoral Vote.  There are Republican districts in California and Democratic districts in Texas.  Suddenly, both parties would focus on those particular districts and any swing districts.

There is no definite answer to the solution to the way we elect our President and Vice-President.  There are pros and cons for any option.  We just need to make it as fair and balanced as possible so that the majority of Americans feel included in the political process and there is not a focus on just a handful of states.

How Much “Political Speech” Can You Buy?

The ruling by the Supreme Court in the case McCutcheon v. FEC could have been predicted.  This is the same court that gave us the ruling on Citizens United v. FEC (with the exception of Elana Kagan replacing John Paul Stevens).  Where Citizens United determined that corporations and unions are people and that money is equal to the freedom of speech, the McCutcheon verdict goes a step further by striking down maximum limits on campaign contributions.

The McCutcheon verdict actually overturns a 1976 ruling in the case Buckley v. Valeo in which the court ruled that independent spending is political speech and is protected by the First Amendment; however, contributions could be capped in order to prevent corruption.  The campaign limits were put in place by Congress following the Watergate scandal to discourage large contributors from buying votes and to restore faith into the system.


So what are the specifics of this latest ruling?  The McCutcheon ruling only concerns contributions from individuals.  There are still laws in place that affect corporations and unions in this particular instance.  And it does not undermine limits on individual contributions to candidates for President and Congress which is currently set at $2600 per election.

The ruling states that individuals have the right to give the legal maximum amount to candidates for Congress and president (as well as to the parties and PACs) without worrying that they will come up against the limit placed on all contributions which is placed at $123,200 for the 2014 election.

Chief Justice John Roberts, writing for the majority, stated, “There is no right in our democracy more basic than the right to participate in electing our political leaders.”  Justice Clarence Thomas, in agreement with the Chief Justice, wrote his own opinion stating that he would have rather had wiped out all contribution limits.

So apparently our republic is open to those who have deeper pockets.  This is nothing that is really new.  In the later decades of the 1800s (after the Civil War), politicians were controlled by Tammany Hall in New York City.  This would even continue into the beginning of the 20th century when the wealthy industrialists of the day had more clout than even the President.

Since the 2010 ruling in Citizens United, we have seen what an influx of money can do in an election.  The money spent in the 2012 election cycle was by far greater than any election to date, and it is very likely that the 2016 election will break that record as even more campaign finance limits have now been struck down.

It is technically illegal to bribe an elected official, and it is illegal for for an elected official to accept that bribe.  However, with these latest rulings (Citizens United and McCutcheon), is this any different than just legal bribery?  The more money you have, the more “political speech” you possess… or at least that is what they want you to think.  In reality, the more money you have and can contribute, the more you can buy that vote or influence that party platform.

Justice Breyer wrote in his dissent that “If the court in Citizens United opened a door, today’s decision may well open a floodgate.”  Considering the aftermath of Citizens United, he is probably correct.  Our elections will no longer service the people as a whole, just those with the deepest pockets.  And it will continue to disenfranchise more voters and drive them away from the polls.

Null and Void: Unconstitutional Laws

In my last article, I wrote of the Executive Branch’s responsibility to enforce all laws passed by the legislature.  Failure to do so means that the Executive (whether Governor or President) is not doing his or her job.  However, I was at dinner the other night with a friend that studies constitutional law when she posed this question in response.  If a law is passed by the legislature that is in clear violation of the US Constitution (or even a state constitution), does the Executive have a responsibility to still enforce the law?

PREVIOUS ARTICLE: Executive Responsibility to Enforce Laws

My response to her question was to quote conservative columnist George Will who once stated on This Week with George Stephanopoulos that no law is unconstitutional until it is ruled so by the courts.  And though my response seemed to move the conversation in an entirely different direction, it still had my mind thinking about it.

According to the legal encyclopedia American Jurisprudence,

“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void.” (16 Am. Jur. 2d, Sec. 178)

Though in my previous article, I was basically discussing the topic of same-sex marriage, in this instance I will use a couple of other topics.  Let’s say a state legislature decides to take away a woman’s right to vote or brings back segregation laws.  The nation has already decided these two issues.  A woman is guaranteed the right to vote via the 19th Amendment to the US Constitution.  And segregation laws were ruled unconstitutional based on the Equal Protection Clause of the 14th Amendment.

So are these laws automatically unconstitutional  or do they need to be ruled so by the courts yet again since they pertain to different laws?  This is also somewhat being played in the Religious Freedom bills that are coming up in states like Arizona that would allow people/businesses with severe religious convictions to deny services to LGBT people.


These laws would seem to be quite similar to the old segregation laws and would be in clear violation of the Equal Protection Clause of the 14th Amendment in the same way.  So if they are enacted, does the Governor or state Attorney General have the responsibility to defend these laws in court?  The definition found in the American Jurisprudence would indicate ‘no’ since the law is already null and void.

When it comes to the federal Executive (the President), remember the oath of office he/she must take: “[…] preserve, protect and defend the Constitution of the United States.”  And though the oaths of office for the various state governors might be different, they are still similar in their overall message… to uphold their state constitution and must still uphold the US Constitution as no law may violate that document.

Some laws are a bit murkier, and the courts need to make a decision regarding its constitutionality.  But when it comes to laws that are in clear violation, it would seem the government doesn’t really have the responsibility to defend the law in court (or even enforce the law) as the law is already null and void from the start.

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