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Markey Holds Massachusetts Senate Seat for the Democrats

Although many observers had expected the Democrats to lose seats in the Senate in the 2012 elections, they actually picked up two seats, ending up with 54 seats, including those of two nominal independents who caucus with them. After John Kerry resigned on Jan. 29 to become Secretary of State, that number became 53. When Frank Lautenberg died on June 3, the number was again reduced, to 52. It ticked up to 53 again last night when Rep. Ed Markey (D-MA), defeated businessman Gabriel Gomez 55% to 45% in a special election to fill Kerry's seat until his term expires in Jan. 2015, which means Markey has to start campaigning again almost immediately. Lautenberg's seat flipped to the Republicans when Gov. Chris Christie (R-NJ) appointed New Jersey Attorney General, Jeffrey Chiesa, to fill it on June 6. A special election will be held in October and most observers expect Newark Mayor, Cory Booker (D), to win, bringing the Democrats back to 54 seats.

The Massachusetts race was never even close. The media acted like it was a real horse race because a tight race makes for better news than, say, a Senate race in Oklahoma, where the winner is known as soon as the Republicans pick a candidate. The illusion of closeness seemed plausible because a Republican, Scott Brown, did win a special election on Jan. 19, 2010 to fill the Senate seat left open when Ted Kennedy died. Brown won that election not because blue Massachusetts had suddenly turned purple, but because his Democratic opponent, then-Attorney General Martha Coakley, was a terrible candidate. In the middle of the campaign, she decided to cut out and go on vacation. Many voters took this to mean "I am entitled to this seat so I don't have to bother telling you what I would do as a senator." The voters didn't like that too much and showed it by voting for Brown. In Nov. 2012, when Brown faced a serious and determined opponent, Harvard professor Elizabeth Warren, he was defeated soundly, as Gomez was yesterday. The moral of the story is that in deep blue or deep red states, the corresponding candidate usually wins unless he or she is fatally flawed, like skipping the campaign or talking too much about rape (e.g., Todd Akin in Indiana in 2012).

In yesterday's special election, despite the media hype, Gomez never had a chance. Every single member of the House from New England is a Democrat, and all but two New England senators, Kelly Ayotte of New Hampshire and Susan Collins of Maine, are Democrats. The last time a Republican not named Scott Brown won a Massachusetts Senate race was in 1972, when Ed Brooke, a fairly liberal African American, was elected. Gomez was no Brooke.

Supreme Court Guts the Voting Right Act

In a 5-4 decision yesterday, the Supreme Court voided a key part of the 1965 Voting Rights Act, which prevented a number of states in the South from using various gimmicks to keep blacks from voting. It is considered to be the most important civil rights law in American history. The law required states and other jurisdictions with a history of racial discrimination to have any changes to their voting laws approved by the Justice Dept. or a panel of federal judges before taking effect. The formula for determining which states and jurisdictions were affected was based on voting patterns from the 1972 election.

The Court did not say that Congress has no power to remediate past discrimination. It just said that 1972 was 40 years ago and things have changed since then. If Congress were to draw up a new formula based on more recent data, the law would probably pass muster, but the chance that Congress will take up the job of fixing such a contentious law is about as close to zero as you can get in the real world.

Congress can't even do easy stuff. Consider the immigration bill that is likely to come to a vote (and probably pass) in the Senate this week. This is a no brainer if ever there was one. It is a bill that is extremely important to a large and growing voting block (the Latino population), will reduce the deficit by $300 billion in the coming decade, is supported by powerful groups in both parties (progressive Democrats and business-oriented Republicans), and has the approval of the President. Yet it may well die in the House, where many well-entrenched conservative Republicans see it as amnesty.

The political consequences of the Supreme Court decision are not hard to envision. States controlled by Republicans that are no longer required to get pre-clearance are going to start passing laws making it harder to vote. Texas passed a voter-ID law last year that was blocked in federal court, which will now take effect immediately. The law de facto discriminates against minority voters because many of them do not have government-issued photo ID and it costs time and money to get one. Even if the ID cards are free, many minority workers cannot just take off from work to get to a (possibly distant) government office from 9 to 5 Monday through Friday to ask for one. Others may have trouble proving they are eligible to vote, even if they are (see below).

It is fairly easy to tell whether voter-ID laws are attempts to cut down on voter fraud or just are for partisan political purposes. Actual cases of in-person voter fraud are practically nonexistent, but there are occasional cases of absentee-ballot fraud. If a law targets only in-person fraud but not absentee-ballot fraud, it is partisan. If it targets all fraud, it is probably legitimate. Republican-led fraud-prevention efforts, like the one in Texas, usually ignore absentee ballots, no doubt in part because voters who vote absentee tend to be older and richer than in-person voters. Absentee ballots are often used by people away on business travel and elderly people who cannot make it to the polls, for example, and these groups skew Republican, so making it harder to get an absentee ballot would reduce Republican turnout.

Is Ted Cruz Eligible to Be President?

With Sen. Marco Rubio (R-FL) actively working on an immigration bill that is anathema to many conservatives, the air is full of trial balloons for a possible presidential run by Sen. Ted Cruz (R-TX). Cruz is an in-your-face, no-apologies, full-throated conservative who is scaring senators with 20 or 30 years of seniority. Such a race would be quite interesting from a legal point of view. Many people questioned President Obama's right to be President, even after he presented his long-form birth certificate showing that he was born in Hawaii after it had become a state. That was easy.

Cruz is in a more difficult situation. He was born in Alberta, Canada, to a Cuban father and an American mother. Under American law, a person born in a foreign country to one citizen parent and one noncitizen parent, is a citizen provided that certain other conditions are met. In particular, the citizen parent must have lived in the United States for 10 years prior to the birth, of which 5 years must have been after the citizen parent's 14th birthday. No one is disputing that Cruz' mother, Eleanor Darragh, was an American at the time of his birth, but for Cruz to be considered a "natural-born citizen," as required by the Constitution, he may have to prove that his mother met the residency requirements imposed by the law.

How could he do this? Would he have to produce school records attesting she was in school? Would utility bills be legal proof? Did his mother save her utility bills and does Cruz have access to them? What if all the utility bills where she lived were either in her father's name or in her husband's name? If push came to shove, could Cruz actually prove that his mother met the additional requirements required for him to be a natural-born citizen? This is why voter-ID laws are so problematical. Even a rich and powerful man like Cruz might have trouble actually proving he is a citizen (if he is not a natural-born citizen, he is not a citizen at all since he was never naturalized).

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