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All Over but the Voting

The Journal Editorial Report

Paul Gigot: This week on "The Journal Editorial Report," three days to go. From coast to coast, candidates sprint to the finish line. With control of Congress hanging in the balance, key races are too close to call. And ballot initiatives across the country will show the public mood on taxes, property rights, the minimum wage, gay marriage and abortion. Plus, after the voting ends, will the lawsuits begin? Those topics, plus our picks for election-night surprises. But first, these headlines.

Gigot: Welcome to "The Journal Editorial Report." I'm Paul Gigot. Three days remain until Americans go to the polls and determine the new balance of power on Capitol Hill. Joining the panel this week, Wall Street Journal columnist and deputy editor Dan Henninger, as well as Wall Street Journal editorial board member Kim Strassel, and from, John Fund and James Taranto.

Dan, the Democrats need six seats to take back the Senate, and one of those key races is Virginia, where George Allen, who was only a few months ago thought to be one of the leading Republican candidates for president in 2008. Yet, he's in trouble. Are they really in danger of losing Virginia?

Henninger: I think they may well be. This should have been a big election for George Allen. He is, or was, a potential presidential candidate. And Allen really does know the issues. I think this election generally is going to be about Iraq or whatever else you can come up with. And in Virginia, it was going to be a very high-level race. You had Allen running against Jim Webb, a decorated Vietnam veteran who's against the war. It should have been one of those campaigns in which we really ran on the issues. Instead, it went directly into the mud. And they really haven't debated the issues, and debated personalities.

Under those circumstances, I think the outcome is going to turn on partisan turnout. Now, Allen needs votes down in the Richmond area and central Virginia. But I think that a Democrat has to take those northern Virginia counties, Alexandria, Arlington and Fairfax, and I suspect that Webb has the edge because those are the most highly politically motivated people in Virginia. It relates to Iraq. So I suspect that George Allen is probably going to go down in Virginia.

Gigot: Is this one of those cases where a candidate, Kim, took his eye off the ball, looking ahead to 2008, didn't do the legwork, the prep work that you need to do to win in this election?

Strassel: No, I think that's absolutely right. And we were talking earlier, I mean, he did not--for instance, basic things, go out and do a women-for-Allen sort of movement, which is--this is Election 101.

And also, as Dan said, this turned into a character assassination on both sides. It's a real shame because there is a huge difference between these candidates on many issues, not just the war--on free trade, on taxes, on issues like gay marriage--and that just hasn't been debated much in the race.

Taranto: Allen has shown a real political tone-deafness in terms of, for example, attacking a young campaign staffer for Webb, who was following him around and videotaping him, calling him a macaca, which some people say is a racial slur. It is really kind of astonishing, the lack of political skill. I think win or lose, Republicans are better off finding this out about Allen two years before the presidential election. You know, let him self-destruct now rather than two years after the presidential election, à la John Kerry.

Gigot: John, let's turn to another race, Senate race, where Republicans though that it had been lost. Conrad Burns in Montana was way behind. And now, it looks like it's a dead heat, climbing back against Jon Tester, the Democrat, and using the tax issue. How do you read that race now?

Fund: Well, the Democrats are running Tester as a different kind of a candidate. He's against gun control. He's a farmer. They forgot one thing: He has a record in the Montana Legislature of raising taxes. So Conrad Burns is saying it's not Jon Tester; it's Jon Taxer. And Conrad Burns, who is a flawed incumbent, is making a comeback.

Gigot: More broadly, across the whole country, is the tax issue helping Republicans this year in some of these races, notwithstanding Dan's point, which I agree with, that Iraq is a dominant issue. But are taxes helping?

Fund: In the end, yes. Because, although a lot of Republicans are upset about the Congress's spending record, in the end, if they think a Democratic Congress will raise taxes, that's preferable to the Republican spending problem.

Gigot: James, another race where Republicans think they might be able to pick up a seat is in Maryland. Michael Steele, the lieutenant governor, running a very spirited campaign against Ben Cardin, the Democratic congressman. It's an open seat. You interviewed Steele earlier this year. How do you think he has done? Is that a possibility of a Republican pickup?

Taranto: It's a possibility. It is a very Democratic state. They haven't elected a Republican senator since 1980, and that was a very liberal Republican.

Gigot: Wow.

Taranto: But Steele is an impressive guy. He's unusual in that he is a black man who has actually been elected to office as a Republican. He's very well-spoken. When I spoke to him, he was a proud Reagan Republican. That's how he described himself. But he shunned the label "conservative." And he does deviate from conservative orthodoxy on some points: He's against death penalty. He's for the minimum wage and so forth. But I think he's a very plausible candidate. Cardin is kind of unimpressive. In any other year, I would say Steele could well be the favorite.

Gigot: It would be very important nationally, too, wouldn't it, if there were an African-American Republican in the Senate.

Henninger: Exactly. Yeah, and you can break that down to numbers. If Steele gets 33% of the black vote, Cardin loses. That's generally been true at the national level. If perchance the Republicans were able to get the black vote up to around 30%, it will become very difficult for the Democrats to win at the national level, which is what makes this race extremely important.

Fund: And that's why 500 Democratic lawyers are there, to litigate any close election result. Because the Democrats want to make sure that Steele doesn't win.

Gigot: Let's turn to the House, Kim, and Republican--Democrats only need 15 seats. Republicans scrambling hard to try to prevent that from happening. But the East to the Northeast, Ohio, Pennsylvania, looks very tough for Republicans in the House this year. How do you explain their troubles in that region?

Strassel: There is sort of a stretch that actually goes from New York down all the way over, up into Ohio, about five states where they are in big trouble. One thing that's interesting is that despite all the problems that you have on a national level, a lot of the problems that Republicans are having there, too, is because of the collapse of their own party within their state.

You know, Ohio is a great example, where the governor has raised taxes. The Republican Party has been in control. There's no one else to blame. The economy isn't doing well. And there is just a bad taste in the mouth of many voters of Republicans in general, and that is spilling over into the federal elections too.

Gigot: Is scandal an issue in some these races, John, particularly in Pennsylvania, where Don Sherwood has been involved in a personal scandal, and Curt Weldon in the Philly region? That could also hurt Republicans.

Fund: Well, Republicans lose the House, if Democrats pick up 15 seats. Well over half of that number may come from Republican seats where the incumbent has gotten into a problem with earmarks, pork-barrel spending, personal scandals or others. This could be the House election which is called the scandal election, because personal peccadilloes made the difference.

Taranto: And let's not forget, two seats that should be safe Republican seats are not. One is Tom Delay's seat, because it is a write-in candidate Republican.

Gigot: In Texas.

Taranto: Right. And you have to write in a woman's name, which is a hyphenated name, very complicated. The other one is Mark Foley's seat in Florida, where Foley is still on the ballot, but if he wins, somebody else replaces him.

Gigot: All right, James, thanks.

When we come back, some of the biggest battles of the 2006 election aren't between candidates. We'll analyze the major initiatives on the ballot this year. Plus, when the voting stops on Tuesday night, the lawsuits may begin. Our panel weighs in on those topics, and we'll predict some of Tuesday's election surprises, when "The Journal Editorial Report" continues.

Gigot: Welcome back. When voters across the country go to the polls Tuesday to elect members of Congress, they will also decide the outcomes of more than 200 statewide ballot measures on everything from gay marriage to eminent domain to the minimum wage.

Kim, property rights--a little Supreme Court in the ballot this year in several states, 11 I think, responding to the Kelo decision that allowed private taking--government to take private property. And there is a real voter backlash this year. What i going on?

Strassel: In an election where we don't really know much of what's going to happen, one thing is very clear, voters are saying Get your hands off my property. There are 11 initiatives out of this Supreme Court decision which said that they could take property. The Supreme Court left it open, and said this doesn't stop any state from putting more restrictions on taking property. So all of these ballot initiatives out there, most of them are doing very well. They are expected to pass.

There are a couple that go even farther, three, that actually not only say you can't take private property for economic development, hand it to another private entity, but they also say, if you take our property, reduce property values because of regulation, you have to pay us for it.

Gigot: There is support from the left and the right for this. Who's against it?

Strassel: No, I mean, it's remarkable. The only states you have not seen this happen in are the ones in the northeast where all this started.

Fund: The regulation part, though, that Kim mentions on those three ballots, it could lose there because the fiscal impact on the ballot statement is potentially huge. And therefore voters may have sticker shock on those amendments.

Gigot: Except, isn't there a state where that's already been the case, and the sticker shock hasn't been an issue?

Strassel: No, Oregon. Oregon was the first state to pass a compensation element in a property-rights thing, said if you devalue our land, you have to pay it. And what city planers are finding, they're just not passing new regulations because they don't want to have to pay for them. So this is at a double good effect.

Henninger: There are two factions in favor of this stuff. One is the sitting politicians, and two are developers. The key here is they went from taking land for public purposes to private purpose, which means that developers are willing to flow campaign contributions back to the sitting politicians in return for those takings. This is the point where the public just went, Enough!

Taranto: Well, the reason the left is against this is because this grows out of Supreme Court decisions in the '60s and '70s, saying that you could take property in order to get rid of "urban blight," which means you're taking property away from poor people in cities.

Gigot: OK. California, not as if it doesn't have high enough taxes, has another tax on the ballot, this one to tax their own oil. Proposition 87, John, is this going to pass?

Fund: No. Despite all of the Hollywood celebrities who are backing it, such as Robert Redford and--

Gigot: Chief economist Geena Davis.

Fund: Absolutely. The reason is, every newspaper and major group has looked at this and said it doesn't make sense to tax California oil, because that will take it more expensive, cost California jobs, and actually increase our dependency on foreign oil.

Gigot: So tax California oil in order to make us independent of Saudi oil? Doesn't make a lot of sense.

Strassel: No, and if you add in there, too, that there's also part of the rule is you can't pass any of this tax on into gas prices, which would be the only thing that would discourage people from using gas in the first place.

Fund: This would be a rare misstep by Bill Clinton, who endorsed the initiative.

Gigot: All right, James--

Henninger: And Al Gore.

Gigot: Yeah, and Al Gore. Gay marriage on the ballot in eight states, but not as big an issue as it was in 2004. But nonetheless, still on the ballot. How do you think these are going to turn out?

Taranto: I think, like every anti-same-sex-marriage initiative ever in the history of this country, which there have been dozens, they will all pass. I think, actually, you can tie the same-sex-marriage issue in with the Kelo issue, and perhaps even the South Dakota abortion referendum, in that these are all cases in which there is a revolt against the courts telling us what to do. The courts say you can take our property. Well, no, we don't want to do that. We'll go to the ballot box and restrict the government's ability to do that. The courts in Massachusetts, and to a lesser extent New Jersey, imposing same-sex marriage when people aren't quite ready for that. So, you know, it's democracy reasserting itself.

Henninger: Well, I think it shows--it's kind of a revolt against the political class generally. There's a huge number of these referendums and initiatives.

Gigot: The most on the ballot, except for two previous years, 1996 and I think 1914, something like that?

Henninger: And people have simply become impatient with the legislators and Congress.

Strassel: And frustrated with gerrymandering. They can't get rid of their state legislatures sometime, and effect change in any way, other than these ballots.

Gigot: Kim, what about the South Dakota abortion initiative, where voters are being asked to overturn a ban on abortion that was passed by the Legislature?

Strassel: Yeah, no, this is going to be a really curious thing to see. And there's still a big question if the pro-life movement didn't make a mistake here in that--you know, right now they are losing on this. There is more of a momentum for people who want to overturn the ban. And there is some discussion out there that they may have pushed the button a little bit too quickly, and this is going to--

Gigot: So that would be a big defeat for the pro-life movement if went down.

Strassel: It would. And, you know, it will probably discourage a lot of other states from making similar attempts.

Gigot: OK, Kim. We'll be back after this short break. Coming up, congressional candidates in tight races could face chaos after the polls. That, and a special edition of our "Hits and Misses" of the week when "The Journal Editorial Report" continues.

Gigot: Remember the 2000 recount and 2004 voting controversy? Get ready for more, because both parties are geared up for more legal battles if next week's results are at all close. New voting laws and voting machines, combined with very tight races in several states, may mean that the results of the 2006 midterm elections will be determined in a courtroom rather than the voting booth.

John, this controversy over electronic voting machines seems to be building. Is this really something we ought to be worried about next week?

Fund: Yes. You have software glitches. You have training glitches. A lot of the poll workers are older and not familiar with technology. So I think that, since 40% of Americans are using these machines, we're going to see problems.

I think some of the conspiracy theorists, I think, are wildly exaggerating the opportunity to manipulate the results or hack into the system. We've had these kind of machines in different forms for 25 years. There's never been a validated example of somebody changing an election result behind the scenes.

Gigot: But no voting system is perfect. Punch-card ballots, as we found out in 2000 in Florida, have their glitches too.

Fund: Well, this year, we're going to have the return of paper ballot problems. Over 25% of Americans are voting early, mostly by absentee. That's a paper ballot. That presents two problems: It's a lot longer to count a paper ballot, absentee ballot. That means we could delay the election results in some close races. And there is a lot more fraud potential in absentee ballots because they are cast outside of the view of election officials.

Gigot: Is there any paper trail when it comes to these electronic voting machines, that if there is a controversy, we can say, sure, here--compare it to something and say here it is?

Fund: Some of the machines, yes; some of the machines, not. The problem with, I think, paper trails for electronic voting machines are, you can't specifically rely on them because 5% to 10% of the paper ballots are smudged or indistinct or something is wrong with them. So the real problem here is we don't have a consistent system.

Henninger: You know what the interesting point on this is? The Democrats really want that paper trail, right? Though experts think that the paper trails are really extremely susceptible to fudging and cheating. But this is one thing that the liberals and Democrats are insisting on in these elections.

Taranto: But the real problem here is not what kind of voting system you use, what kind of machines you use. These electronic machines were supposed to be the solution to the problems we had with punch cards in 2000.

Gigot: Right.

Taranto: Right? Now, they are the problem. The real problem is that since the 2000 election, the Democrats have decided, if they are going to lose, they're going to blame it on the system. They are calling into question the legitimacy of our processes of voting. And I think they will do that as long as they keep losing elections, no matter what kind of machines we use.

Fund: The latest FOX poll finds 45% of Democrats say that if there are any election problems, it's because someone tried to steal the election.

Strassel: Yeah, but this is also the same party, though, that has been very much against the kind of voter ID laws that would actually allow you to clean up some of these elections. I mean, we recently had this group Acorn, which is a volunteer organization that goes out to register people--four of its members were indicted for supposedly registering people that didn't exist or just, in general, fraud. And so you have these new laws that attempt to clean that up, make sure the people who are in the polls are who they say they are. But you often don't have a lot of bipartisanship on wanting that.

Gigot: John, on absentee ballots, you raised them as a potential problem. One in four voters this year, it's estimated, will vote absentee, with maybe up to a third of all voters in 2008 voting absentee. How confident are we that there is not fraud being committed in that process?

Fund: Well, we know there's fraud in absentee ballots. A former Democratic congressman was convicted of going into a nursing home and getting absentee ballots from elderly patients; a Democratic state representative in Connecticut; there's been some Republicans as well.

This is a problem because if you don't have election officials there, you can intimidate voters. You can have spouses and unions and employers coercing people. I think it's a growing problem. We don't really understand how much of this can--

Gigot: Would you go so far as to slow the use of absentee ballots?

Fund: Early voting is much better. Early voting means you have a--

Gigot: Like about 10 days before the election maybe? Two weeks or something?

Fund: You go into a government office where there's security and where there's scrutiny. You cast your ballot there. You don't have the delay in counting it after the election because it is usually done on an electronic or other machines.

Gigot: Is there any evidence that absentee ballots have actually increased turnout, which is often one of the arguments used on their behalf?

Fund: No academic study has found that. It means that people who would normally vote anyway, tend to vote earlier for convenience purposes.

Gigot: So you would--sounds like you would really cut back on them.

Fund: Early voting it better than absentee voting. We don't want a situation where literally Election Day becomes election month. People are voting with different information. Some people are voting this year, Paul, before the debates are even held.

Gigot: All right, John, thanks.

We have to take one more break. When we come back, a special Election Day edition of our "Hit and Misses" of the week.

Gigot: We asked each of our panelists to survey the country and pick the race they think will most surprise everyone next week.


Henninger: Yeah. Tom Kean beats Bob Menendez in New Jersey, and here's why. This is one of those races I mentioned earlier where something else is going to trump Iraq. And that something else is New Jersey's reputation. New Jersey does have a reputation for mediocrity and corrupt politicians. Now, normally, I think turnout would help Menendez in some of the northern counties up there. But I think because of suburban people who are upset about the reputation of their state, are going to go for McCain and put him over the top.

Gigot: Tom Kean.


Strassel: The pundits had written off Conrad Burns and Montana a long time ago. But I think old Conrad is going to pull this out yet. He got off to some verbal missteps in the beginning. But Montanans are people that, maybe, they don't hold that against you so much. And once he has managed to get it back to issues, which is taxes, they've realized that the Democrat there, Jon Tester, maybe isn't all as conservative as he says he is.

Gigot: John?

Fund: California is a Democratic state. So we wouldn't think of a Republican success there. But Arnold Schwarzenegger is going to win. And he may bring in, on his coattails, Tom McClintock, who's a big conservative hero. The reason that's important, Paul, is Schwarzenegger, if he wins, has to be term-limited out of office in 2010. That means McClintock, if he wins this time as lieutenant governor, will be the Republican candidate and perhaps the next conservative governor of California.

Gigot: Interesting, John.


Taranto: Paul, Connecticut has three House Republicans--Chris Shays, Nancy Johnson and Rob Simmons. All are facing tough races from Democrats. I say all three pull it out on the coattails of a Democrat, Joe Lieberman, who's running as an Independent.

Gigot: Does Lieberman join the Republicans if it's a 50-50 Senate?

Taranto: I don't think so. But you never know.

Gigot: All right.

And mine is that in Arizona, J.D. Hayworth, a Republican congressman who has tried to use immigration as an issue, is going to lose in suburban Phoenix, along with Randy Graf, trying to win on an immigration message in an open seat. Immigration isn't the issue these Republicans thought it was supposed to be.

That's it for this week's edition of "The Journal Editorial Report." Thanks to Dan Henninger, Kim Strassel, John Fund and James Taranto. I'm Paul Gigot. Thanks to all of you for watching. We hope to see you all right here next week.

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