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Legal View with Ashleigh Banfield

GOP Increasingly Likely to Seize Senate; Issues on the Ballot Include Marijuana, Minimum Wage; Terminally Ill Maynard Ends her Life

Aired November 03, 2014 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

It is that time again. It's time to make up your mind and make some plans to vote, if you haven't already done so. In all those elections taking place tomorrow at a precinct near you, the entire House of Representatives is up for grabs along with 36 governor seats and countless state and local offices and assorted referendums.

So it's all about you right now and it's all about this fuss. Are you ready? Thirty-six Senate races. Those are the ones that are going to determine whether Congress stays divided and just gets so little done, or maybe Republicans control both chambers and with a Democratic White House very little gets done.

The Republicans need to pick up six seats to turn the Senate red and a host of forces are moving in their direction. We're going to look at some of those forces this hour. The closest Senate matchups are here. Whatever happens, it's going to happen through some combination of these 10 states on your screen. For what it's worth, Joe Biden thinks the Democrats are going to pull this one out. Here's what he told our Gloria Borger in her exclusive interview.

(BEGIN VIDEO CLIP)

JOE BIDEN, VICE PRESIDENT OF THE UNITED STATES: First of all, I don't agree with the odd makers. I predict we're going to -- we're going to keep the Senate.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: You do?

BIDEN: I've been in 66, 67 races all told and I'm -- I don't get the feeling that the odd makers are giving.

BORGER: But what if that were to be the case?

BIDEN: Well, I don't think it will change anything in terms of what we - what we're about. We know we have to get done the last two years and, quite frankly, going into 2016, the Republicans have to make a decision whether they're in control or not in control, are they're going to begin to allow things to happen, are they going to continue to be obstructionists? And I think they're going to choose to get things done.

(END VIDEO CLIP) BANFIELD: Well, by the way, should we end up with 50 Senate Democrats and 50 Republicans, that guy, the vice president, as president of the Senate, he would be the one to break all ties when it comes to voting.

So if you live in one of those 10 do or die states, you've heard more than you ever wanted to hear from and about the candidates, their proxies and especially their critics. You know what I'm talking about, those TV ads that just don't stop. CNN's chief congressional correspondent Dana Bash gives us the lay of the land on the midterm election eve.

(BEGIN VIDEOTAPE)

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT (voice-over): Political stars came out for the final Election Day push. For Republicans, Jeb Bush, Marco Rubio, Chris Christie.

GOV. CHRIS CHRISTIE (R), NEW JERSEY: When our Republican Party is at its best, we can walk and chew gum at the same time.

BASH: For Democrats, Hillary Clinton hit three states for female Senate candidates.

HILLARY CLINTON, FORMER SECRETARY OF STATE: Who's going to be there for you? Who cares about you? Who works for you?

BASH: Bill Clinton went to Iowa.

BILL CLINTON, FORMER U.S. PRESIDENT: And I can tell you this, you need to vote for progress, not protest. You need to think about what you want for the next six years.

BASH: Still, Republican and Democratic sources say the GOP looks increasingly likely to seize the Senate majority. And Iowa, where James Taylor playing made it appear more peace rally than pep rally, is a big reason why. Democrats are down about Iowa's crucial Senate race after a weekend poll showed Republican Joni Ernst pulling ahead.

JONI ERNST (R), IOWA SENATE CANDIDATE: So it's not just our Republicans, it's independents and it's a lot of Democrats, too, that see the need to change directions.

BASH: Iowa is so critical to the balance of power that Senate Majority Leader Harry Reid told Democratic volunteers in a conference call that if they lose Iowa, it will be very hard for Democrats to keep control of the Senate. Here's why. Republicans need to flip six Senate seats to take control. West Virginia, Montana and South Dakota, which was briefly in flux, are now all almost sure to be GOP pick-ups. Democrats are bracing for incumbent defeats in Arkansas and Colorado.

Early Colorado voting shows Republicans eight points ahead of Democrats balance (ph) according to the U.S. Elections Project. Democrats also say losing Alaska is likely, though they have engaged in an unprecedented voter turnout operation and polling is unreliable. Democrats feel better about North Carolina and New Hampshire, but polls show both within the margin of error. And there are wild cards. The Republican incumbent in Kansas could lose to an independent, who could caucus with either party.

UNIDENTIFIED MALE: Both Mitch McConnell and Harry Reid have been far too partisan for far too long.

BASH: Louisiana and Georgia are so close, they'll likely go into December and January runoffs respectively.

(END VIDEOTAPE)

BANFIELD: So, thank you for that, Dana Bash, I think.

And on the unsettling note that she just said, runoffs, I want to turn to CNN's political commentator and GOP strategist Kevin Madden and Democratic strategist Robert Zimmerman.

So here we go again, guys. We get to talk yet again about all the issues that seem to be non-issues for people and yet they scream and yell until they're blue in the face and then they don't vote.

I want to start with you, Kevin, on this one. Is it really possible that we may not know who controls the Senate until a Georgia runoff in January?

KEVIN MADDEN, CNN POLITICAL COMMENTATOR: It is. It looks like Louisiana and Georgia are still too close to call. I would say that many Republicans right now do feel good about eventually winning that runoff in Louisiana. And there are many Republicans that have seen in these last few weeks the Georgia race -- and full disclosure, one that I actually helped work on - that is - they've seen that move towards the Republicans as well.

So, the other thing to remember about Georgia is that Republicans down there have won the last eight - are 8-0 in runoffs in Georgia. So it does look like those two contests could be extended, but it does look like the Republicans will gain the advantage.

BANFIELD: So, Robert, we're hearing more and more over the last just 12 hours or so that things are getting more squeaky and looking a little more dim for the Dems. But what can the Democrats do? What do they have to do if they want to actually keep the Senate or - you know, the horses out of the barn by now?

ROBERT ZIMMERMAN, DEMOCRATIC STRATEGIST: Look, you know, you'll hear this phrase a lot today and tomorrow extensively, it all comes down to turnout. Kevin, who is a brilliant strategist and great public servant in terms of his support for his party, he and I can recount many, many elections where the poll gave an indication of one direction and, of course, it was very different on Election Day. And we can point to midterm results. Harry Reid, for example. Bennett (ph) in Colorado. Certainly the polling that Romney faced that made him feel he was going to win. It really comes down to turnout.

It's important to also keep in mind that, yes, we're running against tough headwinds. I mean every time a White House is in power for six years, that six years always costs a seat - always costs the White House seats. This goes back to the 1900s with only two exceptions, 1906 and 1998. So we're going to take some hits without question. But certainly we can hang on.

I think - I think we're - we still, I think, can hold on to the Senate and also look (INAUDIBLE) picking up some Democratic governorships. It's also a very distinct possibility because it's not a wave election. It's an election being decided about who best can fight for their local constituents.

BANFIELD: So, Mr. Madden, let's just say -

MADDEN: Yes.

BANFIELD: For parlor games that the Republicans end up in control of both of those houses on Tuesday night. What difference is this really going to make? For me out here watching what's going on in Capitol Hill, being so frustrated with -- this is the do nothing-est Congress of all times. What difference is it going to make? The White House still is in control ultimately with veto power. For us out here, does it matter if the GOP actually takes the Senate?

MADDEN: Well, look, voters are going to send a message one way or the other and I think there are many up on Capitol Hill, particularly folks who believe very strongly in the institutions. Were Mitch McConnell to become majority of the Senate and John Boehner were to remain speaker of the House, I think those are two men who want to assure the American public that they can get Congress back working again.

If you remember, one of the big arguments that so many of these Senate candidates made, Ashleigh, was, they said that Harry Reid had gummed up the Senate and nothing was getting done because we have bills that the Republican House is passing but Harry Reid's not allowing a vote on it. Well, this is an opportunity for Republicans to show that they can govern. And, also, if you look towards the 2016 race, which, unfortunately, will begin on Wednesday morning, Republicans are going to have to send a message that they have a national agenda and they have a national governing strategy.

BANFIELD: So what about the -

ZIMMERMAN: Well, that ship - that ship has sailed. (INAUDIBLE).

BANFIELD: Well, what about the boomerang effect? Robert, jump on that. What he just said was that if on Wednesday morning that is the - that is the picture, what about 2016? Could it boomerang back and could the Republicans see a change of fortune?

ZIMMERMAN: Well, once again it depends - it depends who shows up to work. I mean I'm not assuming for a moment the Republicans win the Senate. But let's understand what a Republican majority in the Senate means. It essentially is exactly what we saw when the House won the majority and John Boehner became speaker. He had the chance to lead his caucus. But what happened? He led the movement to shut down the government, to raise the debt ceiling. He had a tea party fringe group that controlled the agenda. And look at the - and if you look at the Republicans running for the Senate, people like Joni Ernst are advocating impeachment of the president, others are advocating holding back on raising the debt ceiling or using shutdown of the government as a weapon to get their way. That kind of ideology cost us taxpayers $24 billion when they did that last time.

BANFIELD: Here's what drives me crazy. I'm one of those pious, new Americans, relatively new American. I was thrilled to get my citizenship. I ran right to the ballot box. I keep my sticker from my first election. I have not missed any of them. And then I see statics like 60 percent of Americans in the latest CNN poll says they're angry, they're scared about the way things are going and then another poll, I think it's Pew, says 15 percent of Americans really even care about the midterms. It drives me bananas, but I appreciate that you guys have your passion.

ZIMMERMAN: (INAUDIBLE).

BANFIELD: Right, doesn't it? Doesn't it drive you crazy?

ZIMMERMAN: You know what makes me crazier, Ashleigh?

BANFIELD: What?

ZIMMERMAN: Watching politicians from both parties complain about the low turnout and then you see this very partisan strategy to restrict voter access.

BANFIELD: I knew you were going there.

ZIMMERMAN: Well, all of us as Americans should be.

BANFIELD: OK. I can't - I can't get into that right now.

ZIMMERMAN: OK.

BANFIELD: I am going to get into probably in about 15 to 20 minutes and so that will definitely be explored because that does get people really riled up.

ZIMMERMAN: Thank you, Ashleigh.

BANFIELD: But, guys, thank you very much.

MADDEN: Thank you.

BANFIELD: I love when you guys go head-to-head and you do it so eloquently and I love it when you don't yell about these issues and yet you still care so much. Robert Zimmerman and Kevin Madden, as always, see you soon.

MADDEN: Great to be with you both. Thanks.

ZIMMERMAN: Thank you.

BANFIELD: Yes, you too.

So, of course, CNN is going to bring you complete coverage of election night in America. We're going to be here up until the very last vote is counted. Be sure to tune in tomorrow on Election Day. Go to the polls, too. Just take your break from CNN to go and vote. It's such an American freedom. Please, do it.

Tomorrow the voters are going to decide on issues ranging from legalizing marijuana to raising the minimum wage. What could be more excited that pot and money? Just ahead, ballot initiatives that make you go, what? That's next.

(COMMERCIAL BREAK)

BANFIELD: So there's going to be much more than just House and Senate seats and governors on the ballot, you know, for this year when you're going to go to the ballot box because you're going to go tomorrow, right? Election Day. This could be a critical one for the wide-ranging issues, everything from marijuana to minimum wage.

Recreational pot is set to be on the ballot on Tuesday in Alaska, Oregon, and Washington, D.C., and in Florida the voters are going to get to decide whether to allow medical marijuana to be sold in their state. And in the meantime, the voters in Alaska, Arkansas, Nebraska, and South Dakota, well, they've got a question on their ballot to increase their minimum wage. The ballots in Illinois are also going to have a non-binding referendum on minimum wage that could send a very powerful message.

Joining me to talk about these ballot measures is CNN's Evan Perez.

I'm always fascinated by other states and the issues they have and how they affect states that don't get to answer those questions. And weed is the one that I see the most often.

EVAN PEREZ, CNN CORRESPONDENT: Right.

BANFIELD: Almost like gay marriage, it's a juggernaut that just keeps rolling across the country.

PEREZ: Right. Exactly.

BANFIELD: I want to ask you about recreational pot and how it polls.

PEREZ: Well, you know, it's interesting, in light of the fact that it's now legal in Washington state and in Colorado and -

BANFIELD: A no one blew up.

PEREZ: And it nothing - nothing -

BANFIELD: No major fires.

PEREZ: Nothing bad - you know, the attorney general, I had an interview with him last week, and he said it's going pretty well so far. So it's interesting that in Oregon, which everyone thought might be going in the same direction, it's come down a little bit. It looks like it's a toss-up, actually.

BANFIELD: Really? PEREZ: It's polling only about 44 percent. So it seems -

BANFIELD: Forty-four percent in favor?

PEREZ: In favor of. In favor of.

BANFIELD: Interesting.

PEREZ: Those are the latest polls that show that.

Alaska is tough because the polls are very tough to read there. No one knows what's going to happen in Alaska until it happens. I have a feeling that that one, the state is a little more libertarian, it probably will pass there. D.C., overwhelming approval it's expected.

BANFIELD: Overwhelming in D.C.

PEREZ: However, Congress is going to probably step in and block it, especially if the Republicans take over.

BANFIELD: Oh, you think so? You think they will actually make - because for people who don't know, Congress is actually the legislative -- the state legislative body for D.C.

PEREZ: Well, they have - they have -

BANFIELD: And they get a 60-day review period.

PEREZ: They have - they have the right to block laws that they believe that Congress opposes.

BANFIELD: But normally they don't. Normally they just let it go.

PEREZ: Most times - most times they don't. But on issues like abortion, on, for instance, D.C. passed a law to help people -- drug addicts get access to clean needles.

BANFIELD: Yes.

PEREZ: They blocked that law for many years.

BANFIELD: And you think they'll step in on this one as well.

PEREZ: And they've already -- there's a couple representatives who have already said that they're planning to block it.

BANFIELD: And just quickly, hit up on minimum wage and let me know where that stands, if you could.

PEREZ: Minimum wage is interesting. You have four states, Alaska, Arkansas, Nebraska, South Dakota. Republican states that are very much likely to approve higher minimum wage. Nothing on the order of Seattle, which has, you know, it's planning to raise it to $15 an hour by 2018, and also San Francisco has a similar ballot initiative as well. So it is very interesting that, you know, this is something that's failing on the national level. Republicans blocked it in Congress. But we have - but we have -- in these states, Republican states, it's very much going to win.

BANFIELD: Didn't I just say before you came up on the set, what could be more interesting than money and pot?

PEREZ: Right.

BANFIELD: Cash and weed.

PEREZ: Cash and weed.

BANFIELD: Right? Cash and weed. If that doesn't get you to the ballot box, I don't know what will.

PEREZ: That's for sure.

BANFIELD: Evan Perez, thank you for that. You have a busy couple of days. Don't - don't go anywhere. Thank you.

CNN is going to bring you complete coverage of the big ballot initiatives. We're going to be here right up until the very last vote is counted. Yes, it's all Wolf Blitzer all the time, my friend. Be sure to tune in tomorrow on Election Day for "Election Night in America."

Another top story that we've been following, a young woman diagnosed with terminal brain cancer, who went very, very public with her plan to end her own life. We weren't sure if she had a real incentive for the weekend to go through with the plan, but the news broke last night. Just ahead, a look at what Brittany Maynard's life and death could mean for the death with dignity movement.

(COMMERCIAL BREAK)

BANFIELD: I think a lot of people might have awakened this morning to a headline they might not have been expecting or maybe hoped they wouldn't see. The woman who was suffering from terminal brain cancer decided to go ahead and carry out her plan to end her life this weekend. That's Brittany Maynard in those beautiful wedding photos. She died on Saturday after taking a lethal dose of drugs. She was just 29 years old. She made those headlines after announcing that she would take her own life rather than let the cancer take its course. And she posted her last video just a few days ago.

(BEGIN VIDEO CLIP)

BRITTANY MAYNARD, DECIDED ON "DEATH WITH DIGNITY": My most terrifying set of seizures was about a week or so ago. I had two in a day, which is unusual. And I remember looking at my husband's face at one point and thinking, I know this is my husband but I can't say his name. Sometimes people look at me and they think, well, you don't look as sick as you say that you are, which hurts to hear because when I'm having a seizure that I can't speak afterwards, I certainly feel as sick as I am.

(END VIDEO CLIP) BANFIELD: Maynard's family posted her final statement on her website. And it reads, "it is people who pause to appreciate life and give thanks who are happiest. If we change our thoughts, we change our world. Love and peace to you all."

Maynard, before she died, moved to Oregon so that she could live in a state that had a death with dignity law. And three states have those laws, Washington, Vermont, and Oregon. Two other states, Montana and New Mexico, have something along those lines. They've got court rulings that allow doctors to prescribe fatal drug doses. And the movement does appear to have some momentum, appears to be growing. Similar bills have been introduced in seven other states. What happens, though, remains to be seen.

My legal panel joins me now, HLN legal analyst Joey Jackson, CNN legal analyst Paul Callan.

You know, no matter how you feel about Brittany Maynard, whether you supported her right, nothing could be celebrated about this. Everything just felt so sad either way. But, you know, my question is, what has changed? Paul, and you can weigh in first. What has changed since the Kevorkian days? What's different now about death with dignity?

PAUL CALLAN, CNN LEGAL ANALYST: I think the massive change has been medical technology. We've gotten so sophisticated in terms of the machines that can prolong and keep us alive, even after the doctors have said there's no chance of survival, that we see people, and usually it's older people, elderly people, but sometimes it's young people with cancer and other types of diseases that we know are terminal and the machines, the artificial feeding, the ventilation, all of these things prolong life in a way that causes people to suffer. And I think many people now say, you know something, maybe it's not right that the machines are allowed to keep us alive when we think our time has come.

BANFIELD: It's so interesting that's the route you chose to answer that question. What I expected, and maybe this is you, was, we've become more progressive. We understand more about these diseases. We know more and we have this maybe more evolved sensibility about allowing people to make their own choices. That's where I thought you were going.

CALLAN: No.

BANFIELD: That is not at all where you were going.

CALLAN: Sorry, you never know where I go.

JOEY JACKSON, HLN LEGAL ANALYST: Yes, never know. May Brittany rest in peace, Ashleigh.

BANFIELD: Honestly.

JACKSON: You know, the reality is, is that this is a difficult policy decision that each state has to make and they make it on the grounds that a state has a right to preserve live, to otherwise, you know, prevent assisted suicide or to promote a dignified death. And, you know, you mentioned the states that allow it and she, of course, as we know, Ashleigh, moved to Oregon for the express purpose of doing it. And it's really a debate that hits at the core of what's appropriate, what's ethical, what's right? And the Supreme Court of the United States has said that it's a decision that needs to be made state-by- state. There is no inherent right to die in the Constitution. And so when they ruled on the issue, what they said was, each state could make that own decision. Oregon did and Brittany, as an individual, decided to carry out (INAUDIBLE).

BANFIELD: You know, a lot of people - just quickly wrap this up. A lot of people say, you know, you can talk until you're blue in the face about what one person's choice is if she's lucid at the time, but there's a dark side to this. There could be those who aren't capable. Is there a fool-proof mechanism to craft the kinds of laws that need to be crafted, to make sure that those who are vulnerable aren't taken advantage of and effectively murdered by their own choice? Does that make sense?

CALLAN: Yes, well, it makes a lot of sense. And opponents to this say that, you know, how do we know that the disabled won't be euthanized, that people who have a chance and want to survive by greedy family members who want to inherit money and that sort of thing -

BANFIELD: Right.

CALLAN: Won't convince them that they should put themselves to death. There have to be protections. Now, Oregon tries to do that, of course, by saying that the death has to be within a six-month window. That's very hard to predict. You have to consult with a physician. Some states have two physician consultation rules to try to prevent what the lawyers call the slippery slope into innocent people being put to death.

BANFIELD: Right. But (INAUDIBLE) good enough?

JACKSON: And very important. Well, very important, you also have to be mentally competent and able to make that choice.

BANFIELD: Right.

JACKSON: And if you're not mentally competent and able, then that choice is not something that's left to you. And so the debate will certainly continue as to whether this is an appropriate way to go out.

BANFIELD: Yes.

JACKSON: But, you know what, it's up to the individual and it's largely up to the state.

BANFIELD: And thank you for saying, you know, Brittany, rest in peace, because, you know, that is, again, there's no celebration no matter how you feel about the issue with regard to Brittany.

JACKSON: No. CALLAN: No.

JACKSON: Not at all.

BANFIELD: Paul Callan, Joey Jackson, thank you.

JACKSON: A pleasure.

BANFIELD: Back to our coverage of the midterm elections. Tomorrow, some brand-new rules for who can vote and who cannot vote, even if you're American, they will be in play. And for some people, it just might strip them of the right to vote. Again, even if they are American. Now, they're planning to get some monitors out there to the polls, but what can monitors do now that we're really, really on the eve of going to the ballot box?

(COMMERCIAL BREAK)