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Legal View with Ashleigh Banfield

2014 Midterm Races and Analysis

Aired November 04, 2014 - 12:30   ET

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

(COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN HOST: What happened today from Maine to Miami to Maui is going to go a long way towards deciding what's going to happen in this country at least for the next two years. It's election day, everybody, and that the election is getting the most national buzz, 36 U.S. Senate Races that will decide which party controls the upper chamber. Republicans need to pick up six seats to win a majority. And right now, they are liking their odds. But the odds don't elect anybody, it's you, the voters. You elect, people, so go and do it. It's fun and it's your right and it's your privilege.

Like they say in presidential elections, it's Ohio, Ohio, Ohio, except if you're talking about Senate control because then it's Kansas, Kansas, Kansas. CNN's Political Analyst, Donna Brazile, and Conservative Commentator, Amy Holmes, are back with me now. Talk to me about this whole Greg Orman thing because I'm just loving the notion that an Independent can actually end up, if he wins, the darling. I mean, does this mean that literally everyone will be after this fellow to come and caucus with them and try to appease him? I mean, is that the best position to be in?

DONNA BRAZILE, CNN POLITICAL COMMENTATOR: Absolutely. Look, Pat Roberts is the current incumbent Senator from the State of Kansas, had a very tough primary race. After the primary was over with, he decided not to campaign. And as a result of that, the Independent just began to pick up steam. The Democrat said, you know what, I'm getting out of the way and now you have a very tough race in a state that should be read, as you all know. Doherty was probably a Democrat, but (inaudible) was a Republican, who knows? But anyway--

BANFIELD: Have you been saving that line for today?

BRAZILE: No, I haven't. I haven't. No, it just came up. But, you know, the fact is is that Greg Orman is very interesting, very authentic. He's been able to appeal to what I call those main line, main stream values, Mid-Western values of Kansas. If he wins tonight, there's no question that Democrats and Republicans are going to lean on him to caucus with them, perhaps promising him something very nice, who knows?

BANFIELD: So, during the break, when we were whispering amongst ourselves, I said it's so refreshing as a non-political, you know, follower. I do a legal show. I'm not on Capital. But it's so refreshing to see somebody who comes out and says, "I'm just going answer to my people, I'm not going to answer to party," and this is the way it should be. And I kind of wondered, why doesn't that work?

AMY HOLMES, CONSERVATIVE COMMENTATOR: Well, listen, my last name is Holmes, but I don't have to be Sherlock to figure out the Greg Orman is a--

BANFIELD: Have you been saving that line?

HOLMES: I have -- to know that Greg Orman is a Democrat in Independent clothing. He was a Democrat. He'd run as an Independent so that he could run against Senator Pat Roberts. Look, it's a huge thing to knock off an incumbent Senator. That will be a very big deal. But if Republicans take back the Senate, which a lot of the polling shows that they are likely to do, he's actually going to be in a diminished position because he's going to be in a diminished party. I suspect he's going to caucus like Bernie Sanders, the Independent from Vermont, with the Democratic Party. But again, if Republicans win, they'll be in the minority and they won't be setting the legislative agenda.

BANFIELD: The Democrats were pulling themselves out so as not to flip the vote and say, you know what, take it from here fellow, we got your back.

BRAZILE: You know, I take him at his word. I mean, he has every right to announce his support for being a Republican or being a Democrat. But he has chosen to say I want to represent the people of Kansas because it's about the future of the State of Kansas.

BANFIELD: Hey, you guys have carte blanche right now. In French, that's, you know, the white card, to say your biggest, boldest, goddess prediction if you're trying to pick anything. Make it acute, clever, because we're going to briefly tape tomorrow.

HOLMES: Boldest prediction, Joni Ernst.

BANFIELD: OK.

HOLMES: Next to my State Senator.

BANFIELD: OK.

BRAZILE: Joni was a wild card in midterm elections. I predict that we're going to have wrecked turnouts to match the wrecked spending, and that is going to give Democrats a narrow path to victory.

BANFIELD: You're a crazy lady.

BRAZILE: No.

BANFIELD: You're a crazy lady. I'm saying -- that's my prediction.

BRAZILE: No, I have faith. I have faith in Democrats going out right now, go out and move. If you have any problems, vote for (inaudible). We'll help you get to the polls. Go and vote. It's about your future.

BANFIELD: I'm with you all the way. I'm excited about voting as you are. But (inaudible) 50 percent of people care.

BRAZILE: Do you need some help voting because, you know, I've got my glasses? I can help you kick some--

BANFIELD: Look what's going on over here. OK, thank you, ladies.

BRAZILE: Thank you.

BANFIELD: Latest predictions tomorrow by the way. CNN is going to have all your Election Night coverage. It starts at 5:00 P.M. Eastern Time. We're getting that whole jump on everything, so you're not going to miss a thing. By the way, if you look up bitter in the dictionary, you might just see a picture of the Senate Race between these two guys. Their fight in Arkansas has featured accusations, and now, Ebola, yes, and illegal immigration. But it has not included any campaign appearances in the top. Democrat, the President himself, a look at the Obama effect on this and other elections today.

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BANFIELD: So it kind of looks like the Democrats in Arkansas are not looking for a little help from President Obama in today's election. Instead, they're leaning on Bill Clinton and his popularity. Mr. Clinton has hit the campaign trail in support of the Democratic candidates for both the Senate and Governor in Arkansas. And joining me live now from Little Rock, Arkansas is CNN's Randi Kaye to talk about the Clinton impact on these races. So, why are these races so tight?

RANDI KAYE, CNN CORRESPONDENT: Well, it's a very tight race actually. Depending on which poll you look at -- a lot of the issues are pretty heated. But depending on which poll you look at, it's either a two- point race or an eight-point race with the Republican challenger ahead in all of those polls actually. But we are here at the fire station where, Ashleigh, they've hold the engine out and a lot of folks coming in to vote this morning. You can see even some of the fire gear there in the background.

The director of elections tell that here in Pulaski County where we are that they in early voting saw 40 percent increase this year over the last year midterm election in 2010. So, this is a -- over the Election 2010, so this is a really big deal for them. But still, a lot of people didn't vote early and they're coming out today. Here's a sample ballot, Ashleigh, we can show you right here. Here's Tom Cotton, Republican challenger, and Senator Mark Pryor. Those are the two guys who are (duking) it out.

Republican, Tom Cotton, is a veteran of the Iraq War. He's a Harvard graduate. He's 6 foot 5, so he's pretty easy to spot on the campaign trail. And then you have Senator Mark Pryor who's a Democrat who's looking for his third term here in the U.S. Senate. His dad was a senator here for 18 years. But you mentioned President Clinton. One of the issues in this race a lot of people are talking about, believe it or not, is the Affordable Care Act and ObamaCare. And Tom Cotton has been trying to show voters that Senator Pryor supported ObamaCare and he's tied to the President's agenda. And even Mark Pryor, the Democrat, has been trying to distance himself from the President, saying that -- telling reporters recently that the President is a, quote, "Drag on his campaign." So, who comes to the rescue? You have President Bill Clinton. Of course, he hasn't lived in the State of Arkansas since he went to the White House and moved to Washington D.C., but he's so very popular here, some polls (inaudible) with 62 percent approval rating. The President here has about 33 percent approval rating. So that's the difference. But Bill Clinton did come. He summed for the Democratic (inaudible) candidate. He summed for Senator Mark Pryor as well. We'll see if it makes a difference, Ashleigh.

BANFIELD: All right, Randi. Thank you for that. I appreciate it. You know, President Obama is not on the ballot today, but he really might as well be because his presence is being felt in races right across the country, even though a lot of Democrats have tried to keep some distance. Joining me to talk about that, about the President's influence on today's midterm elections, is CNN's Political Commentator, Charles Blow.

All right, my friend, you wrote something. I think it's pretty profound and I think a lot of people are talking about it. You said, basically, that Republicans aren't running on the issues, instead they're running against Obama and the very idea of a federal government other than the most narrow functions. And then you threw this one in, end race. Are we still all about the race? I mean, are we still talking race at this point? I find that that isn't leading its way as much with the conversation. But you feel otherwise.

CHARLES BLOW, CNN POLITICAL COMMENTATOR: No, I don't feel otherwise. What I was saying is that that there are politicians, particularly Mary Landrieu in Louisiana, who said that that is a function of his disapproval, right? And I think that whether or not we want to -- the question also is not answerable, that whether or not things are about or not about race.

BANFIELD: You can't measure it.

BLOW: You can't measure it. There's no way to measure it. Anybody who says they can measure it is lying and they're being bombastic and inflammatory on purpose. What we have to do is -- however, is to remember that social science teaches us is that that is a mountain of social science that says that race is a part of the culture in America.

BANFIELD: So, that Mary Landrieu thing that you mentioned, I want to play that. It's perfectly appropriate that you brought it up. Do we have that one ready to go? Let's play that on stand by and hear what Landrieu said, specifically about Obama and race. Have a look.

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SEN. MARY LANDRIEU (D), LOUISIANA: We're very, very honest with you and the South has not always been the friendliest place for African- Americans. It's been a difficult time for the President to present himself in a very positive light as a leader. It's not always been a good place for women to be able to present ourselves. It's more of a conservative place.

(END VIDEO CLIP)

BANFIELD: Senator Landrieu in Louisiana saying those words. I think a lot of people will say, yeah, that's true. But then the political say, how dare you, how dare you say that that's why we're not interested in Obama anymore? We have the economy. We have ObamaCare. We have all sorts of things we have not--

BLOW: But I'm not sure that's what she's saying, right? She says that it has not always been a place where African-Americans have had a good time. And I think -- had it easy. And I think that you have to understand the history of the racial lives nature of politics in the South. And that is that if you walk into a room 100 years ago, almost all African-Americans in that room would've been Republicans. And so, you have two ways of switching. One was during the new deal, Teddy Roosevelt.

But even towards the late '60s, about third of blacks were still Republican, so you had a second way after deciding the Civil Rights Bill by Johnson and then you have to rights of go -- who basically got Civil Rights. Legislation was unconstitutional and blacks said, no, OK, enough of this, we're out. The Republicans (inaudible) on that. In 1976, Kevin Phillips, a Nixon strategist told the New York Times magazine that, "Great, the more the Negros that move over to the Democratic side, the more we will be able to attract the Negro folks," that was his word, "to the Republican party." This is 1976. This is not a very long time ago.

BANFIELD: Not that long ago.

BLOW: These people are not necessarily all passed-away. You could have changed your mind since then, but we have to understand what the nature -- the racialized (ph) nature of politics in the South was and how it came to be.

BANFIELD: I heard that sounds like, "Yes, she's right." And then I heard people, you know, in the political arena is weighing and sort of piecing it and taking it in different ways. So I got some of the other things I'd love to ask you about but I'm flat out of time because there so many good races.

Thank you.

BLOW: Thank you.

BANFIELD: Thank you so much.

Today, monitors from the United States Justice Department are going to be watching the vote very, very carefully in 18 states. We're going to talk about why these polls are getting that kind of scrutiny in America. Coming up.

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BANFIELD: So today's midterm elections are the first national elections since the Supreme Court repelled part of the Voting Rights Act based on changing racial circumstances in states with histories of discrimination. For good measure, the Justice Department has sent election monitors to 18 different states to watch for any discrimination against minority and disabled voters, making sure that they aren't treated any differently. And there is a legal view on this, by all means, I want to bring in CNN's senior legal analyst and former federal prosecutor, Jeffrey Toobin.

Let's be really clear, that sounds so alarming to some people. The federal government sending out monitors on our election, it's not that unusual.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: No, they do it for every election. That's been true since the Voting Rights Act passed in 1965. What's unusual about this election is it's the first national election since Republicans in many states that went Republican in the 2010 landslides changed the rules on voting, requiring more forms of identification, limiting early voting, absentee voting. Those have been extremely controversial. Democrats have claimed that these are attempts to disenfranchise mostly poor and minority voters so the effect of those new laws in many states across the country, that's a real important thing to keep an eye on today.

BANFIELD: And it's not over, either. I mean I'm just wondering if some of these monitors are going to be taking copious notes for the litigation that's still to come.

TOOBIN: No, I don't think the issue is so much about the monitors because they're just not that many of them. These states -- the whole states have these photo I.D. requirements, so you can't send that many monitors out of Washington to keep an eye on all of them, you know, Texas, Wisconsin, Michigan, Ohio. All these states that went Republican in 2010 have change their voting rules and what impact that has is going to be something a lot of people are looking at.

BANFIELD: Places like Wisconsin, there are such a swamp mess irregularities from community to community on what kind of rules and when they're applied and some people got early voting ballot sent them in only to find out later or not find out later, "Oh, you needed a form of I.D. -- is there any recourse for these places?

TOOBIN: Wisconsin was so bad that the Supreme Court actually for some of these changes, don't put them into effect yet because the playing field is so scrambled at this point. Unfortunately, there's not a lot of recourse. In many jurisdictions, if you are denied the chance to vote at your polling place, you can file what's called a provisional ballot. You can say, you know, "I'm going to fill up this ballot and count it if you think I'm justified." Not all places have that but it's something people should look into if they have a problem casting a ballot.

BANFIELD: Yes. And it also comes with original ballot in certain places, too--

TOOBIN: We'll, that's right. Yes.

BANFIELD: -- show up at the wrong--

TOOBIN: We have, by the way, a crazy mismatch -- mismatch of a system. Most countries, civilized countries, first world country, have a unified system. Every votes the same way, the same time -- the states. And in some cases, the countries. It's a big mess.

BANFIELD: I know it's just midterms but you wrote the nine -- you're the voice when it comes to Supreme Court affairs, anything that's due (ph) to Supreme Court. And so -- I mean I'm just going to throw it out there. We have a couple of liberal justices who are right around 80-years-old, and closing in on 80-years-old, and I'm just curious, with two more years, what do you think President Obama is going to be able to do?

TOOBIN: Well I think, based on what I know about the health of all the Justices, there won't be a vacancy in the next two years. So, he will not have the chance to appoint anyone.

BANFIELD: You're pretty sure of that?

TOOBIN: Well, I mean, you know, you could never going to be sure about the health of anyone but as far as--

BANFIELD: You said there won't be health issues.

TOOBIN: Well, they -- I've shown -- Ruth Ginsburg and Stephen Breyer, the two Clinton appointees have shown no sigh of wanting to leave. I don't think they'll leave. If one of the Republican Justices left, that would be World War 3.

(CROSSTALK)

BANFIELD: All right, Jeff Toobin, thanks. Appreciate it.

TOOBIN: All right.

BANFIELD: Tonight, as you are watching the election result on CNN, you're going to hear Wolf Blitzer saying things like, "CNN projects that candidate so and so is the winner of this race." And you maybe wondering how on earth does CNN calculate exactly how to call the winner of a race before all the votes have actually been counter. So we're going to answer that for you, take you behind the scenes and show you how it's done.

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BANFIELD: In a matter of hours, by 6:00 p.m. Eastern, when the first polls begins closing in Kentucky and Indiana, and later in some other states, too, we're going to being projecting some winners, some losers and the races that are too close to call.

CNN is your place for all things politics, and there are a lot of people here behind the scenes making this happen. The lovely and talented Mark Preston gives us the inside scoop on how we deliver your election results.

(BEGIN VIDEO CLIP)

WOLF BLITZER, CNN ANCHOR: We've got a really major projection to make right now.

MARK PRESTON, CNN EXECUTIVE POLITICAL EDITOR: How are you?

UNIDENTIFIED FEMALE: Hey, how are you?

PRESTON: Yes. If I said I was good would you be surprised?

On election night, you're going to find out the winners and losers by going here, here, here, here and here. But this is where it all begins. When you walk out to the voting booth on Tuesday, you might be approached by somebody with a clipboard with a couple of sheets of paper asking you some questions. This is called the exit poll. Once that data is collected all across the country to here, to our exit poll team. Five people dedicated to take all these data from across the country, crunching it, looking at it and trying to figure out what makes the most (inaudible) explaining to you how the election night is unfolding.

OK. So we've talked about exit polls, and now we're over here at the decision desk. This is where a dozen members from across the country is a journalist and these are statisticians, professional mathematicians who sit here and they're working on 10 different models at any given time to try to figure out how to call a race.

If you look at the exit poll data in call a race just off of that, the raw vote is your vote. That's the vote that we start to see that comes in from the individual states and individual counties. Third way we can do it is we can just call a race on the raw vote. We don't even usually exit poll because at some times throughout the night, the raw vote becomes more dominant and more important.

And then ultimately, we may never call a race because it has become so close. We're talking about potentially a recount and look at how many races that are going to be close and competitive this year, who knows what's going to happen.

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BANFIELD: And there you have it, that's how the magic is made.

We're going to be here until the very last vote is counted so be sure to watch CNN's election night coverage. Election nigh in America folks, it starts at 5:00 p.m. Eastern time with the CNN team of correspondents throughout the country, and of course as always, our coverage is going to be helmed by the one and only Wolf Blitzer and Anderson Cooper.

Thanks so much for watching everybody. With that, Wolf Blitzer starts right now.