The "Fab Four" -- Our Chance to Say No

Political Notes

by Jon Fuhrman

Wednesday, October 15. It’s only three weeks until the off-year elections give us some modest indication whether voters recognize the Emperor is wearing no clothes and whether they are finally tiring of it.

Congressman Eric Swalwell called them the “Fab Four” – California’s Prop. 50, Pennsylvania’s retention election for three Democratic State Supreme Court Justices, and the gubernatorial elections in New Jersey and Virginia. He argued that winning all four would give our side unmistakable momentum and internal validation, and perhaps quell the self-doubts and self-flagellation we so often hear from our side.

I think he’s right that we need to win all four, and I think, in fact, that’s exactly what’s going to happen. (But keep writing those postcards – in this sort of low turnout election, they are especially effective!).

In California, over 23 million ballots have been mailed out. Of those, 44.9% went to registered Democrats. Of the ballots returned so far – just under 900,000, or about 8% of those likely to come in, assuming a turn-out of around 50% -- just over half (50.4%) have come from registered Democrats. That means Dems are “out-performing” their registration numbers by about 5%. (And, of course, we don’t know how individuals actually voted, but we’re assuming Dems are overwhelmingly voting YES; some may vote against Prop. 50, but that should easily be balanced out by the non-affiliated voters, and some Reps, who vote for it.) Granted, the number of ballots returned so far is fairly small, and perhaps motivated Dems are more likely to vote early than their GOP counterparts, but an 8% sample is statistically actually a pretty fair size. I think we can say that the early over-performance by Dems augurs well for the passage of Prop. 50. Also, although the GOP had a substantial early funding advantage, Dems have pretty much caught up and are matching the GOP in media ads. In fact, there is a new ad featuring former President Barack Obama, facing directly at the camera, talking about the high stakes for this measure, which seemed to me to be a very powerful pitch. So, although it’s still early, I’m feeling pretty confident about Prop. 50.

In Pennsylvania, three progressive Democratic State Supreme Court Justices are facing a retention election. Similar to California, Justices serve a fixed term – 10 years in Pennsylvania – and then go before the voters for a YES / NO confirmation vote. There are now 5 Dems and 2 Reps on the Court, so ousting the three incumbents could lead to a 2 – 2 tie. Democratic Gov. Josh Shapiro would appoint replacements, but those nominees would have to be confirmed by the State Senate, where the GOP currently has a 27 – 23 edge. So the Reps are hoping to oust the incumbents, deadlock any nominees, and leave the Court stuck at 2 – 2. The Reps are using a campaign tactic that reeks of hypocrisy – they are arguing that if you support term limits, you should vote NO on the confirmation, because 10 years is long enough. They’re hoping to peel off enough progressives and independents that they can oust the Justices, although losing a confirmation is vanishing rare – the last time an incumbent Justice was ousted was back in 2005. However, Gov. Josh Shapiro, who has an approval rating of over 60%, is weighing in actively on behalf of the Justices, so here again, I’m relatively optimistic (even though off-cycle low turnout elections can be quirky, Dems have outperformed substantially in all the special elections around the country so far this year).

That takes us to the gubernatorial elections in Virginia and New Jersey. In both states, the Democratic candidate is one of the group of women with national security credentials first elected to Congress in 2018, when the Dems took back the House in the middle of President Trump’s first term.

In Virginia, Abigail Spanberger spent 8 years as an Operations Officer (read spook) for the CIA. After 6 years in the House, representing a tough purple district but continually fighting off GOP challengers, she chose not to run for re-election in 2024, but rather to take on the gubernatorial race in 2025. She has been consistently ahead in the polls, sometimes by a few points but generally by 10 – 12 points. In the last few weeks, the Democratic candidate for Attorney-General has been attacked for some ill-phrased texts from years ago (for which he’s being rightly criticized), but the GOP has tried to attack Spanberger for not renouncing her endorsement of the fellow Dem. The candidate, Jay Jones, seems to be weathering the self-inflicted storm, but the race has tightened up a bit. Yet even the heavily GOP-tilted Trafalgar polling group has Spanberger ahead by 3%, while another poll has Spanberger ahead by 9%. So while our Attorney-General candidate may be in trouble, I think Spanberger is safe, and Dems in Virginia are hopeful about flipping several legislative seats. Dems now control both Houses of the state legislature, albeit by 1 vote margins in each House, so flipping even a few seats could be crucial to having a workable majority. Winning the Governorship would give us a trifecta and the ability to enact progressive legislation in a raft of different areas.

New Jersey is definitely a tighter race. Mikie Sherrill graduated from the Naval Academy in 1994, went on to become a helicopter pilot, flying land and sea missions, and finally served as a Russian policy officer on the staff of the US Naval Air Commander in Europe. She went to law school at Georgetown, served as an Asst. US Attorney in New Jersey after working for prominent private law firms, and in 2018 chose to run for an open seat in New Jersey that had been a traditionally safe GOP seat. She won by 14%, posting the largest swing (33%) in the country from that seat’s 2016 results. She was re-elected in 2020, 2022 and 2024, consistently outperforming the national ticket.

In the House, she served on the Armed Services Committee and formed a tight friendship and coalition with Spanberger and Elissa Slotkin (also a CIA veteran who has since been elected to the Senate from Michigan). The latest polls show Sherrill 7% ahead of the GOP candidate, Jack Ciattarelli, even though he dug up the fact that Sherrill was not allowed to walk the graduation ceremony at the Naval Academy with her class, as punishment for not turning in fellow classmates who might have been involved in a large cheating scandal at the Academy that year. (Despite that punishment, Sherrill did graduate, was commissioned, and served for 10 years as a naval aviator, winning the Navy Commendation Medal for her service.)

The Reps think that Sherrill is vulnerable and have upped their investment in the race, with President Trump doing some fundraising for Ciattarelli and formally endorsing him. This is probably the tightest of the four races, but Sherrill seems to be holding on to a decisive edge. So my guess is that Sherrill will also win the seat, giving us all four of the “Fab Four” races and a decisive political rebuke to the Trump Administration.

On the legal front, the long anticipated indictments of former FBI Director Jim Comey and New York State Attorney-General Leticia James finally came down, despite strong input from long-time prosecutors that the cases were essentially unwinnable. In fact, apparently the Grand Jury declined to accept one of the counts proposed against Comey, and found probable cause on the other two by only a 14 – 9 margin (a far cry from the unanimous verdict, based on proof beyond a reasonable doubt, required in an actual criminal trial). Presumably, Sen. Adam Schiff will be the next person indicted, unless the Grand Jury rejects that prosecution in its entirety.

Other cases are still wending their way up the judicial chain, with the tariffs case scheduled for oral argument before the Supreme Court in November. But there was one particularly notable opinion, a 3 - 0 vote by the U.S. First Circuit Court of Appeals, on a case involving the Administration’s attempt to eliminate Birthright Citizenship, as guaranteed in the 14th Amendment. The opinion is quite lengthy and detailed, but worth quoting from because of the directness with which it addresses the issue at hand and, more broadly, the Administration’s entire war on Constitutional law and precedent:

“…the length of our analysis should not be mistaken for a sign that the fundamental question…of birthright citizenship is a difficult one. It is not, which may explain why it has been more than a century since a branch of our government has made as concerted an effort as the Executive Branch now makes to deny Americans their birthright.”

It looks to me likely that the Administration will get a pretty sharp slap-down on both Birthright Citizenship and on the Executive Branch’s unilateral authority to impose tariffs (and cancel, change and re-impose them at will). The real question, then, will be how the Administration reacts to unfavorable decisions. Do they abide by them, openly disregard them, or try slyly to evade them while professing allegiance to the Constitution? I won’t hazard a guess on that one.