hunter of justice

State government map - updated

UPDATE 11/11/10 - Because of the narrow margin, the Minnesota governors race is subject to a mandatory recount, so the correct color would be yellow in the map below. The New York state senate majority is still in doubt. I will post a revised map when these races are decided.

This post-election map shows which party controls each state government, the level at which most of the law concerning sexuality and gender is made. 

Red - Governor and legislature Republican

Blue - Governor and legislature Democrat

Green - Divided

Yellow - Still undecided

How LGB voters voted

The following chart from Gary Gates at the Williams Institute, based on exit poll data, indicates that support for Republican candidates among LGB voters has followed roughly the same general trajectory as among all voters, although consistently remaining about 20 points lower in support for Republicans than the national average:

The day after: How bad was it?

Pretty bad, especially in DC where progressives will go back to playing defense in Congress. Bills that seemed like viable prospects a few months ago - ENDA, the Domestic Partners Benefits and Obligations Act - are seriously dead, perhaps for years. Will DADT repeal make it through the Senate in the lame duck session? Anybody's guess. On the positive side, there is a fourth openly gay member of the House: David Cicilline from Rhode Island (photo below); and Barney Frank was re-elected, although by a smaller margin than he is used to.

 There will be a major increase in pressure on the White House to do more positive things by administrative action, since Congress has gone over to the dark side. Unfortunately, however, an administration that was timid and gunshy on lgbt issues to begin with will now face the prospect of Republicans using their new House majority to initiate many, many oversight hearings and investigations. Most of these will probably center on financial issues and health reform, but the GOP base may want some action on social issues as well.

The only silver lining I see to the Tuesday bloodbath is that there are now more strongly pro-gay governors than ever, including Brown in CA, Cuomo in NY, Dayton in MN, Hickenlooper in CO, possibly Quinn in IL (race is still undecided), and Patrick (re-elected) in MA. In addition, NH Governor John Lynch, who signed a marriage bill, was re-elected. So far as I can tell, no gubernatorial candidate who endorsed marriage equality lost his race (unless the very close MN race eventually goes to the Republican; some news sites still list it as undecided). 

Other follow-up from my pre-election post:

A Republican won the Attorney General race in Florida, a Dem was elected in New York, and the California race is still too close to call, although the Dem holds a tiny lead.

In other House races, DADT repeal leader Patrick Murphy lost his job, and Palm Springs Mayor Steve Pougnet fell short in the effort to turn out Mary Bono Mack. Hometown update: McIntyre won.

State legislatures:

Marcus Brandon (photo right) was elected to the state legislature in North Carolina, another openly gay African-American officeholder, and a rare bright spot from the election. Other openly gay public officials are listed here.

In several states, both chambers of the legislature now have Republican majorities. In New Hampshire, that may lead to an effort to repeal the equal marriage law there, although presumably Gov. Lynch would veto such legislation. (However, a reader points out that the Republicans have a veto-proof majority.) In NC, it may allow Republicans to get a state constitutional amendment banning same-sex marriage through the legislature, which a Dem majority had been able to kill year after year. Same is true in Pennsylvania. And it's pretty safe bet that there won't be much equality legislation getting enacted in Maine for awhile.

In general, adoption of state civil rights laws will almost certainly slow down.  In 7 out of the 10 most populous states in the nation, there is no state-wide anti-discrimination protection for lgbt people: Florida, Texas, Pennsylvania, Ohio, Michigan, Georgia and North Carolina. As of today, both chambers of the state legislature have Republican majorities in every one of those states; all but North Carolina also have Republican governors. That's a pretty serious brick wall.

As for judgeships, the most important race produced a huge defeat when a 54% majority of Iowa voters dumped three Iowa Supreme Court justices who joined that court's marriage equality opinion.

Still, I can end on a bright note: in California state court, Victoria Kolakowski became the nation's first openly transgender judge. 

What do the election results mean for the lgbt community?

CORRECTION - The Williams Institute event will be the evening of Wednesday, November 10. Speakers and location are unchanged.

After the dust settles for a day, two lgbt organizations will host discussions on Thursday of what the 2010 election results mean for lgbt issues.

The National Lesbian and Gay Bar Association is sponsoring a Post-Election National Conference Call on November 4 from 5 to 5:30 pm EST. NCLR Legal Director Shannon Minter and Penn Law Professor and White House adviser on lgbt issues Tobias Wolff will lead the discussion.Register here in order to listen in and ask questions.

On the West Coast, the Williams Institute will host an expert panel discussion on Election 2010: The Impact on LGBT Rights, on Thursday from 6:30 to 8 pm PST. Washington Post writer Jonathan Capehart will moderate a panel including Aaron Belkin, Robin Brand, David Codell, Gary Gates, and Mara Keisling. The event will be in Room 1347 of UCLA Law School.

Both events are free and open to the public.

What to watch for on election night

Polls (see chart at right) say that fewer than half the voters in this election will be motivated by a candidate's position on abortion and only a third are much concerned with gay marriage. Whether these issues are foremost in voters' minds or not, however, the outcomes Tuesday night will have a huge impact on sexuality/gender law and policy for at least the next few years. Aside from the endlessly predicted changes (or not) in who controls Congress, the most consequential outcomes are likely to be in state government, especially in the gubernatorial and state attorney general contests.

Here's my list of what to watch for when you're changing channels or checking twitter:

Gubernatorial and AG races

• California - Everyone knows that the outcome of the battle between Jerry Brown and Meg Whitman for the governorship may have an impact on Perry v. Scharzenegger, the challenge to Prop 8. Less well known is that the contest between Democrat Kamala Harris and Republican Steve Cooley to be Attorney General could have the same impact. 
• Florida - As in California, both the governor and the AG in Florida can independently make litigation decisions when state law is involved. There are likely to be diametrically opposite decisions made if Dem Alex Sink is elected governor versus Republican Rick Scott, or if Dem Dan Gelber or Republican Pam Bondi becomes attorney general.
• Illinois - Republican Bill Brady is battling Dem incumbent Pat Quinn; one clear contrast is Brady's vehement opposition to civil unions, which Gov. Quinn supports. If Brady is elected, any chance to move Illinois into the civil union category would disappear for at least the length of his term.
• Maine - From Lisa Keen: "Equality Maine, the state LGBT civil rights group, says Tea Party Republican candidate Paul LePage would not only veto a marriage equality bill if one came to his desk, but "supports gutting the Maine Human Rights Act," which prohibits discrimination based on sexual orientation and gender identity. [Both] Democratic candidate Libby Mitchell [and] Independent candidate Eliot Cutler support same-sex marriage...
• Minnesota - Dem candidate Mark Dayton has promised to sign a gay marriage bill; in response, anti-equality groups financed an ad suppporting Republican Tom Emmer, because "gay marriage has consequences."
• New Hampshire - Last year, Democratic Gov. John Lynch, who said he opposed gay marriage, signed a bill legalizing it after lawmakers approved provisions affirming religious rights. Lynch is up for re-election, facing a Republican who opposes same-sex marriage, and the National Organization for Marriage is running ads against the governor depicting his signing of the bill as a betrayal of voters.
• New York - Republican candidate Carl Paladino promised to veto a marriage equality bill and criticized Dem Andrew Cuomo for taking his children to a gay pride parade. The latter move may have tanked his campaign, although it was already a hot air balloon waiting to burst. Polls show Cuomo, who supports gay marriage, massively ahead.

Judicial retention in Iowa - Three of the judges who joined the Iowa Supreme Court's decision requiring an equal marriage law are before the voters for an up-or-down retention vote. Conservatives have organized an unprecedented campaign against them, and polls predict a close race.

House of Representatives:

• CA 45 - Openly gay Palm Springs Mayor Steve Pougnet is challenging incumbent Mary Bono Mack in this "Inland Empire" district, which offers one of the very few chances the Dems have to take a seat now held by a Republican. 
• MA 4 - Barney Frank's re-election was a foregone conclusion until rumors spread that he was in trouble, seemingly validated by Bill Clinton traveling to the district to campaign for him and Barney loaning his campaign $200,000.  If Barney loses, it means the Dems are getting wiped out.
• PA 8 - Former GOP Rep. Mike Fitzpatrick is looking for revenge against two-term Democrat Patrick Murphy, who defeated him in 2006. Murphy has been the lead champion in the House of repealing DADT. 
• RI 1 - Openly gay Providence Mayor David Cicilline is running to replace Patrick Kennedy, who retired. 

Trial court judgeship in Alameda CA Superior Court - Now an administrative law judge, Victoria Kolakowski could become the nation's first openly transgender member of the judiciary.

State legislatures -

• New Hampshire House and Senate - From Lisa Keen: "This bellwether state enacted a marriage equality law just this year and already three bills have been filed seeking repeal in 2011. Meanwhile, the Democratic majority in both the state House and Senate are in peril...  [T[he margins of victory on the marriage equality bill in 2009 were razor thin... If Republicans do take back the majority in the legislature, a repeal bill has a strong chance of succeeding. 
• New York - The incredibly dysfunctional NY State Senate has been on a roller-coaster, with Republicans having controlled it forever, more or less, until the 2008 election when Dems barely got control, but then couldn't deliver a majority vote for either marriage equality or a prohibition on discrimination based on gender identity. Paul Schindler at Gay City News identifes the critical races for this election cycle and maps out the chess pieces in play to try to line up the necessary votes on those two issues, a byzantine gambit that can't possibly be summarized in a paragraph. 
• CA Assembly 5 - Andrew Pugno, one of the leaders in the campaign to pass Prop 8, is running in this Sacramento-area district to become a member of the state legislature.  Sure would be nice if he lost.
• NC House 60 - Marcus Brandon could become only the fifth openly gay African-American member of a state legislature in the U.S.

State constitutional amendments - The Colorado right to life constitutional amendment is again on the ballot; in 2008, it got only 27% of the vote. Time to put a nail in the coffin of this idea. 

Quiz: Which is more terrifying, the Iowa Supreme Court or this ad?

 

And what's even scarier is that the Des Moines Register reports that polls show a tie between supporters and opponents on the retention vote for the three state supreme court judges on the ballot, all of whom joined the ruling that gay couples must be allowed to marry.

See other attacks on judicial independence at Slate.  HT: Doug Nejaime.

Mainlining money into elections

The following two charts from the Sunlight Foundation compare this election cycle to the midterms four years ago to illustrate how dominant "independent" campaign groups (which accept unlimited donations) have become. A detailed breakdown shows that they are overwhelmingly Republican.

Supreme Court sends battle over release of petition signers' names back to lower courts

The Supreme Court ruled today in Doe v Reed that individuals who sign referendum petitions generally do not have a First Amendment right to remain anonymous.  But the Court also held that courts should consider the particular facts in any given case to determine whether anonymity is constitutionally required.

Blocking disclosure would be constitutional, the Court holds, "if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed."

Reed arose when a group called Protect Marriage sought to block release of the names of those who had signed a petition to put R-71 - a measure to stop the implementation of a state domestic partners law - on the ballot. (Voters defeated R-71 in the 2008 election, allowing the partner registration system to take effect.) A generally applicable state public records law authorizes the release of the names and addresses of those who sign referenda petitions, and several pro-lgbt groups requested that information. (More background here and  here.)

Protect Marriage argued that individuals who oppose lgbt rights fear harm because of possible retaliation by lgbt advocates, and therefore should have their identities kept private. The Court ruled that release of names and addresses of petition signers was normally justified by the state's interest in protecting against election fraud, i.e., against individuals signing a petition multiple times and/or using forged or invented names.

The case will now go back to the lower courts for a determination of whether there is a reasonable probability that signers of this petition would suffer harm if their identifying information is released. Key to that assessment will be evidence that the fear of such harm is exaggerated or fabricated. An excellent amicus brief filed by Lambda Legal and several other lgbt organizations was before the Court in Reed, and was doubtless a factor in producing some of the strong language in the Sotomayor and Stevens opinions (see below).

Although the bottom line result was a lopsided 8 to 1 split among the Justices (Thomas dissented), the reasoning was fragmented. The opinion of the Court, written by Chief Justice Roberts, stressed that the state had ample justification for treating referendum petitions as releasable public records, absent a showing of special circumstances. Justice Scalia, on the other hand, concurred in the result but wrote separately to make clear that he believed that there never should be an exception made to the law providing for name disclosure.  Other concurring opinions favoring disclosure, and suggesting that this would hold true for the R-71 names, were written by Justices Sotomayor and Stevens.

Justice Sotomayor, joined by Justices Stevens and Ginsburg, wrote:

...[T]he process of legislating by referendum is inherently public. To qualify a referendum for the ballot, citizens are required to sign a petition and supply identifying information to the State. The act of signing typically occurs in public, and the circulators who collect and submit signatures ordinarily owe signers no guarantee of confidentiality. For persons with the “civic courage” to participate in this process, (opinion of Scalia, J.), the State’s decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing. Disclosure of the identity of petition signers, moreover, in no way directly impairs the ability of anyone to speak and associate for political ends either publicly or privately.

This three-some believes that persons seeking anonymity have to demonstrate that they face the kind of threats experienced by civil rights workers 50 years ago:

Case-specific relief may be available when a State selectively applies a facially neutral petition disclosure rule in a manner that discriminates based on the content of referenda or the viewpoint of petition signers, or in the rare circumstance in which disclosure poses a reasonable probability of serious and widespread harassment that the State is unwilling or unable to control. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). Allowing case-specific invalidation under a more forgiving standard would unduly diminish the substantial breathing room States are afforded to adopt and implement reasonable, nondiscriminatory measures like the disclosure requirement now at issue. Accordingly, courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution,which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.

Justice Stevens (joined by Justice Breyer) expresses even deeper skepticism:

Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the [Public Records Act] to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated bylaw enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech. A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are."

Justice Alito also concurred in the result, but would use a far more lenient standard to assess whether Protect Marriage should be given an exemption from the disclosure rule. Noting that the Court was quite sympathetic to the concerns of potential witnesses in Perry v. Schwarzenegger when it blocked the televising of the trial, Justice Alito wrote that:

The widespread harassment and intimidation suffered by supporters of California's Proposition 8 provides strong support for an as-applied exemption in the present case...[I]f the evidence relating to Proposition 8 is not sufficient to obtain an as-applied exemption in this case, one may wonder whether that vehicle provides any meaningful protection for the First Amendment rights of persons who circulate and sign referendum and initiative petitions.

The only Justice who did not write or join an opinion other than the opinion of the Court was Justice Kennedy.

In sum, this battle isn't over yet, although Protect Marriage will have to meet an extremely high standard to block the release of names. In my view, this is exactly the right result.  I would not have been comfortable with a ruling declaring that there could never be constitutional protection for keeping the identities of petition signers private. At the same time, four Justices make quite clear that they are suspicious that the manufactured hysteria over fear of gay retribution is just that.

November elections could change the face and tone of Prop 8 litigation

Karen Ocamb, at LGBT POV, is pointing out the importance of this year's elections to future stages in the fight over the validity of Prop 8:

Barely mentioned in coverage of the closing arguments was the extremely important political context in which these arguments are being decided.

This November, Attorney General Jerry Brown – who refused to defend Prop 8 in court because he believes it’s unconstitutional – is running for governor. It is likely that if elected, he will continue to refuse to defend Prop 8 in court – just as Gov. Arnold Schwarzenegger has done. However, if Brown’s Republican challenger Meg Whitman is elected, the case might change. Whitman voted for Prop 8 and will likely order that it be defended in the Ninth Circuit, joining Cooper and the Protect Marriage group.

Additionally – San Francisco District Attorney Kamala Harris, who is running to be Attorney General – says that she, like Brown, would refuse to defend Prop 8 in court. However, her opponent, Los Angeles District Attorney Steve Cooley said he would defend Prop 8 in court.

Everyone, on both sides, expects Judge Walker to rule that Prop 8 is unconstitutional. Then the case moves to the Ninth Circuit, where the plaintiffs could face a significantly tougher bench. In the trial court, the defenders of Prop 8 have seemed almost pathetically the odd man out, sometimes to the point of laughter in the courtroom. If the state of California takes an active role in defending Prop 8 in the Court of Appeals, that dynamic could shift significantly.

There's a lot in play before the Supreme Court in Doe v. Reed

In terms of litigator star power, the case being argued before the Supreme Court today - Doe v. Reed - comes in a pretty distant second to the one the Court heard 10 days ago - Christian Legal Society v. Martinez. The CLS case featured a former Solicitor General arguing against a star scholar turned 10th Circuit judge, now returned to the academy.  Yet the CLS argument turned into a messy hash over the facts, and the case may end up with no decision on the merits. By contrast, Reed may lack superstar lawyers, but in the end it could produce a far more important decision.

In Reed, Petitioners are challenging the constitutionality of a Washington state statute that provides for the public disclosure of the names of persons who sign petitions to put a referendum on the ballot. The case arose out of a dispute over Referendum 71, which gave voters the option to repeal the state's domestic partners law, an option they declined.

The lgbt angle of the case is more than coincidental because petitioners and their supporters have argued for all it's worth - and gauging what it is worth may become a key factor in the case - that gay rights advocates intimidate people who support proposals like Referendum 71 or Prop 8. If nothing else, the case has provided an opportunity for Lambda Legal and other lgbt rights organizations to file a powerful amicus brief detailing the irrationality of those claims.

As I have noted before, the gay intimidation argument has surfaced as this year's latest variation on the old standby that gays control the banks -- oops, sorry, that was the Jews, but the gays control something they shouldn't control, which threatens right-thinking people. It is the conservatives' favorite new anti-gay argument, and the outcome in the Reed case may measure how far it has gotten them.

Doctrinally, Reed is all about speech. It pits an argument that signing a petition should be treated as core political speech, subject to the highest level of scrutiny, against an argument that the government has important interests in transparency and protection against fraud in signature-gathering that trump individual privacy. Lots of good questions, from both perspectives, seem likely -- the case is one of those professor or judge dream situations, in which it is easy to play devil's advocate from both sides.

Gay rights is not the only or even the major frame into which this case fits. The lawyer arguing for protecting the anonymity of those signing petitions is James Bopp, a conservative cause lawyer who successfully argued the Citizens United v. FEC case, which deregulated  corporate campaign contributions. Bopp has said that the Reed case is a stepping stone toward his long-term goal of eliminating all limits on financial contributions. His role has drawn an amicus brief in Reed from the Brennan Center at NYU Law School, which does not support either party, but stresses that financial contributions should be treated differently (and be made subject to more disclosure) than the identities of those who signed petitions.

All of these dynamics are operating at a moment when the Court seems to be on a libertarian streak in First Amendment issues - first the Citizens United opinion, then the unanimous rejection of a ban on videos depicting cruelty to animals. The Court's decision in Reed is likely to either consolidate or offset this nascent trend. Given how late in the term the case is being argued, it will almost surely be one of the last opinions issued - probably in early to mid June. But it may also be one of the most significant public law opinions this term.

2009 election run-offs UPDATED: Bell makes history in Georgia, Parker in Houston

Simone Bell will become the first African-American lesbian member of a state legislature when she takes office as representative of the 58th Assembly district in Georgia, representing parts of Atlanta. She placed second among five candidates on election day, and then won the Dec. 1 run-off with 56% of the vote.

On December 12, Annise Parker became the first openly gay mayor of a major city, winning a run-off election in Houston.

[This post wraps up the 2009 election night results.]

Gay marriage after Maine

As heartbreaking as it was for the people on the ground and as callous as this may sound, Maine 09 was just another move in the two steps forward, one step back dance that social change movements are. The overall strategy on marriage has been to win in enough states to create a tipping point before seeking a nationwide resolution. Perry v. Schwarzenegger, the big gamble of a case now in federal court in California, might change that strategy, but a loss in any one state won't. Instead, what comes out of Maine are little lessons that are new and big questions that are old.

The little lessons are tactical points: Heavy turn-out is not necessarily a good sign for a minority rights issue. Religiosity isn't everything (Maine is one of the four least religious states in the country). A huge fundraising advantage may be necessary but definitely is not sufficient. And we should trust only automated polling - when people respond to other people instead of to computers, a chunk of them say they will vote to legalize gay marriage, then actually cast their ballots against it.

More importantly, here are three major issues reinforced by the Maine experience as ones that people need to wrap their minds around:

+ Marriage is different. For lots of progressives and lgbt people, marriage is simply the next frontier in an expanding civil rights movement. (Personally I dissent from the view that legalizing marriage is the apex of our goals, but I digress - that's another post.) We visualize it as linear because that is how we conceptualize it. But for a huge number of other Americans (at least if they are over 35), marriage really is different. Really different. Really. Maybe our team should consider ways to acknowledge that feeling without endorsing it.

+ Time may be on our side in the long run, but in the very short run of an election campaign, time feeds doubts about jettisoning the status quo. Both in Maine and California, early polls showed the good guys winning, but that lead evaporated in the run-up to the election. Draining a swamp of fear and prejudice can't be done with a three-month campaign, even a smart one.

+ Lastly, if the post-election surveys that are about to be done (if they haven't begun already) indicate that the homosexuals-indoctrinating-children-in-schools attack was as effective in Maine as it was in California, the gay marriage forces may want to consider an inoculation against that, even if the inoculation is painful. Let parents of young children register with the school if they want to opt their children out of teacher-initiated discussions of gay marriage. Not out of discussions of gay people and their families, but solely and specifically discussions of marriage. Most parents won't do it; most teachers won't be affected. It could make a difference.

Election night results - Kalamazoo equal rights ordinance wins; gay candidates win in St Pete, Detroit, Akron, & Chapel Hill; Republicans take NJ & VA

Midnight sign-off - Things look grim for the No on 1 campaign in Maine, although no one has called the race. There might be a recount. In Washington state, however, the Approve R71 side is winning. It's been a really bad night for the Dems: the only good news for them is that the Republican civil war in NY 23 seems to have handed the district to the Dem candidate, Bill Owens. Right now it's looking like the bad guys won the big ones tonight.

[See Races to Watch for background on each]

VA - A Republican sweep, installing an openly anti-gay Governor and Attorney General.

St. Petersburg, FL - Steve Kornell wins City Council seat.

The Kalamazoo civil rights ordinance has won. Sex/o and gender identity protections will go into effect, despite a vicious anti-trans campaign.

Mark Kleinschmidt has been declared the winner in the race for Mayor of Chapel Hill, NC.

Charles Pugh not only won a Detroit City Council seat, he placed first in the entire field running for at-large seats, thus becoming City Council President.

Christie has won NJ - bad news for Obama, the Dems in Congress, and health reform.

Sandra Kurt beat back anti-gay attacks, won Akron OH City Council seat.

With 92% of the votes in, Annise Parker leads the race for Mayor of Houston, but will face a run-off election December 12.

CORRECTED - Simone Bell came in second out of five candidates in the race for a Georgia state assembly seat, and will be in a run-off election December 1.

Progressive Dem Gordon Smith won a City Council seat in Asheville, NC.

 

Washington state returns may take several days

Because Washington state is now totally a vote by mail jurisdiction (with one very small exception in one county), the only results that can be announced tonight for Referendum 71, on whether to validate a civil union-style partner registration law, will be those ballots that are received by today.  However, ballots will be counted if they are postmarked by today, so there could be thousands of outstanding ballots. 

From the yes on 71 campaign:

Election night trends may not be meaningful unless they show Referendum 71 being approved, in which case, the outcome will be almost certain.  This is because King County will be slow to report its ballots. ... [E]lection night returns may not show Referendum 71 being approved, or showing as wide a margin of support as will be reflected in the final results. Washington is a vote-by-mail state. King County, which includes Seattle, is Washington’s most populous county and is expected to strongly favor approving Referendum 71.   King County will not have many of its ballots counted until several days after the election.  During the 2007 election, a similar dynamic occurred with an education measure supported by the progressive community known as “Simple Majority.” On election night, this measure appeared to be failing by 38,000 votes, but ultimately passed by over 10,000 votes.  And in this election, voters seem to be holding onto their ballots longer because they are undecided about the Seattle mayoral race.

Races to watch on election night

>> LGBT rights: Danger in Maine

Maine - Winning the ballot referendum on Maine's new marriage law would provide a huge psychological boost to gay marriage advocates because it would mark the first time that a pro-gay marriage position has won a popular vote. But -- the final poll (conducted yesterday and Saturday) shows a disheartening slippage for No on 1 / retaining gay marriage. The Public Policy Institute results two weeks ago were a 48-48 tie; the final weekend results were 51-47 in favor of repealing the law. However, statistically the race remains too close to call, and which side runs the best get-out-the-vote operation on Tuesday will likely determine the outcome. Nate Silver remains quite optimistic.

Washington Referendum 71- In May, Washington state Governor Gregoire signed into law SB 5688, which essentially amended the domestic partnership law to add all of the rights and responsibilities of marriage which had not been part of the original DP package (e.g., certain adoption rights and pension and health benefits for public employees). R71 asks voters whether they want to allow the new law to go into effect or repeal it. Polls show that the full DP law is likely to be retained.

Kalamazoo, MI - Kalamazoo voters will decide whether an anti-discrimination ordinance enacted by the City Council that adds sexual orientation and gender identity protections will take effect or be repealed. The no campaign has centered on scare tactics about "the bathroom issue," ie whether MTFs will invade the privacy of other women using restrooms. The pro-ordinance forces have poured in more money than Kalamazoo has ever seen spent on a local election, reporting more than 10 times what the other side has spent, including $75,000 from NGLTF.

>> How much or how little you can expect from the Dems in Congress next year

New Jersey Governor and Virginia Governor - If Corzine can survive in NJ, Dems on Capitol Hill may feel a tiny bit safer voting with the Democratic wing of the Democratic Party. Whatever happens Tuesday, there will be a lame duck session of the NJ legislature shortly after the election, during which New Jersey may well become the next state to allow gay marriage.  In Virginia, even though the state went narrowly for Obama in 2008 and has had Democratic governors since 2001, polls show the openly anti-gay Republican candidate, Robert McDonnell, far ahead. McDonnell has vowed to rescind the current executive order protecting gay state government employees from discrimination.

>> How far to the right you can expect Republicans in Congress to go next year

NY 23 - This is the race for a vacant seat in the House of Representatives in which right-wing purists drove the Republican Party nominee (Assemblywoman Dede Scozzafava) out of the race, complaining that she was soft on abortion and gay rights. They endorsed Conservative Party candidate Doug Hoffman, and Hoffman became a cause celebre for the right. Scozzafava dropped out and endorsed Democrat Bill Owens. If Hoffman goes to Congress, the GOP purists will be ecstatic.

Individual candidates

Annise Parker hopes to make Houston the biggest American city with an openly gay mayor. Now Houston's controller, she's won citywide offices six times.To win the top job in Houston, she's going to have surmount an anti-gay smear campaign, exemplified by the flyer to the right. Multiple candidates are running, so it is quite likely that no one will get a majority of votes. Hopefully Parker will finish first or second, and go into the Dec. 12 run-off election.

Steve Shannon is running for Attorney General of Virginia.  In this race the concern is not so much for electing Mr. Shannon as for not electing his opponent, Kenneth Cuccinelli, who told a  reporter that he believed that homosexual acts are "intrinsically wrong. And I think in a natural law-based country it's appropriate to have policies that reflect that."

Simone Bell (left), a community educator in Lambda Legal's Southern Regional Office in Atlanta, is running for a seat in the Georgia state House. If she wins, she will become the first out African-American lesbian ever elected to any state legislature.

Mark Kleinschmidt, an openly gay public interest lawyer who specializes in representing defendants on death row, is running for Mayor of Chapel Hill, NC. A weekend poll shows him trailing Matt Czajkowski by only 1 per cent.

Steve Kornell - A longtime advocate of anti-bullying legislation, Kornell is a school social worker who would be the first openly gay person on the St. Petersburg, Fla., City Council.

Sandra Kurt, an lgbt community leader, is running for City Council in Akron OH, and also facing hateful attacks.  One flyer implores voters not "to place the 8th Ward City Council seat in the hands of a political activist with a clear agenda to create ... social disorganization." 

Charles Pugh (right), a former television and radio  journalist, is running for a City Council seat that would make him Detroit's first openly gay elected official.

Progressive therapist/blogger Gordon Smith is running for City Council in Asheville, NC, and has reached out for lgbt support by promising to press for domestic partner benefits for city employees.