Court victories could hurt at polls

Sometimes victories can have negative side effects. If Democrats didn't already have an uphill struggle in next month's elections, a victory in the courts could end up being a handicap at the polls.

Supporters rejoiced at a series of federal court victories that made same-sex marriage legal in a majority of the states, but those victories could cause pain at the polls for Democrats, who have generally supported the "marriage equality" efforts. But victories in court could cause a backlash at the polls. When same-sex marriage has been on the ballot, it has lost in almost every case. Conservative voters might rise up to protest the courts' imposition of a right that most state legislatures and most voters in statewide referendums had rejected. Polls indicate that public opinion has shifted on the same-sex marriage issue with a narrow majority now accepting the gay marriage. But it's turnout, not opinion, that determines election outcomes.

In elections that are extremely close or uncertain, firing up a small segment of the electorate to turn out can sway an election, and that might be what we will see in two weeks. Narrow Senate races, including the one in North Carolina, could be decided by conservative voters who turn out to protest federal court decisions that they see as immoral or unnatural. With the Senate so tightly contested, a shift in one or two states could determine which party controls the Senate next year.

Already, some commentators are blaming the Senate for approving nominees to the federal judiciary. Voters don't have a say in judicial appointments, but they do have a say in who serves in the Senate. Blaming a Democratic candidate for the actions of a federal judge might be unfair, even unreasonable, but an emotional, irrational reaction can change an election.