Chances are good for a “blue” wave on Election Day that will sweep Democrats into power in the U.S. House, but over in the Senate, the odds favor Republicans maintaining control and possibly even gaining seats — a chilling prospect for LGBT rights supporters despite anticipated victories elsewhere.
Such an outcome would mean the Republican-controlled Senate would continue green-lighting the Trump administration’s anti-LGBT appointments and block any pro-LGBT legislation approved by the House.
The Democrats’ best chances for pickups in the Senate — Nevada and Arizona — are now in serious question. In Nevada, incumbent Sen. Dean Heller (D-Nev.) has consistently polled ahead of Democratic challenger Jacky Rosen by single digits, although his lead is within the margin of error. In Arizona, where bisexual candidate Kyrsten Sinema is seeking an open seat, polls are back and forth and it’s unclear who has the advantage between her and Republican candidate Martha McSally.
Democrats also may lose seats in Missouri and Indiana and are likely to lose a seat in North Dakota. Recent polls have shown Sens. Claire McCaskill (D-Mo.), Joe Donnelly (D-Ind.) and Heidi Heitkamp (D-N.D.) trailing their Republican challengers. In Heitkamp’s case, much of the polling has shown to have a deficit in the double-digits.
In Florida, polls have given Sen. Bill Nelson (D-Fla.) a modest edge over Republican challenger Gov. Rick Scott. But the race is still essentially tied and could go either way.
One bright spot for Democrats is the re-election campaign for Sen. Tammy Baldwin (D-Wis.), the only out lesbian in Congress. Once thought to be a competitive race, Baldwin in recent polls has been ahead of her competitor, State Sen. Leah Vukmir.
Republicans currently hold a 51-seat majority in the Senate and Democrats would have to run the board in a year when many of their seats were up for grabs to win control of the chamber. Even though polling predicts a good year for Democrats, particularly in the House, Republicans are the favorites to hold on to the Senate.
If those predictions play out, anti-LGBT appointments and judicial nominees from the Trump administration requiring Senate confirmation would continue to go forward.
Sharon McGowan, chief strategy officer for the LGBT legal group Lambda Legal, said control of the Senate will be crucial in determining whether Trump’s judicial nominees will continue to go forward or be halted.
“The Senate plays an incredibly important role in terms of confirming the president’s nominees — not only to the Executive branch but even more importantly to the judiciary,” McGowan said. “As we have seen, many of Trump’s most controversial judges have either squeaked through by a party line vote. But others, like Ryan Bounds, have been turned back by just one or two GOP skeptics. So who controls the Senate — even if only by a razor thin margin — will likely determine what kind of federal judiciary we will have for the next 30-40 years.”
Under the status quo with Republican control, anti-LGBT judges will likely still go forward like newly confirmed U.S. Circuit Judge Kyle Duncan, who filed legal briefs against marriage equality and sought to block Virginia transgender teen Gavin Grimm from using the boys’ room.
Sharita Gruberg, associate director of the LGBT Research & Communications Project at the Center for American Progress, echoed the possibility of the Senate continuing to confirm anti-LGBT nominees.
“If Republicans retain control of the Senate, we will continue to see the rapid confirmation of anti-equality judicial nominees,” Gruberg said. “The Senate has already confirmed 84 of Trump’s judicial nominees, the vast majority of whom have a clear anti-equality record.”
House Minority Leader Nancy Pelosi (D-Calif.) has promised to move forward with the Equality Act in the House if the Democrats win control. But with Republican control of the Senate the pro-LGBT legislation would advance in one chamber, but be bottled up in the Senate.
Gruberg said despite the advantages of a Democratic-controlled House, efforts to pass pro-LGBT legislation would be in vain if the GOP still controls the Senate.
“Democratic control of the House will prevent the Senate from passing anti-equality legislation,” Gruberg said. “But a divided Congress combined with the president’s opposition to pro-equality measures means long overdue comprehensive non-discrimination protections for all LGBTQ people likely won’t be enacted either.”