game 7 for the giants. third time in five years. extraordinary. bill: i don't know how you do. that have a great day. martha: bye-bye jon: for royals fans there is always next year, right? down to the final days before the midterm elections, one top political analyst is making a big bet on which party will prevail. welcome to "happening now." i'm jon scott. shannon: i'm shannon bream in for jenna lee. this election cycle was marked by millions spent on ads and ferocious campaigning. as the question remains, who will take the gavel come january? we have tight races in key battleground states around the country and looks like anyone's game. we may get new clues where the races are headed. jon: let's bring in larry sabato. director of university of virginia center for politics. spends a lot of time looking

into the crystal ball. it has been cloudy of late. anymore clarity today? >> we said bet on a gop majority. you know, jon, we're very cautious at the crystal ball and we're never 100% sure of anything. i'm not sure that the sun rose this morning. i haven't seen it yet but i assume it did. given the fact that republicans have so many more ways to accumulate 51 seats for the senate and seem to be doing so well in many of these swing competitive purple states. we believe there is two in three chance that the republicans will have that 51 plus seat majority. jon: there is so much talk about momentum right now and that republicans have momentum. do you agree with the concept and how does it translate into the polls? >> it is interesting, jon. it is true in some states and not others.

we have is federal system and some are more state based. some states have no contest and others have incredibly incontinues contests for senator and governor. what i've seen contradicts the notion after wave or tsunami. i don't think that is what is happening. that what i have seen is white caps in specific states and districts that are favoring generally the republicans. there are some exceptions and democrats are holding on in someplaces where republicans didn't expect them to. but with the critical final days are here, at the very end, the small percentage of truly undecided voters will break and if they break heavily to the out of power white house party, which frequently happens, then republicans might do even better than expected. jon: you point to five states where democrats are in real

peril. louisiana, arkansas, where the republican challenger leads five points or more? >> not virginia. west virginia. that seat is gone for the democrats. the republicans have taken over west virginia, montana, and we think for south dakota which for a while it looked in doubt. i think it is almost inevitable that the republicans will win either louisiana or georgia or both. and then you have other states on the margin where the republican is narrowly head like cory gardner in colorado or joni earns in iowa. -- joni ernst. alaska is one where the poles polls are all over the place. it is getting tougher and tougher for democrats to find a way to keep 51. you can find a way for them to get 50-50, to the biden majority where vice president biden would

break the tied senate like vice president cheney did in the first half of 2001. jon: what about kansas? that is interesting race where the sitting senator pat roberts now in danger of losing his seat to a man who calls himself an independent. how do you see that race shaking out? >> it is truly absolutely tied. we spent time two days ago checking in with good source on both sides. everybody is just flummoxed by that race. it remains in a total tie. i think orman the independent is up slightly in the polling averages but both of them well below 50. that will be one of our last calls, frankly. jon: all right. how much is about president obama's policies and how much is about the individual races and

frankly what you called screw-ups on the part of sitting senators? >> jon, i think the most important thing by far is that president obama's approval rating in most of these states which tend to be conservative. that is where the key races are for the most part, certainly for the senate. so you have to look for presidential job approval. when it is in the 30s, that is a big, big burden on white house party's candidates, in this case democrats. you can't avoid that. that is the center of the environment fundamentals of 2014. >> all right. larry sabato, the man with the crystal ball who now says look for a republican senate after next week. larry, we'll talk to you again i'm sure. >> we'll see. >> yeah, we'll see. >> thank you, jon. jon: as you know fox news channel is america's election headquarters. on tuesday starting at 6:00 p.m. eastern time, bret baier and megyn kelly will cover all the political results.

also stay connected with foxnews.com for the latest developments. shannon: well numbers are in and the american economy grew once again last quarter, even beating expert's forecasts. gross domestic product is up 3 1/2% according to the commerce department. that makes two healthy quarters in a row of the growth powered by business investment, exports and surge in military spending. meanwhile the labor department says number of people applying for unemployment benefits rose slightly last week to seasonally adjusted 287,000. jon: overseas, chilling revelations that as many as 30 former gitmo detainees over the last three years might now be fighting with isis and other militant groups on battlefield in syria, migrating from the european and african countries which agreed to receive them from the u.s. this according to intelligence sources. we're also learning that of the 620 detainees released in recent years, defense officials suspect 108 of them have return to the

fight. >> meantime a former pentagon official confirming to fox news that a top target and commander of isis has been on the government's radar for more than a year but obama administration only designated him as a terrorist last month. chief intelligence correspondent catherine herridge is live in washington to explain this all. catherine? >> reporter: thank you, shannon. a former pentagon official says handling of isis commander and delay ever placing him on list of known terrorists is another example of american station's denial of rising threat in iraq and syria. he was only ding flit nated as known terrorist in september losing valuable time to target him. he is a battle hardened fighter credited with seizing control of iraqi military bases and american weapons of mass destruction. as one of the most capable isis commanders strengthens its ranks two sources from the intelligence committee say the american campaign disrupted and not degraded the capability of

isis's khorasan group in syria who operatives are actively plotting against the u.s. airline industry. they have operatives with longstanding ties to usama bin laden network including this man who is described as leader of al qaeda's victory committee which provides strategic guidance for the network. there has been no data including chatter between known terrorist operatives or martyrdom video to know they were killed in the strikes and intelligence committee believe khorasan group was anticipating how to recover even before the air campaign was launched. >> well, this is a very, these are very seasoned this, is a seasoned group. they have been around for a long time. so this was an event of disruptive type in nature but they already knew what that meant for them and what they would have to do to recover from this as quickly as they can and then re-engage in their operational tempo. >> rogers says based on the u.s.'s experience in pakistan

and yemen they would need to bring the same frequency or tempo if you will to the strikes in syria and iraq to have the same kind of success keeping a lid on these terrorist groups, shannon. shannon: catherine herridge in washington. thank you. >> reporter: you're welcome. jon: a nurse who volunteered to help ebola patients in africa is putting up a fight over a proposed involuntary quarantine. in fact she went for a bike ride with her boyfriend this morning. kaci hickox is home in maine after her forced isolation in new jersey. state officials say they can not force her to stay put at home unless a judge signs off on it. rick leventhal is following story from new york's bellevue hospital where a doctor is recuperating from ebola. ric, what is the latest? >> reporter: jon, it is not every day that a bike ride with your boyfriend makes national news but kaci hickox is at center of ebola storm and openly defying the state of maine's 21-day quarantine order. she rolled out of the fort kent home before 9:00 a.m. with state

troopers following her to see if she had interaction with the public. the state said the quarantine is common sense protection since hickox had direct contact with ebola patients in sierra leone and west africa and can take three weeks for symptoms to appear and state is seeking judge's permission to allow officers to arrest hickox if she refuses to stay with home confinement. she offered comprises using her own car, not using public transportation and not leaving area near her home. she says she is great and doesn't have ebola and following cdc guidelines which self-monitoring and shouldn't be deproud of her constitutional rights. >> did you go out later today? >> did you talk about taking this last night? >> no, this morning, kent and i said we wanted to go for a bike ride you. >> guys do often? >> yes we do. >> thank you, guys. i have to go speak with the health department now.

>> reporter: as if the story couldn't get any stranger or more convoluted, jon, the governor of maine said he would consider dropping quarantine order if kaci hickox would take a blood test to prove she doesn't have ebola. she has been exposed and not cooperative. to force her to take a test so simple. medical experts say that is not simple. she could have ebola and wouldn't show up on a blood test until she starts becoming symptommic. we'll have to see where this one goes, jon. jon: what a mess. rick leventhal, thank you. so who has the burden of proof here? does kaci hickox have to show she is not contagious or does the government have to prove she is a real danger to others? later on "happening now" we'll put that question to judge andrew napolitano, our fox news senior judicial analyst. shannon: a deadly case of road rage leading to a standoff with officers and senseless death of a woman and four children left behind. we'll have update on the case.

plus one more weekened to get-out-the-vote till the midterms. what should candidates do to get their people to the polls. you will hear from democratic congressman steve israel and republican advisor karl rove. we want to hear from you with some polls showing some races coming down to the wire what strategy should they have in the final days before the midterms? go to foxnews.com/happeningnow and click on "america's asking," and please join the conversation. you're here to buy a car. what would help is simply being able to recognize a fair price.

that's never really been possible. but along comes a radically new way to buy a car, called truecar. now it is. truecar has pricing data on every make and model, so all you have to do is search for the car you want, there it is. now you're an expert in less than a minute. this is how car buying was always meant to be. this is truecar. ♪

jon: right now new information on some crime stories we're watching. in the sentencing retrial of convicted killer jody arias defense attorneys will begin presenting evidence today, hoping to convince the jury to spare her life. arias was convicted last year of murdering her boyfriend but the jury could not agree on a sentence. lawyers for former new england patriot player aaron hernandez set to appear before a judge requesting his trial be moved because of intense pretrial media coverage.

hernandez is accused of murdering a semipro player last year. he is pleading not guilty. road rage murder suspect arrested in oakland, california. police say that angry motorist shot and killed a mother of four who was in the passenger seat of a car with her husband. shannon: we're closing in on the midterm elections on tuesday as republicans hope to boost their majority in the house and gain control of the senate. democrats across the nation not feeling the love these days. is it economy, health care or the man in the white house? let's ask a democrat on the front lines, steve israel congressman from new york and chairman of the democratic congressional campaign committee. great to have you here today. >> thanks for having me on. shannon: you have said, basically trench warfare out there right now. you will not sugarcoat it. larry sabato, political analyst we had on moments ago, gop in his estimation is set to net nine seats in the house. so what is going on for the democrats? >> we, i'm not going to

sugarcoat it. it is tough terrain. it is presidential midterm election. every president's party has lost seats in a midterm. the average historic loss 29 seats. ronald reagan lost seats in his second midterm. so it is tough terrain. but here's the thing. there are still so many races that are just so tight, i have never seen anything like this, where you've got races five days before an election that neither side can call. and so i'm not going to tell you it will be nine or six or three. i'm going to tell you i think next election night will be a long night. but i promise to come back sometime after the election and tell you exactly how many seats we won or lost. shannon: maybe we can break it down a little bit. monday morning quarterbacking to find out. there are those warning maybe republicans are overconfident because races are well within the margin of error, they're very tight. do you think you will pull off upsets or surprises or the is die cast at midterms? >> i think there are surprises

both sides of the aisle, i think three days after and four days after, recounts people didn't expect, races nobody was paying attention to have suddenly been close and competitive. so i think there is going to be a lot of wednesday morning quarterbacking the day after the election because of the erratic nature of polling and the competitiveness of these districts. shannon: okay. so gop picks up house seats where they already have i believe 233 majority there, and if the republicans pick up control of the senate, what will your life be like? are there republicans you feel like you can work with in the house? we know there is bipartisan legislation comes through all the time. it doesn't make headlines but it doesn't happen. >> yes. i founded central aisle caucus with former republican congressman tim johnson where we focused not on our disagreements but where we agree. i will cries the aisle anytime i can to create any partnership i can to focus how we provide for. >> expansion of the economy for the middle class, refinance college debt. those are critical economic

issues confronting middle class and middle class expects us to work together on those issues. so whoever is elected, whoever is reelected, meet in the middle to get things done for the american people. shannon: house passed legislation, sometimes driven primarily by republicans but there are bipartisan measures and you agree on and often sits on harry reid's desk and goes nowhere in the senate. would you put pressure on him to get those things going. >> i would put pressure on everyone to drop politics. we're five days away from the election. best thing we can do for america, on sixth day, quit campaigning and politicking go to work for american people, both sides of the aisle, get down to work to solve middle class problems. shannon: you said get both sides to drop politics. do you hon he nestly think for either side, both sides? i'm not pointing fingers. there has been, there is lack of cooperation. >> if we elect problem solvers

who are willing to not pursue ideology, but pursue solutions it is possible. i don't know about the entire country but i know my congressional district on long island and queens, hardly anybody wakes up in the morning saying how can i make sure my country goes further to the right or further to the left? they wake up in the morning what will i do about taxes, traffic, my kid's education, my parents, my grandparents. those are the issues that the american people want us to work on and frankly i think the american people are fed up with the, ads that they're seeing and blaming everybody rather than getting down to work on how to solve problems. that is what i'm hopeful will happen in the next congress. and, we can get there if we focus on that middle ground. shannon: i do think regardless of party people agree they're done with the ads for now. >> i hope so. shannon: one weekend left. you have a busy weekend campaigning for your own seat. thank you for making time, congressman. >> great to be with you. jon: homeowners in hawaii facing a slow motion disaster. we've been watching this as a river of molten lava inches

closer to their houses every single hour. what the national guard is doing to try to keep people safe. there is also this. >> i don't really like unsolved mysteries myself. one of the things that we do is we find out what happened and right now we just don't know. >> well that was last month. why police now say they believe they know what killed a family of five. we have the breaking details in a live report.

jon: the national guard called out as more homes are threatened by lava on the by island of hawaii. take a look. a 2,000-degree river of lava could swallow a dozen hawaiian homes next couple days.

homeowners have no way to stop it. william la jeunesse live in the west coast newsroom with the latest. >> reporter: it is not if but when, jon the lava will over talk parts of pohoa built on a former sugar plantation. the lava became 100 feet from a home before slowing down. it is moving 10 yards an hour and a day or two away taking over main street threatening twelve to 60 homes. a new vent opened up in june on east side of kill lay waa. previously the lava flowed south into the ocean. the lava spills a million feet of new lava upstream potentially, definitely creating a new desert of blackrock on the big island. >> on mana loa, there was period where lava lasted for five centuries. if you look at the geologic record, for example, it could last another 30 years.

>> reporter: for perspective, kilauea did this in 1986, almost swallowing an entire town. eight feet high, the lava burned through homes. it overtook roads and it forced most to evacuate unable to grow vegetation or build landscape as uninhabitable. today's flow could force a similar fate on residents in pohoa. >> it is a little quiet village and very rural community. many people, they farm, we fish, hunt. and if we're going to be an island on an island. people meant to stay will stay and people that have to leave, sadly will leave. >> reporter: bottom line, it's watch and wait. realistically there is such a volume of new lava feeding upstream the outlook is not good. the leading edge is only 15 feet wide but it is wide as a football field, moving like a slow unstoppable tidal wave towards town. as you said the national guard

is in to hold security and keep the tourists at bay. back to you. jon: i guess the good news this is not a tornado or hurricane. they know it's coming. they can get their momentos and their stuff out of their houses but still got to be tough to watch. >> reporter: you bet. jon: william la jeunesse. thank you. >> right now police in utah say they likely know what killed a family of five found last month in the same room with cups next to their bodies. patti ann browne is live with the the break newsdesk to tell us who are. >> hi, shannon. last month three kids and their parents were found dead in their utah home. the cause of death was a mystery at first but a search warrant says they were poisoned. 37-year-old benjamin strack and his 36-year-old wife christie were found in their bed. 14-year-old benson, 12-year-old emory and 11-year-old zion, seeing in video taken during happier times were found on the floor of the same locked master bedroom. they were covered in bedding

which police say may have been put on after they died. all five had cups next to them. and investigators found empty bottles of methadone and 10 empty bottles of nighttime cold medicine in a trashcan. other than that police say there were no signs of what happened. >> there was nothing really out of the ordinary you know. there was nothing, nothing tipped over, nothing, you know, there wasn't food on the table. there wasn't anything that, would indicate, give us any indication of what happened. >> the bodies were found by an older son and grandmother who did not live at the home. police are not saying who killed the family or whether the parents were involved. toxicology test results are expected in late november. shannon? shannon: all right. just a devastating story no matter how it pans out. patti ann browne, thank you very much. >> thanks. shannon: jon? jon: five days away from the midterms. so where do things stand now? we will talk to karl rove, get him to crunch the numbers next.

plus ordinary americans targeted by their government. the latest on the irs scandal and how the results next tuesday could impact where the investigation goes next.

jon: fox news alert and a plane crash to report right now in wichita. mid continent airport, it is reported that a foxer business jet has crashed there.

you see smoke over the city. it is not clear whether the wreckage hit a building or came to rest near a building. i checked the weather met clear but wind at 18 knotts. we don't know whether that is a factor. that will be left up to the ntsb. the way the smoke is boiling to the left of the screen, very strong winds in wichita, that can always be tricky for the pilot. let's listen in to the scanner traffic into the fox newsroom. >> what is your visual up there? >> we have heavy -- on the roof here. we're worried about the brick coming off above it. >> heavy fire on the roof, you heard that apparently, firefighters say. so they have got their handful at mid continent airport in

wichita. we're told a hawker business jet. when we get more information we'll bring it to you live. shannon: a federal judge dismissed a lawsuit brought by tea party groups but they say the fight is far from over. russian bombers were spotted flying over eastern europe. what is russia up to and what will nato do if anything in response. a nurse in maine defying they are ebola quarantine going out for a bike ride today. we'll have the very latest on her showdown with the government. jon: there is a saying 80% or more of success in life is just showing up. midterm candidates are hoping for that come tuesday. our next guest says turnout will be a big factor. that will sway this election. let's bring if karl rove, former senior advisor and deputy chief

of staff to george w. bush, also a fox news contributor. who is just going to be showing up at the polls this time around, karl? >> well, each side will be focused on trying to get low propensity voters out particularly in the tight contests. we have four races, two on republican side with republicans leading and two with democrats leading in the senate contests, 2% or less dividing two candidates according to "real clear politics" average. that puts more spitting distance if the polls are correct of getting out the vote combination. a lot of races but particularly those four are heavily focused doing what they can to turn out the vote. jon: democrats say in past experience would suggest that they have the better get-out-the-vote operation. do you agree? >> well, that may have been true in 2012 and 2008 but we're already seeing evidence so far in the early voting that that may not be true in 2014.

each side has something to boast about. in colorado, your home state and my home state, the republicans, this year they're having mail-in ballots. everybody got a mail-in ballot. so the vast preponderance of the votes this year in colorado will be cast by mail-in ballots. so far republicans 84,602 person lead in return ballots over democrats. means if udall has to even that up, he has to carry 63% of the independents who have returned their ballots so far, unlikely to be the case. and in iowa, the democrats lead by 5145 ballots in the early voting. however at this point in 2010, they led by 18,000 and that was an election where they lost the governor's race by 53-43. so these two states looking good for republican get-out-the-vote machine. on the other hand democrats have gone from 20% of the early vote in georgia two weeks ago, being african-american, reaching their

30% target. in north carolina, even though the turnout is way down in early voting, there are 97,152 more democrats than there are republicans having early voted. however, in 2010, that is about 30,000 more, excuse me, 62,000 more than they had in 2010, their advantage but they still lost the election in 210 by 313,000 votes. is there is conflicting information coming out of north carolina even though on the surface looks good for democrats. jon: you think that colorado race is going to go republican? >> i think so. and look, the "real clear politics" average of reason polls is 3.3%, roughly about the margin of error. but if you look at it, at this point in the campaign, campaigns that lead by 3% or more almost inevitably win. if you average together their standing in the last 21 days of the campaign. now maybe there will be polls come out here in the remaining few days that skew that average down, move i had towards udall and away from gardner.

i say republicans are looking good obviously in three races where they lead by double digits, montana, south dakota, west virginia. they're looking good in arkansas where the real clear politics is five points, louisiana is four 1/2 but will go to a runoff. and colorado where it is 3.3. their march begins in alaska and iowa are inside margin of error, 2.2, 2.1 respectfully, but the republicans look like they're good shape in at least six contests with a shot two more where they lead and two more where they barely trail. jon: you talked about the states where republicans are doing well but there are a couple of states where republicans were expected to do well where they're having problems. i'm talking about georgia and kansas. where do you see those two races going? >> wel all, the most of the recent polls in georgia have shown the race swinging back in david perdue's column. i think it will go to a runoff but the momentum is clearly with perdue. in kansas we've seen pat roberts cut the lead in "real clear

politics" average from 10 points at 1st of october to essentially less than one point now. we don't have a lot of polling there, but again my gut says in a state where the momentum is going to be for republicans. remember, we're in off-year election and undecided voters at end tend to break against the white house party and virtually every contest. so if pat roberts is less than a point behind, his independent challenger who is voted for obama and is supported obamacare and so forth, i think momentum will be there to carry him across the line. he had a good performance in some of these debates. you're right, how complicated it is for republicans to have to worry about kansas which last elect ad democrat to the united states senate in 1932. and georgia, where, where republicans were thought to be in good shape until recent attacks by the democrats on david perdue's business record. jon: that is what is going to make november fourth such as fascinating day. karl rove with the whiteboard

watching it with us from austin. karl, thank you. >> you bet. morning of the 5th before we know. shannon: take a while to iron it out. five days to go until the midterms there are new questions about the future of the irs targeting scandal after a federal judge dismissed lawsuits last week brought by conservatives groups seeking damages for improper delays and scrutiny for their applications for tax-exempt status. with attorney general holder stepping down as well as leadership of the house committee spearheading the investigation in play, things are far from certain. chief congressional correspondent mike emanuel comes in with news from washington. hi, mike. >> reporter: shannon, we expect to learn soon what the next move will be for a tea party group after a federal judge ruled the case is no longer relevant because the irs eventually approved tax-exempt status for the organization. catherine engelbrecht from "true the vote" that the irs made unnecessary, burdensome and unlawful requests about the group's activities. since judge reggie walton

dismissed all counts of the lawsuit, she and her legal team are considering the next move. she says there is nothing to stop irs from targeting conservative groups again. some on the hill at head of the probe saying engelbrecht was treated poorly just for exercising her first amendment rights. >> never mind the fact they had to wait three years. never mind someone like catherine engelbrecht applied for tax-exempt status gets visits from fbi, harassed by observe sharks gets visits from atf, the texas department of environmental concerns and then, she gets audited personal and business by internal revenue service. >> reporter: congressman jordan is pledging to continue to investigation in a new congress, getting answers has been difficult for lawmakers since former irs official lois lerner refused to answer questions from them twice taking the fifth. some democrats say they are not comfortable with the irs's behavior. >> you know, i'm not a tea party guy myself but i did not like

the idea that the irs could target some those folks and, you know, i think there was a, it was a, it had the potential to be a very chilling impact on free debate and political activity in this country. >> reporter: all indications are efforts to investigate the irs targeting will continue in a new congress and with action in the courts. shannon? shannon: sound like it is far from over. mike emanuel live in washington. thank you. >> reporter: thank you. jon: fox news alert. we are just getting sad news out of boston that the long-time former mayor of that city, tom menino, has died. he just left office earlier this year after more than two decades as mayor of boston. tom menino was mayor at the time of the boston marathon bombings. he led that city, again through a couple of decades, very popular and beloved figure there. the longest-serving mayor in boston history. he had, his health had declined

in recent months especially and we understand that tom menino lost his battle with cancer just now. five consecutive terms in office. tom menino dies at the age of 71. jon: nato forces scrambling military jets to intercept russian warplanes after some strange flight patterns over the baltic states. and nurse kaci hickox going out for a little bike ride this morning. with a state patrol es court. -- escort. can the government force her to stay at home if she has no signs of ebola. her neighbors are saying they think she should stay put. >> we don't want her putting her wants and needs over the health and safety of everybody else. we just want her to understand that we only want to you do this as a precaution, just to make sure that you're not spreading it and that everybody else is okay.

i'm only in my 60's... i've got a nice long life ahead. big plans.

so when i found out medicare doesn't pay all my medical expenses, i got a medicare supplement insurance plan. [ male announcer ] if you're eligible for medicare, you may know it only covers about 80% of your part b medical expenses. the rest is up to you. call now and find out about an aarp medicare supplement insurance plan, insured by unitedhealthcare insurance company. like all standardized medicare supplement insurance plans, it could save you in out-of-pocket medical costs. call now to request your free decision guide. i've been with my doctor for 12 years. now i know i'll be able to stick with him. [ male announcer ] you'll be able to visit any doctor or hospital that accepts medicare patients. plus, there are no networks, and virtually no referrals needed. see why millions of people have already enrolled in the only medicare supplement insurance plans endorsed by aarp. don't wait. call now.

dentures with toothpaste or plain water. and even though their dentures look clean, in reality they're not. if a denture were to be put under a microscope, we can see all the bacteria that still exists on the denture, and that bacteria multiplies very rapidly. that's why dentists recommend cleaning with polident everyday. polident's unique micro clean formula works in just 3 minutes, killing 99.99% of odor causing bacteria. for a cleaner, fresher, brighter denture everyday.

jon: 13 minutes away from the top of the hour. let's check out what is ahead on "outnumbered." sandra, kimberly, what do you have. >> hi, guys. concern for vulnerable democrats after new polling shows stunning erosion in the party's base. key voting blocks that seem to move away from the left. >> legal showdown shaping up after a nurse who treated ebola patients overseas ignore her state's quarantine rules and goes for a bike ride with her boyfriend. >> good time for a bike ride. and from stripping to stumping, a candidate for lieutenant governor coming clean about the past. guess what? it's a guy and he is ahead in the polls. would it be the same if he were a woman, sandra? >> we'll discuss. all that plus our #oneluckyguy on "outnumbered" at top of the hour. please join us. jon: we're looking forward to that. thanks. shannon: well, speaking of that nurse in maine, defying state health authorities request she stay home, kaci hickox you remember returned from west africa where she treated ebola

patients but then was forced to spend last weekend alone in a tent essentially in new jersey before being allowed to go home. now the state of maine is considering a court order to keep her quarantined in her house. can the government do that? well let's talk about with our expert, judge andrew napolitano, fox news senior judicial analyst. >> shannon, good to be with you. shannon: we talked about this a few weeks ago when it was initially bubbling up in dallas and we polled the law in texas, state authorities have situations out of the ordinary they have tort to enact quarantines and make sure people stay put. different state by state though. >> different state by state. if she has a health care professional in maine agreed as a condition of accepting her license to be a health care professional, that if exposed to a contagious disease, she would have to comply with the cdc regulations for quarantine and she is not doing so, then the licensing authorities can come after her. but in terms of her human freedom, we start with the principle that she is free.

we all have the presumption of liberty in this country. she is free to go where she wants to go. if the government wants to restrain her, because it thinks she is going to infect some one, the government has to present its case to a judge. and the government has no evidence to present that. that is the reason after governor christie ordered her arrested at newark and confined her in a tent in a parking lot in downtown newark and she threatened, governor christie was advised, hey, boss we don't have any evidence. we're going to lose so they let her go. if the government wants to confine you do not have to prove you're worthy of freedom. the government has to prove you're worthy of confinement. shannon: what about the government's compelling interest here? by the way, governor christie said he didn't change his mind. this fit with the guidelines, if she could get to the home state -- >> i think governor christie was happy she left and no longer -- shannon: not a new jersey problem now. >> correct. no longer an issue in new jersey. i understand how the neighbors feel. i'm not a neighbor there. would i feel differently if i

lived next door to this lady and i had children, nieces and nephews that could be exposed to her, it would give me pause for thought. but as a person who likes to think i understand and explain the constitution she has the same constitutional rights as everybody else. there is no presumption that because she is a nurse, because she had a fever in you. >> jersey a week ago, because she worked in west africa therefore she is symptommic. shannon: do they have a compelling interest to come forward i have millions of people in my state -- >> yes they have compelling interest. shannon: i'm responsible for protecting. most of the case with health care workers. >> yes. shannon: she may be completely fine but i have obligation to make sure? >> fair to listeners because we're two lawyers compelling interest is the code phrase that the government must address this and must address it now but it still has to do so under the constitution. shannon: absolutely. that is always our guiding document, our guiding light. you're a guiding light as well, judge. >> you're very sweet. you're becoming a new yorker. shannon: you will get sick of me soon.

>> no way. pleasure he. shannon: jon? jon: we are not going to get sick of her. >> who could get sick of her? jon: integrity of the voting process called into question in one key battleground state. we'll tell you about it next. there's a new way to buy a car. just find the one you're looking for, see what others paid for it, lock in your savings, and get the car you want hassle-free. with truecar, it's never been easier.

i take prilosec otc each morning for my frequent heartburn. because it gives me... zero heartburn! prilosec otc. the number 1 doctor-recommended frequent heartburn medicine for 9 straight years. one pill each morning. 24 hours. zero heartburn. it's a fresh approach on education-- superintendent of public instruction tom torlakson's blueprint for great schools. torlakson's blueprint outlines how investing in our schools will reduce class sizes, bring back music and art, and provide a well-rounded education. and torlakson's plan calls for more parental involvement. spending decisions about our education dollars should be made by parents and teachers, not by politicians. tell tom torlakson to keep fighting for a plan that invests in our public schools.

jon: now to growing concerns about the possibility of voter fraud in the battleground state of colorado. karl rove just told you there are mail-in ballots this year and that is bringing questions about the impact of that controversial voter law and what it could mean to tuesday's elections. alicia acuna live in denver.

alicia? >> reporter: hi, jon. last year the democratically controlled legislature changed the law to require every registered voter receive their ballot by mail. critics say that makes this election ripe for fraud. >> we are the only, the third state in the united states trying this ridiculous experiment. >> anti-fraud advocate marilyn marks worries colorado first general election under the new mail-in voting system could be a mess. colorado is the third state after oregon and washington to have all mail elections. also new this year, same day registration without a photo i.d. >> i am worried about undo influence as i am about straight up fraud. >> undo influence come in the unions, churches employers asking folks to bring in ballots to fill them out together. equally worrisome is ballot harvesting. anyone in colorado can collect ballots from 10 other people and turn them in without any

oversight. >> colorado has no effect tiff way of determining whether an individual has collected more than 10 ballots at the present time. >> reporter: el paso county clerk, wayne williams, also republican candidate for secretary of state says he has received reports of ballots being sent to wrong places. >> the person has never lived at that address but because of voter registration drive turned in a form, the new law requires that person be sent a ballot. >> reporter: before the new law, 2/3 of colorado voters already cast ballots by mail. and jon, colorado already has one of the highest voter turnout rates in the country. jon? jon: alicia acuna, keep an eye on it for us, thanks. shannon: new next hour on "happening now," a jury deliberating the fate after millionaire businesswoman who admits killing her own son. was it act of mercy or murder? big day? ah, the usual. moved some new cars. hauled a bunch of steel. kept the sup

made sure everyone got their latest gadgets. what's up for the next shift? ah, nothing much. just keeping the lights on. (laugh) nice. doing the big things that move an economy. see you tomorrow, mac. see you tomorrow, sam. just another day at norfolk southern.

shannon: we'll see you back in an hour. jon: "outnumbered" begins right now.

♪ >> this is "outnumbered," i'm kimberly guilfoyle, and here today sandra smith, harris faulkner, kirsten powers and hashtag one lucky guy, arthur aidala, and he is outnumbered. welcome to the program. >> with an all-star cast. this is all a-listers, and i got permission today to refer to powers by her nickname, k.p.. >> oh! >> it's my special day, so i really feel like part of the family. >> she's a columnist, too, so you are really lucky. >> it is k.p -- >> well, i'll leave that up to her, the degree of respect she would like. >> harris loves your outfit. the red pops with her dress can too. >> skittles. >> i'm excited. >> all right. well, welcome to the program. and just five days out til the midterms, and brand new polls show some stunning erosion in the democratic base. presiden