we'll be back here on tv at noon eastern time. "happening now" starts right now. >> americans are casting the votes and determine which party controls capitol hill in president obama's final two years in the office. >> and breathing the latest from the campaign trail, this is "happenin "happening now". cappedidates are on the hot seat with senate races that are too close to call. which party will control the senate come january. >> the person on the right seat. human error or technology malfunction. >> look to unlock. >> new information on a deadly crash. can it tell investigators what went wrong? >> molten lava continues its

crawl on hawaii's big island. the target area is now growing. is there any way to stop the slow motion inferno. it is all "happening now". our top story right off of the bat, election day in america. forget all of the polls you have heard about in the past weeks or months. the only polls that matter are open right now. and this is in for jenna lee. americans are making their choices. at stake today balance of power on capitol phil this is how the situation stands in the senate. republicans need a net gain of six seats to take control. mike emmanuel is covering this angle for us. mike? >> reporter: after months of

campaigning and massive spending tis likely to be a late night with races that are expected to be close. nail biters are in new hampshire, north carolina, georgia, and louisiana, colorado and alaska. it is now up to the voters. they are hot races with control of the united states senate at stake. if the republicans can pick up a net of six seats or more. mitch mcconnell could be the next majority leader. he must win against democrat challenger grimes. and there is great interest on the senate race in iowa and replace tom harken. the hawkeye state has a spotlight on it. and traditionally the first caucus state. and this time around tis a competitive race between

republican joni ernest. and paroberts is facing independent businessman greg orman. kansas's had republican senators since 1932. there is voter frustration with washington gridlock. orman is a democrat. and if it is a nail biter night. potential run offs could extend the 2014 campaign in overtime january 2015, heather. >> we hope that is not the case. it might be interesting to recover. mike emmanuel in the capitol. >> and a stage is set for a run off in louisiana. landrieu is in a possible run

off with bill casside. election day could turn in to election month. john roberts live in the big easy with that, john? >> pretty good chance of that. twice before senator marylandrieu went to a run off. and it could happen dpaen today. she cast her own ballot in the broadmoore district. she is asking voters not to turn it on a referundum on president obama. >> is the president a drag on the election. >> i will worry it this way. the president's energy policies are contrary to our state and people are upset with him. his epa policies are not what they necessarily should be.

>> and landrieu is making case to look out for louisiana's state. and bill casside is telling voters if democrats take control of the senate the key stone will not get built. >> when she said her first vote is for senator harry reid, she's really saying, i will vote for the fellow to never allow the senate vote to occur. the highest election priority is harry reid. >> landrieu said harry reid is part of the problem. and she said she will do whatever she can to lean on harry reid to get key stone approved. >> john, thank you. >> and so the senate race in

louisiana is hardly a cut and dried thing. we'll talk about the unpredictable contest and the wild card candidate who could swing the outcome. >> the race in louisiana we were talking about is one of several that republicans need if they hope to win back control of the senate for the first time since 2006. we'll talk to david casside for u.s. news and world report. is there any one that you are looking to be a bell weather of how things will go for the rest of the country today? >> yeah, north carolina will close early at 7 or 8. if republicans can knock off senator kay haggin who had a small and consistent lead that is a good sign for republicans and i would say if they boat kay

haggin they probably have the senate. and new hampshire earlier in the night with scott brown and gene sha heen. it is a tougher game for republicans, but these are the first two states that will come in and some ways it could be an early night if republicans are winning those states and looks like a republican majority. and if they don't it could be in the west and longer night. >> so many of them are close together and certainly within the margin of error. the president has had so many missteps and why rrnt republicans further ahead right now? >> a lot of the states, democrats have had success in localizing the races. and the republicans wanted to nationalize it and make it all about president obama and you saw it in louisiana.

democrat landrieu doesn't want to be associated with him. she's wanting to talk about what she can bring. and in alaska ba gich talks about the fishing issues. and hunting issues. is that going to be enough when you have the president under 40 percent and in the 30s in a lot of the states that mitt romney carried. >> often the ground game is talked about. and president obama and what a great group he has in terms of getting out the vote. how are democrats, compare to republicans in the compare the get-out-the-vote. >> this is their saving grace. the polls look bad and we'll make up 2 or 3 points with our ground game. look to iowa and colorado.

this is where we heard the most about the democratic ground game and early vote. and colorado, it is an all mail in election and so most of the ballots are in. and it is just about counting them and now, it is targeting people who may not be interested in voting and who might can get if they are nudged to get to the polls, you can get them out. >> if the democrats have credibility, we'll see it in colorado and iowa. and polls show they are behind. >> and so much is going on. david catanese thank you. >> and for all of the midterm results. bret baier and megyn kelliy will anchor the coverage at 6 o'clock on the fox news chan and he will all the way through the morning and grab your cup of coffee. >> and we may not know for

a couple of months. >> homeowners in hawaii getting a reprieve. the river of lava is slowing and a help is coming from washington. >> and democrats are altering the make up of capitol hill. but what about the next election for president? what do you want to see accomplished in the final two years of the obama presidency? our live chat is fox news.com/click on america's asking and join the conversation. hey, how you doin'?

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>> president obama is declaring the lava flow in hawaii a disaster. that river of molten lava and rock from the volcano has been oozing in the direction of homes. there emergency officials say it

has stalled temporarily. it is 200 yards from a major road. the congressman who is a reservist has been called up foritute and her mission to help with the disaster relief. >> and the american's headquarters we are watching for control of the senate. and voters had to the polls and today's vote has ramification beyond the balance of power. and what can it mean to succeed president obama. and we'll talk about that possibility. a fox news contractor and edo'keef is here. >> welcome to both of you. >> president obama is in office because democrats have done a good job in presidential election years motivating

hispanics and black voters to get to the polls. and they tend to stay away from the polls in midterm elections. are democrats going to be able to mobilize them? >> no, they didn't get them in 2010. and they made a lot of effort in 2012, or 2014, but it looks like you are going to have a drop off. it is almost structural now with the democratic party. the group that turns out for presidential election years that you saw just are not that subpoena in voting in those numbers in the midterm elections. >> it is also baked in to the cake, ed almost. sixth year of the presidential term. opposition party takes a lot of seats and this year republicans seemed poised to take the senate and it might happen and might

not. what kind of headaches does that cause for the president? >> he relied on the senate to act as a counter to the house and losing that and giving control forces them to collaborate. and what they might do with trade policy and discussions of tax reform. and the president will be forced in conversations about tweaking or repealing parts of the act. and key stone pipeline and other things. democrats in the last 48 hours or so reminding the reporters that ronald reagan faced a bad election in the sixth year and ultimately deemed success as a president because he worked with the other side of the aisle. we'll see if president obama shifts and becomes more cooperative with republicans. and there is a growing

understanding with the white house that they will try to find way it is to work across the aisle if only to salvaging the president's legacy. >> after six years in office. president regoon enjoyed an approval rating of 62 percent. and this president has only 42 percent. and how empowered? they may be motivated to get things done, but is it because president obama tries to use the pen and phone and get things done and go around congress. >> well, reagan had a tough last couple of years. the iran- contra scandal and the democrat congress.

the president faces republican house and senate. and there are some areas where they probably could find agreement, specifically on something like tax reform. but at the same time, the president has promised a big executive action on immigration. if he does other big executive actions on say like the environment, he is going to reduce the possibility that republicans will work with them on other issues. they will be angry about the president bypassing congress. the president has a choice to make if he faces an all- republican congress. >> we mentioned that he has blamed, ed, republicans for blocking his agenda, but he came in office with a democratic majority in both houses of congress? >> he did and they opted to focus on health care reform. most americans disagree.

and i think byron is right. the immigration issue is the one to watch. the white house insists that the president will take presidential action and belief that it will include things that republicans want to see happen. especially visas for high-tech efforts. but the president not waiting for congress to act meet poison the well. you heard tom republican leaders say. if he does the thing on immigration it would be harder and yet if the president doesn't do it he will upset the democratic voters and today might prove what is needed in the senate races like in colorado where udal faces gardener. if you want to review things

democrats could have done differently. >> it sets the tone for the presidential election two years from now. >> thank you. >> midterm elections could impact your bottom line. and what the outcome of the elections mean for the economy and wallet. >> bill casside will join us as democrat mary landrieu. >> the president is not on the ballot. it is the senator leading louisiana. i'm an idaho potato farmer

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in ca jun gum bowl. they have to have 50 percent. but mary landrieu and bill casside may have a hard time because of rob manness. it is set for a run off in december and making for an unpredictable finish. joining us on the phone. republican candidate for the senate. do you dispute the idea you may not get 50 percent. >> a majority of people will vote for change. most will be voting for change. i can't tell you what is happening today. we feel good about it. but most folks are voting for change. >> what are you doing? >> i am a doctor and i work with a clinic for the uninsured. and teaching medical students

rather than seeing patients. we'll have campaign stuff this afternoon. but today is so far been e warding. >> mary landrieus has a name in lewisville politics. and is there a possibility that she might reach in or the undecided voters that they might know. >> we don't have royalty in the u.s. sure my dad solid insurance to put me through school. but in this country what determines is not your name but where you are on the issues. she's on the wrong side of the issues for louisiana and obama care sxashgs proveing his agenda 97 percent of the time and getting a dor f of the nra. she is on the wrong side. >> she said the president is not on the ballot and she disagree on policies like the key stone

pipeline for instance. is that enough? >> the president certainly thinks he's on the agenda and he said that and in this case he's been more honest than senator landrieu. she would vote for mary reid as senate majority leader and the man who will never allow a senate floor vote. you can be for something but you vote for a senator majority leader betray. you have to look at the facts and know what she is up to. >> is that the main item of interest for the voters energy? >> no, they are disappointed with obama care. rates in louisiana increased highest in the nation and when she said she would vote for it again tomorrow, i voteed to repeal and replace 50 times and she votes for it again tomorrow.

she's saying i don't care what the approximate people of louisiana think. she's not representing the people in louisiana. it is time to unelect her. >> imagine you win the race and republicans win the senate. you have the man occupying the oval office. >> i am sorry, you don't think he will sign legislation that repeals what he called his signature achievement. >> we know three things first. working through the court system a challenge to the way the subsidies are given and cause all of obama care to implode. that is hal berg versus bird well. and secondly, i can tell you if it is a wave election. and republicans picking up seats people didn't think we would pick up like colorado for example. that is a referundum on obama care and every person up for

reelection in 2016 will wonder how hard they should run against that law. the president would be a after thought. we have an opportunity to repeal or change that law. >> bill casside is republican running for the senate in louisiana. >> we reached out to mary landrieu, if she would like to speak to us. and she did not respond. >> and also hard fought campaigns for governor and one of those trying to win another term is scott walker and in the state of kentucky, closely watched senate races. 4i67 mcconnell faces off with aliceon grimes. we'll have that.

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>> the governor of wisconsin facing a tough reelection battle. it is the third time in four years that republican scott walker fought for the seat. after surviving a recall vote, he faces mary burke. and mark to bin has the update. >> despite all of those elections and campaign ads. we are not seeing evidence of voter fatigue. early voting numbers beat the 2010 election. and the government accountability board show a 60

percent turn out. and last night up in green bay and the crowd was energetic as the embattled republican governor said he is breaking the grip of big government and special interest. >> you know what they said? i am their number one target. not just as government. i am number one target in america for those groups. souse, september and government you know why? they are afraid. >> given all of the passions and sharp divisions here in wisconsin, there are very few undecided voters. late in the campaign we watch the walker and burke campaigns go to work. we see them trying to motivate the base and get-out-the-vote. >> and this is the two minute drill here.

>> last two minutes of the game and we know we have to drive down the field and we have got to score and we have to get over the goal line and it is so close and it is within reach. burke and walker were neck and neck. >> reporter: only last week did we see the numbers break in governor walker's favor. >> mike, thank you. >> reporter: you got. it >> we have new video in the state of kentucky. the senate race there has been a spirited contest to say the least. alisyn grimes running hard to unseat mitch mcconnell. and chief correspondent is live forinous louisville. hour things looking? >> turn out of 60 percent or more here in kentucky that would be close to records. >> reporter: it is certainly more than was anticipated.

hundred million plus was spent here. and mitch mcconnell the current seen the minority leader went to vote in louisville. and he was accompanied by his wife. listen. we are going to have a good day here in kentucky and hopefully around the country. >> i home we have a new majority and take america in a different direction. >> reporter: the capitol hill, first vote they cast who will be the leader of both parties. and he would be the leader. and alisyn grimes who has been challenging and chasing him all year long in a competitive race. there is a certain respect between the rivals for the candidates and she cast a vote

for herself in lexington, kentucky and talk about the polling realities and the ground game makes a difference. >> the nation wants change to washington. and put the people of this state first. >> reporter: across the country democrats and republicans are battling the air waves and on the internet, the ground game and internet are intersecting with both parties competing with what the obama administration mastered. and voters in kentucky say they have turned out for the attack ads and they don't believe it. and we talked to the voters and this is what they said. >> it is years and years of the same. and i like old men who have nothing in common with me and most of the people of the town, he doesn't represent our values. >> i don't trust grimes.

i have the opinion she just wants to be elected to something. i am a registered democrat but i voted for mitch. >> reporter: republicans out number democrats here in kentucky. and it is a state where mitch mcconnell has been around for a long time and wants to uncover his capabilities whe he lashes at grimes. >> carl, cameron you have a long day ahead. >> the election could affect the economy. control of the senate could play a role in the economic recovery. joining us is senior correspondent charles. >> it is showing signs of late. >> most wall street traders say what could push it over to get

better than 2 or 3 percent growth and get us in the growth and that is economic policy. what could create economic policy. the republicans if they control the senate and president obama getting a tax cut or something about regulation and get the economy out of it and playing it slow. it is it a slow growth economy and not enough people are working. and that usually happens when you have a democrat or a divide with the president and congress. and this is a different type of president. people say it could go both ways. he could be reical straight and nothing gets donor if there is a man date and they pick up 7 or 8. and have a resounding man date and in the the democrat of connecticut and massachusetts both lose, you might so him deal and that would

be good for the economy and markets. >> he has to worry about the legacy and who will run for the white house in 2016. presumably the former secretary of state. >> you want her walking in a good economy. one of the things to derail hillary clinton is the economy in a recession. we have had seven years of slow growth. and this is the real question. no one knows. president obama in a one-on-one meetings with the wall street guys and financers he talks a good game about the economy. and they feel like these people get it. and then he turns around and does things that they feel he doesn't. is he bill clinton or go back to barak obama and elizabeth warren and do mass amnesty and go to war with the republican congress. if he goes to war, the market will not react and the economy

will not do favorably. if he does tax cuts and drawing back the crazy regulations and tweets to obama care, this could take off. >> even democrats complained that it is not a president that gets involved. >> and yes, and maybe a good thing for him to play golf two years. and the real question is, does he take whatever happens today and play golf or engage. or a thorn in the republican side and go in attack mode. >> sometimes the markets like devoided. >> when president clinton cut the capitol gains tax and decreased regulation. we had a good market. i think he wants his legacy to have a stock market 18 or 20000. and only way to get that is to deal with the republicans in

a way. >> don't miss charlie on the fox business network. go to fox business.com/channel finding. >> and next chapter in the nsa. and the we'll head to federal court later today and plus this. >> does it fit the judgment? oscar pistorias will take the opportunity to pay back society. >> the family of oscar pistorias may accept the five year sentence. but the prosecutors are not. they filed an appeal and our legal panel will weigh in on that case.

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>> hey, everyone. i. gretchen upon carlson. we'll break it down hour by

hour. did you vote? send me your photos like these. there they are right there. we'll show yours on the air. and nick malindo walked the tightrope across the chicago sky line. how does he do it? all at the top of the hour. and new legal action on nsa snooping. the federal appeals court agreed to see if their program masses congressional muster. the government relying on a supreme court ruling to justify the surveillance of millions of americans. historically the judges have agreed with the government on national security issues. >> a former security guard in the centers for disease control in atlanta is suing his former employer kenith tate.

the president visited the cvc. and he was in charge of operating the elevators and later tate trying to take a picture on the motorcade and pulled back by secret service said the tape got too close to the president. and the private security firm fired him. doug burns is a prosecutor. and a list wheels a prosecutor. and does he have a case? >> no, georgia is at will and he can be fired for any reason. he would be and this is good cause. this man had been arrested for assault. and he's in the elevator with the president with a gun? and he's taking pictures? that was part of his job being

in the elevator with a gun. >> no, arrested for assault but as a lawyer absolutely this guy was not convicted. >> they called him a felon and he was not convicted of anything. and he was issued. >> that case was a long time ago. >> this case, really to me is unfair. the guy was simply doing his job and issued a revolver and the secret got bent out of shape because after he was done. >> he takes a picture of the president of the united states. and what kind of crime is that? >> no tis a lack of judgment. >> it is a picture. >> and you are doing your job. >> you have to assume he was done discharging the duty. >> at will stuff is fun but he will recover. >> to a list's point state of georgia and new york.

basically an employer can fire you for any reason and not discriminate. >> i am not suggesting that. however, we go back to the law books a list. you have equivable principles. and perhaps go around the dry technicality of at will and turn around and said the other related point. he could recover something for defamation. >> and if he is a union employee. and a list how does that work? >> if he does have a contract that makes a difference. >> it makes a difference. >> and if he's a member of the union. >> and if it is not, it is a contractual imperfections. he's out of luck and look at the lack of judgment. >> it makes him look like a professional and you don't do

that. >> moving on to the second topic. oscar pistorias, we thought the thing was done and the prosecution filing an appeal and they are filing a verdict and sentencing and he was acquitted of murder and charged with manslaughter and charged with culpable homicide. >> and so what is the legal basis for the appeal? >> two separate parts. one they are appealing the sentence and forget the exact language. >> it was shockingly long. >> five years in the united states. prosecutors can appeal if it is unreasonable. and the appeal that was not going anywhere is repealing the verdict of culpable homicide instead of murder. >> the way she was killed and horrendous manner and what they are saying.

the judge did not take that into consideration. i don't agree with the judge's verdict. but i don't think it will be overturned. but the sentence will be much higher. prosecutors asked for ten years. >> i think it height be adjusted. >> the sentence is ten months in prison before he goes in house arrest. >> goes into house arrest. three years of house arrest. >> you can only do one-sixth. >> people are understandably upset about that. i mean, the judge felt that he was guilty of the lesser offense, as we said earlier. the reality is it seemed like a pretty -- >> meanwhile, this woman is dead in a really horrendous manner. >> this whole appeal has been six months. we have not heard the last of this. >> no, we haven't. >> thank you so much. talk to you again soon. all right, swron. what do you have now? >> new information on a disaster, heather. what investigators are finding about the deadly crash of an experimental spaceship in the mojave desert.

big day? ah, the usual. moved some new cars. hauled a bunch of steel. kept the supermarket shelves stocked. 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.

new information dmoomg about the experimental virgin galactic spacecraft that broke apart during a test flight over the mojave desert. it killed its copilot mike alsbury. investigators say alsbury moved an unlocking device earlier than he should have, but there are lots of questions about what exactly we want wrong. what do we know? >> heather, you know, were the pilots getting the right information? this accident occurred just after the pod -- he is unable to speak to investigators. the co-peelt michael alsbury died. here's what the ntsb believes happened.

in those last moments based on cockpit video retrieved from the debris field. the pod drops from the carrier aircraft at about 50,000 feet. three seconds later the rocket ignites. ten seconds after that traveling at the speed of sound -- this is a mistake. it was premature by nine seconds. once unlocked, they believe the wind deployed on its ownby aerodynamic force causing the ship to break up. not an explosion of the fuel tanks or the rocket engine which officials later found on the ground and showed no sign of burn or breach. >> as far as recommend dayings once we know what went wrong. recommendations to try to keep that from happening again. >> virgin officials say now

isn't the time for speculation. investigators must make sure the pilots got the correct information on their instruments in the cockpit. noor moving forward. heather. >> so far they think that just a matter of second could have maid a difference. that is essential frightening. william le jeunnesse, thank you. >> keep it right here on america's election headquarters. we are watching the races all around the country, including the battle for the u.s. senate. republicans need to gain six seats. democrats are struggling hard to keep that from happening. we have live team fox coverage. place trades, get free real time quotes and teleport myself to aruba. i wish.

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neverending patsa passes for $100. all the pasta he wants for seven weeks. alan has so far eatern, get this, 95 meals worth about $1,500, and he still has a week left on his pasta pass. >> they're going to black ball him from olive garden, but good for him. he needs a companion. >> thanks for joining us. the real story with gretchen carlson starts right now. see you tomorrow. this is it. americans are making their voices heard today all across the country voters hitting the ballot box to have their say in who controls our government. hi, every. i'm gretchen carlson, and we are here to bring you the real story on this election day. chief washington correspondent james rosen tracking another one in kansas. let's go first to molly. >> hey, gretchen. we are at the webster school in manchester, one of