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Cochran Certified Winner Of Mississippi Runoff, But McDaniel Continues His Quixotic Campaign

Thad Cochran Chris McDaniel

The Mississppi Republican Party has certified the results of last months runoff election for the closely fought Senate primary between Senator Thad Cochran and State Senator Chris McDaniel, finding an additional 1,000 votes for Cochran in the process, but McDaniel is making clear that the fight is far from over:

JACKSON, Miss. — The Mississippi Republican Party said U.S. Sen. Thad Cochran won the state’s Republican primary runoff over challenger Chris McDaniel by 7,667 votes.

The party sent results to the Secretary of State on Monday, the legal deadline.

The GOP’s numbers showed Cochran winning by more than the 6,800 votes counted by The Associated Press after the June election. Tallies changed as county parties examined provisional ballots and finalized results.

McDaniel, a state senator, has said he would challenge the results. But his attorney Mitch Tyner says it could be days before that happens.

Tyner said the campaign must first finish its investigation into how many voters improperly cast absentee ballots or who voted in both the Democratic primary and GOP runoff, a violation of state law.

In an interview with the Jackson Clarion-Ledger, Tyner said that the campaign had gotten “thousands” reports of voting irregularities in the runoff election:

A lawyer for Chris McDaniel said campaign canvassers started going through records at every courthouse statewide on Monday and he’s confident McDaniel can successfully overturn the June 24 GOP runoff.

The Thad Cochran campaign countered that few voting irregularities are being found and the vote should stand.

“As you know there have been lots of allegations and lots of reports of voter fraud – all types of calls are coming into the campaign and coming into my law office, and we are following up on all those leads making sure the integrity of this election is not compromised,” said Mitch Tyner, an attorney for McDaniel and former Republican candidate for governor. “In fact, as we’ve gone through this process, we are surprised by the amount of evidence that continues to come forward that shows us there has indeed been election fraud in this case.”

Tyner said he is uncertain the number of ineligible votes the campaign has found. McDaniel’s campaign reported 4,900 late last week, and McDaniel in television interviews said 5,000.

The McDaniel campaign has said a majority of these are people who voted in the June 3 Democratic primary, then crossed over June 24 and voted in the Republican runoff, which is prohibited by state law.

“I know there are several thousand that are absolute ineligible voters,” Tyner said. “… Later this week we should have some idea what all they’ve found.”

Both campaigns have people at courthouses across the state today, going through poll books and other records.

Cochran spokesman Jordan Russell on Monday refuted the McDaniel campaign’s claim there are thousands of illegal votes and says the number appears to be within normal margins of election errors.

“We have representatives at all 82 courthouses today to monitor the review of ballot boxes and have been pleased with the results,” Russell said. “The county by county results reported thus far are revealing an extremely low number of crossover votes from the June 24th election. As the process moves forward, the conversation is shifting from wild, baseless accusations to hard facts. As we have said from the beginning, the run-off results are clear: the majority of Mississippians voted for Senator Thad Cochran.”

Russell said he didn’t have totals, but listed the number of potential crossover votes found in four counties: Perry, 1; Lauderdale, 7; Pontotoc, 3; Leake, 5.

If numbers like that hold up, it seems hard to see how the McDaniel’s campaign’s claim that “thousands” of votes should be thrown out is going to be supported by the available evidence. Notwithstanding that, McDaniel and his supporters are pushing forward with the idea that Cochran’s victory in the runoff was illegitimate and vowing to press on with a campaign that seems to be becoming increasingly quixotic by the day. In another statement yesterday, the McDaniel campaign’s attorney repeated his assertion that they would find more than enough votes to make up for the margin between the two candidates and that, in that case, they would be “automatically” entitled to a redo of the runoff election. 

There are, however, several problems with the McDaniel campaign’s argument. First of all, as noted above, it seems quite probable that what they are calling a questionable ballot isn’t one that ought to be tossed out, as there is a big difference between “questionable” and illegitimate”. Second, as The Washington Post’s Philip Bump has noted, it’s not at all clear that McDaniel has any remedy at all under Mississippi law regardless of what he’s think he’s able to prove:

We spoke with Matt Steffey, professor of law at the Mississippi College School of Law, to see if he agreed with Tyner’s assessment of what will happen next and, in case we didn’t already give it away, he didn’t. “He uses the word automatically, and I think that’s a very optimistic and self-serving reading of the law,” Steffey told us by phone. “I don’t think the cases can be fairly interpreted to say that if they come up with 6,700 illegal votes and candemonstrate that they’re illegal — it’s an overstatement of the law to say that it automatically demands a recount.”

“There’s simply no statute or case that holds that if the number of ineligible voters exceed the margin of victory then there’s automatically a recount,” Steffey said. “In fact, in 1983, the Mississippi Supreme Court held — and cited a number of cases — that a special election was not required even though the margin of victory [in the primary] was exceeded by the number of illegal votes.” That case was Noxubee County Democratic Executive Committee v. Russell. “The Court has expressly said that the rule does not mean that one must show that the number of illegal exceed the margin. They have held exactly the opposite of Mitch Tyner’s statement.”

(…)

Moreover, McDaniel had a chance to contest those voters on the day of the runoff, but apparently didn’t do so. Under Mississippi law, any questionable ballots can be marked as such that day, and later evaluated for their validity. Meaning they wouldn’t have been counted for Cochran in the first place until further review. That’s how the process is designed to work. “I think the reason they weren’t out challenging ballots on the day of the election,” Steffey said of the McDaniel campaign, “is that they thought they were going to win. If I were a judge, I would be disinclined to do for the McDaniel campaign what they could and should have done for themselves: challenge these voters on the day of the election.”

Nor is the Supreme Court (which is where any legal challenge would almost certainly end up) likely to feel as though the will of the people was subverted, Steffey argued, which is the main reason it would decide to force a third election.

So, even if McDaniel were able to establish the facts that his campaign’s attorney is asserting here, which seems unlikely for the reasons noted above, it’s by no means certain that they would succeed in accomplishing anything. There is no provision in Mississippi’s election law for an automatic recount, or indeed any real recount procedure established by law in any case other than the county-by-county count that is going on right now. That means that McDaniel’s only recourse would be resort to the courts and, as Professor Steffey notes above, what actual Mississippi law there is on this subject is decidedly not in McDaniel’s favor. Theoretically, I suppose, the campaign could attempt to resort to the Federal Courts. That strategy is being tried right now by outside groups such as TrueTheVote, which filed a lawsuit in Federal Court over this matter, only to find themselves strongly rebuked by a Federal Judge in an Order issued yesterday.  In the case of the campaign, it seems unlikely that they’d get any further with a Federal Court suit than they are likely to get in state court.

None of this is stopping McDaniel or his supporters, of course. The campaign seems fairly well committed to going forward with this challenge not withstanding the fact that it seems very unlikely that they can possibly win. National groups like FreedomWorks continue to pour resources into the state to support McDaniel’s seemingly quixotic efforts, and now Senator Ted Cruz seems to be chiming in in support of McDaniel:

Sen. Ted Cruz (R-Tex.) on Monday sharply criticized allies of Sen. Thad Cochran (R-Miss.) for courting Democrats in last month’s Republican runoff election and called for a thorough investigation into allegations of voter fraud, marking his most direct comments yet on the outcome of one of the most contentious and divisive campaigns in recent memory.

“What happened in Mississippi was appalling,” Cruz said on the Mark Levin Show. “Primaries are always rough and tumble. But the conduct of the Washington D.C. machine in the Mississippi runoff was incredibly disappointing.”

(…)

Cruz said it’s clear that McDaniel won a “sizable majority” of Republican voters. He repeatedly blamed the “D.C. machine” for changing the outcome of the runoff.

“The ads they ran were racially charged false attacks and they were explicit promises to continue and expand the welfare state,” said Cruz.

(…)

Cruz said there have been “serious allegations of voter fraud” that need to be “vigorously investigated.” He stopped short of directly accusing Cochran or his allies of being at fault.

As limited as they are, Cruz’s comments are interesting given the fact that he had previously stated that he would not be getting involved in any of the primary battles against Republican Senate incumbents in 2014. At the very least, it is a signal that this never-ending fight between Thad Cochran and Chris McDaniel, the outcome of which seems certain at this point, has become a proxy for the larger battle between the Tea Party and the GOP “establishment.” To some extent, of course, it always has been, but the manner in which McDaniel and his supporters have acted since the runoff election has only seemed to make the fissure worse, and to guarantee that it will continue long beyond the resolution of this election in Mississppi.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. rachel says:

    Wow, what’s wrong with this guy? He used to be a lawyer; he should understand that he’ll do himself no good, and he may drag his party down in the general election.

    Like or Dislike: Thumb up 4 Thumb down 1

  2. grumpy realist says:

    Grifters gotta grift….

    The stance of the Tea Party seems to be that of a toddler in a tantrum.

    Like or Dislike: Thumb up 6 Thumb down 2

  3. KM says:

    McDaniel will win or he’ll take the GOP with him. Probably Mississippi too and salt the earth after he’s done. He’ll choke the rivers with his dead (after he’s gotten all the donations he can get from them first, of course). The Evil Empire will never stop the Rebels’ True Cause!! The Usurper must be defeated and the Rightful King to take his throne (damn what the peasants say about it)!

    Don’t you understand, man? This is WAR!! FOR THE TEA!!!!!!!

    ….. meanwhile, I’ve run out of popcorn. Excuse me while I go throw another bag in.

    Like or Dislike: Thumb up 8 Thumb down 1

  4. michael reynolds says:

    The Tea Party isn’t really interested in winning, they’re interested in emoting.

    Look, no matter how much these people deny it, in their hearts they know they’re sliding into irrelevance. They’re old, they’re uneducated, they’re rustics, they’re unreconstructed old-school Confederate racists, and yes, of course they’re stupid, that goes without saying, but they’re not stupid enough to actually believe they’ll be playing a role in shaping the future.

    So they’re angry and frustrated because they see that they’re the past and a very different future is shaping up full of liberated women and gays and blacks and Latinos. They’re throwing an extended temper tantrum before they toddle off and die. Rage, rage against the dying of the white.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 2

  5. OzarkHillbilly says:

    National groups like FreedomWorks continue to pour resources into the state to support McDaniel’s seemingly quixotic efforts,

    A fool and his money are soon parted.

    Like or Dislike: Thumb up 6 Thumb down 1

  6. CSK says:

    The Tea Party got frantic because it lost big-time in Georgia, Kentucky, and South Carolina, so it pinned all its hopes on winning in Mississippi. They lost, and that pushed them over the edge. (Granted, one didn’t have to shove very hard.) So they’ll keep fighting this to the death.

    Their accusation that the Cochran campaign (and the Washington “elites”) played dirty politics is richly ironic, given that they got the Breitbart “news” organization to portray Cochran as a sleazy adulterer.

    Like or Dislike: Thumb up 9 Thumb down 1

  7. KM says:

    Someone on another site just brought up an very interesting point. Who’s to say all these Democratic votes were all for Cochran? All they’re looking at is voter reg, right – the actual contents are still secret ballot? Are they just assuming all Dem votes were Cochran votes?

    Wouldn’t it just be the most poetic irony if it turns out some of the “illegal” votes were in his favor, dropping his total?

    Like or Dislike: Thumb up 7 Thumb down 1

  8. Matt Bernius says:

    @KM:
    It’s actually a slightly different issue.

    There are two “legs” to McDaniel’s argument. The first is that people voted in both the Democratic and Republican primaries. This is an enforceable issue. And if they were able to prove 7,667+ people did this (Cochran’s margin of victor) then he has a leg to stand on – regardless of who they voted for. That said, precedent doesn’t suggest that it’s a particularly strong leg.

    The second leg is that any McDaniel seems to be trying to enforce the “party loyalty” aspect of the law with states that *if you participate in a primary, you are agreeing to support the victor of that primary, even if it isn’t your candidate.* Not only is this unenforceable, I content that Cochran could make that argument that, based on their behavior post primary, many McDaniel supporters had no intention of honoring this loyalty pledge either (thus invalidating their votes).

    Like or Dislike: Thumb up 5 Thumb down 0

  9. grumpy realist says:

    P.S. So McDaniel is claiming something like thousands of “irregularities”?

    What’s an “irregularity”? None of them have ever defined what they claim to have found. We still haven’t seen any evidence.

    Sounds great, but if it means something like you didn’t cross a t or failed to sign with your middle initial, that doesn’t mean squat.

    I dearly hope that some judge whacks BOTH McDaniel and his lawyer across the nose. As the man said, put up or shut up.

    Like or Dislike: Thumb up 4 Thumb down 1

  10. Nikki says:

    Only a neo-conservative would proclaim that black people voting is tantamount to voter fraud.

    Like or Dislike: Thumb up 5 Thumb down 1

  11. Matt Bernius says:

    @Nikki:

    Only a neo-conservative would proclaim that black people voting is tantamount to voter fraud.

    For all its sins, neoconservatism really doesn’t have much, if anything, to say on race. I’ve yet to see anything from McDaniel that suggests he’s at all a neoconservative.

    Tea party, yes. Neocon no. The two are actually pretty different beasts.

    Like or Dislike: Thumb up 3 Thumb down 1

  12. KM says:

    @Matt Bernius:

    For all its sins, neoconservatism really doesn’t have much, if anything, to say on race.

    Neoconservatism? That’s true, it really doesn’t.
    A neocon? Whole ‘nother ballpark.

    The theory and the practice its’ followers put it through are two very different creatures, my friend.

    Like or Dislike: Thumb up 2 Thumb down 0

  13. Grewgills says:

    @Matt Bernius:

    Not only is this unenforceable, I content that Cochran could make that argument that, based on their behavior post primary, many McDaniel supporters had no intention of honoring this loyalty pledge either (thus invalidating their votes).

    Wouldn’t McDaniel run afoul of this law assuming he voted for himself in the primary and continues to actively oppose Cochran till the midterms? It would be rich to see him prosecuted on the law he keeps belly aching about.

    Like or Dislike: Thumb up 2 Thumb down 0

  14. anjin-san says:

    Rage, rage against the dying of the white.

    Something I just don’t get. If someone had a magic wish and turned America into a nation of nothing but white people, we would all die of boredom in six months.

    Like or Dislike: Thumb up 1 Thumb down 1

  15. ringhals says:

    @KM:

    “All they’re looking at is voter reg, right…?”

    Unless I’m mistaken, Mississippi doesn’t register voters by party affiliation.

    Like or Dislike: Thumb up 2 Thumb down 0

  16. ffff says:

    MS does not register by party, correct. The most-talked-about-irregularities are the ones where somebody who voted in the 6/3 d-prime, also voted in the 6/24 r-runoff, thereby committing themselves to be intending to vote for two people in November (logical contradiction… and one of the very few places where the MS state law about intend-to-support-the-nominee is provable). However, besides these blatantly-illegal-crossovers, there are other irregularities, such as absentee ballots that do not look legal — MS has voter-ID for in person ballots as of this year, but there is no voter-ID for absentee ballots.

    Over the last few weeks, the number of claimed irregularities has gone up from 1000 to 1500 to 3300 to 4900 to 8300. We don’t know the county-by-county breakdown, nor the number of those that are blatantly-illegal-crossovers. Plus of course, some of the 8300 will turn out to be poll-worker-human-error, or McDaniel-volunteer-human-error. There is a McDaniel press conf on July 16th that may reveal more details, though I doubt much will be made public prior to the challenge-lawsuit (must be filed within 12 days of the 7/7 certification… not sure if that is bizdays though). Folks from team Cochran are pooh-poohing, saying *they* found just 7 *total* questionable votes in e.g. Lauderdale county… but of course, that county circuit clerk is being sued by TrueTheVote in federal district court, for refusing to permit an audit of their voter-rolls.

    But the larger point, is that over the past three weeks the pattern has been to duck and hide, claiming that McDaniel has “no evidence” and/or “little substantive evidence” … all whilst allies of team Cochran at the county level and the state-party official level make things rough, and cause delays (the Cochran spokesman Austin Barbour is fond of quoting the put-up-or-shut-up line of thinking that grumpy realist voiced… knowing that McDaniel has been given bureacratic setbacks in 20 or 30 counties to being able to review the rolls for evidence… sigh).

    Anyways, I expect that McDaniel will file legal challenge, and has a fair-to-middling shot at proving that 1) there were thousands of illegal votes that violated state law, 2) specific adverts made/funded by pro-Cochran groups encouraged this e.g. Bishop Crudup telling ever registered voter to show up, and 3) that there are all sorts of other evidence related to cover up and finance impropriety and similar such nasty things… whether by team Cochran or their PACs or just individual supporters holding offices in the repub party… that a fair judge will toss the runoff results. Getting a fair judge is not guaranteed, of course, but naught can be done about that.

    If this outcome happens, the most likely remedy largely depends on *when* the decision comes; if it is several weeks before the 9/5 deadline for the finalized November ballot, there might be a third runoff. Dems have a reasonably strong ConservaDem candidate, Travis Childers… usually he would have no shot, and lose 60/40 or worse, but a battle between the tea-faction and the estab-faction is helping his chances as time goes by. Rickey Cole, chair of the Mississippi Democrat party, is backing McDaniel’s challenge (mostly as a way to take jabs at Haley Barbour and Pete Perry and so on methinks … but still).

    Personally, although I’m not sure McDaniel can win the challenge, then win the redo-runoff, and *then* win the general should he manage to get that far… reading the available docs about how the election happened, and who provided the funding, and what was done with it, is pretty sickening. I could care less what race the voters were, and like Rand Paul, my take on open primaries is that they are a good thing… but like Rickey Cole, my take on corrupt election practices is that they are always a bad thing, and must be stopped.

    As far as I can tell, many of the dems that double-voted illegally, in the 6/3 d-prime and then again in the 6/24 r-runoff, almost certainly didn’t realize they were doing something wrong. They’d been given propaganda which told them to do it, in no uncertain terms. (The only exceptions I found were an email sent to a teacher-mailing-list which clearly said not to double-vote, plus one radiospot out of maybe ten which briefly mentioned that most crossover-voting was fine but double-voting was not). I’m also reasonably convinced that Cochran himself did not know what was going down… he was asked what he thought about criticism of seeking dem-voters for 6/24 by some reporter, and replied he didn’t know anything about that happening, but that as a former dem himself, he didn’t see much wrong with it.

    Sorry about the small novel. :-) But if you care about elections being fair … cf Bush v Gore from 2000 … then please look a bit deeper into the McDaniel v Cochran&Barbour situation. There are tactical reasons that dems like Rickey Cole support a full investigation, but there are also strategic reasons (if you are the minority party in a state and the other side rigs the game you will never have a chance again). Thanks.

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