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Mississippi Republican Party Refuses To Hear Chris McDaniel’s Election Challenge

Chris McDaniel

It was only Monday that Chris McDaniel filed his challenge to the outcome of the Mississippi Senate Primary with the state’s Republican Party, but the party has already decided that it doesn’t want to hear the challenge:

The Mississippi Republican Party said Wednesday that it would not hear state Sen. Chris McDaniel’s (R-MS) legal challenge to incumbent U.S. Sen. Thad Cochran (R-MS) because state law doesn’t allow sufficient time to consider the evidence, the Jackson Clarion-Ledger reported.

State GOP Chairman Joe Nosef suggested in a letter to McDaniel attorney Mitch Tyner that the candidate move his challenge to the courts. Nosef explained that he would not be able to convene a meeting of the executive committee, citing a law that requires a petition for judicial review to be filed 10 days after a complaint reaches the state party’s executive committee.

McDaniel formally announced Monday that he would file the challenge with the executive committee. The deadline for the challenge, per state law, would then be Aug. 14.

“Therefore, if we sent notice of a meeting today (even before most committee members have even been able to receive all of the evidence), the earliest we could have a meeting would be Aug. 13, 2014,” he wrote in the letter, as quoted by the Clarion-Ledger.

Nosef went on to explain that a court challenge would be fairer to the McDaniel campaign.

“Obviously it is not possible for our committee of 52 volunteers to attempt to engage in such an exercise in a prudent manner in one day,” he wrote in the letter. “In fact, given the extraordinary relief requested of overturning a United States Senate primary in which over 360,000 Mississippians cast votes, the only way to ensure the integrity of the election process and provide a prudent review of this matter is in a court of law.”

Tyner, the McDaniel attorney, said that the state senator was “disappointed” to have his challenge declined by the state party executive committee.

According to those with knowledge of the matter, this isn’t entirely unexpected. The State Committee is largely controlled by people loyal to Cochran and Haley Barbour, who was a strong backer of Cochran’s during the primary battle, and McDaniel’s evidence was so flimsy that it was unlikely that they would have come anywhere close to overturning the election results. Had McDaniel lost, he would have appealed the matter to Mississppi’s court’s in any case, so this basically just avoids the needless task of presenting the matter to the party’s Central Committee and sends it right to the courts.

McDaniel’s chances in Court don’t appear to be any better than they would have been before the committee members, though, as Rick Hasen noted in his analysis of McDaniel’s original complaint earlier this week:

[T]he reason I expect McDaniel will likely lose is that he is not asking for a new election. Instead, he is asking for a remedy of having him declared the winner. He would apparently rely upon polling to show that Democrats who voted in the primary did not intend to vote for the eventual Republican nominee in the fall. This relies upon a MS code provision saying that only those who will support the nominee in the general election can vote in the primary.

To begin with, the interpretation of that provision before the election, confirmed in a press release just before the election from the Secretary of State and Attorney General was that it was unenforceable. That was the prevailing view before the election. If McDaniel didn’t like it, he should have sued before the election. Now such a claim shosould be barred by laches (unreasonable delay).

Second, even if McDaniel’s legal interpretation were correct and the claim not barred by laches, polling evidence is likely not good enough to show that there were more votes for Cochran.

Finally, as to a remedy, what McDaniel must be asking for is a “proportional reduction” of votes based upon such polling, which would subtract more votes from Cochran than McDaniel. That remedy was strongly rejected in the contested Washington state governor’s race between Rossi and Gregoire, and I don’t expect a court would accept that here to declare the loser the winner.

In short, it is hard enough to get a court to declare a new election after ballot irregularities. To get the court do declare the loser the winner is a remedy which almost never happens absent strong proof of fraud on the winner’s side.

Hasan goes on to note that the best that McDaniel could hope to get a court to do would be to order a new election, and that’s only if one takes all of his evidence in the most favorable light. As I noted on Monday, though, a good part of McDaniel’s argument relies upon a “loyalty oath” provision that is clearly unconstitutional and, in any case, completely unenforceable. Additionally, to the extent he is making an illegal crossover votes argument — meaning people who voted in the Democratic primary in early June and then the Republican runoff on June 24, which is not allowed under the law — the evidence there is slim to say the very best and likely does not consist of sufficient votes to actually overturn the election results. For example, yesterday Hasen noted that at least 3,500 of the 5,000 “crossover votes” that McDaniel’s complaint cites are actually Republican voters, which means that they didn’t vote improperly at all. If that’s the case, then there clearly isn’t any basis for his claim that these supposedly illegal votes had any impact at all on the outcome of the election. Given this, it doesn’t seem as though McDaniel will have any more success in the courts than he would have had before the committee.

Assuming McDaniel does indeed file his lawsuit, the next step would be for the Mississippi Supreme Court to appoint a judge to hear the case. While I can’t say I’m up to date on the election laws in the Magnolia State, I would assume that any trial would happen on an expedited basis given the fact that we’re less than three months away from the General Election. In the end, though, the outcome, and Thad Cochran’s place on the ballot, seems to be pretty certain.

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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. PJ says:

    This clearly shows that the Mississippi GOP has been taken over by DemocRATS/LIEberals/etc.
    Any true conservatives whether they are supporters of Chris McDaniel or not should refuse to vote for Thad Cochran in November.

    ;)

    Like or Dislike: Thumb up 12 Thumb down 0

  2. grumpy realist says:

    I’m just hoping that McDaniel is cocky enough to refile his original piece of tub-thumping crap as the complaint to the court.

    Naah….he can’t be that stupid……can he?

    (rubs hands in anticipation.)

    I guess the main question is whether McDenial is going to try to keep the circus going for just a wee bit longer to pull out as much money as he can from the Tea Party idjits, or whether we’re going to get one last huff and a puff, then a sorrowful “you won’t have me to kick around any more” Nixonian resignation speech, followed by retirement to Tea Party Nirvana, a.k.a. talk radio.

    Remember, guys–that PayPal button won’t push itself!

    Like or Dislike: Thumb up 8 Thumb down 1

  3. grumpy realist says:

    P.S. Totally OT, but we still haven’t heard anything new from Donald Sterling since he got slapped on the nose and had his kitchen cooking privileges taken away. Maybe he’s given up?

    Like or Dislike: Thumb up 0 Thumb down 0

  4. CSK says:

    Oh, I think McDaniel will keep this idiocy rolling as long as he can. There’s a Tea Party sucker born every minute, as David Hannum would say, were he around to say it. And on top of that, it might lead to a lucrative gig as a “pundit”–which I’m sure was McDaniel’s true aim from the beginning.

    Like or Dislike: Thumb up 5 Thumb down 1

  5. grumpy realist says:

    Oh, this is even better. It looks like some of the vaunted “evidence” that McDaniel quoted was a snarky joke made by someone on his own Facebook page.

    What’s next, using an article from The Onion as evidence?

    Like or Dislike: Thumb up 7 Thumb down 0

  6. CSK says:

    @grumpy realist:

    Oh, that’s priceless.

    Like or Dislike: Thumb up 1 Thumb down 0

  7. mantis says:

    He should have just been honest about his argument that he should be declared the winner: black people’s votes shouldn’t count.

    Like or Dislike: Thumb up 8 Thumb down 0

  8. C. Clavin says:

    $10 says he is a Fox News Pundit by November.

    Like or Dislike: Thumb up 5 Thumb down 0

  9. CSK says:

    @C. Clavin:

    Nah, too fringe, too loud, too silly. I think they learned their lesson with The Divine Sarah.

    Like or Dislike: Thumb up 2 Thumb down 0

  10. CSK says:

    OT: John Walsh, plagiarist extraordinaire, has dropped out of his senate race.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. JohnMcC says:

    When we read the everlasting stream of stories from Mississippi, sometimes we forget that these people actually had the amazing gall to tell American voters that they would assume the management and direction of our nation and at the end of their term — of their career — they would turn it over to their successor a better country. And that many many people who would otherwise seem to be reasonable and intelligent voted for them.

    Isn’t that scary?

    Like or Dislike: Thumb up 5 Thumb down 0

  12. grumpy realist says:

    @mantis: Well, he was sort of trying that argument, wasn’t he?

    Like or Dislike: Thumb up 2 Thumb down 0

  13. OzarkHillbilly says:

    @mantis: He did. He said they weren’t “legitimate voters.”

    Like or Dislike: Thumb up 2 Thumb down 0

  14. OzarkHillbilly says:

    I wonder how much this is affecting Cochran? I mean, sure he can assume it is all frivolous and that he will eventually win, but how much in resources does he have to devote to this? Can he run as the nominee, when it is being challenged? Doesn’t that make him “not yet the nominee”?

    Like or Dislike: Thumb up 1 Thumb down 0

  15. Facebones says:

    @OzarkHillbilly: As far as the Republicans hierarchy is concerned, he is the nominee. I think it will only affect him if McDaniel runs as an independent nominee or a write in. (Unsure of ballot rules in Mississippi).

    I could absolutely see him running a Tea Party write in to screw with the Republicans. (“If I can’t be the nominee, I’m going to make sure that cheater doesn’t win!!!”) He would not win, but it might split the vote up enough to let the Democrat win with 40%.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. grumpy realist says:

    So McDenial has gone for the grifter route…..

    Given this, I doubt he’s actually going to file anything in court.

    Like or Dislike: Thumb up 2 Thumb down 0

  17. grumpy realist says:

    @Facebones: Actually, I don’t think he can do even that. He would have had to registered as an independent way back when. The only time Mississippi will accept write in ballots is if a candidate dies between the time of getting put on the ballot and the election.

    Like or Dislike: Thumb up 1 Thumb down 0

  18. grumpy realist says:

    P.S. About the only plot twist left in this saga would be for Cochran to drop dead of a heart attack between now and November.

    Like or Dislike: Thumb up 2 Thumb down 0

  19. Janis Gore says:

    @grumpy realist: http://youtu.be/6IUG-9jZD-g

    Like or Dislike: Thumb up 0 Thumb down 0