State Supreme Court rejects McDaniel appeal
Political Ledger
Geoff Pender, The Clarion-Ledger 7:46 p.m. CDT October 24, 2014
McDaniel challenge
One less Teabilly in Congress is a very good thing.
716 CONNECT 104 TWEETLINKEDIN 13 COMMENTEMAILMORE
The state Supreme Court on Friday upheld the dismissal of Chris McDaniel's lawsuit over his June GOP primary loss to incumbent Sen. Thad Cochran.
The court ruled four to two, upholding a lower court decision that McDaniel waited too long to file the challenge of his loss. Three justices did not participate.
McDaniel in statement said, "Republicans are still left wanting justice" by the decision and said he hopes "conservatives in Mississippi will view this decision as a driving factor to get involved in Republican politics."
Neither McDaniel nor his lead attorney Mitch Tyner answered definitively on Friday whether the ruling will put end to his trying to overturn the election, but McDaniel said, "now is time to turn the page and work to enact true conservative change." Tyner said that while he disagreed with the ruling, "we are glad the Supreme Court finally ruled and Mississippi conservatives can move forward into 2015."
Cochran adviser Austin Barbour said: "I think all of Mississippi hopes this process is over. I think all Mississippians are ready to move past this whole episode we've been dealing with for months now."
Cochran's lawyers, Phil Abernethy and Mark Garriga of the Butler Snow Firm, issued a statement Friday saying McDaniel's challenge was "baseless," and "The will of the voters has now been validated by the Mississippi Supreme Court."
Tyner has noted that McDaniel still hasn't had his "day in court" on the merits of his challenge, but instead had it dismissed "on technicalities."
A circuit court in August dismissed McDaniel's lawsuit. That court ruled, based on a 1959 state Supreme Court decision, that McDaniel waited too late to challenge his June 24 GOP runoff loss to Cochran. Although state law doesn't spell it out for statewide elections, the 1959 "Kellum" ruling said there is a 20-day deadline to file a challenge, based on a deadline in law for county elections. McDaniel filed his 41 days after.
McDaniel's lawyers argued in an Oct. 2 hearing before the high court that the Kellum ruling was based on old election laws that have been changed, notably with an overhaul by the Legislature in 1986.
Cochran's attorneys argued the changes, particularly regarding deadlines, were not substantial and the old court ruling still holds.
In its opinion Friday, the court agreed with the Cochran camp that state election laws pertinent to the issue had been "reenacted without material change."
McDaniel claims the election was stolen from him through illegal and improper voting and black Democrats "raiding" a GOP primary because of Cochran race baiting and other dirty tricks. He claims to have found more than 15,000 illegal or questionable votes.
But Cochran lawyers and some election officials dispute these claims. They say McDaniel volunteers invented "irregularities" where none existed and that the election had no more problems than the human error normally involved.
The Cochran-McDaniel race was one of the nastiest in state history. The looming Nov. 4 general election has been overshadowed — really overwhelmed — by a Republican primary that featured nursing home break-ins, courthouse lock-ins, criminal accusations and investigations, a suicide and litigation.
Richard L. Hasen, professor of law at the University of California, Irvine School of Law, has followed the McDaniel challenge. On the Election Law Blog, Hasen said the court's ruling on the McDaniel appeal might be "a mercy killing."
"McDaniel's evidence of fraud seemed weak, and his legal theories about crossover voting even weaker," Hasen said. "This timing ruling was a way for the courts to end the process without going through a long drawn out trial."
The Nov. 4 general election between Cochran and Democratic candidate Travis Childers is still on schedule, and absentee voting has already begun.
Tyner, said after oral arguments three weeks ago that even with the state high court's ruling, McDaniel might move his appeal to federal court, based on constitutional grounds. McDaniel claims Democratic raiding of the primary usurps Republicans' right to associate with each other in their primary.
Justice Leslie King wrote the opinion handed down Friday, with Chief Justice William L. Waller Jr. and Justices James W. Kitchens and Michael Randolph concurring. Randolph, although concurring, wrote a separate opinion.
Justices Josiah Dennis Coleman and Ann H. Lamar dissented.
Coleman, writing the dissent, said a 20-day deadline to file a challenge is not in state law and "cannot be judicially grafted into Mississippi Code." He said election laws since the 1959 ruling do appear to have been substantially changed, invalidating the old ruling.
Justices Jess H. Dickinson, Randy G. Pierce and David A. Chandler did not participate.
In his separate opinion, Randolph said he believes the lower court erred in relying on the '59 ruling, but that "the primary issue that must be decided is for the Legislature, not the courts of this state."
Barbour said the focus now needs to be on the Nov. 4 election between Cochran and Childers.
"Voters in Mississippi need to realize how important the election Nov. 4 is ... Republicans are in really good shape to take control of the Senate, and that's a big thing for Mississippi, with Sen. Cochran set to take the chair of the Appropriations Committee."
Childers has repeatedly said, "That's not my fight," when asked about the GOP primary legal battle, and said he hasn't let it distract his campaign.
