By Bobby Harrison
Daily Journal Jackson Bureau
JACKSON – If Chris McDaniel continues his challenge of the June 24 Republican primary runoff he lost to incumbent U.S. Sen. Thad Cochran, early on a judge most likely will have to rule on whether it is too late to contest the results.
Phil Abernethy, an attorney with the Jackson law firm of Butler Snow, which the Cochran campaign has retained on the election challenge, said recently there is case law that would indicate McDaniel had 20 days after the certification of the election to file an appeal.
He said the judge would be asked to rule on that issue. The runoff election was June 24. Results were certified by July 7.
The 20-day deadline is based on an old court ruling. But the McDaniel campaign has indicated it believes the challenge would be governed by a state law that sets the deadline at 10 days after it filed a challenge with the state Republican Party.
The McDaniel campaign filed the challenge with the state party on Monday, Aug. 4. Late Wednesday, state Party Chair Joe Nosef said the Republican Executive Committee would not hear the challenge, saying the courts were better suited to decide the issue.
When asked when and where the McDaniel campaign would file the legal challenge, spokesman Noel Fritsch said in an email, “In all likelihood as soon as law allows (10 days from date we filed with state Election Commission.) Don’t yet know location.”
Because such appeals are so rare, there are disputes on some points of just how the challenge would occur.
Both sides agree that the challenge could be filed in circuit court in any county where it claims voter irregularities occurred and that upon the challenge Supreme Court Chief Justice William Waller Jr. would appoint a special judge to hear the case.
There would be no jury. The special judge’s decision could be appealed to the state Supreme Court.
While the general election is not until Nov. 4, the court will still be operating under some time pressures if and when McDaniel files his appeal. Secretary of State Delbert Hosemann said the state Election Commission will meet the third or fourth week in August to approve the ballot for the November election. By the second week of September, county election commissions need to be printing the ballot to ensure it is finished in time for overseas, military voters.
“In the interim we are going to continue forward,” Hosemann said. “The state Republican Party has informed us of its nominee, which is Senator Cochran.”
McDaniel faces a monumental task. Not in modern history has a statewide election result been overturned by the courts. In 2003, a revote was ordered in a portion of a state House district because of ballot issues.
But McDaniel is not asking for a revote. He is asking that he be awarded the election even though he was defeated in the runoff by 7,667 votes out of the 392,197 cast statewide.
McDaniel claims that his campaign has found about 15,000 questionable ballots statewide and, through post-election polling, anecdotal evidence and other mechanisms, he argues that those were Cochran votes.
But Cochran’s campaign and others say the vast majority of the questionable ballots that the McDainiel campaign claims to have found are not that, but simple mistakes at the most that have no impact on the election outcome.
McDaniel also is pointing to a state law that says a person should not vote in a party primary unless the voter intends to support the party nominee in the general election. McDaniel says Cochran was able to win with the aid of Democratic voters, primarily blacks, who were convinced to vote for Cochran after his campaign and supporters aired racially charged ads against McDaniel.
In the past, the courts have ruled that the law saying people should not vote in a primary unless they plan to support the party’s nominee in the general election was unenforceable.
A report the McDaniel campaign compiled alleging voter irregularities argues that Hinds County results should be totally excluded from the final results.
Cochran defeated McDaniel 18,211 to 7,150 in Hinds, which has the state’s largest population of voters who normally vote Democratic.
McDaniel cites “insecure ballot boxes and election records and other violations” in Hinds. “If the Hinds County results are included in the statewide results, they contaminate the entire runoff election” and should be excluded, thus making McDaniel “the clear choice of the qualified Republican electors.”
Pete Perry, chairman of the Hinds County Republican Committee, vehemently disputes widespread problems in Hinds voting, saying the election was well run with minimal mistakes that did not impact the final outcome.