By Bobby Harrison
Daily Journal Jackson Bureau
GULFPORT – Chris McDaniel will take Labor Day weekend to decide whether to pursue his election challenge after a judge dismissed his lawsuit Friday afternoon.
Special Judge Hollis McGehee said McDaniel had waited too long to file a legal challenge to the results of the June 24 U.S. Senate Republican primary runoff he lost to six-term incumbent Thad Cochran.
McDaniel could appeal that ruling to the state Supreme Court.
McGehee, appointed to hear the case by the Supreme Court, said from the Harrison County Courthouse in Gulfport on Friday afternoon that he agrees with attorneys for Cochran, who argued current law gives a losing candidate only 20 days from the date of the election to file the challenge. McDaniel waited 41 days.
McGehee took a break from a separate case he was hearing in Gulfport on Friday to render his oral ruling. After hearing arguments on the timeliness issue Thursday during a hearing at the Jones County Courthouse in Laurel, where the case was slated to be tried, McGehee said he needed a day to decide.
“While we certainly have faith in the legal process, we’re not in agreement on this point of law,” said Noel Fritsch, a spokesman for McDaniel. He added, “We feel it is very unfortunate the facts of this case will not have the opportunity to be heard” unless McDaniel appeals McGehee’s ruling.
Fritsch said, “We will take the weekend to take stock” and decide the next step.
McGehee agreed with Jackson attorney Phil Abernethy, representing Cochran, that the 1959 state Supreme Court ruling – Kellum vs. Johnson – outlining the 20-day deadline made McDaniel’s challenge not timely.
McDaniel argued the 20-day deadline is no longer the law. To bolster that argument, attorney Steve Thornton, representing McDaniel, pointed out that in 2003 current House Speaker Philip Gunn of Clinton took 34 days to file his challenge after initial returns showed him losing an election for a four-county state House seat.
On Thursday, McGehee told the attorneys that both sides presented good arguments, creating “a conundrum” for him.
But from the bench Friday, McGehee said “Kellum vs. Johnson is still good law.” He said the Gunn lawsuit was silent on the 20-day issue, so it did not impact his ruling.
Attorneys for Cochran, Mark Garriga and Abernethy, released a joint statement, saying, “Clearly, the law states a challenge must be filed within the 20-day window. We also want to continue to re-emphasize that regardless of the timeliness of the challenge, a careful review of Chris McDaniel’s filing shows this case to be baseless. The voters made their decision on June 24 that Thad Cochran is the Republican nominee for U.S. Senate.”
McDaniel lost to Cochran by 7,667 votes out of the 392,197 runoff votes cast statewide.
McDaniel claims that his campaign has found about 15,000 questionable ballots.
The challenge of McDaniel, a second-term state senator from Jones County and Tea Party favorite, has to a large extent overshadowed the Nov. 4 general election where as it stands now Democrat Travis Childers of Booneville will face Cochran. The case originally was being heard in Jones County because McDaniel opted to file his challenge in his home county.
During Thursday’s hearing in the Jones County Courthouse, Abernethy said the practicable solution for McGehee would be to grant the Cochran motion to dismiss and, thus McDaniel could appeal that decision to the Supreme Court instead of conducting a multi-day trial that could be thrown out if the Supreme Court still agrees there is a 20-day deadline.