He's Not Done Yet: McDaniel Gets His Day in Court on Cochran Challenge

Chris McDaniel might have lost the Republican U.S. Senate primary in Mississippi. However, he will have his own day in court.

The Mississippi Supreme Court granted the state senator’s request for an expedited hearing and it will hear oral arguments with the entire panel of judges on Oct. 2.

“Activist judges have been a problem in Mississippi since the 1950s, as we saw with the Kellum decision, which, contrary to statute, imposed the 20-day deadline onto congressional and statewide elections,” McDaniel spokesman Noel Fritsch said in a campaign news release.

According to Mississippi Public Broadcasting, the 1959 Mississippi Supreme Court case Kellum v. Johnson says that election challenges should be filed within 20 days of an election.

“Since the statutes are silent on anything regarding a 20-day deadline, any approval of such a deadline by the court without legislative approval would be judicial activism.”

McDaniel filed his challenge before the state Supreme Court on Sept. 18 and Cochran’s lawyers had until the next Wednesday to file their responses, according to the Clarion-Ledger.

The ballots for the Nov. 4 general election already have Cochran, the Republican nominee, facing Democratic nominee Travis Childers. Absentee voting began Sept. 27.

The Senate Conservatives Fund plans to file a brief and join in oral arguments in support of McDaniel’s challenge.

According to the Sun-Herald, the brief asks the court not to implement the Kellum decision.

They’re not the only one joining in, as the Conservative Action Fund has been able to file a brief supporting McDaniel.

In a news release from McDaniel’s campaign, Cochran was unsuccessful in striking Mississippi Secretary of State Delbert Hosemann’s opinion on the 20-day deadline from the record. The campaign said he twice previously stated to the Clarion-Ledger that there was no deadline for filing a challenge for a statewide primary election.

Attorneys for Mississippi’s incumbent U.S. senator argued Sept. 22 to exclude Hosemann’s statement, which Judge Hollis McGehee heard in Mendenhall.

McDaniel’s lead counsel, Mitch Tyner, said Hosemann’s opinion as the head of state elections provides the needed support for not implementing a 20-day deadline.

“In Barbour v. Gunn, the Mississippi Supreme Court made it perfectly clear that Speaker Gunn’s challenge, which was filed 34 days after the primary election, did not violate the mandates of Mississippi Code 23-15-923,” Tyner said. “To now require that Chris McDaniel file his challenge within 20 days of the election would create a double standard.”

Barbour v. Gunn was a 2003 decision when state House Speaker Philip Gunn waited 34 days to challenge the Republican primary loss to incumbent state Rep. Jep Barbour. Gunn won the court challenge and the election. He became speaker in 2012.

“The ruling is important for our case,” McDaniel said in an email to supporters. “The head of elections in Mississippi agrees that we have the right to appeal the primary runoff in court.”

The state senator said the GOP establishment’s argument was in error.