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.

“The arguments from our state’s Republican establishment were meant to influence the judge to make an activist decision that would have ignored both the secretary of state and legal precedent,” McDaniel said. “Our opponents know our case has merit, so their only option is to try to convince Judge McGehee to throw it out.”

This round of arguments has left his legal defense fund depleted.

“We won this motion, but we still haven’t gotten to the court case,” he said. “We spent thousands of dollars making sure the secretary of state’s statement entered the record, but we still have yet to go through a single ballot with the Mississippi Supreme Court.”

According to the Mississippi Business Journal, Cochran’s attorneys said the case is not relevant since the timing of Gunn’s filing was not argued.

In a visit to Greenwood Aug. 12, Cochran said that he’s keeping his focus on his November opponent, Democrat Travis Childers.

“I’m not thinking about that challenge or worrying about it,” he told the Greenwood Commonwealth in a story notably featured on his campaign site. “I’m campaigning in a positive way on my abilities and my proven experience to get things done for the betterment of Mississippi.”

McDaniel filed his 243-page challenge in August with the state’s Republican Party and that was denied.

The Mississippi state senator alleged in his complaint that 27 counties counted absentee votes that did not meet the requirements of the election code. He also alleged that 12 counties failed to certify the results of the June 24 runoff in the time required by the state. According to the Sun-Herald, McDaniel has not sought to restrict who can vote in party primaries.