JACKSON, Miss. — Losing at the state high court may not end Chris McDaniel's months-long challenge of his election loss to Sen. Thad Cochran, his lead attorney said after arguing before the Mississippi Supreme Court on Thursday.
McDaniel attorney Mitch Tyner said the erstwhile candidate could still file a challenge of his loss in federal court, on First Amendment grounds. He said McDaniel still hasn't had a trial to prove the election was stolen from him and "the merits have never been heard on this case."
The state Supreme Court heard nearly two hours of arguments Thursday in McDaniel's appeal of a circuit court's dismissal of his election lawsuit. The court gave no indication when it might rule.
Cochran attorney Mark Garriga said McDaniel's challenge needs to end.
"They blamed everybody in the world for losing the election," Garriga said. "They blamed the trial court for losing the lawsuit, and if they lose today they want to blame other people. This has been a long ordeal for the Cochran campaign, for the circuit clerks and for all the people who have been accused of wrongdoing."
The lower 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 primary 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 argue 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 argue the changes, particularly regarding deadlines, were not substantial and the old court ruling still holds. They say election laws should be looked at as a whole — as lawmakers did when they passed them as a single act – and that the deadline for local elections applies to statewide ones.
Both sides say the Legislature's failure to clarify a deadline for statewide elections after the 1959 ruling proves their case.
Justices on Thursday grilled both sides in turns.
"Can he file (a challenge) 90 days later?" Justice Ann Lamar asked Tyner, "six months?"
Justice Leslie King asked whether McDaniel's argument is that there should be no cutoff to challenging an election, "six months, a year?" He said, "Let's assume it took (McDaniel) six months to look at ballots."
Tyner responded that waiting so long would be "derelict" and "crazy," but said 41 days was not too long to examine a statewide election.
"Forty-one days looking at 1,800 precincts was pretty darned fast," Tyner said.
Justice Michael Randolph asked Cochran's lead attorney Phil Abernethy, "Where in statute do you see a deadline?" and said "I visually see some substantial changes (to election laws since the Kellum ruling)."
Randolph also quizzed Tyner, and appeared to question McDaniel's case in chief. He questioned whether McDaniel has evidence that would overturn the election he lost by 7,667 votes if it were sent back for trial.
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 Nov. 4 general election between Cochran and Democratic candidate Travis Childers is still on schedule, and absentee voting has already begun. The high court has been asked to postpone the election, but that appears unlikely. If McDaniel were to succeed with his appeal and then his lawsuit, new elections after the general would be more likely.
Neither McDaniel nor Cochran was present before the high court Thursday. Neither has attended any legal proceedings in the case so far.
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