Mitch Tyner is the lead counsel for failed Mississippi Republican Senate primary candidate Chris McDaniel's effort to have the results of the state's runoff election overturned. In a brief press conference on Monday, Tyner responded to a question about the margin between McDaniel and incumbent Sen. Thad Cochran -- which was at about 6,700 at last count -- with assurance.
We don't have to have 6,700 (ineligible voters). However, I would be surprised if we don't find 6,700. It's very easy to see the Mississippi law holds that if there's the difference between the Cochran camp and our camp -- that vote difference -- if there's that many ineligible voters, then there's automatically a new election.
In an e-mail to the Post, McDaniel campaign spokesman Noel Fritsch said that the number of "irregularities" found on ballots was at 6,900 as of last Thursday -- a number that "will certainly grow." Most of those irregularities are of the kind that has become central to McDaniel's case: people who apparently voted in the Democratic primary and then the Republican runoff. (More background here.) So done deal, right?
No. We spoke with Matt Steffey, professor of law at the Mississippi College School of Law, to see if he agreed with Tyner's assessment of what will happen next and, in case we didn't already give it away, he didn't. "He uses the word automatically, and I think that's a very optimistic and self-serving reading of the law," Steffey told us by phone. "I don't think the cases can be fairly interpreted to say that if they come up with 6,700 illegal votes and can demonstrate that they're illegal -- it's an overstatement of the law to say that it automatically demands a recount."
"There's simply no statute or case that holds that if the number of ineligible voters exceed the margin of victory then there's automatically a recount," Steffey said. "In fact, in 1983, the Mississippi Supreme Court held -- and cited a number of cases -- that a special election was not required even though the margin of victory [in the primary] was exceeded by the number of illegal votes." That case was Noxubee County Democratic Executive Committee v. Russell. "The Court has expressly said that the rule does not mean that one must show that the number of illegal exceed the margin. They have held exactly the opposite of Mitch Tyner's statement."
And that's if McDaniel could demonstrate that all of those votes were illegal. Fritsch was careful to note irregularities, not certainties. It's certain that not all of those 6,900 irregularities would be established as irregular -- and it would be very hard, Steffey pointed out, to prove that all of those ineligible votes were for Cochran.
Moreover, McDaniel had a chance to contest those voters on the day of the runoff, but apparently didn't do so. Under Mississippi law, any questionable ballots can be marked as such that day, and later evaluated for their validity. Meaning they wouldn't have been counted for Cochran in the first place until further review. That's how the process is designed to work. "I think the reason they weren't out challenging ballots on the day of the election," Steffey said of the McDaniel campaign, "is that they thought they were going to win. If I were a judge, I would be disinclined to do for the McDaniel campaign what they could and should have done for themselves: challenge these voters on the day of the election."
Nor is the Supreme Court (which is where any legal challenge would almost certainly end up) likely to feel as though the will of the people was subverted, Steffey argued, which is the main reason it would decide to force a third election.
"Court remedies are meant to fix injustice," Steffey said. "There's an old saying about criminal trials: No defendant is entitled to an error-free trial. And no candidate is entitled to an error-free election." Conservatives inside and outside of Mississippi are angry, but Steffey said that's not universal. "There is not a large public outcry, except from the McDaniel camp, for a third election," he added. "Ordinary people who aren't deeply interested in this particular race have enjoyed the lack of this nasty campaign on the airwaves over the last few weeks."