This post has been updated.
The quixotic and seemingly eternal crusade from Chris McDaniel, second-place finisher in Mississippi's Republican Senate primary, actually does have an end game in mind. Once the campaign's collection of evidence is complete -- the date of which was pushed out again on Friday -- his supporters expect the case to go before a jury in Mississippi circuit court. Then, all it takes is the votes of nine Mississippians, and the state will have itself a third election to decide who will represent it in the Senate.
Reached by phone on Thursday, the campaign's colorful spokesman, Noel Fritsch, explained that the campaign had a "massive endeavor" in front of it with the legal challenge, hinging upon what he described as thousands of pages of evidence that authorities (and the media) would need to wade through. As has been the case for weeks, Fritsch declined to describe that evidence in any detail or share any of it, though he implied it involved both illegal votes and illegal campaign behavior on the part of the campaign of Sen. Thad Cochran. Fritsch and the McDaniel campaign are clearly confident that, once presented with the evidence, those nine jurors would grant McDaniel a third chance.
Fritsch's formulation was optimistic. We turned (again) to Matt Steffey, a professor of law at the Mississippi College School of Law to explain how McDaniel's challenge would move forward. We made this flowchart from what he told us; it's explained below. Update: As are a few differing opinions!
The first step is that McDaniel will present his evidence to the executive committee of the Republican party of Mississippi. No one expects that body -- the members of whom seem inclined to side with Cochran in general, beyond any exotic voter fraud allegations -- to find in favor of McDaniel. It could, resulting in the new election McDaniel wants. But it almost certainly won't.
At which point, McDaniel would sue in the circuit court. The key question here is where the trial would be held. McDaniel would want it in Jones County, his home county and a place where he demolished Cochran in the polls. Cochran's lawyers would probably suggest a different venue.
Update: This is the point at which opinions differ. Phil Abernethy, partner at the Mississippi law firm of Butler Snow who has been engaged by the Cochran campaign, pointed to case law which suggests a different route.
Once McDaniel files a challenge (or, in the seemingly unlikely event that the party executive committee rules against Cochran, Cochran files one), the clerk in the county where it is filed submits it to the state Supreme Court. The Supreme Court then appoints a special judge, who can hold a hearing in any county of his (or her) choosing. While the judge is empowered to consider and rule on the facts as he sees fit, he is assisted by the five members of an elections commission, who -- the law is unclear -- may also play a role in agreeing or disagreeing with his final decision. It's also not clear if they are the commissioners from the county where McDaniel (or Cochran) files his challenge, or if they're the commissioners from the county that acts as venue.
Regardless, once the decision is made, Abernethy believes that it can be appealed to the state Supreme Court. It's not clear, though, if the highest court can evaluate issues of fact (the evidence presented by McDaniel) or simply issues of law (how the special judge made his decision.) It is also not clear what remedy McDaniel would receive if he wins. A new statewide election? New elections in certain counties? It's likely primarily going to be up to the appointed judge.
"There is no Mississippi precedent for a court proceeding on a statewide primary election," Abernethy told us, which grows more obvious by the day. Now back to the route indicated by Steffey.
Once McDaniel files with the court, one of several things could happen. It could go to trial. Or, Cochran's team could ask the state Supreme Court to intervene before the suit goes to trial. Or the court could either dismiss or reject McDaniel's case without putting it to a jury -- in which case, McDaniel would be the one to bring it to the highest court. At that point, the Supreme Court would essentially decide whether or not to move forward at all.
If McDaniel doesn't prevail at the Supreme Court in this round, it's done. He could appeal to the United States Supreme Court, but it seems unlikely they'd hear his case. If the Supreme Court allows a circuit court trial, though, McDaniel's dream scenario kicks into play. His lawyers lay out the thousands of pages of evidence, and the jury votes. Nine or more votes (out of 12), and McDaniel wins -- and Cochran takes it to the the Supreme Court. Eight or fewer, and Cochran wins -- and McDaniel takes it to the state Supreme Court.
"The Mississippi Supreme Court is going to give us the final answer," Steffey told us. "If McDaniel keeps pushing this forward, it will go to the Mississippi Supreme Court, no doubt about it." And that's not good news for Team McDaniel. On Thursday, the court rejected a bid from the McDaniel campaign to allow it review detailed voter information at polling places. In a 4-3 vote (two justices recused themselves), the court determined that one of McDaniel's efforts to dig up evidence to support his case should be blocked. "If [McDaniel is] looking for the Mississippi Supreme Court to bail out my campaign," Steffey said, "they declined their first opportunity to do it. That's not encouraging."
Steffey repeated skepticism that he'd expressed in the past. Issues like Cochran campaign spending, he said, would not be considered by the Supreme Court, given that any violations would be matters for the federal court system (if it came to that). And if the unseen mounds of evidence are numerous small things that suggest an election poorly but not illegally run, the court is unlikely to be moved to overturn the results. "If they start taking all these little things into account, it opens the door for every frustrated candidate to take another bite at it," Steffey pointed out -- noting too that the Supreme Court justices are themselves elected officials. "If you want to create a lot of chaos, you better have an unimpeachable case. And whatever McDaniel has, it's not an unimpeachable case."
So here are the possible routes for McDaniel.
- The executive committee can call for a new election.
- The Supreme Court can uphold the results of a jury in a circuit court.
- Per Abernethy: The special judge can order some sort of new election, or something else.
That appears to basically be it, barring baffling incompetence from Cochran's own lawyers.
"I'm not saying it's impossible for McDaniel to win," Steffey said. "I'm just saying it's extremely unlikely." Something similar to McDaniel's dream scenario has happened before, on a smaller scale: Last year's mayoral race in Hattiesburg went to a jury. The election results were upheld.
"Lawyers, politicians, and gamblers all suffer from unreasonable optimism," Steffey continued. We don't know about their fondness for the racetrack, but McDaniel's team is certainly chock-full of the first two categories.