Following his defeat in Mississippi's Republican Senate runoff on Tuesday, state Sen. Chris McDaniel vowed that he would challenge the results. "Before this race ends," he said, citing "dozens of irregularities," "we have to be certain that the Republican primary was won by Republican voters."
The McDaniel campaign has not responded to a request for comment about what means of recourse the candidate plans to seek but the avenues to challenge the vote seem decidedly limited. Mississippi is one of two states — the other one is Hawaii — which do not have a recount procedure spelled out in the state law books. Candidates in Mississippi are allowed to challenge results in the courts.
McDaniel's cri de coeur about Republican voters refers to the Cochran campaign's last minute "get out the vote" drive targeted at Democrats — especially black voters. In Mississippi, however, Republican voters don't need to decide the Republican primary for the votes to be valid. The state lacks voter registration by party; under state law, anyone who didn't vote in the June 3 Democratic primary was eligible to vote in the June 24 Republican runoff. Cochran used this fact to his great advantage in the senate primary run-off.
There is one section of Mississippi election law that the McDaniel team seems to think could work to their advantage. That section reads: “No person shall be eligible to participate in any primary election unless he intends to support the nominations made in which he participates.” In other words, if the Democratic voters who helped Cochran win plan to vote for his opponent, former Rep. Travis Childers, in the fall, that would, theoretically, be against Mississippi law.
"I wouldn't be too optimistic if I were [McDaniel]" says John M. Bruce, head of the University of Mississippi political science department. "This issue has already been adjudicated." A 2008 decision by the 5th Circuit Court of Appeals said that in order for a ballot to be thrown out, poll workers would need to ascertain that the voters already were planning on supporting a different candidate a few months down the road. As Bruce says, "that's not enforceable". Bruce — who has lived in Mississippi for over 20 years, says that he can't remember anyone ever discussing this section of the state's election law at such length. The 2008 case was mostly unnoticed. "No one even thought about this law," he noted.
And, as Daily Beast reporter Ben Jacobs points out, even McDaniel has taken advantage of the open primary system. He voted in the Democratic primary in 2003. Jacobs adds that "his campaign has declined multiple requests for comment as to whether he voted for the incumbent Democratic governor, Ronnie Musgrove, in the general election that year, a move that, under McDaniel's logic, would be illegal."
Conservative Republicans have also tried to use open primaries to their political advantage in elections past. In 2008, Rush Limbaugh encouraged Republicans to vote for Hillary Clinton in open presidential primaries in order to make the Democratic primary season a more protracted affair. Former Rep. Ben Jones encouraged Democrats to vote for tea-party challenger David Brat instead of Rep. Eric Cantor earlier this June in Virginia.
The intent of crossing the aisle in the Mississippi senate primary seemed a bit different. Democrats weren't trying to keep less competitive opposition in the race; they were instead trying to keep the person they least agreed with out. (Democratic strategists privately acknowledged that McDaniel gave them a chance to win the general election. Beating Cochran is much, much harder.)
If McDaniel's legal challenge doesn't pan out, there's always the write-in campaign option.
If Chris McDaniel chooses to run as write-in I'll be in Mississippi campaigning by my friend's side. Take Cochran down in general election.— Wayne Allyn Root (@WayneRoot) June 25, 2014