Neither argument will work. In the first case, there are almost certainly not enough Democratic primary/GOP runoff ballots to make up the nearly 7,000-vote gap between McDaniel and incumbent Sen. Thad Cochran. And in the second case, McDaniel backers are chucking very large rocks in very fragile glass houses. You know who may not support the party's candidate in November? A gentleman named Chris McDaniel.
Let's dig into each of these issues.
The voter intent problem
"Saying that the McDaniel camp has a slim chance of overturning the election overstates his chances." That's the summary of the situation from Matt Steffey, professor of law at the Mississippi College School of Law. We spoke by phone with Steffey to answer precisely that question: does McDaniel have a shot?
Or, really, to answer this question: When Chris McDaniel tells Politico (as he did) that he needs to pray and talk to his family before deciding if he'll support Cochran, doesn't that suggest that he is violating Mississippi code, section 23-15-575, which states that "no person shall be eligible to participate in any primary election unless he intends to support the nominations made in the primary"?
"Without question," Steffey said. And, later: "Yes, yes. It shows the absurdity of this." A second opinion, from Dr. Rob Mellen, assistant professor in political science at Mississippi State University: "I think that if you look at it in the spirit of the law, that certainly could be a violation of what the law was."
The argument McDaniel backers used before the election (and often after) is that the prohibition against people voting in a primary if they didn't intend to support the winner should mean that all of those Democrats who reportedly came out to ensure that Thad Cochran won on Tuesday should be ineligible to vote. But search Twitter for people saying they're not going to vote for Cochran in November. Or see the New York Times on Thursday:
[S]ome Tea Party leaders were discussing throwing their weight behind Mr. [Travis] Childers. Though he is a Democrat, some of his views — he is anti-abortion and opposes the Affordable Care Act — are attractive to conservatives. “The Tea Party is so burned they may do something radical,” a conservative leader involved in the planning said, asking not to be named in order to discuss internal deliberations.
According to the common interpretation of 23-15-575, all of those leaders' primary votes should be tossed -- along with McDaniel's.
But that common interpretation is wrong anyway. "Every authoritative body that has looked at [the statute] has opined that it is unconstitutional," Steffey said. (A federal judge's opinion to that effect was overturned on technical grounds.) It was crafted as a response to precisely the situation at hand, that Mississippi voters would mess in a primary for the other party that's allowed in the state's open primary system. "The statute was an unconstitutional and ineffectual step toward having one's cake and eating it too" -- having an open primary, but closing it off.
The key word there isn't "unconstitutional." It's "ineffectual." Mellen points out that there's no way to prove the intent of the voter, barring their "going to the poll and saying, look I am going to vote for Thad Cochran and then Travis Childers in November. Election officials essentially have to read someone's mind." And even if the voter had said exactly that, even if a clairvoyant poll worker had raised an alarm, the time to challenge the vote was on Election Day. "It's too late to raise that issue," Steffen said. "It would have to be raised, the ballot would have to be marked as challenged and on the day of the primary it would have to be challenged. As it stands today, I think that challenge is a moot point."
"The whole point of contemporaneous challenges is that you don't count the vote to begin with," he continued. "There's such a strong public policy interest in having elections actually settle matters." That's because constantly questioning and redoing elections is a slippery slope. Steffen used the example of the contested 2000 election. The Supreme Court curtailing the recount in Florida didn't please Gore supporters, but it prevented an ongoing and increasingly messy review of a critically important situation. "Any court would be extremely reluctant [to revisit these results], and the language from the case law supports that. The interest in the finality of the election is very strong."
The double-voting problem
So what about the other issue, those Democrats who voted in their primary and then voted in the Republican primary, which would be a violation of Mississippi law.
There's some evidence that this sort of double voting actually happened. On Thursday, conservative news sites lit up with reports to that effect, including a report from local news outlet that members of the Mississippi Tea Party had found at least 800 examples in Hinds County. This is what that double-voting looks like, according to one activist.
Hinds County saw a massive increase in turnout between the primary and the runoff and, as we noted, was key to Cochran's victory. Reached by phone, McDaniel campaign spokesman Noel Fritsch said that reports of votes being examined in 10 counties were inaccurate. "The number is much higher than that," he said. "We'll be putting out a comprehensive list later. We are experiencing difficulty working with approximately half of the circuit courts across the state. Even still, we're finding very statistically significant number of irregularities, which will drive our examination forward."
It's very hard to see how that could be the case.
Eight hundred votes in Hinds County is 3.2 percent of the total votes cast in the run-off in threcounty. Or, more significantly, it's 4.46 percent of the total Cochran received in Hinds. The Republican Party Chairman in the county thinks that at least 200 of those 800 votes were mismarked, but let's assume the figure stands.
Cochran won by over 6,000 votes, so overturning 800 of them wouldn't make much of a difference. But it's important to note that Hinds is also an outlier, with both a higher black voter percentage and a higher Cochran vote total than other counties. If you threw out 4.46 percent of the vote in Madison County, the next largest, Cochran only loses another 522 votes.
In fact, if you assumed that 4.46 percent of Cochran's vote was invalid in every single county that was at least a third black, Cochran's vote total drops to 186,511. Which is still more than 2,000 votes higher than McDaniel's.
In order to win, McDaniel needs to invalidate 3.34 percent of all Cochran's votes. That's a lot of votes, about one out of every thirty cast. And "there's just no evidence that it ever happens in the kind of numbers that make a difference," Mellen said. Proving that it had in this case requires combing through every county, double-checking every vote against what happened in the primary, a time-consuming and expensive process that's not likely to be successful.
Fritsch, from McDaniel's campaign is optimistic -- but, of course, that's his job. Those 800 votes in Hinds are "just the very beginning," he said, and once the review is complete, "we will make a determination of any possible legal recourse."
The campaign wouldn't find much support from Republican leaders in Mississippi. "I think that most of them have already dismissed most of what is going on with the Tea Party and McDaniel," Mellen said, "and they've sort of washed their hands of the whole thing. ... I think this is really going to fall deaf ears." Nor would they get much help from the rest of Mississippi, Steffen figures. "It is hard to find people outside of the McDaniel campaign who want to see another round of this nonsense," clarifying that he meant the political mudslinging and wrangling.
But he's not Chris McDaniel. McDaniel's campaign sent out an email to supporters late Friday night asking for volunteers to help with the legal fight. "We are in the process of trying to ensure a fair and accurate election took place on Tuesday," he wrote. "This battle is too important to walk away from."