I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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McDaniel reply brief in the election contest has been filed

There are not many surprises.  Most of the brief is an argument that Kellumthe case holding there is a 20 day deadline, is not the law.  The brief argues that it is not the law because the statute it construed has been repealed, because the reenactment of the statute materially changed it, and because, contrary to Kellum, the statute cannot be read to have a deadline.  The brief also argues that Kellum has not been cited for its central holding, and that it was effectively overruled by the Barbour v. Gunn decision, because it was allowed to proceed in spite of Gunn’s failure to meet the deadline.

None of this is new.  The attempts to argue the statute materially changed are largely conclusory, and, in this iteration of the argument, involves citation to other parts of the election code than this particular statute.  The repeal argument is silly; McDaniel might as well argument that the passage of the Code of 1972 repealed the statute.  Embodying pretty much the same statute in a code while retaining the same basic structure is not a straight-up repeal.

What the brief does is pretty much implicitly acknowledge that Kellum has to fall for McDaniel to win.  The case at its core turns on whether McDaniel convinces the Court it is wrongfully decided– is it wrong to read the statute as if it had a deadline.  While I’ve seen cases (one an election contest!) decided by the Court overruling a clear precedent, I’d predict against it here.

There are couple of new themes.  The brief opens with three pages attacking the state Republican executive committee for not doing its job in a timely way, but does not really tie that into the main argument.  It closes by responding to the Cochran brief argument that the issues raised only by amicus  cannot be reached by the Court. The argument is that the Constition’s Elections Clause, by providing that state legislatures set rules for Congressional elections, takes away the power of state courts to make such rules. McDaniel responds by noting places in the oral argument in the court below where his lawyer mentioned the Elections Clause. He does not suggest the point was raised in any form in his opening brief or the issues stated in his opening brief.

Here it is.

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