Update: A second interpretation of the McDaniel brief has emerged: That the lawyer didn’t screw up, he’s just being dishonest with the court about the law. See comments.
There’s a statutory timetable you need to understand here.
1. Under Miss Code Ann. § 23-15-921, for county elections, a challenge before the election commission must be filed within 20 days of the election.
2. Under Miss. Code Ann. § 23-15-923, for state-wide elections, there is no provision for a 20 day period, but this language was construed in a fifties case to be subject to the 20 day requirement of Miss. Code § 23-15-921.
3. The statutory provisions just discussed, while they have been re-codified twice, have the exact same language as the statute construed in the 1950s case.
4. Under Miss. Code Ann. § 23-15-927, prior to 2012, a court challenge must follow the election commission challenge “forthwith.” If you look in the code book, you learn that in 2012, that was changed but the book says that it was awaiting preclearance under the Voting Rights Act. I am going to assume (possibly in error) that McDaniel and his lawyers are aware that state statutes no longer await preclearance because their friends on the United States Supreme Court abolished preclearance, so the new statute controls. If they aren’t that well-informed, they would be well served to look in the pocket part of the code book and learn that the new statute is in effect. And what does it say? It says that suit must be filed within ten days of when the executive committee complaint was filed.
For lay readers (and possibly for legal researchers who have only used computers?*), it is at absolute best a rookie mistake to forget to read the pocket part.
Yet that is a premise of the McDaniel response to the Cochran motion to dismiss.
Here is the gist of its argument, with my comments, in italics.
1. The election laws were recodified by the legislature after the fifties case was decided and the statutes it construes were repealed.
Yet the language of the statutes before and after codification was identical.
2. The second statute does not have a deadline in it, which makes it more like another statute, Miss. Code Ann. § 23-15-927, which says that challenges under that code provision must be filed “forthwith.”
Well, the “other statute” talks about the length of time required to file in court, for all kinds of contests, and does not speak to the time deadline for filing in the executive comittee, unlike the first two statutes. Furthermore, that statute has actually been amended (!!!!) and now has a deadline of ten days, replacing the “forthwith” requirement.
3. To construe the statutes the way Cochran wishes would be to suppose the legislature did something capricious, because the time lines don’t add up: Under the statutes, a candidate can’t begin examining the ballot boxes for ten days, then has twelve days to examine the boxes, which means that his period to file the challenge runs out before his period to examine the boxes ends.
That’s true, and it means that he better finish his complaint and probably the examination of the boxes a couple of days prior to that 12 day period or he’s S.O.L. Also, insert joke about McDaniel having chaired the state senate elections committee through the term of legislature that passed the amendment and two more terms since then.
Here, thanks to John Pittman Hey and his website, is the response.
*That is intended as a joke.