This is not a headline: More bull-s–t emanates from Chris McDaniel’s legal team

This is one of those dog bites man / man bites dog things.  The headline would be “McDanial campaign makes a rational announcement.”  Nope.

Last week, the trial judge announced that McDaniel’s election challenge was dismissed. Any lawyer involved could have advised McDaniel where he was in minutes.  Supporters commented on this blog that there was no reason he should not appeal.

And, honestly, from any perspective it seemed a simple decision.  All elements were easily evident before anyone paying attention.  On Friday, we were told we would hear on Tuesday.  On Tuesday, we were told… they needed more time.  Unless it’s about keeping more money flowing, I don’t see what this is about, but McD and his campaign had this to say to the dead-enders this evening on Facebook:

Friends, we appreciate your support.

We are as committed as ever to fighting for your voices and values.

Today after 4:00 PM, Judge McGehee’s order was signed and entered into the Jones County Circuit Clerk’s office. It would not have been proper to issue a statement of intent about a potential appeal without the order having been entered. Now that the order has been entered, we expect a decision tomorrow or Monday.

We appreciate your continued support.

Sure, under the rules, they had 30 days to appeal that only began when the judge entered a final order.  But they knew every single thing they needed to know about this decision on Friday.  Every single thing  Any refusal to announce a final decision is either trying to keep the money flowing, or just screwing with all of us in Mississippi.

Today’s Facebook bulletins from McDaniel suggest that he’s not aware it’s over

He posted this on Facebook today:

“Rise up, warriors, take your stand at one another’s sides, our feet set wide and rooted like oaks in the ground.”

— Tyrtaeus of Sparta

More about Tryrtaeus here.  He did not present ideals that involved knowing when to fold ’em.  One of his (well, his if he was a real person) big themes also seems a little off here:  Support of the state (Spartan) authorities in their struggles.

This, also posted on Facebook, also suggests the fight, such as it is, will go on:

“This is the lesson: never give in, never give in, never, never, never, never—in nothing, great or small, large or petty—never give in except to convictions of honor and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy.”

— Winston Churchill

Whoever is doing the Facebook feed also posted this:

“…Let us use this court decision to motivate us, not to sadden us. Today we must begin an important transition, to return our party to its conservative principles. It was the Party of Reagan. It can be again. 

This party belongs to us and it’s time to reclaim it for true conservatives.

Let our battle cry be: WE ARE ALL McDANIEL REPUBLICANS NOW!”

#remembermississippi

I don’t see how he can post this stuff and not appeal.  Other thoughts?

Joyce Freeland’s reaction:  His staff is saying, “Drink the Kool-aid” (well, Flavor-Aid, as the Kool-Aid people would insistently remind you).

Funny. Most of McDaniel real objections were technicalities about absentee votes, but he’s disappointed he lost on a technicality

Alternate title:  Chris McDaniel acknowledges he does not always understand.  I hated picking between these.

Here is the statement from Chris McDaniel about the dismissal of his case, from his Facebook page:

I am very disappointed to hear Judge McGehee granted Senator Cochran’s Motion to Dismiss on a technical filing issue, instead of hearing the case on its merits. 

Nevertheless, I trust that God has a plan. We may not always understand, but all will be revealed in time. Although we do not yet have our justice, my prayer is that God’s will be done. I likewise pray for all involved (including those who wronged us). 

In the coming days, I will keep you informed on our options. 

Standing and fighting for you and our principles has been the honor of my life. I am grateful for your support and proud to call you my friends.

 

Some reading comprehension problems with the McDaniel lawyers, who also forgot to read the pocket part

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.

Let’s do this again! What could McDaniel be thinking for a challenge? And what is his goal?

When an election has been successfully contested, this Court has employed different tests over the years to aid its determination of what form of relief is in order.[ ] By various routes, we have attempted to discern whether the entire election should be thrown out or only the tainted votes. We have employed a two pronged test which though it has been stated in different ways, essentially provides that special elections will be required only when (1) enough illegal votes were cast for the contestee to change the result of the election, or (2) so many votes are disqualified that the will of the voters is impossible to discern.

Waters v. Gnemi, 907 So. 2d 307, 333-34 (Miss. 2005).

No person shall be eligible to participate in any primary election unless he intends to support the nominations made in the primary in which he participates.
Miss. Code. Ann. § 23-15-575.

The way the process works, the counties will have to certify their votes after counting affidavit ballots.  As I understand it, voter ID has made this process take a week longer, because voters who did not have an ID now have a week to come in and show and ID to get their vote to count.  So next week, there will be a committee meeting in each county where the candidates can have representatives and challenge the affidavit ballots.

That’s a bit of a black box.  They will have a list of the names and addresses of the candidates, but the ballot (being secret) is sealed.  So, on the one side, folks who know their voters will try to round ’em up and bring in the IDs.  On the other side, folks who are guessing will look at the nature of the precinct, anything they can learn, etc.  It’s hard work that can only eke out minor gains.

The next step involves certification by the county party executive committee.  That’s where McDaniel will have to show what he’s got and what kind of fight he’s going to make, if he is going to make one.  Those committees are by definition political animals, and not necessarily run by folks trained in due process.  Anything can happen, including a committee vote on whether to allow much of anything to be heard.  From there, the next step is court, based on the challenge at the committee stage.

So what can be the basis of a challenge? Because we have the Australian ballot, McDaniel can’t say how these people voted.  As many of us know, cross-over was a two-way street yesterday.  But will the anti-crossover statute work.

My initial reaction was that he was not going to have a way to challenge this based on the cross-over vote.  But suppose he flew in a hoard of lawyers…  And suppose he got thousands of affidavits…  How many would he have to get and what would they have to say?

First, it’s clear they’d have to be folk who voted yesterday.  Second, for the cross-over vote, it’s clear that they’d have to say they don’t intend to support a Republican in November.

Remember there were two things that could be showing according to the Waters quote, which is the classic test for elections contests in Mississippi:  Either enough illegal votes to change the results, or enough illegal votes to demonstrate we can’t know who legally one.  If the affidavits went on and said, “And I voted for Cochran,” that would be evidence for the first version (enough to change the result).  If the affidavits did not state a preference, then that would be evidence we can’t know who legally won.

And what would McDaniel’s argument be?  If he met the “enough to change the result” test, he’d be arguing he won.  If he met the “enough to show we can’t tell” test, he’d be arguing for a do over.

Let’s have ANOTHER VOTE BETWEEN THESE TWO.  Yessiree that’s what he’d have to argue.

Another hurdle he’d have to cross:  He’d have to get, first, a trial court to buy into, and, then, the Supreme Court (in an expedited appeal) to buy into the argument that the anti-crossover statute really bars the votes.  While the federal courts have had a bunch of published cases writing about this statute, it has not been applied one single time in an election contest case as far as I know.  I think the courts are going to be very leery of overturning this election if they can find any way to avoid it.

Final question:  How many affidavits must McDaniel get?  As of 10AM today, the New York Times is reporting 99% in and that McDaniel is 6373 behind.  That’s a pretty big mountain to climb, particularly fishing for affidavits among a presumably hostile crowd.  I’m thinking that’s the stump he’ll run up on.