Courts Unlikely to Overturn GOP Senate Outcome in Mississippi

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Monday, 07 Jul 2014 11:34 AM

By John Gizzi

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State Sen. Chris McDaniel has begun the legal maneuvering he hopes will confirm fraud in his narrow loss of Mississippi's Republican U.S. Senate nomination, but the chances are slim that courts will overturn that outcome and give the tea party conservative the "do over" election his supporters want.

With McDaniel trailing 36-year Sen. Thad Cochran by 6,479 votes out of more than 375,000 cast in the June 24 runoff, his spokesman Noel Fritsch told Newsmax last Wednesday that the campaign expected to find more than enough "irregularities" to make up the difference.

By "irregularities," Fritsch means voters who cast ballots in the Democratic primary on June 3 and then crossed over to vote in the Republican Senate runoff between Cochran and McDaniel. This is illegal under Magnolia State election law.

Once the Republican State Executive Committee makes its certain certification of Cochran as the nominee, he said, the McDaniel campaign will go to state court with a lawsuit alleging fraud and requesting the results be overturned and a new election ordered.

The problem with this plan is that the primary and runoff were overseen by the Republican Party, not state officials. Courts historically have been reluctant to become involved in matters that are in the realm of a party rather than the state.

Mississippi Secretary of State Delbert Hosemann said as much last week when, in requesting dismissal of a separate suit from a pro-McDaniel vote group known as True the Vote, he announced that "party primary elections are the responsibility of the party, not the secretary of state. The Secretary of State's Office does not certify primary election results."

If one looks hard enough, there are a few cases of "do-over" primaries being ordered by courts because of irregularities. In 2002, when New York Democratic State Assemblywoman Carmen Arroyo and a challenger ended up in a tie in their primary (2,405 votes each), a Superior Court judge found 217 irregularities and order a revote. Arroyo won narrowly.

But such situations are few and far between.

Going back to Lyndon Johnson's storied 1948 win of the Democratic U.S. Senate nomination in Texas by 87 votes, courts have almost always refused to get involved in matters involving a nomination by a political party. In that contest, LBJ emerged on top in the runoff against opponent and former Gov. Coke Stevenson by 87 votes out of more than 988,295 cast.

With 203 votes cast for Johnson in the same handwriting on the clerk’s list in corruption-riddled Jim Wells County, Stevenson backers cried "foul." After the Texas Democratic State Committee certified Johnson as the nominee by a vote of 29 to 28, Stevenson’s team persuaded a U.S. District Judge to stay the certification.

But U.S. Supreme Court Justice Hugo Black ruled that the district judge had overstepped his authority. With Black overturning the lower court ruling, the certification of Johnson was restored and his name appeared as the Democratic nominee for senator on the general election ballot.

On Oct. 7, 1978, a superior court judge in Alaska did throw out the results of Alaska’s Republican and Democratic primaries for governor on Aug. 22 of that year. In those primaries, Republican Gov. Jay Hammond led former Gov. Walter J. Hickel by 98 votes and Democratic state Sen. Chancy Croft led former state Sen. Ed Merdes by 260 votes.

Because he found "actions of malconduct [sic], mistakes, and confusing procedures" sufficient to change the outcome, Judge Ralph Moody ordered a new primary "at the earliest possible date."

But on Oct. 20, Moody was reversed by Alaska’s Supreme Court. In its ruling, the high court decided "there were no such numerous serious violations as to permeate the entire election process, so as to require the extreme remedy of a new election."

In 1986, Alabama’s conservative state Attorney General Charlie Graddick won the Democratic nomination for governor by a few thousand votes in a runoff with liberal Lieutenant Gov. Bill Baxley. Like McDaniel today, Baxley refused to concede and asked the state Supreme Court to void his opponent’s nomination on the grounds that Graddick had appealed to Republican primary voters to "cross over" for him in the runoff. This violated a state primary regulation, charged Baxley, although the regulation in question had never been enforced, and Alabama, like Mississippi, did not register voters by party.

With the court ruling that the regulation was indeed violated and that the Democratic Party should either hold a new election or declare Baxley its nominee, the Democratic State Executive Committee and took the latter course. Infuriated, Graddick and his supporters went over in droves in the fall to elect Guy Hunt as Alabama’s first Republican governor since Reconstruction.

That one has to go back 28 years to find one example of a nomination by a party voided in court is a sign of the uphill climb McDaniel now faces in trying to overturn the nomination of Cochran.


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