Why do news organizations and writers of commentary get things so wrong about what happened in the McDaniel – Cochran showdown in the Mississippi Supreme Court this week?
In the Clarion Ledger article cited by HotAir writer Jazz Shaw (“Chris McDaniel appeal rejected in state supreme court”, October 25, 2014), we are told that the Supreme Court “[upheld] a lower court decision that McDaniel waited too long to file the challenge of his loss.”
But the court did no such thing:
I’m not a Tea Party supporter, and I didn’t vote for either side in this controversy. But for over twenty years, I’ve been engaged in conducting election investigations and contests. I conducted the investigation that lead to the indictment and conviction of our local Circuit Clerk for fabricating absentee ballots. I’ve investigated countless elections and directed many election contests, managing to help overturn half a dozen in court along the way.
I’ve already published a detailed analysis of the pleadings before the Mississippi Supreme Court in this election contest, which can be read here.
The bottom line is this: the election code, as it stands today, contains no deadline for filing a contest in a state-wide primary. Nobody who reads the two parallel sections would infer that there is a deadline in this case. There are no annotated cases showing that such a deadline exists or has been grafted into the statute by the courts. The Secretary of State, our chief elections officer, stated that there is no such deadline.
Indeed, the notorious Kellum case (which ingrafted a 20 day deadline into the previous incarnation of the current law) was dropped from the statutory commentary by both major publishers of the Mississippi Election Code, whose editors apparently thought it was no longer relevant to the modern version of the statute.
That’s what makes the criticism of McDaniel’s attorneys so disingenuous. They have been derided as lousy lawyers, and treated with contempt by much of the commentariat, when all they did was to follow the plain reading of the election code as it applies in this case. Half the Supreme Court agrees with them!
That contempt appears to me to spring from a visceral dislike for the Tea Party movement. The partisanship is so strong that anybody who helps or associates or works with McDaniel must be subjected to smears, catcalls, and degrading comments. Of course, this goes both ways, with Tea Partiers often stooping to similar attacks against Cochran supporters.
Particularly appalling was Justice Randolph’s claim that the case should be dismissed because of the “political question doctrine” involving how parties ought to guard against cross-party raiding. That issue was not the matter under appeal, and wasn’t briefed by the parties. What Randolph did was take an issue that impacted only one aspect of the election contest, decide that it was fatal to the entire contest, and then cast his vote to dismiss the entire contest, all without giving McDaniel the right to respond or refute his conclusion which, procedurally, came out of the blue.
Tea Party supporter or not, this case ought to bring to mind those aspects of the legal system that many people find so contemptible: the reliance upon the legal artifice, the long-lost court decision, the unjust technicality that overturns plain justice and derails a fair opportunity for the weak and the powerless to finally get at the truth in a court of law.
We’ve seen this dynamic play out over and over again in our political system, and no matter what party or brand you may be, it stinks all the way around.
Jonathan Swift, writing in “Gulliver’s Travels,” remarked upon this very same contemptible aspect of the courts and the law:
“It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.”
Thanks to this legal sleight of hand, now we’ll never know just how pervasive the illegal voting was in the Republican primary run-off for Senate in Mississippi. McDaniel has presented strong evidence that, at least, several thousand illegal votes were cast in a race where the margin was less than 8000 votes.
Were there enough illegal votes cast to require the nomination to be set aside? Thanks to a sleazy precedent that twists the plain reading of the law into something it does not say, that question will never be answered.
If only the members of the public knew how often illegal votes decide the outcome of our elections, more of them would begin to call into question the fundamental integrity of our democratic process. As a professional who has examined the inside of the election mechanism up close for so long, none of this surprises me.
But this time, it makes me very sad to realize, for the first time, just how easily partisan prejudice and legal trickery can bludgeon to death a valiant effort to get to the bottom of it all.