State Sen. Chris McDaniel's election challenge has been going on for nearly four months, but the hopeful politician hasn't gotten his way so far.
The Mississippi Supreme Court heard his and U.S. Sen. Thad Cochran's arguments Oct. 2 regarding the challenge filing deadline, which Judge Hollis McGehee ruled that McDaniel missed by 21 days. McDaniel has met numerous setbacks on his journey to claim victory of the June Republican primary and compete in the general election as the Republican nominee. His claims were rejected by lower courts and even by his own political party's executive committee.
Let's say that McDaniel's luck picks up. The high court rules in his favor. He returns to special judge McGehee, tries to finally make his case and wins. What happens then?
"We'd have another runoff," said Matt Steffey, a constitutional expert at Mississippi College School of Law. "The law says the winner of the general election doesn't take office. It means the general election is void, and we'd have to have another one of those."
McDaniel offered to his supporters the phrase "justice has no time table." But Rick Hasen, University of California Irvine Chancellor's Professor of Law and Political Science, said the amount of time McDaniel has drawn out his challenge thus far makes his success less likely.
"Now we're getting so close to the general election it's becoming impractical to consider replacing Cochran on the ballot even if McDaniel's claim had any merit, which I'm not sure that it does," Hasen said. "To hold another election or to delay the election—all of these things seem like quite drastic remedies that I think a court would be very reluctant to impose."
"Which is one of the many reasons I don't think a judge would ever order another runoff," Steffey said. "This could go on for another six months."
But that likely won't happen. The Mississippi Supreme Court is currently deciding whether or not McDaniel's challenge—which he filed 41 days after the election—was even filed in time. The court has not been asked to determine whether or not a deadline is fair but whether or not a deadline exists in the law.
The Legislature passed and act in 1908 in which the deadline for filing a challenge to an election was understood to be 20 days after the date of the election in question. Since then, election procedure and policy have changed, calling for the law to be amended and altered over the years. The Legislature modified the code and separated the law regarding election challenges for countywide and statewide elections into two statutes.
The only deadline included in the language is under the statute regarding countywide elections, which says that a candidate has 20 days to file a challenge.
McDaniel's attorney Mitch Tyner used this language—or, rather, the missing language—to claim that there is no deadline to file a challenge in statewide elections, such as the latest Senate race. The statute regarding challenges to statewide elections can be used on its face as its own law, Tyner said.
However, in the 1959 Mississippi Supreme Court case Kellum v. Johnson, the court ruled that the 20-day deadline applied to statewide elections as well because the statute, which did not specify a deadline, was meant to be read in conjunction with the previous statute that included a deadline.
"It is inconceivable that the Legislature intended to limit the time in which contests could be filed where a county or beat office was involved, and yet fix no time limit whatever for that purpose in regard to all other offices," reads the 1959 majority opinion.
In countering, Tyner argued that Mississippi's election law was substantially rewritten in 1986—after the Kellum decision.
Cochran attorney Phil Abernethy countered that the law was "brought up to date" to reflect changes in election policy and time frames but that the Legislature did not change the meaning of the law in the process.
Regardless, a representative from Conservative Action Fund, Tom McKnight, spoke on behalf of McDaniel and said that the court acted unconstitutionally when it ruled in Kellum. Instead of applying the law as it stood, he said, the court tried to interpret what the Legislature actually wanted the law to do. This, McKnight argued, violates the election clause in the U.S. Constitution.
The six justices posed the question: What business does the court have in trying to determine what the Legislature meant? How does the court make sure its responsibility to interpret and apply the law does not result in rewriting, amending or adding to the law?
Hasen said this is question goes beyond a case like this McDaniel's challenge. Courts often have to fill in gaps or ambiguities in the law. Some courts try to look at the intent of the Legislature, and some rely heavily on strict interpretation of the text to determine the application of certain statutes.
"It really depends on how the state supreme court usually does things," Hasen said.
However, if the court "got it wrong" in 1959 and the Legislature did not actually want a deadline to file challenges in statewide elections, Abernethy argued, they have had over 50 years to change or clarify the law.
If the court rules in favor of Cochran, the McDaniel camp could conceivably appeal to the U.S. Supreme Court based on the constitutionality of the court's decision under federal law, but that, Steffey said, is not a sound argument.
"(The court in Kellum) concluded that the Legislature wrote a law that had a 20-day deadline that carried throughout. People could disagree about that, but it's certainly not unconstitutional for the court to conclude it. If the court upholds that decision, there would be no basis for the U.S. Supreme Court to reverse," Steffey said.
Either way, if McDaniel's legal game continues through November, "we'd have a general election with this challenge looming over it," Steffey said.