The McDaniel Challenge May Have Merit
There may be something to McDaniel’s election challenge. I say: there may be.
The stats wizards at FiveThirtyEight say that unusually high black turnout did indeed, as suspected, help Cochran win. Counties that always go Democrat had massive numbers of voters going for Cochran in the Republican primary. Your initial reaction might be the same as mine was: isn’t that what happens when you have open primaries? After all, Rush Limbaugh famously encouraged Republicans to throw a monkey wrench into the works in 2008, and go vote for Hillary, just to undermine Obama and create more drama in the Democrat presidential primary process. Rush called the proposal “Operation Chaos.”
There are two differences between that and the Cochran situation: one moral and one potentially legal.
Limbaugh himself points out the moral issue: Establishment Republicans helped with this. Calling this a “Reverse Operation Chaos” is not accurate, because there is no evidence that Hillary helped Rush in 2008. But Republicans were behind the get-out-the-black-Democrat vote effort in this primary.
Charles C. Johnson has been leading the charge on this. He posts a picture of a flyer smearing McDaniel as a racist:
Here's the racist McDaniel hates black people mailer in entirety. Note illegal lack of disclosure. #cochran #mssen pic.twitter.com/uZcrMsj9oi
— Charles C. Johnson (@ChuckCJohnson) June 25, 2014
Here is a robocall where you can hear the race-based appeal:
OK, what about the legal aspect? Well, the Mississippi statute does allow open primaries . . . but it also limits participation in a party’s primary to people who intend to vote for the party’s candidate. The relevant Mississippi statute says:
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.
Now. I think you’d have some trouble enforcing that when it comes to the actions of an individual voter. What are you going to do: have elections officials quiz them about who they voted for, and who they intend to vote for in the general election? It seems to me that a court would put the kibosh on that kind of intrusion into the voters’ deliberative process.
But . . . it certainly would seem to show an intent to violate the law if a candidate or his supporters were to market their political message explicitly towards people intending to vote Democrat in the general election. Take another look at that flier above. See the bit at the bottom? Let me quote that for you:
MS law is clear. Anyone who did not vote in the June 3rd Democratic primary may vote in this Senate Run-off on Tuesday, June 24. If anyone asks you who you are voting for now or in November, tell them it’s a secret ballot and you don’t have to answer them.
That’s not what the statute says. You can’t vote if you don’t intend to support the nominations made in the party in which you participate.
This seems like an attempt to persuade people to vote who are not eligible — and to cover it up.
I still don’t see how a judge can throw out any votes based on a suspicion — however correct — that the voter intends to vote for the other party in the general election. But if they already voted in the Democrat election, that’s a different matter entirely.
This is a random claim on the Internet and I can’t trust it for that reason, but there may be something to it:
Hey, here's another example of voter fraud in #mssen. pic.twitter.com/scqNfzPPoq
— Charles C. Johnson (@ChuckCJohnson) June 26, 2014
If people voted in the Democrat primary and then voted again in the Republican primary, I think the process will be able to catch that. Those votes should be thrown out. Whether that’s enough to turn the tide for McDaniel, I don’t know. I suspect it’s not.
Ultimately, there may be no way to reverse the results of this election.
The real issue is: who is responsible?
Chuck Johnson says he has the goods to show that establishment Republicans were behind this:
Friends I have the smoking gun that shows Haley Barbour & his Super PAC was behind racist anti-McDaniel material. It's coming… #mssen
— Charles C. Johnson (@ChuckCJohnson) June 25, 2014
He’s also told me I can break the news here, tomorrow.
So stay tuned.
Ding.
Patterico (9c670f) — 6/25/2014 @ 9:35 pmNow, I see the name and I think of Little Green Footballs, but I don’t think its the same. I mean whats in a name. Sorry to him for the unfair correlation.
G (bbda88) — 6/25/2014 @ 9:43 pmno, he’s not, he’s done of the best material on Derrick Bell, here, on Menendez complex situation, for the Daily Caller,
narciso (3fec35) — 6/25/2014 @ 9:52 pmWe know the Tea Party uses “Democrats” as code for “African Americans.”
Vote Thad Cochran November 2014
happyfeet (8ce051) — 6/25/2014 @ 9:53 pmThe law is indeed unenforceable, not only because of the secret ballot, but also because a person can change his mind between June and November. But here an arguable case can be made that while no individual voter can be singled out and disqualified, the court should take notice of the obvious fact that at least several thousand voters did violate this law, that they all voted for Cochran, and that they were explicitly encouraged to do so by the Cochran campaign.
Next question: suppose the court buys this argument, what remedy can it give? Obviously it can’t just award the win to McDaniel. But the only other remedy would be to call a new election, and what’s to stop the same thing from happening again? The court probably couldn’t even enjoin the campaign from running the same ads again, since that would be a prior restraint, and it certainly couldn’t enjoin other people, not officially affiliated with the campaign, from running the ads, let alone enjoin the voters from remembering them and voting again the same way.
The only thing I can think of that might be constitutional, and might have some effect, would be to order that before anybody is given a ballot they must verbally declare their intention of voting Republican in November. Nothing can stop people from lying, but there may be a significant number of voters who either are reluctant to lie, or imagine that they could somehow be caught and get into trouble.
Milhouse (b95258) — 6/25/2014 @ 10:02 pmThey could invalidate the election, and force a re-vote.
askeptic (8ecc78) — 6/25/2014 @ 10:22 pmWhat I want to know is, what’s with these open primaries anyway? Seems to me there’s too much potential for skullduggery, as evidenced by this particular contest.
Blacque Jacques Shellacque (b14ea2) — 6/25/2014 @ 10:24 pmYeah, very different guy. Unfortunate name.
This reminds me of the ballot access jokes the GOP organized in VA in 2012. After it was ruled unconstitutional, they weren’t able to do anything about it.
It’s corruption vs conservative reform. There is too much graft at stake for the RINOs+democrats to allow the tea party to win. And they do align all the time when it comes down to this. In fact, this has been happening at the state level in Texas for a very long time. This is simply the next step in the evolution of the GOP. In Texas, it eventually led to some dramatic results, so there is hope.
But the end all is that dependency is very popular. The outrage to this behavior can’t compete with that in most places.
Dustin (6c1e25) — 6/25/2014 @ 10:39 pmAnd then what? See my comment above.
Milhouse (b95258) — 6/25/2014 @ 10:44 pmhttp://www.breitbart.com/Big-Government/2014/06/17/Rumors-Of-Impropriety-Swirl-About-Cochran-Allies-Entreaties-To-Democratic-Voters
It looks like Cochran’s minions may have been doing some illegal vote buying, too.
Steve57 (334088) — 6/25/2014 @ 10:48 pmI don’t think it’s outside the realm of possibility, though.
Steve57 (334088) — 6/25/2014 @ 10:55 pmhospitalizing cochran for dementia may also have merit
happyfeet (8ce051) — 6/25/2014 @ 11:02 pmI have drafted the post with the connection to Barbour Super-PAC. It is set to publish at 6 am tomorrow.
Patterico (9c670f) — 6/25/2014 @ 11:02 pmno matter what you wanna say about this Thad Cochran person
this is a trashy situation he got hisself in
when did America get so damn trashy
people are pointing and laughing you know
happyfeet (8ce051) — 6/25/2014 @ 11:09 pmAnd then what? See my comment above.
Well, perhaps Teas get really motivated to vote and establishment Republicans stay home out of distaste for the party treason.
Also, if they do charge each voter with such a question, and tell them it is ballot fraud to lie, most voters won’t lie.
If they can trace the illegal flyer back to Thad, they might even disqualify him.
Lots of things can happen. Maybe the horse will sing.
Kevin M (b357ee) — 6/26/2014 @ 1:02 amI am rethinking my stance on falling in line and voting for the lesser of two evils.
mg (31009b) — 6/26/2014 @ 1:16 amBecause nothing is as evil as traitors of conservatism.
So sorry Elephant Stone, but your people suck.
http://www.newrepublic.com/article/118372/thad-cochran-owes-black-mississippians-debt-his-win-over-mcdaniel
mg (31009b) — 6/26/2014 @ 1:22 ami’m with you mg: which is why CashAndCarry will NOT be getting my vote in November, even though big evil the the Moonbeam himself.
a gun hating Obama voter is NOT the way to mobilize your conservative base OR differ your platform from the other party’s.
but once you figure out that the RNC is happy being the perpetual minority party, as long as all those involved in the farce maintain their lifestyles and access to power & wealth, their otherwise inexplicable stupidity suddenly makes all sorts of sense.
redc1c4 (abd49e) — 6/26/2014 @ 1:36 amHaley,Juan or Bloomberg
mg (31009b) — 6/26/2014 @ 2:49 amWhich one deserves the oak branch first?
This maneuver by the g.o.p.should end the republican party.
mg (31009b) — 6/26/2014 @ 2:59 amI see a lower than last time vote for mitty-pie.
I voted for Hillary in the 2008 primary. My daughter told me to. She said it was time we had a girl President. (We got Obama so she got her wish.) Why people vote for a particular candidate is nobody’s business but theirs. McDaniel should stop whining and find another job.
I doubt that it’s possible for people to vote Democrat in the first primary and vote again, Republican, in the runoff, if the rule is that you can’t vote in the runoff if you already voted in the primary. There’s only one voters’ list in an open primary. You go in, say Republican or Democrat for the ballot you want and the judge marks you off. Why would they use a new book, that does not show who already voted, in the runoff? Well, ok, it is Mississippi.
nk (dbc370) — 6/26/2014 @ 3:41 amThe gop and it’s benny arnold tactics are whats in question, nk.
mg (31009b) — 6/26/2014 @ 4:26 ammg, the GOP establishment is on the road to hell. No disagreement. They don’t serve the constituency, they serve their big donors, and divvy up the pork with the Democrats. I wish I could say that it was only Mississippi but the Illinois Combine is just as bad. But for this election cycle, with Obama likely to make Supreme Court appointments in the next two years, I say “Senate control uber alles.” Let’s not make it so Childers is elected in November. I know, right? We’re like the battered wife whose only other choice is the YWCA shelter.
nk (dbc370) — 6/26/2014 @ 4:41 amSo I’m Chicken Little for saying 2014 would suck petrified eggs and 2015 would be much, much worse.
Only the stone blind could have missed it.
gary gulrud (46ca75) — 6/26/2014 @ 5:13 amrimshot, who do you think those 35,000 voters will go in November, how many of our people did Thad demonize, and how many of them, would rather vote for a yellow dog, how many Republicans really stood
narciso (3fec35) — 6/26/2014 @ 5:13 amagainst Soto or Kagan
20. Shoot the Walking Dead first. Aim high.
gary gulrud (46ca75) — 6/26/2014 @ 5:15 am21. The issue isn’t the law. The Law is sodomized and loving it.
Democracy has folded like a cheap suit. Men are grass.
gary gulrud (46ca75) — 6/26/2014 @ 5:22 amthe infrared lights, burn the strigoi, gary,
narciso (3fec35) — 6/26/2014 @ 5:27 amto his credit, Cochran didn’t go for the foolishness about Gitmo:
http://www.longwarjournal.org/archives/2014/06/_a_leaked_threat_ass.php#comments
however, what difference does it make now,
narciso (3fec35) — 6/26/2014 @ 5:33 amNew post is up with circumstantial evidence that Haley and Henry Barbour’s super-PAC may have been behind the flyer.
Patterico (8325c1) — 6/26/2014 @ 6:30 amI’m in Virginia, but this whole mess has convinced me to stay home this November. The Establishment folks clearly think I am a big old racist, so I’m sure Gillespie won’t want my terrible, horrible, no good, disgusting vote. This will be the first time since I’ve been 18 I have ever not participated in an election.
And does McDaniel have a case to sue for liable? Basically whoever paid for these flyers are calling him a racist. I assume since they don’t actually mention him by name he couldn’t sue, even though it’s aimed at him.
MaureenTheTemp (f28c88) — 6/26/2014 @ 8:37 amBlacque Jacque wrote:
Remember the Solid South, solidly Democratic? They were conservative Democrats, to be sure, but Democrats nevertheless. And in states which have closed primaries, it has been harder for Republicans to make inroads; Kentucky, where I grew up, has closed primaries, and for epochs, eons, ages, all of the action was in the Democratic primary. That kept conservatives as Democrats for longer, because registering Republican basically disenfranchised voters. One part of that result is that reliably red state Kentucky has a Democratic governor and a state Senate controlled by the Democrats.
The Southern Dana (3e4784) — 6/26/2014 @ 8:53 amOur Windy City barrister wrote:
Exactly right.
Had I been a Mississippian, I’d have voted for Mr McDaniel, and I’m disappointed that he lost, but it’s time for him to man up, concede, and support Senator Cochran’s re-election. He still has a future in Mississippi politics, while this is almost certainly Senator Cochran’s last campaign.
The TEA Party Dana (3e4784) — 6/26/2014 @ 9:00 amWhat is the point of a party primary, when the other side provides the winning margin, you’re indebted to them,
narciso (3fec35) — 6/26/2014 @ 9:08 am5. Milhouse (b95258) — 6/25/2014 @ 10:02 pm
The only thing I can think of that might be constitutional, and might have some effect, would be to order that before anybody is given a ballot they must verbally declare their intention of voting Republican in November. Nothing can stop people from lying, but there may be a significant number of voters who either are reluctant to lie, or imagine that they could somehow be caught and get into trouble.
And there would be a court case right away, seeking an injunction to prevent that, arguing that you can’t make that a requirement to participate in a primary.
And the public at large probably doesn’t want that either.
The United States Senate could also refuse to seat the winner, if it wanted to. In the 1920s, I think some Senators-elect were not seated, not because of voting irregularities, but because of campaign finance irregularities.
Sammy Finkelman (9257c5) — 6/26/2014 @ 9:11 amThe relevant Mississippi statute says:
The state of the law on the permissibility of these kinds of requirements might be very vague.
Sammy Finkelman (9257c5) — 6/26/2014 @ 9:13 am31. All the MN candidates I was pulling for dropped out failing to get the GOP endorsement at caucus.
We have an August primary but even the ‘conservatives’ refuse to fight.
gary gulrud (46ca75) — 6/26/2014 @ 9:34 amThe Mississippi statute is pointless and should probably never have been put on the books.
1. There is no way for election officials to know whether the voter actually does intend to support the nomination made in the primary they are participating in.
2. A voter should not be required to “support the nominations made in the primary in which he participates,” because some of the nominees may be candidates that the voter didn’t support in the primary. I agree that party raiding (people intentionally voting for weak candidates of the other party) should be discouraged, but expecting a voter to support all of their own party’s nominees is taking things too far.
It would be better just to require registration by party to vote in a party’s primary. If you want to vote in the Republican primary, you ought to be willing to register as a Republican.
Joshua (9ede0e) — 6/26/2014 @ 4:36 pm@31 Maureen: The flyers do mention McDaniel by name. There’s a picture of him and under it it says, “Chris McDaniel – Tea Party” with a list of accusations against him below.
McDaniel would be unlikely to sue for libel, or if he did he would be unlikely to win. Case law for the last 50 years has made it very difficult for a public official or a public figure (McDaniel is both) to win a libel case.
Joshua (9ede0e) — 6/26/2014 @ 4:43 pmOn what grounds?
What makes you think so?
So what? Just because it’s impossible to catch someone breaking the law doesn’t mean the law shouldn’t exist. Some people may be keep the law simply because it exists, and some people may keep it be too dumb to realise that they could never be caught.
Why not? If you don’t intend to vote for the party’s nominees, what right do you have to participate in selecting them? Of course you may genuinely change your mind after you see the result, but it makes sense for the law to require that at least at the time of the primary you intend to support whoever wins it.
What does that do? Why would a Democrat not be willing to register as a Republican, if he’s in a district where the R primary is the only election that matters? Most of the Rs I know around here are registered Ds, for exactly that reason. I’m registered R because I want to vote in presidential primaries, and in primaries for governor, which the Rs sometimes win. And because I don’t really want to vote in the D primary, because there’s never anyone worth voting for in them anyway, even the best of them is still a D. Even Bill Thompson, who’s the only D I’ve voted for in 30 years, is still a D.
Milhouse (b95258) — 6/27/2014 @ 12:23 am