By Brad Friedman on 6/27/2014, 8:56pm PT  

Mississippi's disgruntled Republican U.S. Senate candidate Chris McDaniel may want to be very careful about what seems to be his current hope of challenging the results of his GOP primary runoff last Tuesday, at least based on the "ineligible" voters he claims cast ballots across the state. If he's too effective in his challenge, he may actually end up seeing himself charged with voter fraud.

On June 3rd in the first primary round McDaniel barely bested Sen. Thad Cochran, but neither candidate received enough votes to avoid a runoff on June 24th, which Cochran is said to have won by just under 7,000 votes. The "Tea Party" candidate McDaniel, however, has yet to concede this week's runoff.

While McDaniel was believed to have been the favorite going into Tuesday's rematch, Cochran stepped up his campaign during the three weeks between the two elections. He even reached out to Democratic voters in the state, making the case that he, unlike McDaniel, was able to continue bringing in federal funding to the state for all manner of important infrastructure spending, from disaster relief to education aid to fighting against reductions in the food stamp program for the state's impoverished population.

At the same time, McDaniel, quite literally, vowed that he was "not going to do anything" for Mississippi voters, having finally taken the long trip to the ultimate dead-end of the "Tea Party" movement. "I'm going to get the government off your back, then I'm gonna let you do it for yourself," he explained in a Politico interview, which was happily exploited by the Cochran camp.

Then came the Tuesday race. And, surprise, the voters of Mississippi seemed to prefer Cochran's message to McDaniel's, according to the results reported by the *computerized vote tabulators in the state's 82 counties.

But McDaniel and his supporters aren't accepting the verdict reportedly delivered by the voters. On Election Night, McDaniel announced that there had been "literally dozens of irregularities reported all across this state," although he offered few specifics other than to blame his loss on "liberal Democrats." He added that "it's our job to make sure that the sanctity of the vote is upheld. Before this race ends, we have to be absolutely certain that the Republican primary was won by Republican voters."

It seems the "irregularities" he was referring to are his belief that Democratic voters had illegally voted in the June 24th open primary runoff.

Unfortunately for McDaniel, however, even if he is able to make the legal argument that that was true, and that enough ballots were cast by ineligible voters to affect the reported results of the election, he might well also have to end up admitting that he, himself, committed "voter fraud" when voting for himself last Tuesday night...

Mississippi doesn't require voters to specify their preferred political party when registering. The state holds open primaries in which voters of any political inclination may cast a vote.

Nonetheless, there is a statute on the books in the Magnolia State that would seem to be virtually unenforceable --- but it is that provision which McDaniel seems to be leaning on as the basis of his reported "irregularities." It is also that same law, if actually enforced, that might well find McDaniel in violation as well.

The Mississippi statute in question (MS Code § 23-15-575 (2013)) reads in full:

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, as TPM's Josh Marshall points out, the statute doesn't say anything, one way or another, about crossing party lines to vote. It simply specifies that it is illegal to participate in a primary without intending to support whoever is nominated by the primary.

Amid the hub-bub about Cochran reaching out to Democrats --- and, gasp, black ones, at that! --- prior to the run-off, one of the far-Right's most reliable "journalistic" tools, Matthew Boyle, wrote an article at, quoting J. Christian Adams, the former Bush Dept. of Justice official-turned-"Tea Party" "voter fraud" fraudster. In the article, Adams warned that "Mississippi law prohibits Democrats from voting in a Republican primary."

You'll be shocked to learn that both Boyle and Adams are wrong.

Mississippi does not bar Democrats from voting in the Republican runoff, so long as the voter had not already voted in the June 3rd Democratic primary.

The hub-bub caused by the inaccurate assertion, however --- along with the plans of McDaniel supporters to place 300 "observers" at the polls last Tuesday --- was enough to elicit an official statement from the Mississippi Attorney General and Sec. of State to clarify their interpretation of the state statute in question just prior to the election.

First, the statement notes that "Crossover voting is prohibited in the State of Mississippi. Crossover voting is defined as participation in the first primary of one political party and participation in the runoff primary of another party. Thus, a voter who cast his/her ballot in the Democratic Primary Election on June 3 is prohibited from casting his/her ballot in the Republican Primary Runoff Election on June 24."

Beyond that, however, the statement also speaks to voters who might otherwise consider themselves Democrats --- for example, the vast majority of the state's African-American population --- and how they can and can't be challenged at the polls:

A person lawfully in the polling place may challenge a voter based on party loyalty only if the voter openly declares he does not intend to support the nominees of the party whose primary the voter is participating in.

Okay. So it's not illegal for someone who identifies with the Democratic Party to vote in Mississippi's open Republican primary or primary runoff, apparently, unless they "openly declare" their intention to not support the party's nominee, according to the joint statement by the state AG and SoS.

Nonetheless, McDaniel's campaign, while refusing to concede, is now attempting to comb over the poll books in the state, in order to somehow identify those who they believe cast "illegal" votes during the runoff.

"We haven't conceded and we're not going to concede right now. We're going to investigate," McDaniel told Rightwing radio host Mark Levin on Wednesday. "Naturally, sometimes it's difficult to contest an election, obviously, but we do know that 35,000 Democrats crossed over. And we know many of those Democrats did vote in the Democratic primary just three weeks ago which makes it illegal."

On the night of the runoff, after the polls had closed and the media declared Cochran the "winner," UC Irvine law professor Rick Hasen, writing in response to McDaniel's non-concession speech in which he discussed "irregularities," pooh-poohed the idea of a legal challenge, at least one based on voters casting votes illegally after voting in the Dem primary three weeks earlier.

"Everyone knew before the election who was allowed to vote --- basically anyone who did not vote in the Democratic primary a few weeks ago," wrote Hasen. "This is longstanding practice; heck, McDaniel himself apparently voted in a Democratic primary in 2003."

Nonetheless, on Thursday evening, according to Reuters, McDaniel told Sean Hannity on Fox "News", that his campaign had "already found more than 1,000 one county alone" of voters he claims were "ineligible" because, he says, they voted in the June 3rd Democratic primary.

With a nearly 7,000 vote spread, he'll need to find a lot more such voters, somehow prove they all voted for Cochran, and then convince the courts to remove that many Cochran votes. On Election Night, Hasen was dubious about the strategy. "The idea that the courts are going to come in and subtract an uncertain number of 'illegal' Democratic votes cast presumably for Cochran seems most unlikely," he wrote.

It's unclear whether McDaniel hopes to challenge only the votes cast by those who had already voted in the Democratic primary --- presuming there are enough such voters to flip the results --- or if he plans to make a broader case, by challenging everyone that, he believes, illegally cast a ballot because they did not did not really "intend to support the nominations made in the primary in which [they] participate[d]," as per the state's seemingly-unenforceable statute.

If that's McDaniel's intention, as he and his supporters seemed to initially be suggesting, he may find himself hoisted on his own "irregularity" petard.

"Obviously poll workers aren't mind readers," Adams, the former Bush DoJ official GOP "voter fraud" fraudster cited by Boyle at Breitbart noted. "But if someone doesn't intend to support the nominee in November, then that person isn't allowed to vote in the Republican primary."

Adams' as-ever dubious interpretations of the law aside, that interpretation could prove to be the biggest problem of all for McDaniel.

As Josh Marshall observed Thursday night, under this "legal" theory, McDaniel may have to accuse himself of having voted illegally!

On the Monday night before the runoff, McDaniel was asked if intended to support Cochran, in the event that he came up short in the runoff against the longtime incumbent. McDaniel's response to WTOK: "I'll have to think about it, depending on what happens that evening. I'll let you know that evening," McDaniel said.

"In other words, by McDaniel's own public statement," writes Marshall, "he was at best uncertain whether he planned to vote for the winner of the primary he was participating in."

Oh, my. That would make McDaniel one of those "illegal" voters, according to Adams and perhaps even McDaniel himself.

"Now, do I think McDaniel is likely to be prosecuted for this or should be? No," Marshall continued. "But you put the statute up against his own statement and on its face it sounds like he was himself ineligible to vote on Tuesday. That may be true of thousands of other de facto Democrats and tens of thousands of (McDaniel supporting) de facto Republicans. But none of them were quoted on the eve of the primary essentially disqualifying themselves from participating. But McDaniel was."

After the election, McDaniel was still not sure if he'd "support Cochran going forward," according to Politico. "He said he’ll need to pray and talk to his family before making a final decision."

Marshall goes on to describe the entire matter as ridiculous. "Yes, the whole thing is sort of a reductio ad adsurdum down the rabbit hole of Chris McDaniels' world of derp. But this is his theory. And the theory seems to fit him way better than it fits the voters whose votes he wants to invalidate."

True. McDaniel should be careful what he wishes for. More to the point, Mississippi needs to fix its laws or end its open primary system. Moreover, they ought to mandate hand-marked paper ballots for the entire state, so that --- in the event anybody actually ever decided to count them --- we could really know who won or lost any given election.

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UPDATE 6/28/2014: WaPo's Philip Bump examines the same issues today, and argues that even tossing out the votes of all double-voters across the state (those who had cast a ballot in the Dem primary on June 3rd as well as the Republican runoff on June 24th) would still not result in enough votes to overcome Cochran's reported margin of victory.

As to the "intent" matter, Bump asked Mississippi College School of Law professor Matt Steffey, whether he believed McDaniel's stated vagueness about his intention (or lack thereof) for supporting Cochran in November suggests that he would be in strict violation of MS Code § 23-15-575.

"Without question," Steffey answered Bump. The law professor also added that, in any case, it was too late for any such challenges to those votes, which would have had to have been made at the precinct on Election Day. "It's too late to raise that issue," says Steffey. "It would have to be raised, the ballot would have to be marked as challenged and on the day of the primary it would have to be challenged. As it stands today, I think that challenge is a moot point."

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* Most counties in the state use 100% unverifiable electronic voting systems. A few, such as Hinds, one of the largest, have finally switched to hand-marked paper ballots. Unfortunately, those paper ballots are tabulated by optical-scan computers which either scan the ballots accurately or not. There is no way to know unless the ballots are hand-counted. Even more unfortunately, the state apparently has no provisions for recounts or the hand-counting of paper ballots (where they exist.) So, whatever results the computer tabulators have reported as the outcome must largely be accepted as "accurate", whether they are or not. There will never be any way to know in Mississippi.

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