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It's been over a week since Senator Thad Cochran (R-MS) beat back a primary challenge from Chris McDaniel, helped partly by the support of black and Democratic voters. But McDaniel hasn't yet conceded — in an email to supporters Wednesday, he called the runoff "a sham, plain and simple," and said Cochran "stole" it "thanks to illegal voting from liberal Democrats." Now, he's trying to raise money for a legal challenge against what he calls "this corrupt election."
McDaniel is basing his claim on this sentence in Mississippi's election code:
"No person shall be eligible to participate in any primary election unless he intends to support the nominations made in which he participates."
The provision is an attempt by Mississippi, which doesn't have party registration, to prevent partisan mischief in opposite-party primaries. There are few like it in the country. Indiana requires a primary voter, if challenged, to sign an affidavit pledging intent to vote for the party's nominees, as Rick Hasen describes here. And Virginia Republicans briefly planned to make anyone voting in their 2012 presidential primary sign a "loyalty oath" pledging to support the nominee — but they abandoned the plan after it became controversial.
Beyond that, the statute seems very difficult to enforce — it speaks only of what the voter "intends" to do at the time of the primary vote. Mississippi has interpreted this to mean that, if challenged, voters have to be taken at their word. (Ironically, many of the conservative activists protesting most vigorously — including McDaniel himself — wouldn't say whether they'd support Cochran in this fall's election, as Philip Bump of the Washington Post points out.)
What about people who voted first in the Democratic primary, and then in the later Republican runoff? The consensus in Mississippi was that those voters shouldn't have been eligible to vote in the runoff — this interpretation "seems to be undisputed," Matthew Steffey, a professor at Mississippi College School of Law, told me. So McDaniel's campaign has been trying to identify those voters, and says they've found over 3,300 of them so far — half of Cochran's margin of victory.
If the matter makes it to court, though, it's not even clear if that interpretation will hold up. After all, a voter could simply have changed his or her mind about who to support between the primary and the runoff. "I'm not convinced that the quoted statute [the one above] establishes the rule," said Steffey. Now, there is another statute saying each primary "shall be conducted entirely independent of the other." Yet the restrictions on participation themselves might not be constitutional — a federal judge ruled as such once, but a circuit court later determined the state's Democratic Party didn't have standing to bring the case. We're in mostly uncharted legal waters here.
Though the election results are expected to be certified next week, McDaniel doesn't look like he's giving up any time soon. He recently said that Cochran "literally ran the latter three weeks [of the runoff] on food stamps" — apparently referring to mailings emphasizing Cochran's support of the Supplemental Nutritional Assistance Program. Some conservative bloggers and activists are growing more interested in the challenge, and Erick Erickson of Redstate is helping McDaniel raise money.
For his part, Steffey pointed to the state's unusual law as the problem. Until party registration is adopted, "or until Mississippi adopts closed primaries in some other way," he said, "the current political dynamic will continue."
