McDaniel’s Longshot Legal Challenge Is Even Weaker Than We Thought

You can read the eight-page complaint at this link. The complaint essentially incorporates McDaniel’s 243-page complaint filed with the MS Republican Party into the complaint. He asks for votes from Hinds County and elsewhere to be thrown out, and for him to be declared the winner of the election. In the alternative, he asks for a new election [corrected]. The complaint puts great emphasis on his argument that any voters (i.e., (Black) Democrats) who voted in the Republican runoff should have their votes thrown out, because they violated Mississippi law by voting without having the intent to support the ultimate Republican nominee in the election.

McDaniel’s chances of succeeding in this lawsuit are very, very small. In an earlier post, I explained why McDaniel is likely to lose. Since I wrote that, it turns out his case is even weaker, given that many of the votes he characterizes as illegal crossover votes (by Democrats who actually voted in the Democratic primary and were not eligible to vote in the Republican primary) were actually votes by Republicans. McDaniel even challenges the votes of his own lawyer! On the specifics of why the challenge to the MS provision on voter intent is likely unenforceable, see also this post.

And by the way, McDaniel’s web page still irresponsibly accuses Democrats of “stealing” the election. It is a serious allegation, but one not backed by the evidence. Such charges are pernicious when they are not backed by proof. For weeks McDaniel promised that proof and has not delivered.

In sum, this has been a huge wind up for a whole lot of nothing.

A few people have asked about the political party First and 14th amendment associational right claim in McDaniel’s complaint. Here’s the quick answer about this, and why I don’t think his argument will work:

A number of United States Supreme Court cases (Tashjian, California Democratic Party v. Jones, Clingman v. Beaver) hold that political parties have certain rights as to the form of primary that they use. In Tashjian, the California Republican Party wanted to open their primaries to independents, but state law (with the state legislature controlled by Democrats) had the primaries closed. The Supreme Court held that the party could not be forced to use a closed primary if it wanted an open one. Similarly, in Jones, the Court held that the parties could not be forced by the state (through a voter initiative) to have a wide open “blanket” primary if the parties want more closed primaries. That is, the state gets to pick the form of the primary, and if a party objects to the form, they have a constitutional right to have the party form changed for them. (Clingman says the party does not have a right to demand that members of other parties get to vote in their primary if the other parties object.)

McDaniel seems to be saying that the Mississippi Republican Party’s right to a closed primary was violated because Democrats got to vote in the Republican primary. If McDaniel was able to bring suit on behalf of the Republican Party, he would likely be able to convince a court to close the Republican primary. Or, if McDaniel as a member of the state’s legislature got a bill passed to close the primaries (and the Republican party did not object), he could get a closed primary that way too.

But McDaniel is not asking for either of these. He’s saying the Mississippi Republican Party’s rights were violated when Democrats voted in the primary. But the rules, as they had been interpreted for decades by the attorney general of the state allowed people from either party to vote in the party primary – unless a voter walked in to the polling and declared that she did not have an intent to vote for the party’s nominee in the general election. The SOS and AG just before the election confirmed this understanding of Mississippi law.

It is too late now for McDaniel to come in and say that the rules should have been different. This issue was known before the election. He did not challenge those rules. it would be quite unfair to go in and claim after the election that the rules were unfair when there was ample opportunity to challenge them before.

So while state Republicans may get a chance to close their primary if they like under the Tashjian/Jones precedents, those precedents don’t give McDaniel anything now.

This post first appeared at Election Law Blog.

Professor Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. He is at work on a book on campaign finance reform and political equality for Yale University Press.