In it, but not of it. TPM DC
Since the runoff, McDaniel and his supporters have been poring over poll books in search of proof that Cochran only won the runoff through Democratic votes. McDaniel's lawyers claim that if the state senator can prove that Cochran's margin of victory was only through votes that shouldn't have been counted in a Republican primary, a new election is automatically triggered (legal experts are skeptical of this). McDaniel, according to Mississippi College School of Law Professor Matthew Steffey, needs the state Supreme Court to order a new election so a legal challenge seems to be the next step.
"Ultimately for the McDaniel campaign to get another runoff the Mississippi Supreme Court's going to have to order it," Steffey told TPM. A ruling would first be issued by a trial judge and then its likely that either side would challenge the outcome to the state's Supreme Court.
Cochran's campaign has strongly argued that McDaniel's claim that there are 8,300 "questionable" ballots is dubious but they're also lawyering up.
"We have counsel on this," Cochran campaign spokesman Jordan Russell told TPM. "We're preparing for any and all circumstances."
Specifically, the Cochran campaign has lawyers from the Butler Snow law firm (where former Gov. Haley Barbour (R), a close Cochran ally, works).
"It'd be foolish of us to not," Russell said. "I mean your opponent is threatening to challenge the election that you won, you'd be doing everybody a disservice to not prepare to contest the case or prepare for the challenge."
Similarly, Mississippi Republican Party Chairman Joe Nosef the state party has also discussed plans with their lawyer if McDaniel officially moves to fight the election results.
"Our general counsel is Mike Wallace who is a terrific lawyer and had advised the party for years," Nosef told TPM. "We have discussed somewhat the process under Mississippi law if someone files a complaint with our state committee to challenge the election. We don't have a lot of guidance as to process because I believe this would be a first. Like always we will request input from both sides as to how they believe we should proceed."
If McDaniel does go to court, one thing the Cochran campaign will probably do is argue that there's no real way to keep Democrats from voting in the Republican runoff if they didn't vote in the Democratic runoff, Steffey said. It's illegal for Democrats to vote in a Republican runoff if they voted in the the Democratic primary, but voters don't register in the state by party, and switching parties from one election year to the next isn't against the law.
"If I'm the Cochran campaign, first, I'm going to argue there's not a legally enforceable prohibition anyway," Steffey said. "And second, I'm going to argue —and there's legal support for this — that any objections that the McDaniel campaign had to the qualifications of a voter should have been raised on the day of the election because those votes could have then been identified as challenged, and then the challenges ruled on and then an accurate count made without having to re-do the election."
"The law is perfectly clear that the court isn't going to just presume all the improper ballots were cast for the challenger's opponent," Steffey continued. At the end of the day, Steffey said, a potential lawsuit may not make much of a difference.
"If I were them I'd be very confident at the end of the day that Thad Cochran's the nominee in the fall and this is much ado about a disappointing candidate," Steffey said.