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Everything You Think You Know About McDaniel's Election Challenge Could Be Wrong

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AP Photo / Rogelio V. Solis

McDaniel, since the runoff, has claimed that his campaign and supporters have found over 8,300 examples of questionable ballots (though a Thursday statement from the campaign suggested that figure may be as high as 30,000 or 40,000), many of which were clearly illegal crossover votes. But an attorney for the Mississippi Republican Party is arguing that what everyone has been taking as fact under Mississippi law is merely the opinion of one attorney general from the 1990s.

Michael Wallace, who is representing the Mississippi Republican Party in a federal lawsuit brought up by the conservative anti-voter fraud group True the Vote, recently argued that crossover voting isn't actually illegal in Mississippi.

"You heard me right," Wallace told to the Mississippi Clarion-Ledger after True the Vote presented its case to a federal judge. "There is an attorney general’s opinion on the subject, but that is all."

"The attorney general may be 100 percent right, but the issue has not been tested in court that I know of," Wallace continued. "All we have is an attorney general interpretation."

Wallace is referring to a statement by Mississippi Secretary of State Delbert Hosemann (R), who cited an 1988 attorney general's opinion to make the case that there's a statutory prohibition on crossover voting, according to the Clarion-Ledger. That opinion, citing Mississippi Code 97-13-35, said said that state law bars voting in multiple primaries on the same day, and that includes the case of a runoff as well.

Legal scholars in the state say there may be something to Wallace's argument, and the question centers on a key line of the state's legal code.

"The attorney general's opinion is not binding on anybody. It's just one lawyer's opinion," said Mississippi College of Law Professor Matthew Steffey. "An important lawyer, but it's not binding on any judge or any person. It's legal advice. The attorney general is the lawyer for the state and the state agencies can say 'what do you think?' Essentially what McDaniel's argument is is that this has always been the practice and therefore the law."

Steffey pointed to a specific line of the code Hosemann and others regularly cited. Steffey underlined that a key part of the statute says that one voter cannot vote in two elections that take place "on the same date":

§ 97-13-35. Illegal voting behavior

Any person who shall vote at any election, not being legally qualified, or who shall vote in more than one county, or at more than one place in any county or in any city, town, or village entitled to separate representation, or who shall vote out of the district of his legal domicile, or who shall vote or attempt to vote in the primary election of one party when he shall have voted on the same date in the primary election of another party, shall be guilty of a misdemeanor, and, on conviction, shall be fined not exceeding two hundred dollars, or be imprisoned in the county jail not more than six months, or both.

That muddies the argument of McDaniel and his supporters.

"In other words, the McDaniel camp basically says we're relying on the attorney general's finding and opinion, and Wallace is saying that's wrong, the statute says on the same date," Steffey said. "And obviously the runoff and the first primary aren't on the same date so the statute doesn't apply and to try to squish these crossover votes, in fact, is depriving people of their constitutional right to vote."

Richard Pildes, a constitutional law expert at New York University, told TPM by email that here's a "basic conflict" between the plain text of the statute and the statute's purpose. Pildes cited the original attorney general's opinion at the core of Wallace's argument.

Pildes says the key is that the memo he cites determines that "the first and second primary" are "one election process" and that "the runoff primary has been described as a continuation of the first primary."

But, "there is a basic conflict here between the plain text of the statute, which refers only to 'same day' elections, and one view of the statute’s general purpose – a view reflected in this AG opinion," Pildes told TPM.

If Wallace is right, would it even matter if McDaniel's claim was true?

"Yes, if the statute doesn't prohibit that conduct it wouldn't matter," Pildes told TPM. "You can see why it's a debatable statutory question. But the plain meaning of the text itself does not generate that interpretation, so you have to make an argument —and that's why I'd like to see the attorney general's opinion— that goes beyond the text of the statute to say that the purposes should lead the statute to also prohibit voting in a runoff for the other party."

About The Author

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Daniel Strauss is a reporter for Talking Points Memo. He was previously a breaking news reporter for The Hill newspaper and has written for Politico, Roll Call, The American Prospect, and Gaper's Block. He has also interned at Democracy: A Journal of Ideas and The New Yorker. Daniel grew up in Chicago and graduated from the University of Michigan with a B.A. in History. At Michigan he helped edit Consider, a weekly opinion magazine. He can be reached at daniel@talkingpointsmemo.com.