The Cochran lawyers' argument cites a 1959 state Supreme Court ruling that requires a candidate who is contesting a primary to file the complaint within the first 20 days of the election, according to the Clarion Ledger. McDaniel filed his challenge on Aug. 14, more than a month after the June 24 runoff election.
McDaniel's team, in the motion filed on Tuesday, argued that no such deadline exists and that the 1959 decision the Cochran lawyers are citing are for old election laws. Those laws have since been updated, the McDaniel team argues. But Cochran's attorneys say that the Mississippi legislature updated those laws but didn't touch the 1959 ruling at the center of their motion to dismiss.
The motion to dismiss cites a Supreme Court ruling in Kellum v. Johnson and specifically notes in that case a court challenge should be filed in the 20 days after an election. It reads:
A person desiring to contest the election of another person returned as the nominee of the party to any county or county district office, or as the nominee of a legislative district composed of (1) county or less, may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the country executive committee in the country in which the election was held, setting forth the grounds upon which the primary election is contested…
But McDaniel's team disagreed.
"Changes in law since 1959 make it clear that the [1959 ruling] does not apply to current Mississippi law," the McDaniel response said. The response said that the state legislature completely repealed" the old election laws in 1986, invalidating the 1959 state Supreme Court ruling.
A hearing on preliminary motions in the case is scheduled for Aug. 28, with a trial set to begin on Sept. 16 if the case moves forward.
Read the motion to dismiss below: