Breaking: MS Supreme Court Rejects McDaniel Challenge in #MSSEN Race on 4-2 Vote: My Analysis

You can read the opinion at this link.  Here are some thoughts.

1. The plurality, concurrence and dissent. The Court’s opinion broke down 3-1-2, with 3 Justices not participating.

The plurality opinion held that it was bound by a 1959 case establishing a 20 day deadline for filing an election challenge. Although the legislature amended the statute since 1959, the plurality held that the legislature acted in light of this 1959 statute, and the deadline remains part of the statutory scheme.

A concurring Justice issued an opinion essentially reaching the view that this was a nonjusticiable political question to be decided by the political branches, not the courts.

The two dissenting Justices believed that the 1959 case was not binding on the courts, because the legislature made too many changes in the statutory scheme for it still to apply. Those justices would have sent the case back for further proceedings.

2. What’s next? In the normal world, I would say that this case is over.  Here, the state’s highest court has declared definitively what the meaning of the statute is, and the contest is over. But McDaniel has not operated in a normal world. So here are two ways the case can go on. First, an amicus in the Court raised a federal constitutional question which should remind everyone of Bush v. Gore. Under the Elections Clause, it is the state legislature to set the rules for congressional elections, unless the Congress has spoken. The amicus argued that the 20-day deadline was judicially created, and therefore violated the election’s clause requiring that the legislature set the deadline. The Supreme Court disagreed, saying it was resolving an ambiguity in the statute, not creating a new deadline. (This was very much an issue in the Florida 2000 rulings.) So if McDaniel wanted, he could go to the U.S. Supreme Court seeking emergency relief. I do not expect he would get it.  Second, McDaniel could file a contest with the U.S. Senate, though I can’t imagine that body giving him any relief.

3. Why not reach the merits? As I indicated when the trial court kicked McDaniel’s case out on timing issues, sometimes these rulings are a mercy killing. McDaniel’s evidence of fraud seemed weak, and his legal theories about crossover voting even weaker. This timing ruling was a way for the courts to end the process without going through a long drawn out trial.  Not that the courts would ever admit they were doing that, but I guess this was in the back of at least some Justices’ minds.

4. What’s next for McDaniel? Talk radio? Fox news contributor? Running for office when Cochran dies or retires?  I leave that to people who know MS politics.

[This post has been updated.]


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