Last week, preliminary court action began on the election challenge filed by Chris McDaniel in seeking to overturn the runoff election of Thad Cochran for the Republican nomination for US Senate in Mississippi. Is it already too late, however? WAPT highlighted last week one of the legal challenges Cochran’s team has raised, and it may end up being an insurmountable obstacle:

The Jackson Clarion-Ledger’s Geoff Pender followed up today on the expiration date for challenges. While the law does not specify an application to statewide elections, the state supreme court set the precedent decades ago that the expiration date applies to all elections in Mississippi:

As he worked for weeks building a case and campaigning that the election was stolen from him, McDaniel’s team said a 20-day deadline applies only to challenges of county and local elections, not a statewide U.S. Senate primary. Others, including the secretary of state, agreed with him.

“Justice has no timetable,” McDaniel said numerous times when questioned why it was taking so long to file his challenge of the June 24 GOP runoff for U.S. Senate.

But a 1959 state Supreme Court ruling appears also to apply the 20-day deadline to “state, congressional and judicial district” primaries. Citing this ruling, Cochran’s legal team has filed a motion to dismiss McDaniel’s lawsuit. McDaniel has until Tuesday to file a response, and a hearing on the motion is set for Thursday.

The section of state law on county election challenges says the first step, filing a case with the party’s executive committee, must be done within 20 days of the election. A following section on statewide and district challenges does not contain the deadline language.

But the high court in its 1959 ruling on a Democratic district attorney primary said the code sections were part of a single act passed by the Legislature. It ruled that it would “be senseless” to assume that deadline, aimed to keep general elections on track, would not apply to races for all other offices.

The court said the two sections are “in pari materia,” which I believe is Latin for, look at the whole thing together, dummy.

Cochran’s attorneys have already filed the motion to dismiss the challenge on the basis of the deadline, citing the 1959 precedent:

In court papers, Cochran’s attorneys cited a 1959 Mississippi Supreme Court decision that a challenge to a statewide election must be filed within 20 days of when results are certified. They said that means McDaniel had a July 27 deadline. McDaniel filed suit Aug. 14 in his home of Jones County, asking a judge to either declare him the winner of the June 24 runoff or order a new election.

Retired Chancellor Hollis McGehee, who was appointed by the state Supreme Court to oversee the case, has set a Sept. 16 trial date but will hear arguments Aug. 28 on pretrial motions, including Cochran’s request to dismiss the case.

McDaniel has a substantial burden in court: He must prove there were enough illegal votes to change the outcome or that the runoff was so shoddily conducted that it should be done over.

Cochran attorney Phil Abernethy said in court papers that McDaniel’s case “is based primarily upon allegations of isolated and episodic election irregularities, errors and violations that are legally insufficient to support an election challenge under the Mississippi Election Code or federal law.”

The issue raises a few questions, primarily about how the McDaniel team missed the deadline in the first place. Most states have these kind of statutory limits on challenges for entirely rational reasons — they have to hold elections and fill seats. One cannot expect the state to wait forever to hear from plaintiffs seeking to overturn the results of an election, although Mississippi law is rather curious on the point, too. According to MBJ, if the court case drags on past the general election but overturns the primary, they will have to hold a new primary and a new general election regardless of how the regular general election turned out. That may play more to McDaniels’ point, which is that the state’s statutes are oriented toward “justice” rather than speed.

That still will be a tough argument to win, though, especially with the existing precedent. The presiding court will presumably act within the 1959 precedent unless Team McDaniel can come up with a really good explanation for why they were more than two weeks late with their challenge other than “justice has no timeline.” It would take the state supreme court to overturn their own precedent eventually — the losing side of this argument this week will certainly appeal it —  and again, they’d have to find a pretty compelling reason to do so other than just a failure of a campaign to work within the time frame that has succeeded for decades in Mississippi. Perhaps McDaniel’s attorneys can come up with a winning argument by Thursday’s hearing, but they’ve left the court a pretty wide opening by which to wash their hands of the whole affair … and it’s usually wise to bet on the path of least resistance for judges.