A press conference concluded a few minutes ago by the McDaniel campaign suggests that the campaign found far fewer illegal votes than the approximately 7,600 votes separating him from Sen. Thad Cochran in the MS Republican Senate primary. Instead, it sounds like the campaign has alleged only 3,500 votes cast by voters who also (presumably illegally) voted in the earlier Democratic primary. There are 9,500 other votes said to be “irregular,” and 2,500 allegedly improper absentee ballots. Those numbers alone suggest there will not be enough to get a new election, unless the “irregularities” are serious enough to call the result in question. But that would not be impossible, depending on what the evidence shows. But the reason I expect McDaniel will likely lose is that he is not asking for a new election. Instead, he is asking for a remedy of having him declared the winner. He would apparently rely upon polling to show that Democrats who voted in the primary did not intend to vote for the eventual Republican nominee in the fall. This relies upon a MS code provision saying that only those who will support the nominee in the general election can vote in the primary.
To begin with, the interpretation of that provision before the election, confirmed in a press releasejust before the election from the Secretary of State and Attorney General was that it wasunenforceable. That was the prevailing view before the election. If McDaniel didn’t like it, he should have sued before the election. Now such a claim should be barred by laches (unreasonable delay). Second, even if McDaniel’s legal interpretation was correct and the claim not barred by laches, polling evidence is likely not good enough to show that there were more votes for Cochran. Finally, as to a remedy, what McDaniel must be asking for is a “proportional reduction” of votes based upon such polling, which would subtract more votes from Cochran than McDaniel. That remedy was strongly rejected in the contested Washington state governor’s race between Rossi and Gregoire, and I don’t expect a court would accept that here to declare the loser the winner.
In short, it is hard enough to get a court to declare a new election after ballot irregularities. To get the court do declare the loser the winner is a remedy which almost never happens absent strong proof of fraud on the winner’s side.
UPDATE: The McDaniel campaign has now posted its election contest papers. I have put them up on Scribd in a 13 mb file (instead of the original 104 mb file). The contest presents an even weaker claim than was described at the press conference. This will almost surely fail before both the MS Republican party and in court.