The Mississippi Supreme Court is deliberating whether to revive state Senator Chris McDaniel’s lawsuit that challenges his Republican primary loss to six term Senator Thad Cochran.
"All Rise. . . The honorable Supreme Court of Mississippi, Chief Justice Waller presiding."
Through nearly two hours of oral arguments in Jackson, today, lawyers for both McDaniel and Cochran were bombarded with question from six of the courts nine justices.
During the proceeding, Cochran Attorney Phil Abernethy argued that McDaniel's challenge, which was filed 41 days after the June 24th runoff, came too late. He cites a 1959 Supreme Court ruling known as Kellum versus Johnson that states any challenge should come within 20 days of an election.
"What you should apply is the Doctrine of Stare Decisis." says Abernethy. "This issue has already been decided."
"So you're saying that the Kellum case, which was ruled on 27 years before the statute was amended, changed, whatever controls what was written 27 years by the legislature?" asked Justice Michael Randolph.
"It was reenacted 27years later, your honor." replied Abernethy. "It was not amended. That the substance of the act remained the same."
McDaniel's attorney Mitch Tyner argued that such a time limit no longer exists. He says the 1959 ruling was superseded when lawmakers reformed the state's election laws in 1986.
"The Kellum Court was based on an old statute, and the was 31-44, and that statue is substantially different then the statute we're proceeding under today.
"Just assume arguably it's not substantially different, what would your argument be?" asked Chief Justice William Waller.
"Even if 31-44 was word for word, when you take into account all of the other new time-frames that are implemented in the new election code it would not work anymore." Tyner replied.
Chief Justice William Waller gave no date as to when the court would make a decision on the matter. However, McDaniel attorney Mitch Tyner says even if the court upholds the lower court dismissal, this may not be McDaniel's last course of action.
"We have a United State First Amendment challenge that is part of our challenge in Jones County." says Tyner. "Therefore we're not precluded from filing our first amendment challenge in federal court. Even if this court, the Mississippi Supreme Court dismissed it."
McDaniel claims Cochran's nearly 7,700 vote victory was tainted by voting irregularities. State elections officials already have set a November 4th general election ballot that lists Cochran as the GOP nominee.
