Wednesday, August 20, 2014

McDaniel challenge: Judge wants to finish case before election.

NewsMS reported on the hearing concerning Chris McDaniel's election challenge this morning:

During Wednesday’s hearing, (Judge Hollis) McGehee noted that this was the first time a statewide election has ever been contested in court.

McDaniel’s attorney, Mitch Tyner asked the judge to order the state’s 82 country circuit clerks to preserve election materials. The judge said he would not be able to set an injunction, but would notify the circuit clerks to preserve election material from the June 3 and 24 elections.

Tyner also asked for an injunction on the Secretary of State’s office, to prevent them from printing general election ballots until the case is heard. The judge said he could not issue an injunction for that because the Secretary of State’s office was not named in the lawsuit.

McGehee said that he will file a scheduling of the trail by the end of the week and he is considering September 15 or 22 as the start of the trial. His goal is to complete the case before the general election... Rest of the article


Anonymous said...

About what we could expect from the precision lawyering of McDaniel's crack legal team: name Thad Cochran in the complaint, then seek to enjoin everyone not named.

Anonymous said...

1:34pm No kidding... They've asked for all kinds of extraordinary relief, including injunctions, and for the life of me, I don't know how the sole defendant to their lawsuit can make any of it happen.

Anonymous said...

So,some of our military will be denied their chance to vote because of being in the boonies or on TDY when the mailing can be done.

Consequences are a bitch and too bad McDaniel and Tyner seem not to be able to access the potential consequences for anything they do!

Thank goodness McDaniel will never be elected to anything ever again and will be socially ostracized except by those who should be in Whitfield and who would have been in Whitfiedl 33 years ago!

Anonymous said...

What law school let Tyner graduate?

They should lose accreditation!

Anonymous said...

Nice. They drag their feet in filing the challenge, and now military voters oversees likely will be unable to vote in the general election.

Anonymous said...

There is a decent chance that the judge will grant the Cochran team's motion to dismiss.

At issue are sections 23-15-921 and 923 of the Mississippi Code.

Section 921 basically states:

that for a county or district office the candidate has 20 days from the primary election or runoff to challenge

and 923

Mentions multi-county and congressional primaries and does not mention a time frame for a challenge.

The Cochran team will cite Kellum v. Johnson (115 So2d 147)1959

In Kellum, the MSSC held that the predecessor sections from the 1942 code (3143 and 3144) had to be read "in para materia" or together, meaning the 20 day timeframe for a challenge in 3143 (23-15-921) had to be applied to 3144 (23-15-923) The court stated:

he two sections here under consideration are parts of the same statute, and the Act must be considered as a whole. See 50 Am. Jur., Statutes, Section 352, pp. 350–4, as follows: ‘The different parts of a statute reflect light upon each other, and statutory provisions are regarded as in pari materia where they are parts of the same act. Hence, a statute should be construed in its entirety, and as a whole. The general intention is the key to the whole act, and the intention of the whole controls the interpretation of its parts. The fact that a statute is subdivided into sections or other parts should not obstruct or obscure the interpretation of the law as a whole. All parts of the act should be considered, compared, and construed together. It is not permissible to rest the construction upon any one part alone, or upon isolated words, phrases, clauses, or sentences, or to give undue effect thereto. The legislative intention as collected from an examination of the whole as well as the separate parts of a statute, is not to be defeated by the use ofparticular terms, but, to the contrary, will prevail over the literal import thereof.’
4 When one faces reality, it is obvious that primary election contests, if they are to be allowed and the favorable results thereof come to full fruition, must be conducted speedily. The names of party nominees, if they are to be of any avail, must go on the ticket for the general election, which is required by Section 102 of the Constitution of 1890, to be held on the first Tuesday after the first Monday in November. Unless this course can be vouchsafed, there would be no virtue in holding primary elections to choose nominees of the parties. It is inconceivable that the Legislature intended to limit the time in which contests could be filed where *587 a county or beat office was involved, and yet fix no time limit whatever for that purpose in regard to all other offices. So to hold would convict the Legislature of unaccountable capriciousness and result in endless uncertainty and confusion. The two sections are in pari materia, and all contests therefore must be begun within twenty days after the primary. To hold otherwise would be senseless.

The McDaniel legal team has stated this case is not about a statewide primary and doesn't apply, however if it is interpreted as pertaining to how to read the statutes, then they are in serious trouble.

Anonymous said...

I looked up Kellum v. Johnson in Westlaw. Not a lot of references over the years given the few election challenges, but the case has never been overruled or qualified, so it appears to still be good law--and very specific to the McDaniel challenge at hand. The 5th Circuit noted the case in passing without qualification in a BellSouth case in 2012 (686 F.3d 303). So, still appears to be good law; can't be ignored.

Anonymous said...

Free the land ! You know Chris McDaniel won the GOP vote! But not the over all lol! I hate how thad won but he won! Let it go please let's all support Travis Childers in November. !

Anonymous said...

After a few more schedule-changes, it looks like the "final" schedule is for the trial to start Sept 16th, ten days max for the plaintiffs, five days max for the defense, and a decision by Oct 6th (if not sooner).

There will be some pre-trial motions next week, including a couple of attempts to kill the case before it goes to trial.

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