Hall: Could federal case succeed where McDaniel failing?

Special Judge Hollis McGehee delivered what could be the final blow to Chris McDaniel's election challenge in the Republican primary for U.S. Senate. McGehee sided with Thad Cochran in dismissing the court challenge, saying McDaniel missed a 20-day deadline to file his challenge with the Mississippi Republican Party.

McDaniel has the option to appeal McGehee's ruling to the Mississippi Supreme Court, a decision McDaniel is expected to announce Tuesday. If McDaniel appeals, we are left with two scenarios:

1. The state's high court could overturn McGehee's ruling, in which case the challenge would be returned to the circuit clerk and move forward.
2. Justices could uphold McGehee's ruling, and that would be the end of this long ordeal.

It is seemingly illogical that McDaniel would choose to throw the towel in at this stage. To not appeal would be conceding defeat, something he has absolutely refused to do to this point. It would be ending the fight for what he has deemed "the integrity of Mississippi's electoral system" when there are still one more avenue to explore.

Nevertheless, it does appear that McDaniel's challenge will never see a trial, and that's probably just fine with the state senator. He's an attorney, and he has to know that he has a weak case. The "binder full of evidence" may be considered impressive political theatre by some, but it is represents an absolutely underwhelming legal argument in state court.

Interestingly enough, what is a weak state argument could make for a much more compelling argument in federal court. McDaniel puts forth the idea that Democrats participating in the Republican primary violates Republicans' Constitutional right to free association. A federal court in California has ruled as much in a different case, which McDaniel's legal team cites.

Jim Waide — a Tupelo attorney, longtime Democrat and supporter of Democratic nominee Travis Childers — tends to agree with McDaniel's argument. In fact, he is talking with several tea party voters who are interested in pursuing a federal case along these same lines. Why would they go to Waide, a Democrat? Because he has a stellar record in federal court, including five successful appearances before the U.S. Supreme Court.

In a federal constitutional case, Waide and his voter clients would not face the issue of a deadline. What they would face, however, is proving that Democrats voted in a Republican primary. This becomes troublesome because voters in Mississippi do not register by party affiliation.

Of course, a federal judge already has made a ruling to that effect. In 2006, the Mississippi Democratic Party filed a federal lawsuit seeking to prevent Republicans from voting in Democratic primaries. Party leaders feared Republicans would crossover and vote in the Democratic primary to help challenger Chuck Espy defeat U.S. Rep. Bennie Thompson.

U.S. District Judge Allen Pepper ruled in the party's favor, saying Mississippi's closed primary system and lack of party registration infringed on the Democrats' right to free association. Pepper ordered the Legislature to change the state's election laws in a way so as to enforce party registration and require voter identification proving said party affiliation be presented at the polls.

The ruling was overturned by the Fifth Circuit Court of Appeals, which said the Democratic Party had no standing to bring the lawsuit as no election had taken place and there was no evidence of Republican plans to crossover. In his opinion, Waide said such standing now exists for Republicans who supported McDaniel believing that "the Republican Party would follow the Constitution."

The difference between what McDaniel sought and what Waide's clients would seek is important. McDaniel wanted votes thrown out and the nomination handed to him. In a federal case, challengers would be seeking to redo the primary election. Waide says he can see that happening without party registration taking place first, but that's near impossible for me to see.

It's also unlikely for such a case to be expedited in such a manner that wit would happen before the November general election. In fact, it's unlikely for such a federal case to end before sometime late next year. Then there would be appeals and more appeals. Such a case could drag for years. In all likelihood, it would have minimal — if any — effect on McDaniel, Cochran or Childers. It could, however, have a tremendous impact on Mississippi elections going forward.

Of course, a federal case brought by McDaniel supporters is all speculation and academic exercise at this point. What's real is that McDaniel is down to what could be his last move. Will he make it, or will he call it quits?

Contact Sam R. Hall at srhall@jackson.gannett.com or (601) 961-7163. Follow @samrhall on Twitter.