Michael Gaynor
Mississippians (including Chris McDaniel) deserve an accurate count of the legal votes
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By Michael Gaynor
July 29, 2014

It's McDaniel's duty to the legal voters as well as to himself to try to make sure that their decision is not overturned with illegal votes.

The Clarion Ledger
, a Mississippi newspaper, wants Chris McDaniel to proceed immediately with an election challenge or to concede to Senator Thad Cochran.

Here's the editorial (www.clarionledger.com/story/opinion/editorials/2014/07/27/mcdaniel-challenge-or-quit/13182667/):

"Enough is enough.

"Chris McDaniel has used every excuse in the book to delay filing a challenge to incumbent Thad Cochran's election as the Republican nominee for U.S. Senate. His campaign has said filing a challenge before having all evidence will prevent him from including additional evidence. They have said they need more time to gather more data. They have said they need birthdates to verify voter identities. They have said circuit clerks have prevented them from seeing public information.

"However, at the end of the day, McDaniel's campaign has been given access to everything to which they are entitled under the law. And despite their assertions, introducing a challenge to the Mississippi Republican Party will in no way prevent them from presenting new information of voter fraud to a court if indeed they discover it after their challenge is filed.

"Furthermore, McDaniel and his attorneys have all said they have enough evidence to challenge the election. McDaniel has described the election as being a 'sham' and said outright that Cochran 'stole' the election.

"If that's the case, pony up the evidence, Mr. McDaniel.

"We absolutely support McDaniel's right to challenge this election. If there is evidence of voter fraud, then it needs to come to light.

"The Clarion-Ledger has investigated several reports of alleged voter fraud or voting irregularities. In most cases, no clear evidence existed to substantiate the claims. But that's not to say other evidence doesn't exist, as McDaniel asserts.

"We must admit that we are encouraged to see McDaniel and his campaign upset over the hoops through which they are having to jump just to gain access to public records. It's good to have a state lawmaker and influential political leader get a first-hand look at that with which we deal regularly. Mississippi's open records laws are laughable on so many levels. As chairman of the Senate Elections Committee, perhaps McDaniel will introduce legislation next year to do something about that.

"However, at the end of the day, McDaniel has no right to see birthdates as state law clearly lists them as being private information. The Mississippi Supreme Court has made that clear to them as well. Right or wrong, that's the law. Why should an exception be made for McDaniel?

"Furthermore, McDaniel wants county clerks either to provide redacted records or have someone stand and physically hide information on non-redacted records without having to pay the cost. His complaint – and it is a legitimate one – is that the fees charged vary from county to county, as does the level of access. But that's how broken our open records laws are. If the media and the general public must abide by these laws, then so should a candidate or state lawmaker.

"This might be a good time to point out that McDaniel, as a legislator, enjoys quite a bit of exclusion from open records laws as the Legislature has always seen fit to exempt their records from such requests. Clearly, as a member of that body who has never raised a stink before now about Mississippi's sunshine laws, McDaniel thinks such exemptions for lawmakers is just fine. If that is the case, then how can he expect county officials not to exploit what loopholes lawmakers have provided to them?

"Let us be clear: We believe McDaniel should be given complete access to all voting records, minus any information the law requires to be redacted.

"The problem, however, is that despite the troubles McDaniel's campaign have reported, so far no county circuit clerk has been found to be abusing their authority or withholding pertinent information. It's not the clerks who should be blamed but the laws.

"That leaves McDaniel with few excuses as to why he has not filed his challenge.

"He continues to say he has evidence of voter fraud, but McDaniel is starting to sound more like Chicken Little yelling about the sky falling than the respected state lawmaker and GOP candidate who captured national attention when this race first began."

Whether or not the reported results of the runoff between McDaniel and Cochran can stand scrutiny remains to be seen.

What is clear now is that the editorial can't stand scrutiny. It's hardly fair and balanced, though it was crafted to seem so.

McDaniel is seeking an election decided by a majority of legal votes, not special treatment. That's supposed to be the rule, not an exception.

Name calling – saying the McDaniel is "Chicken Little" because he won't concede a race he believes he won – is just silly.

More importantly, what is primarily at stake is whether the will of the voters will be ascertained or thwarted, not the personal references of McDaniel and Cochran.

There is no reasonable doubt that there were "irregularities" in the runoff.

The key questions are (1) how many people who voted in the Democrat primary proceeded to vote in the Republican primary, even though it was prohibited by law, and (2) how many absentee ballots were properly cast.

Election officials should have barred such voters and not counted improperly cast ballots.

It needs to be determined how many illegal votes were cast.

It's clear that Cochran benefited from illegal votes, but it's not clear by how much.

Likewise, it needs to be determined whether absentee ballots were properly cast.

Suggesting that McDaniel should be estopped from challenging Mississippi's "sunshine laws" because he served in the Mississippi State Senate and "never raised a stink before...about" them misses the points that elections are supposed to be decided by legal votes and only legal votes, properly tabulated, and neither candidate established those "sunshine laws" or is prohibited from relying on a federal law that preempts state law.

A United States Senate seat should not be stolen because one of the two candidates is a sitting state legislator and the state legislature's records are exempt under Mississippi's "sunshine laws."

"...how can [McDaniel] expect county officials not to exploit what loopholes lawmakers have provided to them?"

When those "loopholes" are closed by a superseding federal law, then they are not available to county officials to "exploit."

Mississippi has a right to decided to have open or closed primaries, and it chose open primaries.

Fine.

But Mississippi also chose to prohibit people who voted for a candidate in open party primary from voting in the other party's runoff.

It's not McDaniels' fault that Mississippi election officials did not make sure such people voted in the runoff.

It's McDaniel'd duty to the legal voters as well as to himself to try to make sure that their decision is not overturned with illegal votes.

McDaniel should file his challenge when he's ready, and he'll be ready sooner than later if the birthdates by which voters are identified are disclosed instead of concealed.

Only then will the legitimate winner of the runoff be revealed.

McDaniel surely is not to blame for the fact that litigating takes time (as well as money).

The Clarion Ledger is to blame for failing to promote the public interest in election integrity.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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