[EL] MSSEN ruling

[Rick Hasen]

    Breaking: MS Supreme Court Rejects McDaniel Challenge in #MSSEN Race
    on 4-2 Vote: My Analysis <http://electionlawblog.org/?p=67418>

Posted onOctober 24, 2014 3:37 pm 
<http://electionlawblog.org/?p=67418>byRick Hasen 
<http://electionlawblog.org/?author=3>

You can read the opinionat this link 
<http://electionlawblog.org/wp-content/uploads/mssen-mssct.pdf>.  Here 
are some thoughts.

1. *The plurality, concurrence and dissent. *The Court's opinion broke 
down 3-1-2, with 3 Justices not participating.

The plurality opinion held that it was bound by a 1959 case establishing 
a 20 day deadline for filing an election challenge. Although the 
legislature amended the statute since 1959, the plurality held that the 
legislature acted in light of this 1959 statute, and the deadline 
remains part of the statutory scheme.

A concurring Justice issued an opinion essentially reaching the view 
that this was a nonjusticiable political question to be decided by the 
political branches, not the courts.

The two dissenting Justices believed that the 1959 case was not binding 
on the courts, because the legislature made too many changes in the 
statutory scheme for it still to apply. Those justices would have sent 
the case back for further proceedings.

2. *What's next? *In the normal world, I would say that this case is 
over.  Here, the state's highest court has declared definitively what 
the meaning of the statute is, and the contest is over. But McDaniel has 
not operated in a normal world. So here are two ways the case can go on. 
First, an amicus in the Court raised a federal constitutional question 
which should remind everyone of /Bush v. Gore/. Under the Elections 
Clause, it is the state legislature to set the rules for congressional 
elections, unless the Congress has spoken. The amicus argued that the 
20-day deadline was judicially created, and therefore violated the 
election's clause requiring that the legislature set the deadline. The 
Supreme Court disagreed, saying it was resolving an ambiguity in the 
statute, not creating a new deadline. (This was very much an issue in 
the Florida 2000 rulings.) So if McDaniel wanted, he could go to the 
U.S. Supreme Court seeking emergency relief. I do not expect he would 
get it.  Second, McDaniel could file a contest with the U.S. Senate, 
though I can't imagine that body giving him any relief.

3. *Why not reach the merits?*As I indicated when the trial court kicked 
McDaniel's case out on timing issues, sometimes these rulings are a 
mercy killing. McDaniel's evidence of fraud seemed weak, and his legal 
theories about crossover voting even weaker. This timing ruling was a 
way for the courts to end the process without going through a long drawn 
out trial.  Not that the courts would ever admit they were doing that, 
but I guess this was in the back of at least some Justices' minds.

4. *What's next for McDaniel?*Talk radio? Fox news contributor? Running 
for office when Cochran dies or retires?  I leave that to people who 
know MS politics.

[This post has been updated.]

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Posted incampaigns <http://electionlawblog.org/?cat=59>,recounts 
<http://electionlawblog.org/?cat=50>

On 10/24/14, 3:38 PM, Rick Hasen wrote:
>
>
>     Breaking: MS Supreme Court Rejects McDaniel Challenge in #MSSEN
>     Race on 4-2 Vote <http://electionlawblog.org/?p=67418>
>
> Posted onOctober 24, 2014 3:37 pm 
> <http://electionlawblog.org/?p=67418>byRick Hasen 
> <http://electionlawblog.org/?author=3>
>
> You can read the opinionat this link 
> <http://electionlawblog.org/wp-content/uploads/mssen-mssct.pdf>.
>
> [This post will be updated with analysis.]
>
> Share 
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67418&title=Breaking%3A%20MS%20Supreme%20Court%20Rejects%20McDaniel%20Challenge%20in%20%23MSSEN%20Race%20on%204-2%20Vote&description=>
> Posted incampaigns <http://electionlawblog.org/?cat=59>,recounts 
> <http://electionlawblog.org/?cat=50>
>
> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
>
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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