McDaniel v. Cochran argument today at 10:00 (Oct. 2, 2014)

If you’re interested, the argument in the election contest of McDaniel v. Cochran is today at 10:00 a.m.

You can view the video on MC’s website here. 

There are only six chairs so three justices are not participating. Apprently we are missing Justices Dickinson, Pierce and Chandler.

Lots of spectators too (judging by the camera’s limited view of them). Apparently there are sufficient people that Justice Waller warns them not to be getting up or making facial expressions that would interrupt the proceedings.

Mitch Tyner:

This case is somewhat simple.  Bears on one statute and whether it contains a deadline.  Statutory construction has you start with the statute’s language itself.  And when you read this statute, there is no deadline.  ANd when you put the statute into a search engine, you pull up one case, Barbour v. Gunn.  Gunn filed his challenge 34 days after the election.

Lamar – did the appellant challenge it?

MT:  THe opinion does not indicate.  So I ask why didn’t they challenge it.  Barbour is a lawyer.  Gunn is a lawyer.  You have to presume they read the statute they understood that there was no deadline.

Waller: But the case does not address the filing deadline.

MT:  It may have been since when McRae wrote the opinion he was really careful to set forth the dates everything was done. We know they looked at the statute, because J. Cobb cites it in the dissent.  The Court always has the duty to determine whether it has jurisdiction.  It doesn’t matter if any party raises it.   Had Gunn  not followed the statute, he could not have had judicial review.

Lamar: could he have filed it 40 days later, 60 days?

MT: That would be derelict.

Waller: why

MT: Laches.  You can’t wait 60 days.  That would be crazy.  A candidate wants to get his name on the ballot.  In Gunn, it took 34 days and that was not a challenge to a state-wide election.

Waller: this is interesting but that issue was not in the case.  We’d like you to move along.

M.T.  All the lawyers involved in that case – the law was clear. No one challenged it,

Lamar: what about reading the statute in conjunction with the other statutes?

Waller:  What about Kellum and 3134.

MT:  It’s different. WHen you take into account all the new time frames, it’s clear that statute wouldn’t work any more.

King: when the statutes were repealed, did that repeal all the decisions?

MT: It was repealed it its entirety. ALthough the legislature did use some of the language in the prior statutes.

Justice Coleman: If we decide the statute was not substantially changed, do we have to decide against you?

(Tyner has visual aids showing the statutes; he describes the tasks involved in challenging an election. His point being that challenging a statewide election is onerous)

King: if the statute has no deadline, why do you say that McDaniel could not have waited 60 days?

MT: there is no timeline.  But if McDaniel had waited around . . .

King:  what if he waited 6 months?

MT: too long.  Laches.

Kitchens: is the cutoff the general election?

MT: I want to show you how the old statute has changed.  (has another visual aid showing additions and deletions).  THere have been substantial changes in the statute since Kellum was decided. Tyner calls Cochran’s argument a “one-legged stool” that rests on the interpretation of an amended statute that, as Tyner says, stands on its own.  The legislature chose not to put a deadline in the new statute.

In Robertson’s concurrence in Moore v. Molpus, he talks about using stare decisis as a crutch.  Here the statute has been changed.

Amicus – Thomas McKnight:  the elections clause of the US Const. is the only authority the states have in electing a US senator. If the court acts as a legislature, the elections clause can rein the court in.

Waller:  What if this is just an interpretation of the statute?

Amicus:  the Court must look  at the canons which start with looking at the language of the statute. Cites Bush v. Gore.

Waller: was this raised in the trial court?

Amicus: it looks like it was raised in the argument.  Also, pure legal issues can be raised on appeal.

Lamar: You’re arguing that we have to follow the statute.  So could they file it 90 days out or a year out?

Amicus:  No.  The deadline is when the credentials are accepted by the Senate.

Phil Abernathy for Cochran:  McDaniel has talked about statutory construction and argues he has no deadline.

Randolph:  In 923, where is the deadline?

PA:  the original act of the legislature.  The 2d par. became 923. The original 1908 Act from which all of this derived.

Randolph: were they repealed or amended.

PA.  They attempted to repeal it several times.  In 1986 the legislature reenacted the entire code with some changes.  WHen you look at the original act that became 921 and 923, the deadline is in the first par. Kellum said the deadline in the first par. applies to the 2d par.

Randolph – so Kellum controls interpretation of a statute enacted 27 years later?

Lamar: where is the 20 day deadline now?

PA. In 921.  The legislature codified the act into two sections and Kellum says you have to read the deadline as applying to the entire act.

Randolph: was the 12 day examination rule there when Kellum decided?

PA: Yes.

Kitchens:  Why was it necessary to reenact something already on the books?

PA:  They tried to repeal it but came up against the Justice Dept.

Kitchens: Why reenact it?

PA: when the legislature sent it to the Justice Dept, the attorney for the senate said the changes are for clarification since they reflect the current practices.

Waller:  Going back to 1908, one law had two paragraphs and then it was reenacted split into two statutes?  Why wouldn’t the legislature put them in one statute?

PA: We have no leg. history.

Waller: MAybe the legislature meant that there was no time deadline?

Randolph:  Looking at the original act only tells you what the 1908 legislature thought.

PA: The legislature has had 57 years to say that Kellum was wrong and they haven’t,

Randolph: what about the elections clause argument.

PA:  933 gave the Supreme Court the authority to decide.

Randolph: but the legislature can’t overwrite the US Const. And what about Miss. Const. Arts. 1 and 2 that says we can’t do the legislature’s job.

Randolph:  923 was not ruled on in Kellum.

PA:  No.  Because the numbers 932 did not exist at the time

Coleman:  If I look at Kellum and I believe that Kellum improperly amended the statute, is stare decisis going to require us to keep to that?

PA:  Stare decisis controls unless it does mischief to the entire system.  That’s what J. Robertson said in that workers comp. case.

Coleman:  Some courts outside of Miss. have recognized that the legislature can’t ratify something the court did by being silent on the issue.

PA:  the Kellum court had the authority to interpret the act.  If the legislature thought it was wrong, it has had 55 years to say Kellum was wrong.

Coleman:  I agree that the court has the authority to interpret statutes.  But I don’t agree that we can add to a statute.  When I read Kellum, it writes things that have a lot more to do with policies than with looking at the statute. There’s a lot of public policy that they rely on.  I think that is unconstitutional.

PA:  Kellum interpreted the statute. When you read the 1980 statute and the Kellum opinion, his rationale becomes clear.  That the legislative intent on 20 day deadline was clear.  It’s clear that you can’t have NO deadline.  Otherwise the whole process is skewed.

Waller:  Assume the court was to find there was no deadline, what violence would that do to the election scheme?

PA:  I guess Kellum answered that better than I can.  Laches is an open-ended date.

Randolph:  The date that the winner is certified by the US Senate?  WHat happens if the Senate seats Cochran?

PA:  If the election were reversed, the winner would have to go to the senate and ask it to swear him in.

Randolph:  The amicus suggests that we can become a factfinder since the lower court did not. HOw many voters voted in the first primary that should not have voted in the second.  WHat’s that number.

PA: We don’t have that number.  They say 3100.

Randolph: do you have anything to contest that number?

PA:  We know their number is not correct because they listed MT as a crossover. Cochran won by  7800 votes.

Court takes a ten minute break.

Coleman:  if we don’t follow Kellum, what’s the problem with 923?

PA:  there’s no deadline.

Coleman: So the problem is that it is silent on the deadline?  What’s your best argument that silence equals ambiguity?

PA:  They are saying look at the statute and nothing else.  But that’s not the law.  You have to look a at the stat. scheme as a whole.  The Kellum used very clear language to say we are applying a 20 day deadline,  The legislature has adopted it.

As far as practicality – the candidates in Pyron v.  Joiner were separated by 5 votes and the loser filed his contest on the 20th day. Tyner said you’re not allowed to supplement but he supplemented twice.  He added 12 new counties in his supplements. So you meet the original deadline and you can supplement and add as many counties as you want.

Kitchens: codification – process of taking an act and making it into code sections.  The legislature doesn’t vote on that.  The publisher does that?

PA: yes.

Kitchens:  as far as the deadline being the U.S. Senate, as to all these other offices that the 20 day deadline might apply to, that would not apply to them.

PA: No.

Waller:  the issue of whether the changes to 923 were substantive?

PA: Look at three things: the specially appointed judge’s conclusions, the affidavit for the attorney for the state senate where he told the USDoJ what the changes were, and our Appendix.  Not substantive.

Waller: so when MT’s exhibit has a lot of what look like changes, those are minor changes?

PA:  Yes, minor.

Garriga to address amicus issue – amicus’ arguments not made below.  Also, the cases they cite involve huge overreaching by the courts when it comes to applying the state’s election statutes.   For 100 years, this Court  has been interpreting statutes. WHen it comes to McDaniel’s argument that this court can become a factfinder, that argument is ironic given that they insist that the statutes be strictly construed in light of the Elections Clause.

McKnight for amicus: Kellum involved  a state official.  Did not involve the Elections Clause.  That is not the case here.  The Court should do here what it did in Mauldin.  The Court here needs to invoke the separation of powers and rule that a trial court cannot create a presuit requirement.

Tyner:  The Pyron case was 1979 which was before 923.

Waller: do you agree that is the only case involving a huge multi county case?

MT: that’s all I could find.   But since then, there is now a ten day deadline vis a vis the State Executive Committee.  But that’s a great example of how much the code has changed since Kellum.

As far as improper votes.  The number of crossover votes was 3100.  That’s just a part of t he challenges.

Randolph: the rest of the challenges involve the poll worker’s not asking the voter whether they intended to  support the candidate.

MT:  That’s part of it.  When you add them altogether, 15000.  I think the absentee challenge involves  2,275. These are the minimum numbers.

Randolph:  How is the statute enforced requiring the voter to support the candidate?

MT: It isn’t enforced but it can be.

Randolph:  So even if the nominee gets involved in a scandal later?

MT:  Judge Pepper found that it was unconstitutional because there was no enforcement of 575. His decision was reversed based on ripeness and mootness because the Democratic party could not show an injury in fact. Here we can show an injury because Cochran asked Democrats to cross over and vote for him.

And that’s all.

Discussion of the argument is taking place at North Miss. Commenter.  Here.

3 thoughts on “McDaniel v. Cochran argument today at 10:00 (Oct. 2, 2014)

  1. You know, the saddest part of this is that if McDaniel had made a big show of unity and being a team player post-primary, he’d’ve raised his stock significantly for 2020 (or earlier). I guess the flip side of that argument is that when Cochran announces he’s going, the vultures will descend, and there won’t be space in the campaign for McDaniel.

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