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Circuit clerks file objection to poll book subpoena

Published 9:57am Friday, August 29, 2014

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In a bid to overturn Sen. Thad Cochran’s victory in the Republican primary runoff, defeated candidate Chris McDaniel’s attorneys this week sent subpoenas to more than half of Mississippi’s 82 counties, demanding that circuit clerks send poll books, absentee ballots and other materials to Jones County to be used as evidence in the case.

Lincoln County Circuit Clerk Dustin Bairfield, along with many other clerks across the state, filed an objection Thursday to the subpoena.

Bairfield said he has two main concerns with the subpoena: the proper civil procedure has not been followed, and he requests more clarification about what should be sent to Jones County.

Because Bairfield is in charge of the election material in Lincoln County, if he sent the ballot boxes to Jones County, he would have to make copies that would remain here, he said.

“By sending an objection, it will give the judge time to make a ruling, so we don’t have to waste Lincoln County tax dollars making copies of the ballot boxes,” said Bairfield.

He added that during their previous review of Lincoln County voting records, the McDaniel campaign found 12 crossover votes and was interested in the 20 absentee ballots, which would be a lot easier and less expensive to make copies of than the 62 ballot boxes, which would cost around $1,500.

Bairfield said that he would not be uncooperative; he just wants clarification about the subpoena.

Judge Hollis McGehee heard arguments on McDaniel’s case for more than an hour Thursday at the Jones County Courthouse in Laurel. Cochran’s attorneys said the lawsuit filed by McDaniel should be tossed out because McDaniel waited too long to challenge results of the June 24 runoff. McDaniel’s attorneys said current state law does not set a deadline for a challenge.

McGehee did not immediately rule on that circuit clerks’ requests Thursday but said he understands that circuit clerks have other duties, including preparing for the Nov. 4 general election.

“I can’t and won’t ignore the clerks and their concerns,” McGehee said.

Lincoln County has relatively few boxes compared to other counties across the state. Making copies and transporting the material from every county would be a very expensive endeavor for most circuit clerks, costing taxpayers thousands of dollars as opposed to the cost it would be to copy and send only the ballots contested by the McDaniel campaign.

McGehee likened Thursday’s hearing to a tennis match, saying attorneys for each side made strong shots with their arguments.

“I don’t know of any issue I’ve ever dug any harder in or stretched harder trying to understand all aspects of it,” McGehee said, without indicating which way he might rule.

McGehee later said he would announce his decision about dismissal Friday afternoon in Gulfport, where he is presiding over a trial in an unrelated case.

Cochran and McDaniel were not in court Thursday, but more than a dozen McDaniel supporters were there, including a state tea party leader. McDaniel’s senate bid received strong tea party support.

Attorneys for Cochran, a six-term incumbent, argued that the McDaniel lawsuit should be dismissed because the Mississippi Supreme Court ruled in 1959 that a challenge for a multi-county election should be filed no later than 20 days after the election.

McDaniel attorney Steve Thornton said Mississippi election laws have been rewritten since 1959, but Cochran attorney Phil Abernethy countered that the changes were not significant and the Supreme Court precedent should still guide the judge in the current case.

Results of the June 24 primary runoff were certified July 7, and McDaniel started his challenge Aug. 4 with the state Republican Party. After the GOP executive committee said it didn’t have time to properly consider the challenge, McDaniel filed a lawsuit Aug. 14 in Jones County, where his home is located. The state Supreme Court appointed McGehee, a retired judge from another county, to handle the case.

Certified results show Cochran defeated McDaniel by 7,667 votes.

McDaniel contends the runoff was so shoddily run that the judge should either declare him the winner over Cochran or order a new runoff. There is no known precedent in Mississippi for a judge overturning or ordering a new statewide election.

Abernethy told McGehee that the simplest decision might be to dismiss the case, which would then likely prompt McDaniel to appeal the dismissal to the state Supreme Court. That way, Abernethy said, justices could hand down a definitive ruling on whether a candidate faces a deadline to challenge an election loss. Abernethy said if justices agree with the Cochran side, there would be no need for a complex and time-consuming trial.

McGehee last week set a Sept. 16 starting date for the trial, and has said it must conclude by Oct. 6.

The judge said he would not block officials from preparing for the general election. State election commissioners Tuesday approved a ballot that lists Cochran, Democrat Travis Childers and the Reform Party’s Shawn O’Hara as Senate candidates.

State law says that if a new primary is ordered, that could take place even after the general election. A new primary would also create a need for a new general election.