On Wednesday night, Mississippi State Sen. Chris McDaniel told
listeners to Mark Levin's radio show that despite getting fewer votes than Sen. Thad Cochran in Tuesday's primary for his state's GOP senate nomination, he wasn't conceding and planned to fight:
We haven’t conceded and we’re not going to concede right now. We’re going to investigate.
Naturally sometimes it’s difficult to contest an election, obviously, but we do know that 35,000 Democrats crossed over. And we know many of those Democrats did vote in the Democratic primary just three weeks ago which makes it illegal.
We likewise know that we have a statute, a law in our state that says you cannot participate in a primary unless you intend to support that candidate. And we know good and well that these 35,000 democrats have no intention to do that. They’ll be voting for Travis Childers in November. We know that. They know that. And so that makes their actions illegal.
So we’re going to be fighting this.
McDaniel can call it an illegal election all he wants, but that doesn't change the fact that the law in question is unenforceable and could never serve as the basis of a legal challenge. I mean, not even Antonin Scalia himself would support a legal argument that could only be enforced by explicitly invalidating votes cast by African Americans in Republican primaries ... or at least I don't think he would. Who knows, maybe. But certainly not a court majority!
But just because McDaniel doesn't have a viable legal path doesn't mean he has no options. He could decide to run as a write-in candidate with one goal and one goal alone: Defeating Cochran and throwing the election to Travis Childers. I'd be stunned if he does this, but if he seriously believes that Cochran is as bad for the GOP and the country as he claimed during the primary, it would be the logical thing for him to do, because the only way he can keep Thad Cochran out of the Senate is standing in his way as a write-in.
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Even then, there's no guarantee that McDaniel could actually block Cochran. In 2012, the margin between Sen. Roger Wicker and his opponent was just over 200,000 votes, which is more votes than McDaniel got in the GOP primary. On the other hand, if McDaniel's goal is just to defeat Cochran, it doesn't matter whether he encourages someone to stay home or to write in his name—any vote he takes away from Cochran is equally valuable. In addition, McDaniel in the race would instantly make Childers at least potentially viable, and certainly better positioned to win than previous Democratic nominees in the state. Still, in order to win, Childers would need to over perform and McDaniel would need to both encourage his supporters to write in his name and discourage other Republicans from turning out to vote for Cochran.
Given that he'd need a perfect hat trick to make a write in bid pay off, I'm skeptical that McDaniel would do this. He's young and ambitious and running a longshot campaign with the goal of losing doesn't make a whole lot of sense. But if he truly believes his Kool-Aid, maybe he'll actually try.