Fifty years after the Freedom Summer, black voters in Mississippi are expected to face challenges once again when they go to vote in the Republican Senate runoff between six-term incumbent Thad Cochran and Tea Party challenger Chris McDaniel. In a state with perhaps the most complex and ugliest history of racism in the union, one that has become a symbol of all that is wrong and backwards with the United States, African Americans still have to worry when they show up to vote Tuesday, but it’s much more complicated this time.
Some had thought that the campaign between Cochran and McDaniel had gotten weird when a McDaniel supporter broke into the nursing home of Cochran’s wife and videotaped her but that turned out to be just a precursor to what has turned out to be one of the strangest campaigns since Goat Glands Brinkley ran for Governor of Kansas in the 1930s. The runoff has turned into a macabre political sideshow filled with grotesque attacks and ugly accusations.
It has reached a pinnacle with the efforts by the Cochran campaign to woo Democrats, particularly African Americans, in the racially polarized Magnolia State to vote in the runoff. The hope was that Democrats would prefer the establishment Republican who tries to bring federal money to the state rather than the small government zealot who, while he might be far more vulnerable to Democratic challenger Travis Childers, would still be likely to be elected if he receives the GOP nomination.
The problem is that Mississippi, which doesn’t have voter registration by party, has a statute that prohibits people from voting in a party primary if they don’t intend to vote for that party’s nominee. However, save an outright declaration of intent or the ability of an election judge to read minds, it’s hard to determine voter intent months in advance.
While the Cochran campaign is appealing to black voters, conservatives are on guard. J. Christian Adams, a former DOJ lawyer, has taken charge of “a poll observer program designed to bring transparency to the process” on behalf of outside conservative groups. Adams noted that, contrary to the claims of liberal observers, having poll watchers monitor for potential Democrats voting was not “voter intimidation” under the law. Adams noted that a federal court made a ruling upholding the constitutionality of this very statute in a case where he represented the federal government. In that nearly 10-year-old case, the Bush Justice Department was trying to go after a black political boss named Ike Brown who was publishing the names of whites whom he thought were Republicans in the local paper in Noxubee County, Mississippi. The idea was that publishing their names would discourage them from voting in the Democratic primary in the rural majority minority county. While Brown was eventually found guilty of systematic discrimination against white voters, the court found that publishing the names did not amount to voter intimidation under the law. Adams cited this as precedent for his efforts.
Rick Hasen, a professor at University of California, Irvine, dismissed the Mississippi statute as essentially unenforceable. He noted an opinion by a former Mississippi attorney general, echoed in a press release issued by the state attorney general and secretary of state on Monday, which said the only way that the statute could be enforced was if a voter proclaimed at the polls that he would vote for the other party’s candidate on Election Day. Hasen noted there seems to be “a long tradition” of a divide between “the law on the books and the law on the ground when you have statute that isn’t usually enforced.”
Hans Von Spakovsky, a fellow at the Heritage Foundation and former FEC member who is one of the most prominent conservative advocates of voter ID laws, told The Daily Beast that this is “one of those laws that’s on the books, it’s hard to enforce.” However, he made clear that while he thought the law was nigh on unenforceable, that “doesn’t mean campaigns should encourage people to break it.”
The problem is that Mississippi has long operated as a state that functionally had an open primary. The only limitation in case of a runoff is that a voter can’t participate if he has already cast a ballot in the other party’s primary. Thus, a voter who voted in the Democratic primary on June 3 can’t participate in Tuesday’s runoff. But, with the exception of rogue operators like Brown, the law has long been more honored in the breach than the observance—-particularly in a state like Mississippi, where Democrats still dominate at the local level in many areas. Even a diehard Republican like McDaniel cast a ballot in the Democratic primary in 2003——his campaign has declined multiple requests for comment as to whether he voted for the incumbent Democratic governor, Ronnie Musgrove, in the general election that year and prodded Cochran spokesman Jordan Russell to note that, by the logic of McDaniel’s supporters, the conservative diehard either “broke the law or voted for Ronnie Musgrove that November in the general election.”
But this gamesmanship and manipulation is the type of maneuvering often seen in Northern states without the grisly history of Mississippi. While the statute may be unique, the idea of putting large numbers of observers at polling places and threatening legal action is not. As Hasen noted, “One person’s voter intimidation is another person’s voter observation.” What to conservatives can seem like earnest attempts to ensure election integrity is to liberals an attempt to further deter those already most wary of voting from showing up at the polls.
These are the type of issues that election lawyers fight about in states like Ohio and Pennsylvania during presidential elections, which are normally partisan. Democrats take one side and Republicans take the other. Now, they are smack dab in the middle of a GOP primary in Mississippi. Sadly and strangely, in a state where racial resentment still runs deep that is a sign of progress. It doesn’t mean Mississippi has solved most of its problems or even that the Magnolia State has come close. Instead, it simply means that, when it comes to elections, Mississippi’s problems are increasingly like those that the rest of the country faces.
