Did McDaniel wait too late to file?

Chris McDaniel's first hurdle in his lawsuit to overturn his loss to Thad Cochran is a doozy: He may have waited too late to file it.

As he worked for weeks building a case and campaigning that the election was stolen from him, McDaniel's team said a 20-day deadline applies only to challenges of county and local elections, not a statewide U.S. Senate primary. Others, including the secretary of state, agreed with him.

"Justice has no timetable," McDaniel said numerous times when questioned why it was taking so long to file his challenge of the June 24 GOP runoff for U.S. Senate.

But a 1959 state Supreme Court ruling appears also to apply the 20-day deadline to "state, congressional and judicial district" primaries. Citing this ruling, Cochran's legal team has filed a motion to dismiss McDaniel's lawsuit. McDaniel has until Tuesday to file a response, and a hearing on the motion is set for Thursday.

The section of state law on county election challenges says the first step, filing a case with the party's executive committee, must be done within 20 days of the election. A following section on statewide and district challenges does not contain the deadline language.

But the high court in its 1959 ruling on a Democratic district attorney primary said the code sections were part of a single act passed by the Legislature. It ruled that it would "be senseless" to assume that deadline, aimed to keep general elections on track, would not apply to races for all other offices.

The court said the two sections are "in pari materia," which I believe is Latin for, look at the whole thing together, dummy.

McDaniel's lawyers didn't file his challenge with the state Republican Party until Aug. 4. Cochran's team says it should have been filed, at the latest, July 27, 20 days after results were certified.

It bolsters the Cochran motion that no subsequent rulings have altered the 1959 decree and that the Legislature has tweaked election laws several times since and didn't make any changes to counter the ruling.

It's unclear what McDaniel's response to the motion will be, but his team has said that his litigation over access to voting records in several counties should have reset the clock on any deadlines.

It's conceivable Judge Hollis McGehee this week could dismiss Chris McDaniel v. Thad Cochran on the timeliness motion.

But given the realpolitik of the case, I doubt that happens. Imagine the uproar from the tea party faithful if McDaniel isn't given his day, or in this case 10 days, in court.

Judge McGehee, bless his heart, has perhaps the most unenviable task handed to a Mississippi jurist in a generation. I think I would have suddenly remembered some oral surgery I had planned for September if I were a judge and the chief justice had called.

McGehee is known for careful and fair deliberation. I believe it's more likely the judge will reserve ruling on the timeliness motion until after hearing the rest of the case.

Contact Geoff Pender at (601) 961-7266 or gpender@jackson.gannett.com. Follow @GeoffPender on Twitter.