MISSISSIPPI SECRETARY OF STATE SUPPLEMENT TO ELECTION FRAUD REPORT OF COMPLAINANT SHAUN MCCUTCHEON, CHAIR OF THE CONSERVATIVE ACTION FUND

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1 MISSISSIPPI SECRETARY OF STATE ) IN RE 2014 MISSISSIPPI REPUBLICAN ) PRIMARY ELECTION FOR U.S. SENATE ) ) SHAUN McCUTCHEON, CHAIRMAN OF ) THE CONSERVATIVE ACTION FUND, ) ) Complainant. ) ) SUPPLEMENT TO ELECTION FRAUD REPORT OF COMPLAINANT SHAUN MCCUTCHEON, CHAIR OF THE CONSERVATIVE ACTION FUND Introduction Complainant Shaun McCutcheon, Chairman of the Conservative Action Fund ( CAF ), respectfully submits this memorandum of law to supplement the report of election fraud that was submitted on Friday, July 11, 2014, through the online form on the Secretary of State s website. See Secretary of State Delbert Hosemann, Report Election Fraud, available at elections_report_election_fraud.aspx (last referenced July 11, 2014). The integrity of Mississippi s 2014 run-off election for the Republican nomination for U.S. Senate (hereafter, Runoff ) has been unavoidably undermined by the submission of thousands of fraudulent, illegal, and otherwise invalid votes cast by individuals who already voted in the Democratic Party s 2014 primary election for the Senate, in direct violation of Miss. Code These improper votes not only taint the outcome of the Runoff, but violate the fundamental constitutional right to vote of people who were truly eligible to participate in the election, by diluting the impact of their validly cast ballots. 1

2 Report of Election Fraud Name: Address: City/State/Zip: Contact Number: Shaun McCutcheon (703) (through counsel) (through counsel) Name of your polling place: All polling places in state Date incident occurred: June 24, 2014 Please explain the circumstances surrounding your complaint. Please by very specific and include all relevant information (2000 characters maximum): Miss. Code provides, Any person... who shall vote or attempt to vote in the primary election of one party when he shall have voted on the same date in the primary election of another party, shall be guilty of a misdemeanor. A primary election for an office and any runoff for it comprise one election process. Letter from Att y Gen. Mike Moore to Hon. Walter Brown, 1988 WL , at *1 (Miss. A.G. Op. Apr. 7, 1988). Consequently, bans " crossover voting, which is participation in the first primary of one political party and participation in the runoff of another political party. Id. Based on press accounts of numerous individuals inspections of official voting records, it appears thousands of people who apparently voted in the Democratic primary for U.S. Senate on June 3, 2014, were permitted to vote in the Republican runoff for U.S. Senate on June 24, 2014 ( Runoff ). It further appears, in several counties, no steps were taken to enforce to ensure individuals who voted in the Democratic primary were barred from voting in the Runoff. It is unclear how many fraudulent or illegal votes were cast in violation of The apparent widespread violations of this statute, along with the seeming failure of party or election officials in some jurisdictions to attempt to enforce it, constitute a total departure from [ s] fundamental provisions, destroy the integrity of the election, and make the will of the qualified electors impossible to ascertain. Rogers v. Holder, 636 So. 2d 645, 647 (Miss. 1994). This Office should refuse to accept the current results of the Runoff without a complete investigation and, if necessary, require the conduct of a special election. Allowing the current Runoff results to stand would flout state law and violate the constitutional right to vote of those who complied with , by diluting their legally valid votes with invalid ones. Are there other individuals we should talk to regarding these issues? Yes Person 1 Name: Christina Sirois, Esq. (Counsel) Address: 203 South Union Street, Suite 300 City/State/Zip: Alexandria, VA Phone: (703)

3 If the Attorney General s Office is able to prosecute this allegation of voter fraud: I wish to remain anonymous. It Appears That Thousands of People Who Voted in the 2014 Democratic Primary for U.S. Senate Subsequently Voted in the Republican Runoff for that Office in Violation of Miss. Code , and That Party and Election Officials in Several Jurisdictions Failed to Even Attempt to Enforce That Statute Official election records suggest that thousands of votes were cast in the Runoff by individuals who had voted in the Democratic primary for U.S. Senate, in direct violation of , and that party and election officials in some counties may not have even attempted to enforce s restrictions. Such a substantial number of illegal votes, combined with the apparently flagrant disregard of fundamental election restrictions in multiple jurisdiction, taints the Runoff s outcome and likely requires that a new election be conducted to prevent fraudulent or otherwise improper votes from skewing the results. The Mississippi Supreme Court has held that a violation of voting procedure which is such a total departure from the fundamental provisions of [a] statute as to destroy the integrity of the election and make the will of the qualified electors impossible to ascertain renders the tainted votes void. Rogers v. Holder, 636 So. 2d 645, 647 (Miss. 1994) (quoting Stringer v. Lucas, 608 So. 2d 1351, 1361 (Miss. 1992)); accord Lewis v. Griffith, 664 So. 2d 177, 186 (Miss. 1995) (citing Riley v. Cla yton, 441 So. 2d 1322, 1328 (Miss. 1983)). Alternatively, if there are willful violation[s] of the election procedures, then a new election must be held, even if the total percentage of illegal votes is small. Waters v. Gnemi, 907 So. 2d 307, 334 (Miss. 2005) (citing Harris v. Stewart, 193 So. 2d 339, 346 (Miss. 1940)); see also Rogers, 636 So. 2d at 651 ( [E]ven where the percentage of illegal votes is small, if attended by fraud or willful violations of the election procedure, [a] Court will order a new election without reservation. ). Moreover, when legal and illegal votes are commingled, and it is impossible to distinguish between them, all the 3

4 commingled votes much be discounted. Thompson v. Jones, 17 So. 3d 524, (Miss. 2008). Applying these standards, there were fraudulent, illegal, and otherwise improper votes cast in the Runoff that require the Runoff s results to be rejected. Miss. Code provides, Any person... who shall vote or attempt to vote in the primary election of one party when he shall have voted on the same date in the primary election of another party, shall be guilty of a misdemeanor. Under Mississippi law, a primary election for a particular office, and a subsequent runoff election for that office, are deemed to be parts of one election process. Letter from Att y Gen. Mike Moore to Hon. Walter Brown, 1988 WL , at *1 (Miss. A.G. Op. Apr. 7, 1988) (hereafter, Moore Letter ). The runoff primary has been described as a continuation of the first primary. Id. The Attorney General consequently has construed to prohibit " crossover voting, which is defined as participation in the first primary of one political party and participation in the runoff of another political party. Id. Neither the Attorney General nor any court has ever questioned the constitutionality or enforceability of this provision. To the contrary, the U.S. Supreme Court has recognized that a State validly may determine that it is essential to the integrity of the nominating process to confine voters to supporting one party and its candidates in the course of the same nominating process. Am. Party of Tex. v. Wh ite, 415 U.S. 767, 786 (1974). The statute also helps to prevent party raiding, in which one party s supporters attempt to alter the outcome of another party s primary. Cal. Democratic Party v. Jones, 530 U.S. 567, 572 (2000). Restrictions on party raiding preserv[e] the integrity of the electoral process. Rosario v. Rockefeller, 410 U.S. 752, 761 (1973); accord Kusper v. Pontikes, 414 U.S. 51, (1973). Based on numerous individuals reviews of official election records, it appears that there are thousands of individuals who are recorded as having voted both in the Democratic primary 4

5 election for U.S. Senate and in the subsequent Republican Runoff for that office, in direct violation of See, e. g., Courtney Ann Jackson, McDaniel Volunteers Sort Through Runoff Ballots, MS NEWS NOW (July 8, 2014) ( The last count [the McDaniels campaign released] was nearly 5,000 questionable votes statewide. ), available at story/ /mcdaniel-volunteers-sort-through-ballots; Matthew Boyle, Team McDaniel: We Have Found Ineligible Votes, Half of Number Needed for Challenge, BREITBART (July 1, 2014), available at Have-Already-Found-More-Than Ineligible-Votes-Half-Of-What-s-Needed-For- Challenge; MS Tea Party Claims At Least 800 Illegal Votes in Hinds County Alone, MS News Now (June 26, 2014), available at Chris McDaniel Challenges Mississippi Senate Primary Votes After Loss, REUTERS (June 27, 2014), available at n html?&ncid=tweetlnkushpmg One blog posted the following picture, apparently of Hind County Election Records, purporting to show numerous entries for people who voted in both the Democratic primary (left hand column) and the Republican Runoff (right hand column): 5

6 Jim Hoft, There May Be Enough Invalidated Votes to Overturn Cochran Victory, Gateway Pundit blog (June 26, 2014), available at breaking-enough-invalidated-votes-to-overturn-cochran-victory. Popular press accounts go on to suggest that election and party officials in certain jurisdictions did not even attempt to enforce s restrictions or otherwise attempt to ensure that individuals who had voted in the Democratic primary were barred from also voting in the Runoff. Widespread violations of , along with the potential failure of some jurisdictions to even attempt to enforce its requirements, gave rise to a complete and total departure from statutory procedures that destroyed ballot and election integrity. Lewis, 664 So. 2d at 186; cf. Waters, 907 So. 2d at 335 ( The gross deviation and total departure from mandatory election procedure by [party and election officials] caused the result of the [election] to be completely 6

7 undermined as all indicia of reliability were compromised. ). Section s prohibition on crossover voting, see Moore Letter, 1988 WL , at *1, is essential to the integrity of the nominating process, White, 415 U.S. at 786 (emphasis added), and helps to preserve the integrity of the primary process by hindering party raiding, Rosario, 410 U.S. at 761. Particularly as Mississippi does not have party registration, i.e., a citizen does not need to be a member of a political party in order to run or vote in that party s primary, Letter from Att y Gen. Jim Hood to Hon. Billy R. Nicholson & Jeffrey C. Smith, No , 2007 WL , at *1 (Miss. A.G. Op. Jan. 29, 2007) plays a critical role in helping to ensure that the results of a party s primary accurately reflects the preferences of a party s actual supporters. The thousands of fraudulent or otherwise illegal votes cast in apparent violation of also violate the fundamental right to vote of all statutorily eligible voters who cast legally valid votes in the Runoff, by diluting the impact of their votes. The constitutional right to vote includes the right of all voters in a federal election to... have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots. Anderson v. United States, 417 U.S 211, 226 (1974); see also Baker v. Carr, 369 U.S. 186, 208 (1962) (recognizing that stuffing of the ballot box with votes of ineligible persons unconstitutionally dilut[es] the votes of statutorily eligible electors). A person s right of suffrage is denied by a debasement or dilution of the weight of a citizen s vote just as effectively as by wholly prohibiting the free exercise of the franchise. Reynolds v. Sims, 377 U.S. 533, 555 (1964); see also Crawford v. Marion Cnty Elec. Bd., 472 F.3d 949, 952 (7th Cir. 2007) ( [V]oting fraud impairs the right of legitimate voters to vote by diluting their votes dilution being recognized to be an impairment of the right to vote. ), aff d 553 U.S. 181 (2008); Farrell v. Bd. of Elecs. in the City of Ne w York, No. 85 Civ (JES), 1985 U.S. Dist. LEXIS 16669, at *26 7

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