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MISSISSIPPI SECRETARY OF STATE

)
IN RE 2014 MISSISSIPPI REPUBLICAN )
PRIMARY ELECTION FOR U.S. SENATE )
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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 States website.
See Secretary of State Delbert Hosemann, Report Election Fraud , available at
http://www.sos.ms.gov/ elections_report_election_fraud.aspx (last referenced July 11, 2014). The
integrity of Mississippis 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 Partys 2014 primary election for the Senate, in direct violation of Miss. Code 97-
13-35. 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.


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Report of Election Fraud

Name: Shaun McCutcheon
Address:
City/State/Zip:
Contact Number: (703) 483-9784 (through counsel)
E-mail: Csirois@DBCapitolStrategies.com (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 97-13-35 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 Atty Gen. Mike Moore to Hon. Walter Brown,
1988 WL 250048, at *1 (Miss. A.G. Op. Apr. 7, 1988). Consequently, 97-13-35 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 97-13-35 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 97-13-35. 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 [ 97-13-
35s] 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 23-15-575, 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 22314
Phone: (703) 483-9784

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If the Attorney Generals 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 97-13-35, 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 97-
13-35, and that party and election officials in some counties may not have even attempted to
enforce 97-13-35s restrictions. Such a substantial number of illegal votes, combined with the
apparently flagrant disregard of fundamental election restrictions in multiple jurisdiction, taints
the Runoffs 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

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commingled votes much be discounted. Thompson v. Jones, 17 So. 3d 524, 527-28 (Miss. 2008).
Applying these standards, there were fraudulent, illegal, and otherwise improper votes cast in the
Runoff that require the Runoffs results to be rejected. Miss. Code 97-13-35 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 Atty
Gen. Mike Moore to Hon. Walter Brown, 1988 WL 250048, 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 97-13-35 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 partys supporters attempt to alter the outcome of another partys 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, 59-60 (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

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election for U.S. Senate and in the subsequent Republican Runoff for that office, in direct violation
of 97-13-35. 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 http://www.msnewsnow.com/
story/25970711/mcdaniel-volunteers-sort-through-ballots; Matthew Boyle, Team McDaniel: We
Have Found 3300+ Ineligible Votes, Half of Number Needed for Challenge , BREITBART (July 1,
2014), available at http://www.breitbart.com/Big-Government/2014/07/01/Team-McDaniel-We-
Have-Already-Found-More-Than-3-300-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 http://m.msnewsnow.com/#!/newsDetail/25879385; Chris
McDaniel Challenges Mississippi Senate Primary Votes After Loss , REUTERS (June 27, 2014),
available at http://www.huffingtonpost.com/2014/06/27/chris-mcdaniel-primary-
votes n 5537704.html?&ncid=tweetlnkushpmg00000016.
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):

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Jim Hoft, There May Be Enough Invalidated Votes to Overturn Cochran Victory, Gateway Pundit
blog (June 26, 2014), available at http://www.thegatewaypundit.com/2014/06/
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
97-13-35s 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 97-13-35, 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

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undermined as all indicia of reliability were compromised.). Section 97-13-35s prohibition on
crossover voting, see Moore Letter, 1988 WL 250048, 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 partys primary, Letter from Atty Gen.
Jim Hood to Hon. Billy R. Nicholson & Jeffrey C. Smith, No. 2006-652, 2007 WL 852249, at *1
(Miss. A.G. Op. Jan. 29, 2007). 97-13-35 plays a critical role in helping to ensure that the results
of a partys primary accurately reflects the preferences of a partys actual supporters.
The thousands of fraudulent or otherwise illegal votes cast in apparent violation of 97-
13-35 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 persons right of
suffrage is denied by a debasement or dilution of the weight of a citizens 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 votesdilution being
recognized to be an impairment of the right to vote.), affd 553 U.S. 181 (2008); Farrell v. Bd. of
Elecs. in the City of Ne w York, No. 85 Civ. 6099 (JES), 1985 U.S. Dist. LEXIS 16669, at *26