Oklahoma CD 2: Will Democrats find a winning substitute for the special election?

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The Oklahoma Democratic Party is trying to invalidate the re-election of Republican 2nd District Congressman Markwayne Mullin because the Democratic nominee died two days before the election.

Earl Everett, 81, died Sunday from injuries suffered in a Friday auto collision. Our condolences go to his friends and family. It's an honorable thing to run for public office, perhaps all the more when there is little expectation of success. Everett won the primary against an opponent barely one-third his age. In the general election, Mullin won with 70% to Everett's 25% and 5% for an independent candidate.

In August 1998, Jacquelyn Morrow Lewis Ledgerwood finished second in the Democratic primary to select a challenger to then-three term U. S. Senator Don Nickles. Ledgerwood had died almost six weeks before the primary, but it was too late under Oklahoma law to take her name off of the ballot. In the primary, Ledgerwood had 2197 votes more than third-place candidate Jerry Kobyluk, and so she advanced to the runoff election, notwithstanding her death. The Deceased-American vote isn't as strong in Oklahoma as it is in, say, Chicago, and Ledgerwood lost the runoff to Don Carroll by a 75%-25% vote. According to news reports at the time, had Ledgerwood won the runoff, the Oklahoma Democratic Party organization could have chosen a replacement nominee.

In 1990, District Judge Frank Ogden III, serving Judicial District 1 in the Panhandle, was three months deceased when he won re-election with over 90% of the vote. His opponent demanded to be named the victor, even though 9 out of 10 voters preferred a dead man to him. (This may be the greatest "none of the above" victory in Oklahoma history.) The Oklahoma Supreme Court declared the election valid, resulting in an immediate vacancy to be filled by the incoming governor when the term of the new judge was to begin.

26 O. S. 1-105, which governs this situation, has been changed twice since 1990. Here is the 1990-2009 version, the 2009-2014 version (currently in effect), and the version that takes effect on January 1, 2015.

Section 3 of the current version appears to dictate that a special election must be held:

If said death [of a party's nominee] should occur five (5) days or more following the Runoff Primary Election date, a special General Election shall be called by the Governor and shall be conducted according to the laws governing such elections, Section 12-101 et seq. of this title, except that there shall be no filing period or special Primary Election and the candidates in the special General Election shall be the substitute candidate named by the central committee and the nominee of other political parties elected in the Primary or Runoff Primary, and any previously filed independent candidates.

In the new version of the law, a special election would be held only if the deceased candidate won the election. The party could still (as now) substitute a nominee up until the Friday after the runoff election -- about 60 days before the general. If the nominee snuffs it after that point, his name remains on the ballot.

(For decades, Oklahoma's election season began with filing the second week in July. In recent years, filing was moved back to June and now April, in order to ensure that servicemen serving overseas could fully participate. The current schedule allows at each stage of the process sufficient time between when the candidate list is determined and when the election will be held to print ballots, send them out, and get them back from overseas voters.)

The current, soon-to-be-superseded version of the law is problematic. It actually creates a perverse incentive for a political party to assassinate its own ineffective nominee in order to get a do-over with a better, handpicked nominee. (Please note: I am NOT saying that this has ever happened.) The party could select the best possible replacement nominee from a pool of candidates that might have been unavailable during the normal election process because they were running for re-election or for higher offices. The other party is stuck with its nominee, and no other independents can get into the race.

In a normal election, a potential candidate has to weigh likelihood of success against the cost of not running for re-election or for election to a more winnable seat. In a special election, anyone can run without risking their current position or foregoing a more favorable race. In a special election right after a general election, a candidate could run without risking his current office. Some candidates will have recent experience, a campaign organization, and name recognition to bring to a special election.

Over the last 20 years, the Democrats have only managed to win only one of Oklahoma's congressional seats: Rural eastern Oklahoma's 2nd District. Brad Carson and Dan Boren held the seat for 12 years. They'd like it back, and Earl Everett's untimely demise gives them an opportunity.

Jamison Faught has a list of possible replacement nominees, and he rates them on likelihood of being selected and competitiveness in a special election. I'm surprised that Faught has overlooked what may be the Democrats' best option, an option that seems obvious given the county-by-county election maps Faught has posted.

The Democrats' State Superintendent nominee, John Cox, won 20 of the 26 counties in the 2nd Congressional District, and won the district with 84,726 votes (53.4%) to Joy Hofmeister's 73,803 (46.6%). By comparison, Joe Dorman only won 43.1% of the 2nd District vote. (Dorman barely outperformed Labor Commissioner nominee Mike Workman in the district, 68,835 to 67,276). In fact, Cox is the only statewide Democratic candidate to win in a congressional district, and the 2nd is the only district he won.

A congressional election has an added dynamic -- the partisan balance of power -- that is missing from a statewide race. In this case, however, the balance of power is known. The Republicans will have the majority in the House regardless of the result of this special election. Would it make a difference to 2nd District conservative Democrats to know that they could have a Democrat congressman once again without handing control of the House to wacky liberals from San Francisco or New York City?

A victory in a special election after last Tuesdays shellacking would be a morale boost to state and national Democratic organizations. It's like winning the Bedlam game -- if OU manages to beat OSU, the whipping they took from Baylor on Saturday won't sting as badly. If Democrats were to convince someone like Cox to run, expect Democrat donors to throw everything they can into this race.

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David Van Author Profile Page said:

The statute is clear on how to adjudicate a death just prior to the Nov. election, but as with any legal action, a "statute of limitations" exists where the issue needs to be formally initiated.
What we don't have a clear answer about is how an election board or governor is notified and petitioned for proper state action?
If the courts rule that it is the responsibility of the political party to make the notification & request, then how much time do they have to file the said papers?
Is a death certificate required? What if a candidate is missing for months?
I can see no reasonable expectation for the governor or secretary of state to somehow know each day whether every candidate in the state is alive?
Does the governor's staff make calls to each candidate daily and ask "Are you still alive?"
But because we know that other election irregularities must be formally contested no later than 3 days after balloting ends; it seems that the legislative intent was that the political party suffering the death has a reasonable duty to notify the state election board promptly (in this case they should have done so on the Monday prior to precinct polling).
They evidently still have not filed for the nullification of the Nov 4th election of the 2nd Congressional race.

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This page contains a single entry by Michael Bates published on November 9, 2014 3:15 PM.

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