Rep. Davis moves closer to contesting primary loss

Rep. David Davis (R-Tenn.) appears increasingly likely to contest his primary loss last week on the grounds that it was not a true Republican primary.
 
Davis detailed his case in a lengthy statement Wednesday. His campaign said it is “increasingly obvious to the Davis campaign that there was a well-funded and systematic effort by outside parties to pervert the Republican primary process.”
 
{mosads}The freshman from eastern Tennessee fell to Johnson City Mayor Phil Roe by fewer than 500 votes out of more than 50,000 cast in Thursday's GOP primary.
 
Davis’s campaign cites a Tennessee law that states anyone voting in a party primary must be or intend to be a committed member of that party.
 
“I believe that there is clear and overwhelming evidence that the integrity of this primary was violated unlawfully by huge numbers of Democrats voting to change the outcome of the Republican primary,” Davis said.

Election law experts say he doesn't have much of a case.

Davis’s campaign is fighting the notion that Tennessee actually has an open primary system, though voters are currently allowed to vote in whatever primary they would like. An open primary system allows a voter to choose what party primary they will vote in, no matter what their voter registration indicates.
 
Davis's campaign cites a law that states the voter must be a “bona fide” member of the party whose primary he or she is voting in or at least say he or she intends to affiliate with that party. The campaign believes it can challenge some of Roe’s votes on these grounds, though it admits that without voter data, its evidence is anecdotal.
 
The Davis campaign says the anecdotal evidence includes robocalls to Democrats urging them to vote against Davis, e-mails urging them to vote in the GOP primary, Democratic Party officials voting for Roe and Democrats campaigning for Roe. The official voter data will be available Thursday.

GOP election lawyer Jan Baran said proving that 500 voters did not intend to affiliate with the Republican Party "requires direct or circumstantial evidence about a state of mind."

"That is difficult, if not impossible, to prove," Baran said. "More important, there is no requirement that a voter in a primary vote for that party's nominee in the general election — all of which is protected by the secret ballot."

Richard Hasen, a professor at Loyola Law School in Los Angeles, called Davis's a "really, really weak case" and likened the Tennessee law to a similar law in Indiana.

Indiana allows voters to vote in one party's primary only if they voted for a majority of candidates from that party in the last general election. Or, if they didn't vote in the last general election, they must intend to do so in the next one.

The law became an issue earlier this year when Sen. Hillary Rodham Clinton (D-N.Y.) was said to be benefiting from a high number of crossover votes in the Democratic presidential nominating process. State Democratic officials threatened to challenge some of those votes, but little became of it.

Hasen wrote at the time on Slate.com that it's nearly impossible to prove what people's past votes have been and what their real intentions are, without them admitting it.
 
Davis said he would file any formal contest within five days of the result being certified. The deadline for certification is Monday.
 
Roe’s campaign did not immediately comment.