Mississippi Senate Race Comes Down to Thousands of Uncounted Affidavit Ballots — and a State With No Recount Law

JACKSON, Miss. — Four days after the polls closed, Mississippi still doesn't know who its next U.S. senator is. The answer may be sitting in envelopes that haven't been opened yet.

Democrat Scott Colom, a district attorney, led Republican Sen. Cindy Hyde-Smith by 1,138 votes Wednesday night. His lead grew to just over 1,700 by midday Thursday and to about 2,500 by Friday evening, with both candidates near 49 percent of the vote.

The ballots still out

Two pools of ballots remain:

• Mail-in absentee ballots. About 3,600 were still outstanding as of Thursday. Under state law, they count if they arrive within five business days of Election Day. This summer, the U.S. Supreme Court declined to strike down that grace period in Watson v. Republican National Committee.
• Affidavit ballots. These are Mississippi's provisional ballots, cast when a voter's eligibility or ID can't be confirmed at the polls. Secretary of State Michael Watson said Thursday that 12,000 to 20,000 of them still need to be resolved. Voters who cast one because they couldn't show photo ID at the polls must return with acceptable identification before the deadline, or the ballot doesn't count.

That second pool is several times larger than the current margin. Whether this race ends in a Republican hold or the first Democratic Senate win in Mississippi since 1982 may depend on how many of those voters come back with an ID.

Hyde-Smith: preserve every ballot

Hyde-Smith's campaign sent letters to county election officials demanding "the immediate separation, secure custody, and preservation of all affidavit ballots cast." The National Republican Senatorial Committee made the same request. The state party chairman said Republicans will make sure "every legal vote is counted."

Colom's campaign called the request a "desperate stunt," and his lawyers argued it was unlawful. The Democratic Senatorial Campaign Committee has sent its own lawyers into the state to monitor the count.

Asking for ballots to be kept separate and secure in a race this close is basic election hygiene, not a stunt. It's what makes an accurate count possible if the result is challenged in court, which may be the only option left.

No recount on the books

Mississippi is the only state with no formal provision for a recount in a near-tie. The plurality winner takes the seat, and a losing candidate who wants a second look has to go to court for it. Counties must submit certified results by Nov. 13.

Colom says the state "has decided to go in a new direction." Hyde-Smith hasn't conceded, and with thousands of ballots unresolved, there's no reason she should.

Why it matters

Democrats have already secured at least 54 Senate seats. Mississippi and Alaska, where Mary Peltola narrowly leads Sen. Dan Sullivan, decide whether the new majority is 54, 55 or 56. That's also the difference between needing six, five or four Republican votes to break a filibuster. For a party preparing for two years in the minority, every seat counts.