As Democrat Scott Colom narrowly leads incumbent Republican Cindy Hyde-Smith in a race for U.S. Senate, it appears Mississippi will see a partisan legal fight over thousands of affidavit ballots that will decide the outcome.
Mississippi Republican Party Chairman Mike Hurst vowed at a Thursday press conference to “fight like hell” to ensure that only “legally cast” ballots are counted and that the process to review and count the outstanding ballots is aboveboard.
READ MORE: Thousands of affidavit ballots outstanding in Mississippi Senate election. Campaigns prepare for legal fight
“Let me be clear: This race is far from being over,” Hurst said. “Right now, we estimate that there could be approximately 20,000 outstanding ballots left to be counted.”
Hurst said, without providing evidence, that the areas where a large number of affidavit ballots remain outstanding are traditional Republican-leaning areas of the state. When asked if he would name those specific counties, he declined.
Scott Colom and Cindy Hyde-Smith.The razor-thin margin of votes between Hyde-Smith and Colom in a state considered a Republican stronghold has sent shockwaves across the nation, but it remained too close to call on Thursday. Only 1,764 votes separated the two candidates. The Associated Press reported that Colom led 466,226 to 464,502, with 96% of the vote counted.
The National Republican Senatorial Committee, the fundraising arm of the Senate GOP, sent letters to circuit county clerks and election commissioners asking them to preserve and set aside affidavit ballots.
Kyle Kirkpatrick, former head of the elections division at the Mississippi secretary of state’s office, questioned on social media how productive that exercise would be because once affidavit ballots are scanned, it is “impossible to determine” what voter that ballot was associated with.
Gerard Henderson, Colom’s campaign manager, said in a statement that the NRSC letters were a “desperate stunt” and signaled Republicans knew they were about to lose the race.
“We’re confident that when every lawful ballot is counted, Scott Colom will be Mississippi’s next U.S. senator,” Henderson said.
PODCAST: When will we know who won Mississippi’s Senate midterm election?
Election attorneys, voting rights advocates and reporters from around the globe have descended on Mississippi over the past 48 hours, scrambling to make sense of what remaining ballots were left, when they would be counted and how Colom found himself in striking distance of pulling off a victory in a state that hasn’t sent a Democrat to the U.S. Senate in over four decades.
Fair Fight Action, a voting rights advocacy organization, said the Democratic Senatorial Campaign Committee and Democratic election attorneys from Elias Law Group have deployed hundreds of volunteers and local lawyers across all 82 counties to oversee the final rounds of counting.
Mississippi has no automatic recount law. A recount would happen only if a court ordered it. For that to happen, a campaign or political party would have to file a lawsuit against a county or county election commission.
A state judge would likely hear the case on an expedited basis, and the lower court’s decision would be appealable to the Mississippi Supreme Court.
After the election results are certified, campaigns can conduct ballot box examinations, which can be used as evidence in a lawsuit. The dispute over which affidavit ballots are accepted and rejected would likely be the subject of litigation.
If a court fight ensued, it could be a disjointed, chaotic process. Mississippi law does not establish a system for challenging ballots on a statewide scale, only on a county-by-county basis.
The Republican Party chairman declined to say in which specific county he’s considering filing a lawsuit, but he referenced Hinds County, Mississippi’s largest county and a Democratic stronghold, as a likely option.
“It’s no surprise that this is a traditionally Democratic county, and I don’t think it’s any surprise that this election commission, in particular, has had a number of issues in the past that frankly are not just Republican issues, but even Democratic election commissioners have complained about how the electoral system in Hinds County has operated,” Hurst said.
The press conference displayed the awkward and surprising position the state GOP currently finds itself in, a Deep South state that has consistently sent Republicans to the U.S. Senate for the last four decades.
For the first time in a generation, an incumbent Republican senator in Mississippi running for reelection has been caught flat-footed and put on the defensive after Black voters turned out in droves and many Republican voters crossed over to vote for Colom.
Hurst, who also serves as general counsel for the Republican National Committee, acknowledged that Democratic candidates did “pretty well” around the country and this was the closest Senate race that reliably conservative Mississippi has had in a “very, very long time.”
Though he claimed that Hyde-Smith would ultimately win the election, Hurst said he would accept the results of the election if the votes show Colom lawfully won.
Voters have until Nov. 10 to correct issues related to presenting a voter ID at their local circuit clerk’s office, which is also the same date election officials have to count late-arriving mail-in ballots that were postmarked by Election Day.
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