Mississippi’s Uncalled Senate Race Between Colom and Hyde-Smith Has No Recount to Fall Back On

Mississippi has no recount procedure for its uncalled U.S. Senate race between Scott Colom and Cindy Hyde-Smith: candidates cannot ask for one, none is triggered automatically, and recounts are held only on a court order.

The Secretary of State’s office confirmed the first two points to ABC News, and the Associated Press stated the third on Friday, explaining why it had not called the race: “Recounts in the state are held only in the event of a court order,” the AP wrote in an analysis republished by the Mississippi Free Press. Here the count is followed not by a second count but by certification, and then by whatever a candidate can prove in court.

Six days after the polls closed, Mr Colom, the Democrat, leads. On ABC’s results page, which carries AP data, he had 467,930 votes to Senator Hyde-Smith’s 465,356 at 9:53 a.m. Eastern on Monday 9 November, with an estimated 97 per cent of the vote counted. The independent Ty Pinkins had about 2 per cent. Mississippi has not elected a Democrat to the Senate since 1982, ABC noted, and Mr Colom would be the state’s first Black senator since Reconstruction.

How has the margin moved?

In one direction, in steps. The table is this publication’s timeline of the AP figures as published by ABC News and in the Mississippi Free Press’s results liveblog; the margins are our subtraction. Day counts run from Election Day, Tuesday 3 November.

Two things follow from the numbers. The lead is 0.28 per cent of the votes cast for the two main candidates, by our arithmetic, and Mr Colom holds 50.14 per cent of that two-candidate vote. And the margin on Monday morning was the same as on Friday evening; the count is not finished.

The AP put the votes still outstanding at about 30,000 at 4:45 p.m. Eastern on Friday, down from about 44,000 that morning. On those two figures, Senator Hyde-Smith would need to win the remaining ballots by about 8.6 points, roughly 54 per cent to 46 of the two-candidate share, to close the gap. That is this publication’s arithmetic on the AP’s estimate, which the AP revises continuously; it is not a forecast. The AP reported Mr Colom ahead by roughly 47,000 votes in Hinds County, where it estimated about 7 per cent of ballots were still uncounted on Friday, and about 2,200 votes outstanding in Rankin County. Mississippi has no central reporting system, so the AP gathers these figures from each of the 82 counties directly. Local officials hold the ballots at this stage, as they held the polling-place doors on Election Day, when access for the Justice Department’s monitors was theirs to decide.

What is still being counted, and by when?

Mostly affidavit ballots, Mississippi’s name for provisional ballots, plus mail ballots still in transit. Secretary of State Michael Watson said on Wednesday that about 3,600 mail ballots were outstanding, and on Thursday about 3,300, while the number of affidavit ballots was unknown, according to ABC and the Mississippi Free Press. The calendar is short and fixed:

The first two dates are from the Secretary of State’s office as reported by ABC and the AP. The third is this publication’s count from the statute described below.

The handling of affidavit ballots is already contested. The National Republican Senatorial Committee demanded that counties separate and preserve them; Mr Colom’s campaign called that “a desperate stunt from national Republicans,” and his lawyers warned that segregating the ballots would violate voters’ rights, the Mississippi Free Press reported. The state Republican chairman said the party would “fight like hell” to ensure the ballots cast were legal and that court challenges were possible “if and when” evidence of violations emerged.

If not a recount, then what?

An examination, and then a lawsuit. After certification a candidate may conduct what ABC, citing the Secretary of State’s office, called “a ballot box exam,” looking at the ballots and election materials, and may go to court if that turns up problems, ABC reported. The state’s general contest statute, Section 23-15-951 of the Mississippi Code, lets a person contest “the election of another person returned as elected to any office within any county” by petition to the circuit clerk within 20 days after the election. The Chief Justice of the Mississippi Supreme Court then designates a judge from outside the district to hear it, and a jury decides who received the most legal votes.

The difference from a recount is the burden. A recount re-tallies everything and lets the number fall where it falls. A contest starts from the certified result and asks a court to set it aside, so the side that is behind must find and prove specific errors large enough to matter. With a margin of 2,574, that means showing net errors worth more than 2,574 votes, ballot by ballot.

Who has the last word?

The Senate. Article I, Section 5 of the Constitution provides that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” A state certificate decides who arrives with credentials; it does not bind the chamber that seats them. It means a dispute that outlasts the state process does not end in Jackson.

Neither candidate has conceded. “We are not backing down. This election is not over,” Senator Hyde-Smith wrote on Facebook on Friday. Mr Colom said on Wednesday: “I’m confident once the process lays out where we are, where the ballots are, we’re going to win.” His legal effort is led by Marc Elias’s firm; the NAACP said on Sunday that it had sent staff and that election officials “must follow Mississippi law and count every eligible vote.”

This is the second uncalled Senate race this publication has followed through its paperwork; in Alaska the fight came before the count, when a federal judge dismissed the Justice Department’s bid to delay certification. In Mississippi it will come after. The next fixed point is Friday 13 November, when the county certifications are due, the step that has to come before any ballot box is opened for examination.