Written 2026-11-06, ~19:30 UTC. Two days after the election, the count is still moving.
Mississippi's Senate race is the closest in the country and the hardest to litigate. The state has no recount law for a general election and, as election-law scholars read the code, no procedure for contesting a race for Congress. So the fight that began Thursday is not about a recount. It is about which affidavit ballots get counted — and both sides have now put their arguments on paper, in letters to the election commissioners of all 82 counties.
Where the count stands
Democrat Scott Colom's lead over Sen. Cindy Hyde-Smith (R) has widened as counties worked through late ballots: from tens of votes on election night (the Wall Street Journal had it at 43 at 9 a.m. Wednesday) to about 1,138 by Wednesday night, 1,724–1,822 through Thursday, and roughly 2,000 by Friday, with about 96% of the expected vote counted and the total past 950,000 ballots.
Counties certify to the Secretary of State by Nov 13. Affidavit voters who lacked a photo ID have until Nov 10 to cure. The Secretary of State declares final results Dec 3.
The two letters
Hyde-Smith's demand. On Thursday, counsel for Hyde-Smith — with a copy sent by the NRSC to all 82 counties — demanded that counties "separate and preserve" every affidavit ballot "in an unaltered and identifiable state." The ballots, the letter says, are "potential evidence in any box examination under § 23-15-911, election contest, or proceeding before the United States Senate." It asks counties to keep the ballots apart from regular and absentee ballots and to preserve envelopes, separate receipt books, cure records, pollbooks, tabulator tapes, custody logs and video of storage areas, and to confirm by 5 p.m. Thursday.
Colom's reply. That evening, Colom's counsel, Jacquelyn Lopez, wrote to the same counties calling it "an unlawful attack on voter privacy" with "no basis in Mississippi law." Her points:
- Mississippi Code § 23-15-573 governs the affidavit process "in detail," she writes, and says nothing about keeping counted affidavit ballots separate; the 2026 County Election Handbook, she adds, treats affidavit ballots as ordinary Election Day paper ballots and flags separation only where the law requires it (rejected absentees).
- Separating accepted affidavit ballots threatens the secret ballot. She cites the Mississippi Supreme Court in Clark v. Rankin County (1975) and O'Neal v. Simpson (1977).
- Counties may not change procedures mid-count; doing it in some counties and not others would treat similar voters differently, which she calls an equal-protection problem.
- The statute Hyde-Smith cites argues against her, Lopez writes. § 23-15-911 sits in the code's "Election Contests" article, and its subsection (2) says the ballot-box examination "shall apply in the case of an election contest regarding the seat of a member of the state Legislature." I checked that text; it says what she says. § 23-15-951, she adds, contests an office "within a county" — not a U.S. Senate seat.
Not in dispute: federal law already requires federal-election records to be kept for 22 months (52 U.S.C. § 20701), and the Hyde-Smith letter says its measures "must not delay lawful tabulation." The narrower question is separation — whether accepted affidavit ballots are pulled out of the pile, which Colom's side says can let a ballot be traced to a voter.
Why there are so many affidavit ballots
Mississippi lets a voter who isn't found on the rolls cast an affidavit ballot, verified afterward. This year far more people than usual had to. Before the election, Secretary of State Michael Watson's office sent counties Experian data; 230,000 registrations were flagged "inactive." Mississippi Today counted more than 15,000 removals in DeSoto County between the primary and the general, 14,063 in Jackson and 28,921 in Harrison.
Watson estimated 12,000 to 20,000 affidavit ballots are still uncounted, with a 76% acceptance rate — higher than usual, he said, and due to voter-roll maintenance. He put the actual status changes on county election commissioners ("Your election commissioners are in charge of cleaning the voter rolls"), while defending the inactivations as "a cornerstone of election integrity." He also said affidavit voting is the "safety net" that catches such errors.
If it stays this close
With no state recount and no federal-office contest, two narrow routes remain:
- Litigation over specific ballots — a suit over a decision to count or reject particular affidavit or mailed ballots.
- The U.S. Senate. Article I, Section 5 makes each chamber the judge of its own elections. In Roudebush v. Hartke (1972) the Supreme Court let Indiana recount a disputed Senate race while holding the Senate kept final judgment. The Senate's history is slow: in New Hampshire in 1974, the Wyman–Durkin contest went through two recounts and seven months of deadlock before the Senate declared the seat vacant and the state held a new election. Hyde-Smith has stood on that side of the power before — in 2003–04, as a state senator, she sat on the committee that refused to seat Dwayne Thomas in Hinds County's District 29 and ordered a new election.
Mississippi's legislature has had chances to write a federal recount law; such bills have died in committee since at least 2004, including HB 1026 this January, which would have required a recount in any race decided by 250 votes or 1 percent.
What I haven't established
- Whether any county complied with the separation demand or refused it. No county's response has surfaced.
- Whether a lawsuit has been filed. As of writing, this is letters.
- The outstanding counts are estimates — Watson's 12,000–20,000, and separately about 3,600 outstanding mail ballots — not a certified total.
- One tension I can't resolve: the Wall Street Journal, as quoted by the Mississippi Independent, says a recount "can be ordered only by court order"; other accounts, and the code as I read it, describe no recount procedure at all. I've used "no recount law," which the record supports; the Journal's phrasing may describe something else.
- I haven't read the full text of § 23-15-573 or the handbook pages Colom's letter cites.
Earlier coverage: Two Senate Seats Are Still Counting (11-05) — the Alaska and Mississippi counts, the no-recount rule, and the certification dates.