Mississippi: The Lawyers Have Shown Up
Today, the Elias Law Group, Marc Elias’ firm, wrote to election commissioners and circuit clerks in Mississippi’s 82 counties. “Earlier this afternoon,” he told them, “you received a letter from counsel to Cindy Hyde-Smith for U.S. Senate, demanding that you take unlawful and extraordinary measures in handling affidavit ballots in the U.S. Senate race. Those demands have no basis in Mississippi law, and if you depart from ordinary election procedures as you have been asked to do, you will violate Mississippi voters’ rights and Mississippi election law.”
So what did the current senator want? This is about affidavit, or provisional, ballots. And as the Elias Law Group attorney representing Scott Colom’s campaign carefully points out in the letter, under Mississippi law, once those ballots have been verified—i.e., once the voter who didn’t have acceptable ID with them on Election Day returns with it and confirms they were entitled to vote—those ballots are treated like all others. Hyde-Smith told the counties to keep them segregated, presumably because she wants to go back and challenge them if she loses. She referred to the “possibility of an election contest” when she reached out to county officials, according to the Elias Law Group letter. But Mississippi law doesn’t allow for that in a Senate race, and whether Hyde-Smith likes it or not, she’s not entitled to demand special treatment and try to prolong the process if the vote goes in Democratic challenger Scott Colom’s favor. Mississippi law doesn’t permit recounts for U.S. Senate seats.
The letter explains why it’s important to treat approved affidavit ballots like all others: “The Mississippi Supreme Court has specifically cautioned against departures from required counting procedures that would undermine ‘the secrecy of a voter’s ballot’ and ‘violate the fundamental principle of the right to cast a secret ballot.’ … Segregating accepted affidavit ballots from other ballots would have exactly that effect, directly threatening voter secrecy and raising the danger that a voter’s identity could be linked to their ballot. ‘The secrecy of the ballot is a right personal to the voter and he cannot be deprived of this right.’” Hyde-Smith is willing to threaten the secrecy of Mississippi voters’ choices, in violation of the law, to try to save her seat in the Senate.
And beyond that, this sort of a change can’t happen in the middle of the count. It violates voters’ rights to due process since some counties have completed their count while others haven’t, and voters in the ones that haven’t would be uniquely subjected to this process of opening up their identities. The letter relied on Bush v. Gore to explain that “(‘[A]rbitrary and disparate treatment to voters in its different counties,’ amounts to ‘a constitutional violation’ of the Equal Protection Clause of the Fourteenth Amendment).”
The law firm’s letter tells county officials that they must “do as you are legally obligated to do: continue conducting this election using ordinary, lawful procedures. Do not segregate accepted affidavit ballots from other paper ballots. And certainly do not do anything that would allow a particular ballot to be traced to a particular voter, in violation of the ‘fundamental principle of the right to cast a secret ballot.’” The letter doesn’t say so, doesn’t make any threats, but one suspects there is a lawsuit waiting in the wings to be filed if they don’t comply. A post made tonight on Marc Elias’ Democracy Docket website says “the race has all the ingredients of a legal powder keg: unclear election laws, extremely tight margins, thousands of uncounted ballots, and an army of lawyers lying in wait.”
Why would Hyde-Smith take such a step? It appears to be unlawful, and if the county clerks gave in to her demand, they’d face a serious legal challenge. It seems like something a candidate would do only if they knew they had lost. Earlier today, Colom’s campaign manager tweeted, “Our lead has grown to 1,724.”
The count of affidavit ballots continues. Mail-in ballots continue to arrive, and those that arrive by the close of business on Tuesday will be counted. We won’t know the final tally before then. The Secretary of State said earlier today that there were 3,600 mail-in ballots out, so they could absolutely determine the outcome of the election.
In Lafayette County, which has already counted its affidavit ballots, they broke 69%-29% in Colom’s favor. That’s significantly higher than the 49%-48% margin by which Colom leads overall. If that result holds up in other counties, Colom’s lead will grow as more ballots are counted. The Mississippi Free Press is reporting that 20,000+ ballots are still outstanding.
This afternoon, Colom tweeted: “I am overwhelmed by the outpouring of support for my campaign as we fight to make sure every lawful ballot is counted. We saw historic voter turnout in this election across Mississippi and showed the country that Mississippi Matters.” Did you ever think you’d be pulling so hard for Mississippi?
So, there’s going to be a lot more to this. We’ll make sense of it as the votes are counted and possibly, as the lawyers head into court. Civil Discourse is more than just legal news; we follow complicated legal developments together, and I help you understand the law and what’s happening behind the scenes. If being part of this community is right for you, I hope you’ll become a paid subscriber. Your support makes the newsletter possible, especially when everything is moving this fast.
We’re in this together,
Joyce