Mississippi’s Senate Race Hangs on 1,138 Votes. Marc Elias Already Declared His Client the Winner.

Mississippi hasn’t sent a Democrat to the U.S. Senate since 1982. Right now, one is ahead by 1,138 votes. In the Associated Press count Wednesday night, Democrat Scott Colom had 464,926 votes to Republican Sen. Cindy Hyde-Smith’s 463,788, with about 96% of the expected vote in. Independent Ty Pinkins had 19,934. Nobody has called it.

That gap was 65 votes Wednesday afternoon, NBC News reported. It has swung back and forth all week, and it isn’t done swinging. But one man didn’t wait for the count. Early Wednesday morning, Democratic super-lawyer Marc Elias posted this:

Read that twice. Not “we’ll make sure every vote is counted.” He named the winner, then said his firm is there “to ensure that happens.” Staff from Senate Democrats’ campaign arm and the Elias Law Group were on the ground Wednesday, NBC reported, and an Elias partner told the network they were heading in to investigate the outstanding vote. Colom told a news conference Wednesday morning: “We’re prepared to litigate, though we were prepared for this for months. We have an army of lawyers.”

What’s still out

Secretary of State Michael Watson laid it out in a statement on 𝕏 Wednesday afternoon. Seventy of Mississippi’s 82 counties had uploaded unofficial results. There are “approximately 3,600 outstanding absentee-by-mail ballots that must be received within five business days and an unknown number of affidavit ballots that will be processed within the 10-day window counties have to certify their results.” Counties must turn in certified results by Nov. 13.

Colom’s campaign says there could be around 15,000 affidavit ballots, ABC News reported. The secretary of state’s office told ABC it has no definitive number. Hyde-Smith campaign manager Jake Monssen agrees there are “thousands” out and said the campaign is “closely monitoring the remaining count” and confident she’ll win.

The late mail the RNC tried to stop

Here’s the part almost nobody is mentioning. Those 3,600 mail ballots can still count only because of a fight Republicans lost in June.

Mississippi counts mail ballots postmarked by Election Day if they arrive within five business days. That deadline is 5 p.m. Tuesday, Nov. 10. In 2024, the Republican National Committee and the Mississippi GOP sued to stop it, arguing federal law sets one Election Day, not Election Week. The Fifth Circuit agreed with them. The Supreme Court did not. In Watson v. RNC, decided June 29, Justice Amy Coney Barrett wrote for a 5–4 majority with Chief Justice Roberts and the three liberals that federal law sets when ballots are cast, not when they’re received.

Justice Samuel Alito, joined by Justices Thomas and Gorsuch, with Justice Kavanaugh joining most of it, warned in dissent: “The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made, and federal law precludes that postponement.” Four months later, a Senate seat may be decided by ballots that show up the week after the election. That’s exactly the scenario he described.

The affidavit fight

Affidavit ballots are Mississippi’s version of provisional ballots: the voter casts one, and officials check it before it counts. Watson explained on 𝕏 there are two kinds. Voters who forgot their photo ID “have 5 days to return and show the ID, or their affidavit ballot will not count.” Everything else, like a voter not found on the rolls, has to be processed within the 10-day certification window.

That’s where Democrats are aiming. Mississippi Democratic Party executive director Mikell Bolden told NBC the party’s hotline took about 2,000 calls on Election Day, many from voters told they weren’t on the roll. The party, the Colom campaign and national Democrats are now running calls, texts and robocalls to get those voters to fix their ballots by Tuesday.

Watson isn’t apologizing for cleaning the rolls. “Voter roll maintenance is the cornerstone of election integrity,” he posted on Election Day, adding that affidavit voting exists to catch errors and that “when the commission processes affidavit ballots, the public is allowed to observe.” Translation: every one of those ballots gets reviewed in a room the public can walk into. Republicans should fill those rooms.

No recount, so the count is everything

In most states a race this close gets a recount. Not Mississippi. “Mississippi law doesn’t have a recount provision,” Watson wrote on 𝕏. After certification, a candidate can ask to examine a county’s ballot boxes and go to court if something’s wrong. Ole Miss election law professor Ben Griffith told NBC that doing that in 82 counties in nine days is “beyond the scope of feasibility.”

So there’s no do-over. Whatever county commissioners accept or reject this week is the ballgame. Think of it like a football game with no replay booth: the calls on the field are final, so you want your people watching every one.

What happens next

Tuesday, Nov. 10, at 5 p.m. is the deadline for late mail ballots and for ID-less affidavit voters to come back with ID. Counties certify by Nov. 13, and the state totals follow. Democrats already have their Senate majority, so this seat won’t flip control. It decides how big that majority is, and whether the reddest seat in the South goes to the side that announced the winner before the votes were counted.

The National Republican Senatorial Committee says it’s “committed to ensuring that every single lawful ballot is accurately counted.” The key word is lawful. Elias has already said what he’s there to make happen.