A former lawyer for Elon Musk’s PAC and Erin Hawley, wife of Republican Sen. Josh Hawley, are among the members of the firm asking Mississippi counties to separate and preserve affidavit ballots in case of a challenge or proceeding before the U.S. Senate in the close race between Democrat Scott Colom and Republican Cindy Hyde-Smith.
Should the dispute reach the Senate, Josh Hawley could vote on it, given that the chamber’s rules would not require him to recuse himself.
The Senate has no set procedure for settling such a dispute, and even if it did, the decision would fall to a chamber where Democrats will hold at least 54 seats.
Lawyers for Hyde-Smith’s campaign and the National Republican Senatorial Committee sent a demand letter on Thursday that all 82 Mississippi counties separate and preserve every affidavit ballot cast on Nov. 3, telling election commissioners and circuit clerks that the ballots are potential evidence in any ballot box examination, election contest or proceeding before the United States Senate. The first two of those possibilities would happen under rules the state of Mississippi codified. The third does not.
Article I, Section 5 of the U.S. Constitution makes each house of Congress “the Judge of the Elections, Returns and Qualifications of its own Members.” A Mississippi court can rule on which ballots the state counts. The U.S. Senate has the final word on who takes the seat.
Colom led Hyde-Smith by 1,813 votes in the Associated Press count with about 96 percent counted at the time the demand letter went out. That put Colom with 49.04 percent of the counted ballots, compared with 48.85 percent for Hyde-Smith, with an estimated 95 percent of the votes in, according to the Associated Press. Independent Ty Pinkins had 20,007 votes, or 2.1 percent of the total count.
Secretary of State Michael Watson’s office said roughly 3,600 absentee mail ballots remain outstanding. Harrison County does not begin counting its affidavit ballots until Tuesday.
The state’s clock runs first. Mail ballots postmarked by Election Day may arrive through Nov. 10, and affidavit voters who lacked photo identification have until that day to present it at a circuit clerk’s office. Counties have 10 days from the election to transmit returns to the Secretary of State under Section 23-15-603, and certified county totals are the final results. Section 23-15-951 gives a candidate 20 days after the election to file a contest with a circuit clerk.
What the U.S. Senate does after that has no set procedure. The two most recent cases both arrived in the same Congress and came out opposite ways.
New Hampshire sent the Senate a seat nobody could award. Louis Wyman finished the 1974 election 355 votes ahead of John Durkin. A recount put Durkin ahead by 10 and the governor gave him a provisional certificate. Wyman asked for a review, the state ballot commission ruled he had won by two votes, and the governor canceled Durkin’s certificate and issued one to Wyman.
The Senate took it up in January 1975. The Rules Committee deadlocked 4 to 4 on seating Wyman pending review. A staff panel examined about 3,500 disputed ballots and sent 35 disputed points to the floor. The Senate spent roughly six weeks on them and took six cloture votes. It resolved one.
Democrats held about 60 seats at the time. Durkin accepted Wyman’s proposal for a new election, the Senate declared the seat vacant, and the governor appointed former Senator Norris Cotton to hold it for six weeks. New Hampshire voted again on Sept. 16, 1975, and Durkin won by 27,000 votes. The seat had been empty since January.
Oklahoma’s case ran at the same time and ended the other way. Henry Bellmon beat Ed Edmondson by about 3,800 votes in 1974. Edmondson argued that malfunctioning voting machines in one county had inflated Bellmon’s total and asked for a new election. The Oklahoma Supreme Court upheld Bellmon unanimously and he received his certificate.
The Senate seated Bellmon without prejudice in early 1975 while it reviewed the case. On Dec. 15, 1975, the Rules Committee’s Democratic majority backed Edmondson, concluding it could not determine who would have won without the machine problems. The full Senate voted 47 to 46 on March 4, 1976, to confirm Bellmon. Nine Democrats joined every Republican.
A vacancy in the Mississippi U.S. Senate seat currently in play would land in Gov. Tate Reeves’s hands. Under Section 23-15-855, the governor appoints a senator to fill a vacancy temporarily and has 10 days to do so once the Senate notifies him. Because the unexpired term would run for more than a year, he would also have 10 days to proclaim a special election, to be held within 90 days.
The Senate that would handle this convenes in January 2027, when Democrats assume majority control of the chamber as a result of Tuesday’s vote. Aside from incumbents, senators elected on Nov. 3 are not yet members. Current membership runs through Jan. 3, 2027, which means Hyde-Smith holds her existing term until that day.
The seat in dispute is the six-year term beginning Jan. 3, so the Senate sworn in that morning is the one that would judge who fills it. The National Task Force on Election Crises put out a guide to congressional seating last month saying that a challenge would be resolved by the members of the new Congress and that the outgoing chamber’s formal authority over seating is limited and not binding on the new one, even for challenges raised before January. The previous cases involving Durkin and Wyman bear that out. That election was in November 1974 and the Senate did not take it up until the new Congress convened the following January.
Of note is that Erin Hawley, wife of Republican U.S. Sen. Josh Hawley, chairs the Supreme Court and appellate litigation practice at the law firm Lex Politica, which sent out the demand letter on behalf of Hyde-Smiths’ campaign. She joined the firm in February 2026. Chris Gober, who founded the firm, was the lawyer for Elon Musk’s America PAC and was elected to Congress representing Texas’s 10th District on Tuesday and will be sworn in on Jan. 3, 2027, the same day the Senate would take up the seating question.
Mississippi has been through a seating fight once. The state legislature elected Hiram Revels on Jan. 20, 1870, by a vote of 85 to 15, to finish a term that ran to 1871. His credentials reached the Senate on Feb. 23 of that year. Members objected that Revels had not been a citizen for the nine years that the Constitution requires of a senator, on the argument that Black Americans became citizens only with the Civil Rights Act of 1866. Supporters answered that Revels had voted in Ohio years before that. Charles Sumner of Massachusetts closed the debate by saying the time had passed for argument. The Senate voted 48 to 8 to seat him and he took the oath on Feb. 25, 1870.
Colom would be the first Black Mississippian elected to the Senate. Revels and Blanche Bruce were both chosen by the legislature, before the Seventeenth Amendment moved the choice to voters. Neither Colom nor Hyde-Smith has conceded—on the contrary.
The Washington Post reported on Thursday that the letter from Hyde-Smith’s lawyers to county clerks signals that they may challenge whether some of those ballots should be counted. The article noted that Hyde-Smith’s campaign had posted on social media that, “We believe thousands of votes remain to be counted from dozens of Republican counties, and we are confident those votes will reinforce her path to victory.”
Colom’s campaign manager, Gerard Henderson, called the letters to the clerks a stunt.
“We’re confident that when every lawful ballot is counted, Scott Colom will be Mississippi’s next U.S. senator,” Henderson said in a statement cited by the Post.
Image: Screenshot of Lex Politica letter
