In Mississippi Senate race, tempers flare over aggressive GOP vote count observers

JACKSON, MISS. — As Democrat Scott Colom’s lead over Sen. Cindy Hyde-Smith (R) steadily grows in Mississippi’s U.S. Senate race,* lawyers observing the vote count for her campaign in Hinds County — the state’s most populous county and a Democratic stronghold — have been vocally, and at times aggressively, challenging election workers’ actions. 

Tempers flared Monday night when one of Hyde-Smith’s observers loudly suggested a Hinds County election commissioner was trying to evade observation.

It may signal the Hyde-Smith campaign is seeking grounds for a lawsuit. Mississippi has no automatic recount law, meaning a candidate trying to challenge the results would likely need to go to court.

Inundated by dozens of journalists and political observers, Hinds County’s five election commissioners have been under pressure since Election Day to determine the eligibility of thousands of affidavit — i.e., provisional — ballots cast by voters this year.

The outstanding affidavit ballots in Hinds County and across the state — as well as pending mail and absentee ballots — will likely determine the outcome of the Senate race, which Colom led by around 2,500 votes as of Tuesday morning.

Toward the end of the commission’s work Monday night, Coy Westbrook, a lawyer observing on behalf of the National Republican Senatorial Committee (NRSC) and the Hyde-Smith campaign, loudly accused Election Commissioner Bobbie Graves of discussing ballots with Jermal Clark, another commissioner, outside the view of observers. 

At one point, Westbrook said, “public records law,” potentially referring to Mississippi law that requires county election commissions to let the public observe the ballot counting and canvassing process.

After his vocal accusation, Westbrook went to speak with Dennis Polio, another lawyer observing on behalf of Hyde-Smith. However, their discussion was loud enough for the rest of the office to hear.

“Interesting, interesting. So, she said that she was having a private conversation with another election commissioner about how to accept certain ballots. And she’s going to call, so we can’t hear the conversation with her and another commissioner,” Westbrook told Polio.

“Untoward, one might say,” Westbrook added. 

“I’m through. I’m through for the night,” Graves said to the office. “No conversation. No nothing. I’m done for the day. Anybody have any questions? Don’t even ask me right now.”

It’s unclear whether the observational powers guaranteed by Mississippi law extend to private conversations between commissioners.

Westbrook, Polio and the Hyde-Smith campaign did not respond to Democracy Docket’s requests for comment.

Ray Chambers, attorney for the Hinds County Election Commission, was present during the conversation between Graves and Clark. Chambers also did not respond to Democracy Docket’s request for comment.

As she was packing up, Graves asked Westbrook if he wanted to watch her put her personal items in a bag.

“You all can come watch. I’m not doing anything. I’m just packing it up,” she said.

“That’s OK. It’s all good, commissioner,” Westbrook responded.

The commissioners all left the office together shortly after Westbrook’s accusation.

Outside in the parking lot, Westbrook and Polio would not answer Democracy Docket’s questions about the incident with Commissioner Graves.

“We can’t talk about that,” Polio said.

Charles Douglas III, the executive director of progressive political organization Common Power, who has been observing in Hinds County for Colom’s campaign for the past several days, witnessed the scene.

He told Democracy Docket that Commissioner Graves was attempting to have a private conversation with Commissioner Clark about when all five of the Hinds County election commissioners would stop their work and leave together. 

Douglas said the commissioners coordinate their departure so as to not leave someone behind with work. He added that he believed Westbrook went “too far.”

“He’s performing at that point,” Douglas said. “I think there’s a little bit of everything — a little intimidation, a little bit of can we find some stuff.”

Douglas said Westbrook and Polio arrived to observe on Monday and that they focused on Commissioner Graves in particular.

“I think she was rattled by that,” Douglas said.

Last week, lawyers for the NRSC sent a letter to all Mississippi election commissioners demanding they separate and preserve all affidavit ballots cast this election.

Colom’s campaign and the Democratic Senatorial Campaign Committee responded with their own round of letters warning election officials that the NRSC’s requests “have no basis in Mississippi law” and would require officials to “violate Mississippi voters’ rights.”

The Hinds County Election Commission is expected to conclude processing affidavit ballots by the end of the day Tuesday. It will then refer the accepted ballots to the Hinds County Resolution Board, which will meet Wednesday to determine which affidavit ballots to officially accept. 

The accepted affidavits will finally be processed and counted. Hinds County officials expect to report a final count Wednesday.

*The Elias Law Group (ELG) represents the Democratic Senatorial Campaign Committee and is active in the legal effort on behalf of the Colom campaign. ELG Firm Chair Marc Elias is the founder of Democracy Docket.