Updated at 6:45 p.m.
The identity of the Democratic nominee from the Fourth Congressional District hung in limbo, unresolved, throughout the day Wednesday as Newton City Councilor Jake Auchincloss clung to a small, but significant lead, and state officials sought to make sure every vote got counted.
Auchincloss, a Marine veteran and moderate Democrat, led his closest competitor Jesse Mermell, a progressive former advisor to Gov. Deval Patrick, by a little over 1,500 votes with over 96 percent of the vote tallied.
Competing with five others, the two emerged after Tuesday's in-person primary voting as the leading contenders to win the Democratic nomination in the district currently represented by U.S. Rep. Joseph Kennedy III. Mermell racked up her votes in the liberal suburbs west of Boston, winning handily in her hometown of Brookline and places like Needham, Wellesely and Dover.
Auchincloss, a self-described Obama-Baker voter, performed stronger in the more conservative southern end of the district, as well as the city of Fall River.
But as Massachusetts experimented for the first time this primary election with widespread voting by mail, Secretary of State William Galvin petitioned the courts to make sure all ballots submitted before the 8 p.m. deadline on Tuesday would get counted. Judge Janet Sanders late in the day authorized vote counting to continue Thursday in Newton, Wellesley and Franklin, where Galvin's office believes as many as 1,450 ballots may have yet to be tallied.
Those three communities, according to Galvin's office and the judge's order, must give advance notice of when the counting will resume so that observers can be present. Wellesley intends to count its remaining ballots at 9 a.m. in the Great Hall of Town Hall.
Auchincloss and Mermell both said it was important for the process to play out before either candidate conceded or claimed victory, and the frontrunner's campaign remained quiet for most of the day as Mermell sought transparency in the final vote counting.
Galvin, who serves as the state's chief elections officer, said state law was unclear about clerks counting ballots after Election Day and sought permission in Suffolk Superior Court for clerks to continue counting ballots that were cast in compliance with the mail-in voting law, but not counted Tuesday night.
"On Election Day, there are strict procedures in place to make sure that ballots are counted in public view, where anyone may observe the process. It is important that we preserve that same level of transparency for ballots counted after Election Day," Galvin said in a statement Wednesday afternoon.
Newton was one of the communities where late-arriving ballots were still being counted on Wednesday morning.
Unofficial results posted online showed Mermell with a 934-vote lead on Auchincloss in the city west of Boston, but City Clerk David Olsen told the News Service that overseas and mail-in ballots that arrived late Tuesday, but before the 8 p.m. deadline, were still being tallied.
Galvin's court petition said there were approximately 751 ballots that had been received via drop box in Newton late on Tuesday and not delivered to the polls to be counted. In Wellesley, there are about 50 overseas ballots and 50 early and mail-in ballots yet to be counted. Another 600 ballots in Franklin had been stored in a vault and were never removed and delivered to precincts on Tuesday for counting.
The only municipality to not report any results as of late Wednesday afternoon was Franklin.
While it was not clear if there were enough uncounted votes for Mermell to close the gap or qualify for a recount, her campaign issued a statement supporting Galvin's decision to petition the courts. Auchincloss did not say anything publicly about Wednesday's delays, but with the race too close to call on Tuesday expressed his support for allowing "the process to comprehensively and lawfully unfold."
"While we always expected a competitive race, we are confident that our full-district campaign will be victorious when the results are announced," Auchincloss said in a statement.
Mermell's campaign manager Katie Prisco-Buxbaum wrote a letter to city and town clerks asking their offices to publicly share data disclosing current results, ballots left to be counted, the number of late ballots that were pulled from drop boxes after 8 p.m. Tuesday and not counted or still arriving in the mail, and provisional ballots cast in each community.
"We are asking that publicly reported data be more robust to ensure the unique manner of voting is also reflected in a unique reporting which ensures the campaigns, the media and the public are confident in the results before any decision is made on further counting requests," Prisco-Buxbaum wrote.
As a cautionary tale, Prisco-Buxbaum pointed to Needham, which was initially reported as 90 percent counted with 3,766 votes cast, but she said was updated after midnight to reflect more than 11,000 votes. She said another unidentified community told the Mermell campaign that there were nearly 200 ballots still uncounted from overseas, or provisional ballots.
"We think the answers to these questions are important before any campaign or media outlet declares a victor in this race. And last night’s experience is demonstrative of why we ask," Prisco-Buxbaum told the clerks.
If the final margin of victory is less than half of 1 percent of total votes cast, a candidate may request a district-wide recount. More than 148,000 votes had been counted so far, and Auchincloss held a one percentage point lead with 22.4 percent to Mermell's 21.4 percent.
Becky Grossman, another Newton city councilor, was running third, but well behind the top two contenders with 26,756 votes, or 18 percent.
Not unlike the 10-way race in the Third Congressional District which went to a recount in 2018 and was eventually won by Congresswoman Lori Trahan, the Fourth District race could be entering similar territory.
A candidate may request a district-wide recount if the margin of victory is less than half of 1 percent of the total votes cast.
Both campaigns have three days after the primary before recount petitions are due, and those papers must be signed by one-quarter of the number of voters required to sign a nomination paper to qualify a candidate for the ballot.
In a normal year, that would be 500 signatures, but because of the COVID-19 pandemic the signature requirements were reduced by the Supreme Judicial Court to 1,000 to qualify for the ballot.
"We are asking that publicly reported data be more robust to ensure the unique manner of voting is also reflected in a unique reporting which ensures the campaigns, the media and the public are confident in the results before any decision is made on further counting requests," Prisco-Buxbaum said.
A spokeswoman for Galvin acknowledged that "time is of the essence."
The size of the field in the Fourth Congressional District meant that the nearly 150,000 votes cast were divided among nine candidates, and the eventual winner will have earned less than a quarter of the total vote.
Two candidates - Dave Cavell and Chris Zannetos -- dropped out before Election Day and endorsed Mermell, but collected a combined 7,096 votes as their names remained on the ballot.
Supporters of ranked choice voting, which included every candidate running in the Fourth, said the results were a "prime example" of why Massachusetts voters should embrace election reform this fall. Ranked choice voting would allow voters to vote for their preferred candidate and still express their opinions on others in the race.
Under a ranked-choice system, the lowest vote earner in a race would be eliminated in rounds of counting and their votes allocated to a voter's second or subsequent choice until one candidate earned a majority.
"4th CD voters were fortunate to have seven excellent candidates to choose from, but without ranked choice voting, crowded races like these will continue to end without any assurance of a majority-supported candidate. This can easily be solved if Massachusetts votes Yes on 2 to adopt RCV," said Cara Brown McCormick, campaign manager for Yes on 2.
