By Wendy Underhill
What happens when an eligible voter casts an absentee ballot and then passes away before Election Day? This question comes up more and more, as absentee/mail voting, and even early in-person voting, gain in popularity.
Do these pre-Election Day votes count? Like everything else related to elections, the answer varies from state to state. By our count, statutes in at least 13 states (Arkansas, Connecticut, Idaho, Florida, Louisiana, Maryland, Massachusetts, Minnesota, Montana, New Mexico, North Dakota, Tennessee and Virginia) direct election officials to count these ballots.
Massachusetts has done so most recently, with the enactment of HB 4820 in July: “The absentee or early ballot of any voter who was eligible to vote at the time the ballot was cast shall not be deemed invalid solely because the voter became ineligible to vote by reason by death after casting the ballot.”
Again by our count, 13 states go the other way and are clear that these ballots are not to be counted: Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky (by an AG’s opinion, 77-667), Mississippi, Missouri, New Hampshire, New Jersey, Pennsylvania, South Dakota and Wisconsin.
Regardless of the law, it is hard to retrieve a ballot from someone who has died between casting it and Election Day. Once the absentee ballot has been verified and the ballot is removed from the envelope for counting, the ballot can’t be retraced to the voter—it’s a secret.
Catching a ballot, then, is only possible for ballots that are still in their return envelopes. How quickly do election officials get notice of deaths? Fortunately, most statutes make it clear that these ballots are to be rejected only if the election administrators know about the death—and also that if a vote is counted that shouldn’t have been, it does not invalidate the election.
Unlike many election policy questions, this one does not have a partisan edge. Death makes no distinction between Democrats, Republicans and independents as they cast their absentee ballots.
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Wendy Underhill is the director of elections and redistricting at NCSL.