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 12 states (Arkansas, Connecticut, Idaho, Florida, Louisiana, Maryland, Massachusets, Minnesota, Montana, New Mexico, North Dakota and Tennessee) 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, 15 states go the other way and are clear that these ballots are not to be counted: Colorado, Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky (by an AG’s opinion, 77-667), Mississippi, Missouri, New Hampshire, New Jersey, Pennsylvania, South Dakota, Virginia (again by an AG’s opinion, 10-104) 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.