Should your vote still count if you're dead?

(Originally published 8/2/08)

The stories we’ve all heard about dead people voting are generally linked to allegations of fraud in tight races. Some locales have developed enduring reputations for, shall we say, high postmortem voter turnout.

But those anecdotes usually involve people who have long since passed away. The Associated Press recently examined an oft-overlooked flaw in mail-in ballot programs: What should be done with a vote if the person who cast it dies before it’s counted?

Every state has an absentee ballot program, and they are increasingly popular. But as the laws governing absentee ballot programs differ among the states, so do the rules relating to voters who die between casting the ballot and Election Day – and many state statutes are silent on the issue altogether.

The AP reported that laws in at least 12 states are evenly split between counting and tossing out the votes.

The argument against counting the votes of the recently dead centers on the guidelines that qualify voters to participate in elections. As South Dakota Secretary of State Chris Nelson told the AP, “You have to be a qualified voter on Election Day. I don’t know how someone can say you’re a qualified voter if you’re deceased.”

But for a voter casting an absentee ballot, his election day is the day he marks the ballot – not the day he doesn’t show up at the poll.

But if being alive on traditional Election Day is the standard, then we’ve just added a new qualifier: Must be 18, must be a citizen of the U.S., must be alive on Nov. 4.

Kathy Krause, whose mother’s absentee ballot was tossed out because she died shortly before her state’s primary, argues that the alive-on-Election-Day argument has unintended consequences: “What if (soldiers) vote and they’re killed in action, God forbid? Should we take away their vote because they died for their country?” Krause said.

There should be some recognition of the intention of an American citizen to make his or her voice heard in an election, especially when that intention is expressed through the completion of an absentee ballot that was received and is returned in compliance with state statutes.

But since elections management falls to the people running America’s individual voting jurisdictions – and there are more than 7,000 of them – it seems a too-heavy burden to place on local elections officials to determine on Election Night whether an absentee voter is still alive when they are ready to run his ballot through the machine.

It’s likely the U.S. Supreme Court will eventually provide some guidance on this. It’s just a matter of time before someone argues that the 14th Amendment forbids states from discounting properly-cast votes of citizens who happened to die before their votes could be counted: Tossing out such votes is an abridgement of “the privileges or immunities of citizens of the United States;” in addition, the willy-nilly, haphazard system we have now, in which votes of the recently deceased are counted in some states but not others, constitutes a violation of the “equal protection of the laws” the amendment guarantees.

And the Court may get its chance sooner rather than later: The AP reported that election experts expect as many as 25 percent of voters to vote by mail in November.