[EL] deaths after voting by mail

Sat Aug 4 10:21:01 PDT 2012

In my view, absentee ballots cast by persons prior to their death should be treated
like dying declarations.  

There are very few ballots that fall into this category and their treatment
should be with the utmost respect for the intent to the voter to have
their voice heard--many of them knowing that they would not see election
day.  The tools are available for voters to cast ballots in this method
and overtime states have become aware that voters who cast absentee
or early voting ballots can die before election day -- accidents, sudden
or succumbing to long term illnesses.

It is left to each state to decide how they will deal with votes cast prior to an
election by a person who later dies.  The only question for the process is did
the voter cast the ballot--this is especially important for terminally ill patients
in residential or hospice care.. This may be resolvable by a witness' signature
preferably a medical care advocate on the exterior of the ballot envelop--not 
need to expose the ballot to a third party only the attestation that the person 
can under terms of state election law freely cast an independent ballot.

This last suggestion is to guard against very close elections when the number
of these ballots fall within the margin of victory.  

Lillie Coney

On Aug 3, 2012, at 2:09 PM, Lowenstein, Daniel wrote:

>        I am reminded of G.K. Chesterton, who observed that some so-called democrats (small "d," of course) took pride in believing that participation in government should not be determined by the accident of birth, but went further by insisting that participation should not be determined by the accident of death.
> 
>             Best,
> 
>             Daniel H. Lowenstein
>             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
>             UCLA Law School
>             405 Hilgard
>             Los Angeles, California 90095-1476
>             310-825-5148
> 
> 
> ________________________________
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Ken Mayer [kmayer at polisci.wisc.edu]
> Sent: Friday, August 03, 2012 9:59 AM
> To: 'Steve Kolbert'; 'Doug Hess'
> Cc: 'Election Law'
> Subject: Re: [EL] deaths after voting by mail
> 
> Short answer: not enough votes to worry about, there’s nothing that could be done if there were, and even if something could be done, it wouldn’t be right.  By any reasonable definition, a vote is a vote when it is cast, no matter what happens to the voter subsequently.
> 
> In Oregon, according to the Public Health division, about 2,500-2,900 people die in a typical month<http://public.health.oregon.gov/BirthDeathCertificates/VitalStatistics/FinalData/Documents/10/deathmo.pdf>, with about 98% of those deaths occurring in the voting age population<http://public.health.oregon.gov/BirthDeathCertificates/VitalStatistics/FinalData/Documents/10/deathage.pdf>.   Turnout as a percentage of VAP in 2008 was 63% according to Michael McDonald’s United States Election Project<http://elections.gmu.edu/Turnout_2008G.html>.  If we assume that deaths over a month are evenly distributed, and that votes are cast roughly evenly over the month, that gives an estimated approximate upper limit  (back of the envelope calculation; the actual numbers will be slightly different, but not by enough to worry about) of the number of votes potentially cast by people who died before election day as:
> 
> 2,900*.98*.63*.5 = 895 votes
> 
> The key quantity here isn’t this number, but the margin of victory for the winning candidate among these voters.  An election would have to be pretty close for this to make a difference, but let’s say these voters went 60%-40% for a candidate in a two candidate race.  That 20% margin reduces this 895 votes to 179 votes.  That could make a difference in a really tight race, but there aren’t many statewide races decided by this margin.
> 
> But it doesn’t really make any difference, because for these votes to be rejected, you’d have to hang on to every vote until  you got confirmation that the voter had actually died, which is not workable.
> 
> This isn’t different than a voter who casts a ballot on election day, but who dies (or moves to another state)  before the results are certified.
> 
> Ken Mayer
> 
> 
> Kenneth R. Mayer
> Professor, Department of Political Science
> Affiliate Faculty, La Follette School of Public Affairs
> University of Wisconsin - Madison
> 110 North Hall/1050 Bascom Mall
> Madison, WI  53706
> (608) 263-2286 (voice)/ (608) 265-2663 (fax)
> 
> 
> 
> 
> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Kolbert
> Sent: Friday, August 03, 2012 11:09 AM
> To: Doug Hess
> Cc: Election Law
> Subject: Re: [EL] deaths after voting by mail
> 
> 
> You can find a discussion of the applicable Virginia law in Op. Va. Att'y Gen. 10-104 (Oct. 26, 2010), available at http://www.oag.state.va.us/Opinions%20and%20Legal%20Resources/OPINIONS/2010opns/10-104-Lind.pdf
> 
> SUMMARY:
> When a general registrar knows an absentee voter has died prior to election day, but after having voted by absentee ballot, the registrar must cancel that voter's registration, and the absentee ballot should not be counted; but that in those circumstances in which absentee ballots are cast prior to election day in a manner by which the absentee ballot no longer can be set aside, the general registrar who knows of the voter's death shall cancel that voter's registration, but election officials are not otherwise required to perform the impossible task of not counting the deceased voter's ballot.
> 
> Steve Kolbert
> (202) 422-2588
> steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>
> @Pronounce_the_T
> On Aug 3, 2012 11:54 AM, "Doug Hess" <douglasrhess at gmail.com<mailto:douglasrhess at gmail.com>> wrote:
> 
> Let's say you vote by mail and then kick the bucket before ballots are counted or before election day. Assuming election officials notice this about you and spot your ballot, do laws or regulations address counting that ballot? I assume that if you were eligible to vote when you did, that dieing before ballots are counted doesn't matter.
> 
> If an election is entirely by mail and you can get ballots 30 days in advance (is that standard?), just how many adults go six feet under in that period. I'm wondering--for Friday amusement partially--if the number or percentage is enough that the dead can determine an outcome?
> 
> Doug
> 
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