[EL] deaths after voting by mail
Adam Bonin
adam at boninlaw.com
Wed Aug 15 13:53:08 PDT 2012
Under PA law, absentee ballots are not supposed to be counted if the voter
died before the polls open, but if they do count it that's okay. 25 P.S.
3146.8(d): "Whenever it shall appear by due proof that any absentee elector
who has returned his ballot in accordance with the provisions of this act
has died prior to the opening of the polls on the day of the primary or
election, the ballot of such deceased elector shall be rejected by the
canvassers but the counting of the ballot of an elector thus deceased shall
not of itself invalidate any nomination or election."
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Riemer,
Justin (SBE)
Sent: Wednesday, August 08, 2012 2:06 PM
To: Lillie Coney; Lowenstein, Daniel
Cc: 'Doug Hess'; 'Election Law'
Subject: Re: [EL] deaths after voting by mail
Virginia enacted legislation in 2011 to explicitly allow for the counting of
absentee ballots by individuals who vote absentee and die before Election
Day. Please see link here:
http://lis.virginia.gov/cgi-bin/legp604.exe?111+ful+CHAP0654
The legislation passed unanimously.
Justin Riemer
Deputy Secretary
Virginia State Board of Elections
Office Phone: (804) 864-8904
Mobile: (804) 366-5330
SBE Website: http://www.sbe.virginia.gov
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lillie
Coney
Sent: Saturday, August 04, 2012 1:21 PM
To: Lowenstein, Daniel
Cc: 'Doug Hess'; 'Election Law'
Subject: Re: [EL] deaths after voting by mail
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/VitalStati
stics/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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