[EL] deaths after voting by mail
Maceda, Cliff
cmaceda_CONTRACTOR at ap.org
Wed Aug 15 18:58:50 PDT 2012
I'm coming into this one very late, and I'm sorry if this has already been covered (work has been too thick lately to keep up with the list), but this point is obvious to those of us that deal with the process on the ground. The reality of voting today makes the argument over whether a paper ballot delivered by mail should be counted somewhat absurd. Plenty of jurisdictions across the country use DREs for in-person early voting; those votes can't be culled if the voter happens to die before election day. Is there a legal basis to exclude mail ballots if in-person machine votes are, simply because of the technology used, not able to be excluded? Again, sorry if I'm repeating what others have already said.
Cliff Maceda, speaking only for himself
________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Chad and Cori Jacobs [jacobscc at hotmail.com]
Sent: Wednesday, August 15, 2012 6:04 PM
To: Adam Bonin
Cc: Riemer, Justin (SBE); Election Law; Doug at department-lists.nacs.uci.edu; Hess
Subject: Re: [EL] deaths after voting by mail
At some point in the process it will be impossible to separate the deceased person's vote from other votes - some jurisdictions permit election officials to separate secrecy envelopes from the return envelopes and actually begin the process of counting ballots before election day - in Oregon, where we have vote by mail elections, that can happen seven days before the election (ORS 254.478) - once the envelopes are separated it would be impossible to know which ballot contained the deceased person's vote.
Regards,
Chad
On Aug 15, 2012, at 1:54 PM, "Adam Bonin" <adam at boninlaw.com> wrote:
> 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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