Does an absentee voter count if she dies before Election Day?

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May 14 2008 6:54 PM

Can a Dead Woman Vote?

Will the late Florence Steen's absentee ballot count in South Dakota's primary?

At the conclusion of her victory speech in Charleston, W.Va., on Tuesday night, Hillary Clinton told the story of a supporter named Florence Steen, who passed away last Sunday. The 88-year-old South Dakotan had just voted for Clinton by absentee ballot, ahead of the state's June 3 primary. It's a touching story, but will her vote still count?

No. As dictated by a 2001 state law, the South Dakota Department of Health is responsible for furnishing the county auditors with a list of registered voters who have died each month. This information is used to update the state's electronic voter-registration file, which was created by a different 2001 law. Absentee ballots are collected by county auditors and remain sealed until the election, so if an absentee voter dies prior to the election, then her ballot is never opened.

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The 2001 South Dakota law originally required this monthly list of deceased voters to be transferred to the county auditors by the 10th of the following month—which in this case could have occurred after the June 3 election. However, updates to the legislation passed in the wake of 2002's Help America Vote Act now require more frequent electronic reporting.

Because election law is governed by states, the rules vary widely when it comes to how this issue is handled. Had Steen lived in Florida, for example, her vote would have counted. Florida state law dictates that "the ballot of an elector who casts an absentee ballot shall be counted even if the elector dies on or before election day" so long as the ballot was postmarked or received by the election supervisor prior to the voter's death. Steen's daughter tells Explainer that she postmarked her mother's absentee ballot on April 29 or April 30, nearly two weeks before Steen passed away.

In 2004, USA Today reported that California, Texas, Tennessee, Ohio, and West Virginia all allow for the counting of absentee ballots of deceased voters while many other states technically do not. Many states that prohibit these so-called "ghost votes," however, lack the reporting system to quickly update voter rolls with recent deaths. That means it's very unlikely that a recently deceased voter would have his or her absentee ballot nullified.

Because most absentee ballots are mailed in the few weeks prior to the election, the likelihood that a significant number of voters will have passed away in the interim is fairly small. Election experts tend to agree that absentee ballots cast legitimately by voters who die soon thereafter are a minor issue compared with concerns about voter fraud or errors in how votes are registered.

Got a question about today's news? Ask the Explainer.

Explainer thanks Doug Chapin of Pew's Electionline.org, Jennifer Krell Davis of the Florida Department of State, Richard L. Hasen of Loyola Law School, Richard Hauffe of the South Dakota Democratic Party, Kathy Krause, Pennington County Auditor Julie A. Pearson, Randy Riddle of Renne Sloan Holtzman Sakai, and the South Dakota Office of the Secretary of State. Thanks also to reader Jeannine Chanes for asking the question.

Chris Wilson is a Slate contributor.

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