Although Barack Obama’s maternal grandmother passed away late Sunday night , Hawaii’s chief elections officer says the absentee ballot she cast on Oct. 27 will still count in today’s election. At the risk of being callous about this sad story, the subject of whether Madelyn Dunham’s vote should count is open to interpretation.
A similar case cropped up during the Democratic primary, when a South Dakota woman named Florence Steen voted by absentee ballot for Hillary Clinton but passed away prior to the state’s June 3 primary. (Clinton thanked Steen by name during a victory speech in West Virginia .) As Slate reported in a May 14 " Explainer ," Steen’s vote was not counted; South Dakota law allows for the fairly quick and efficient removal of such ballots. States vary on how they handle this situation.
After Slate re-posted that column today in response to news that Dunham’s vote would count, reader Jon Cohen e-mailed me to point out that Hawaii’s election law contains a provision similar to South Dakota’s. Section 15-13 of the state election law’s chapter on absentee voters (PDF) explicit states that:
Whenever sufficient proof is shown to the clerk that an absentee voter who has returned the voter's return envelope has died prior to the opening of the polls on the date of election, the voter's ballot shall be deemed invalid and disposed of pursuant to section 11-154.
So why was Dunham’s vote allowed to count? Hawaii Chief Elections Officer Kevin Cronin tells Trailhead that, when an absentee voter dies, the ballot is not removed until Hawaii’s Department of Health issues an official list of the names of deceased persons to the city clerk’s office, which will not happen until later this month. Unlike Steen, who passed away several weeks prior to the election, the two-day turnaround in Dunham’s case creates "a practical administrative problem," Cronin says, in fishing out her ballot out from among the tens of thousands of absentee ballots in Honolulu—even if her death had been officially reported by the Department of Health.
Robert Ichikawa, an attorney at the Honolulu firm Kobayashi, Sugita, and Goda, says the decision comes down to how one interprets the phrase "sufficient proof" in the law, saying the use of an official health department report is reasonable if applied consistently.
Even if Hawaii’s four electoral votes were decided by one person’s ballot, a challenge over Obama’s grandmother could not throw the election. The law specifically states that "[t]he casting of any such ballot shall not invalidate the election."