Battleground states split on counting mail-in ballots if voters die before Election Day

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States all over the country are increasing and encouraging mail-in voting due to the coronavirus pandemic, but that very illness could result in additional complications should voters die before Election Day after submitting their ballots.

There is no uniform rule governing how such votes should be handled, and key battleground states are split over whether they should count. Florida, a key swing state with 29 electoral votes, has a statute specifically stating that votes do count even if the voter dies before Election Day, as long as the ballot is postmarked before they died.

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“The ballot of an elector who casts a vote-by-mail ballot shall be counted even if the elector dies on or before election day, as long as, before the death of the voter, the ballot was postmarked by the United States Postal Service, date-stamped with a verifiable tracking number by a common carrier, or already in the possession of the supervisor,” the law says.

Nine other states also count votes after a person dies. California Secretary of State Alex Padilla justified it by noting that people vote early in person as well, and there would be no way of throwing out that ballot if they die afterward.

The issue has caused confusion even among counties in the same state. Another key state, Ohio, does not have any statute addressing this. As a result, counties had different policies until the Cleveland Plain Dealer asked the Ohio Secretary of State's office.

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"If you cast a ballot and pass away, your ballot still counts," spokesman Matt McClellan told the newspaper, noting that because there was no law addressing the issue, the votes should count.

An election worker moves returned ballots from a sorting machine behind at the King County Elections office Tuesday, Oct. 20, 2020, in Renton, Wash. (AP Photo/Elaine Thompson)

Other battleground states take a different approach. In Wisconsin, election officials get monthly updates with records of death certificates from each county and they are supposed to compare them to state voter rolls. If they find that a voter has died, they are to notify the local county clerk, who would change the person’s voting status.

In Michigan, 864 ballots were thrown out during this year’s primary election after officials discovered that the voters had died. In North Carolina, a vote can be rejected if it is challenged with the county board of elections prior to Election Day. Ballots in Iowa are voided if a person dies before Election Day, and the state’s election office gets regular notifications of death records.

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Despite taking measures to make sure dead people do not vote, it is difficult to stay on top of every single record.

"The law may say that the ballot of a person who dies in that situation can't be counted, but it is a hard law to follow," Wendy Underhill, head of elections for the National Conference of State Legislatures, told The Associated Press.

In Pennsylvania, one of the most hotly contested states this year, a ballot will be thrown out. Wanda Murren, a spokeswoman for the Pennsylvania Department of State, told the York Daily Record that if a voter dies before Election Day, their vote will be discarded during the counting process.

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This is easier to accomplish in Pennsylvania because it is one of the few states that does not process votes before Election Day — a practice known as pre-canvassing.

State lawmakers have been trying to pass legislation that would allow pre-canvassing to increase the chance that the election results would be known on Election Day. A recent Supreme Court decision, however, allowed the state to continue accepting mailed ballots after Election Day.

The Associated Press contributed to this report.