In the movie “Waking Ned Devine” the title character died after learning he had won the lottery. The local townspeople created a ruse that Ned Devine was alive so the lottery proceeds could be collected.
In the 2004 election, the same ruse might need to be created for absentee voters. Being an elections attorney and being from Louisiana, I often get asked about dead people voting. This year, as MSNBC has reported, the probability is dramatically increased. Why?
Let’s use Georgia to explain it. Early voting in Georgia is, by definition, absentee voting. An absentee ballot in Georgia is filled out on an optical scan ballot (similar to “fill in the bubble” standardized tests). Early voting, however, is cast on touch screen machines exactly like those used at every polling place in Georgia on election day. An absentee ballot can be pulled when a voter dies, but an early vote, cast on a touch screen machine, has to undergo special safeguards. In a recent Georgia election, a man died at approximately 7:15am. Polls opened at 7:00am. As a result, the man’s ballot was counted and the election was tied. Had the man been certified dead by the coroner prior to 7:00am, the vote would not have been cast.
According to Cliff Tatum, Assistant Secretary of State for Georgia, “While ballots are cast on the Touch screen voting units during the absentee voting period, the ballots are stored and not counted until election day. Each ballot is assigned an identifying number that allows the registrar to pull that ballot in the event that the ballot is challenged or the voter dies. While the ballot can be retrieved, the content cannot be viewed, so no one knows how the ballot was voted.”
Contrast Georgia with Florida. The Washington Post recently reported that “the dead will be able to vote legally. Miami-Dade election officials said Monday that anyone who dies between the time they cast an early ballot and Nov. 2 can be assured their vote will still be counted.” This could raise constitutional issues. The U.S. Constitution mandates that the Presidential election be held on the first Tuesday after the first Monday in November. Whether a person has the constitutional right to vote in a federal election when they do not exist on the prescribed day of the election is an issue Republicans and Democrats might soon be fighting over.