House decides Indiana should continue discarding ballots of early voters who die before Election Day

State Rep. Matt Pierce, D-Bloomington, speaks in the Indiana House last week in favor of a proposal to count the ballots of early voters who die before Election Day. The proposal was rejected 52-36 in the Republican-controlled chamber. Content Exchange

There seems to be no shortage of stories, especially in the Chicagoland area, of dead voters making the difference between victory and defeat on Election Day.

State Rep. Matt Pierce, D-Bloomington, knows the sordid tales.

But Pierce also knows Indiana’s myriad early voting opportunities have turned Election Day into something akin to election month, and he believes state law needs to be changed to count the votes of Hoosiers who die before their ballots are tallied.

Currently, county election officials are expected to monitor obituaries, coroner records and other death notices during the 29-day early voting period and pull out, and eventually discard, a mail-in or in-person absentee ballot submitted by a voter who since has died.

Records show there is little consistency between counties in how aggressively death records are checked against returned absentee ballots, and Indiana law specifically provides “the casting of an absentee ballot by a deceased voter does not invalidate an election.”

The issue arose in connection with Senate Bill 260, which would allow county election officials to scan absentee ballots up to seven days prior to Election Day, so they are ready for immediate tabulation as soon as the polls close.

However, doing so under the provisions of current law relating to dead voters requires creating a system that allows ballots to subsequently be removed from the scanned ballots, such as keeping opened ballots and mailing envelopes together, which Pierce worries could infringe on the integrity of the secret ballot.

He said simply allowing the early votes of dead Hoosiers to count would make it much easier to administer Indiana elections and remove what he sees as an injustice in current law.

Specifically, Pierce said it’s unfair a person who votes on Election Day and is perhaps run over in the parking lot afterward and dies will have his or her vote counted, while Hoosiers who voted early and likewise died before the counting begins must have their ballots thrown out.

“The policy really doesn’t make much sense if you think about it,” Pierce said. “There’s really no reason to distinguish between early voting, a couple days or a week ahead of time, or voting early on Election Day.”

Pierce said even more infuriating is the possibility that a Hoosier serving overseas in the military is killed in action after submitting his or her absentee ballot and that ballot also is required to be discarded.

"To me that is a travesty,” Pierce said. “We have all these provisions to make sure that our fighting military men and women can vote absentee as easily as possible.

“But if one of those people votes absentee, they send in their ballot, and they they’re killed in action defending our country, defending our democracy, defending our right to vote, our law says we have to take that dead military person who died fighting for our country and throw the ballot in the trash.”

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To correct that, Pierce last week recommended revising the legislation to count the votes of every person who is a qualified voter at the time they cast their ballot.

The Republican-controlled Indiana House voted 52-36 to reject his proposal.

State Rep. Tim Wesco, R-Osceola, chairman of the House Elections and Apportionment Committee, said there are only ever a few ballots in each election rejected due to the voter dying, and “I believe that should remain the policy of our state.”

“Fundamentally, our government is for the living, not for the dead,” Wesco said.

That position similarly was endorsed in 2018 by Republican former Attorney General Curtis Hill Jr.

He issued an official opinion, which has no force of law but may be taken into consideration by a court, concluding dead people no longer are residents of an Indiana precinct and therefore are not qualified to participate in elections.

“The Constitution provides that only residents may vote and a dead person is not a resident of this earth,” Hill said.

Pierce said he believes the former attorney general’s opinion is mistaken because all sorts of post-death matters, such Social Security payments and will disposition, are based in part on the residency of a person prior to his or her death.

As it pertains to voting, “the person that voted — that’s having their vote removed later — was very much alive, very much a qualified voter, a citizen, a resident of their precinct, registered, all of that,” Pierce said.

Indiana Attorney General Official Opinion 2018-1

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