Wake County to count ballots of 3 dead voters, in possible violation of NC election rules

Wake County elections officials voted Friday to count the ballots of three dead people, acknowledging that their actions went against the state’s long-standing interpretation of what to do when someone votes early but then dies before Election Day.

The decision happened as Wake officials were finalizing the county’s vote tallies for the 2024 election.

The state’s largest county by population had 45 people who legally cast a ballot during early voting but then died before Election Day. State or county officials flagged their ballots after they died. On Friday, the Wake County Board of Elections voted to throw out 42 of those ballots but accept three of them.

State law requires county elections officials to remove deceased voters from the rolls within a week of receiving a signed statement of a near relative or personal representative indicating that the voter has died.

But the law doesn’t appear to be entirely clear about what happens to ballots that have been legally cast — either early in person or via mail — by a voter who then dies before Election Day, the final day of voting. A spokesman for the State Board of Elections provided WRAL with a memo sent to counties telling them to reject such ballots. But there's not a specific law requiring that. The National Conference of State Legislatures says most states are in a similar position, with no statutes guiding how to handle votes cast by people who die before the end of the election.

The state elections board spokesman, Pat Gannon, said that this year the state board created a system to make it easier for counties to cross reference lists of voters with death records. He didn't comment on the actions taken by the Wake County board.

One of the Wake County board's Democratic members is Gerry Cohen, a former top lawyer for the state legislature, who said that since the guidance isn't based on state law — but, rather, an old court ruling — it's more open to interpretation.

"There’s no law in the statute book," Cohen said. "There’s a court case. The court could change its ruling."

The vote to count the three Wake County ballots was 3-2 along party lines, with the county election board’s Democrats in favor and Republicans opposed. The Democratic members said they believed that the votes of people who legally cast early ballots should count even if they die before Election Day. Their actions could invite a lawsuit if opponents agree with the Republican board members that such votes should not be counted.

"We've got to obey the law, and the law now, as it stands," Republican board member Keith Weatherly said. "That hasn't been refuted by any legal source that I know. ... If the person votes and then dies before the election day, we're required to remove them through that ballot."

The three ballots Wake County elections officials chose to accept were from deceased voters whose family members or representatives came to the board meeting Friday to plead for their loved ones’ votes to be counted. One of the deceased voters was an 18-year-old woman who was participating in her first election but died from cancer just before Election Day, said Greg Flynn, one of the Wake County elections officials who voted to count her ballot.

The three voters were Daniela Smith-Davis of Garner, Michael Talbot of Rolesville and Wilfred Shea of Raleigh.