There's been a lot of talk of voter fraud this election cycle, mostly stemming from a certain orange-skinned, fear-mongering presidential candidate. In reality, those concerns are mostly unfounded. The myth of millions of living people impersonating dead voters to cast fraudulent ballots—including Donald Trump's insistence that millions of "people that have died ten years ago are still voting"—have by and large been debunked.
There is, however, another way the dead can cast ballots: What happens if you vote, by absentee ballot or early voting, but don't live to see Election Day?
The answer depends mostly on where the voter is registered, because American election laws and procedures are for the most part determined by the individual states, even in elections for federal office. In New York, for example, an absentee ballot can be challenged on the grounds that the voter died before Election Day (in-person early voting is not available in New York). Minnesota, which has both early voting and absentee voting, allows for a challenge in both cases if proof is presented to an election judge that a voter died before 7 AM on Election Day.
But most states do count the votes of the recently deceased, according to the bi-partisan National Conference of State Legislatures (NCSL), an NGO that tracks US state election laws. In the case of Florida, state law spells it out clearly: "The ballot of an elector who casts an absentee ballot shall be counted even if the elector dies on or before Election Day."
Of course, laws are one thing and implementation is another. According to the NCSL, it can be "virtually impossible" to separate the early or absentee ballots of the living from those of the deceased. For example, it might seem obvious to question why thousands of New Jersey residents listed by the Social Security Administration as dead prior to 2011 are still listed as "active" voters five years later—but there's no easy way to alert election authorities processing millions of ballots about the handful of absentee voter deaths that occur within days of the election. There's also the fact that many places with in-person early voting open the ballot when it is provided, and once that happens, there's really no way to tie each ballot back to an individual. Only if ballots remain unopened until Election Day can they be challenged.
You might be thinking, So what? But for many voters—including the elderly and the terminally ill—casting a ballot may be their dying wish.
"Being engaged in the political process and fulfilling one's civic duty may be important roles to be fulfilled for dying patients," Christian Sinclair, a palliative care physician, wrote in a blog post. The numbers are small but not insignificant, particularly in battleground states. In 2004,USA Today calculated that around 455 voting-age people die in Florida each day. Recall that the presidential election in 2000 came down to a difference of 537 votes in Florida.
In 2008, 88-year-old Florence Steen, who was born before women had the right to vote, cast her absentee ballot for Hillary Clinton on the South Dakota primary. But she died before Election Day, and because of state law, her vote was discounted. President Barack Obama's grandmother, Madelyn Dunham, also voted by absentee ballot for the 2008 general election. She also died before Election Day, but her vote was counted—not because of state law in Hawaii, which is actually similar to South Dakota's, but because Hawaii required official confirmation by the state's Department of Health that she was dead, and such confirmation could not be produced in the two days between her death and Election Day.
For the most part, the disagreement between opponents and proponents of "alive on Election Day" voting boils down to whether voter eligibility should be based strictly on the official date of the election. "In my mind, it's clear," South Dakota Secretary of State Chris Nelson told the Associated Press in 2008. "You have to be a qualified voter on Election Day. I don't know how someone can say you're a qualified voter if you're deceased."
Regardless of which side of this legal conundrum you fall on, it's not hard to be see the problem with having different rules in different states. Crafting policy at the federal level to remedy the situation would be tricky, given that elections will still need to be controlled at the state level, but some kind of national policy could help ensure that all ballots are treated the same way. In an article for the William & Mary Law Review called "The Vote from Beyond the Grave," Krysta Edwards argued that Congress should adopt a resolution whereby states would be directed to either disqualify or count all such ballots. Edwards, for her part, favored all ballots being counted.
If every dead person's ballot was counted, would it swing the election? Probably not. A search of recent obituaries shows a level of dissatisfaction with both of the current candidates. One recent obituary memorialized Vivian Ziegler of Arcata, California, who died on October 18—but not before casting her ballot for Hillary Clinton. According to the official I spoke to at the election office for Arcata in Humboldt County, "as long as it's in our office [by Election Day], it counts."
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