If a voter casts an absentee ballot and then dies before Election Day, does that vote get counted?

Plain-English summary

Goochland County Electoral Board Secretary Robin Lind asked a question that has come up in nearly every election cycle: a qualified voter properly casts an absentee ballot, then dies before Election Day. Does the vote count?

The AG split the answer based on how the ballot was cast.

Mailed (paper) absentee ballots: If the general registrar knows the voter has died before Election Day, the registrar must cancel that voter's registration under § 24.2-427. When the absentee ballot envelope reaches the officers of election on Election Day, the procedures in § 24.2-711 kick in: the officers check the voter's name against the pollbook before opening the envelope. With registration canceled, the voter's name will not appear on the pollbook, the envelope will be rejected without being opened, and the ballot will not be counted. The Supreme Court of Virginia's 1928 decision in Moore v. Pullem supports this result, with the court there noting that if a voter "had died, of course, the ballot could not have been legally deposited or counted as a valid vote."

In-person early absentee voting on voting equipment: Virginia law (§§ 24.2-707, 24.2-709.1) permits voters to cast absentee ballots in person before Election Day on voting equipment. Once such a ballot is cast on the machine, it merges into the electronic record and cannot be distinguished from any other ballot. The general registrar must still cancel the deceased voter's registration, but election officials have no way to set aside a specific machine-cast vote. So as a practical matter, the in-person early vote ends up counted. The opinion describes this as not requiring "the impossible task of not counting the deceased voter's ballot."

The opinion recognizes the resulting asymmetry: the same voter who dies before Election Day after voting absentee gets a different outcome depending on the method chosen. Mailed paper ballots can be intercepted before tabulation; machine-cast early ballots cannot be. The AG attributes this to a deliberate legislative trade-off. The early-voting equipment provisions were enacted to make in-person absentee voting more convenient and to reduce the administrative burden on election officials. That trade-off occasionally lets through an unintended outcome (a deceased voter's vote being counted).

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Virginia's absentee voting law has been substantially amended since 2010. Notable changes include the expansion of "no excuse" early voting, modifications to in-person early voting procedures, and adjustments to how ballots are processed. Anyone evaluating a current absentee-voter-death situation should look at the current text of Title 24.2 and the current Department of Elections guidance.

Common questions

Why does the date of death matter?
A voter must be qualified on Election Day for the vote to be valid. Moore v. Pullem lays out the principle: at the close of regular balloting, election officials are to confirm that each person whose ballot is offered was properly registered, qualified to vote, and still alive. A voter who dies before Election Day is no longer qualified, even if the ballot was cast earlier.

What happens to a mailed ballot if the voter dies but the registrar doesn't know?
The opinion is framed around the registrar's knowledge of the death. If the registrar doesn't know, the standard pollbook procedure in § 24.2-711 will let the ballot through. The registrar's duty is to cancel registration only of persons "known by him to be deceased."

Are families supposed to notify the registrar of a death?
In practice, deaths are reported to the registrar through the Department of Health's vital records. There's no expectation that grieving families call the registrar. The opinion focuses on what should happen once the registrar has actual knowledge.

Doesn't this create a fairness problem if mail ballots get rejected but machine ballots are counted?
The opinion acknowledges the asymmetry. The General Assembly accepted it as a cost of providing convenient in-person early voting on equipment. The opinion does not suggest that voting on machines is improper; it says election officials cannot, as a matter of physics, retrieve a specific cast ballot from an electronic tabulator.

What about ballots in the secure container the morning after the voter dies?
For mailed ballots, the cancellation procedure happens before the envelope is opened on Election Day, so the ballot can be set aside. For machine ballots, the vote was already recorded electronically when the voter cast it; the only "ballot" still identifiable is the electronic ballot already merged into the tabulator's count.

Background and statutory framework

The absentee voting framework:

• § 24.2-700. Eligibility for absentee voting.
• § 24.2-707. Methods of absentee voting: by mail or in person. Authorizes electoral boards using central absentee voting precincts to provide for casting absentee ballots on voting equipment prior to Election Day by in-person applicants.
• § 24.2-709.1. Authorizes electoral boards to use alternative procedures prior to Election Day to expedite counting of optical-scan absentee ballots, as long as ballot count totals are not initiated.
• § 24.2-711. Officers of election open the absentee ballot container after polls close, check each voter's name against the pollbook before opening the envelope, and reject envelopes for voters not entitled to vote.

The registration cancellation duty:

• § 24.2-427. The "general registrar shall cancel the registration of (i) all persons known by him to be deceased."

The deceased voter rule (precedent):

• Moore v. Pullem (Va. 1928): Election officials at the close of balloting must ascertain that each person was properly registered, qualified to vote, and not deceased. As the court put it, if in the interval the voter "had died, of course, the ballot could not have been legally deposited or counted as a valid vote."

The asymmetry between paper and machine:

• Mailed ballot: envelope is opened only after pollbook check, so cancellation of registration makes the envelope a rejected envelope before it is opened.
• Machine ballot cast in person early: the vote is recorded in the equipment when cast and cannot be retrieved as a discrete unit, so the absentee vote will be counted.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 24.2-427
• Va. Code Ann. § 24.2-700
• Va. Code Ann. § 24.2-707
• Va. Code Ann. § 24.2-709.1
• Va. Code Ann. § 24.2-711
• Moore v. Pullem, 150 Va. 174, 142 S.E. 415 (1928)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-104-Lind.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

October 26, 2010

Mr. Robin R. Lind
Secretary, Goochland County Electoral Board
P.O. Box 1013
Goochland, Virginia 23063

Dear Mr. Lind:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether an absentee ballot shall be counted when that absentee ballot was properly cast by a qualified voter who then dies before election day.

Response

It is my opinion that, when a general registrar knows that an absentee voter has died prior to election day, but after having voted by absentee ballot, the registrar must cancel that voter's registration, and the absentee ballot should not be counted; but that in those circumstances in which absentee ballots are cast prior to election day in a manner by which the absentee ballot no longer can be set aside, the general registrar who knows of the voter's death shall cancel that voter's registration, but election officials are not otherwise required to perform the impossible task of not counting the deceased voter's absentee ballot.

Applicable Law and Discussion

Pursuant to § 24.2-700, a registered voter meeting one of the eligibility requirements of that section may request an absentee ballot in any election in which he or she is qualified to vote. Section 24.2-707 provides two methods by which an eligible voter may vote by absentee ballot: by mail or in person. Specifically, an absentee voter either may (1) send a completed absentee ballot application to the general registrar's office and, after receiving the official printed ballot from the electoral board, mark the ballot in the presence of a witness, enclose the ballot in the designated envelope in accordance with the instructions provided, and return the ballot to the electoral board by mail to be counted on election day; or may (2) appear in person at the office of the general registrar (or at another location approved by the electoral board) to complete the application procedures and, if the official ballot is then available and the jurisdiction uses a central absentee voting precinct, cast the absentee ballot on voting equipment provided by the Electoral Board.

Section 24.2-711, which prescribes the duties of election officers with respect to absentee ballots, provides:

After the close of the polls, the container of absentee ballots shall be opened by the officers of election. As each ballot envelope is removed from the container, the name of the voter shall be called and checked as if the voter were voting in person. If the voter is found entitled to vote, an officer shall mark the voter's name on the pollbook with the first or next consecutive number from the voter count form, or shall enter that the voter has voted if the pollbook is in electronic form. The ballot envelope shall then be opened, and the ballot deposited in the ballot container without being unfolded or examined. If the voter is found not entitled to vote, the unopened envelope shall be rejected. A majority of the officers shall write and sign a statement of the cause for rejection on the envelope or on an attachment to the envelope.

The counting of absentee ballots at the close of regular balloting has long been the practice in Virginia. A printed absentee ballot delivered to the electoral board by mail or by the voter in person is deemed to be cast on the day of the election. The casting of such an absentee ballot takes place when the officers of election, following the steps set forth in § 24.2-711, open the ballot envelope and deposit the ballot in the ballot container after having satisfied themselves that the person who submitted the absentee ballot is a qualified voter entitled to vote in the election. In Moore v. Pullem, the Supreme Court of Virginia held that before a vote could be counted, it is the duty of the election officials to:

ascertain whether each of the persons whose ballots [are] so offered had been properly registered, and then whether they had qualified themselves to vote at that election ... and also to consider every other fact which might have then appeared to show that the person was not a qualified voter. For instance, if it then appeared that he had been convicted of a crime, or if in the interval he had died, of course, the ballot could not have been legally deposited or counted as a valid vote.

Thus, a person who is deceased on election day cannot vote, and the absentee ballot of any such person should not be cast and counted. Section 24.2-427 mandates that the "general registrar shall cancel the registration of (i) all persons known by him to be deceased ...." A person whose registration to vote has been cancelled cannot vote, and his vote should not be counted. Accordingly, an absentee ballot of a person known to be deceased shall not be cast and counted on election day.

Virginia law, however, permits certain absentee ballots to be cast prior to election day. Section 24.2-707 expressly provides that "[t]he electoral board of any county or city using a central absentee voting precinct may provide for the casting of absentee ballots on voting equipment prior to election day by applicants who are voting in person" and that "procedures shall provide for the casting of absentee ballots prior to election day by in-person applicants on voting equipment which has been certified, and is currently approved, by the State Board." Section 24.2-709.1 further permits an electoral board to authorize its general registrar to use alternative procedures to expedite counting absentee ballots capable of being read by optical scan counting equipment by casting those ballots through the optical scanner, without initiating ballot count totals.

The General Assembly adopted these two provisions for important public policy reasons, namely to make in-person absentee voting more convenient for voters and to ease the administrative burden on local election officials responsible for processing absentee ballots. Both sections require election officials to follow procedures intended to verify that the voter is qualified to vote in that election before the absentee ballot is cast. Once an absentee ballot has been cast on voting equipment, however, it is no longer capable of being set aside on election day. Although a voter who dies before election day no longer is a qualified voter for that election, election procedures implemented for other important public policy reasons may result in the absentee ballot of such a voter being cast on voting equipment before election day, leaving election officials with no ability to set aside the ballot so that it is not counted.

In cases of in-person voting on machines, there is no way to distinguish one electronic "secret" vote from others cast on the equipment, so the absentee vote will be counted. When a printed absentee ballot is processed, however, because the general registrar cancels a deceased voter's registration, the voter's name will not be found on the pollbook and the vote will not be counted. As you note, there is thus a different outcome of how an absentee vote will be treated based on the method of voting chosen.

Conclusion

Accordingly, it is my opinion that, when a general registrar knows an absentee voter has died prior to election day, but after having voted by absentee ballot, the registrar must cancel that voter's registration, and the absentee ballot should not be counted; but that in those circumstances in which absentee ballots are cast prior to election day in a manner by which the absentee ballot no longer can be set aside, the general registrar who knows of the voter's death shall cancel that voter's registration, but election officials are not otherwise required to perform the impossible task of not counting the deceased voter's ballot.

With warmest regards, I am

Kenneth T. Cuccinelli, II
Attorney General