Live and let live? A decision by NC counties to accept dead voters’ ballots upsets some, unites others.

by Sarah Michels, Carolina Public Press
February 12, 2025

Everette Harris voted by mail in the May 2014 primary election. But before Election Day came, he died, and his vote was removed from the count. A decade later, three people — Wilfred Shea, 96, Michael Talbot, 78, and Daniela Smith-Davis, 18 — cast their ballots in the 2024 general election. They also died before Election Day.

But this time, their votes were counted by county board of election members in defiance of state guidance. 

It’s the latest affront in a long series of disagreements over election law in North Carolina. Does state law allow the ballots of dead voters to count if they were alive when they cast them?

Call to action

In 2014, this question spurred U.S. Rep. Mark Harris, Everette’s son, to action. Harris asked then N.C. House Speaker Thom Tillis to do something that would ensure future voters in his father’s position would have their ballots counted. 

Tillis obliged, sponsoring a bill which would have clarified that a voter’s ballot could not be challenged if they died between casting it and Election Day. The bill, called the Everette Harris Act, sailed through the state House unanimously. 

But the state Senate never assigned the bill to a committee, potentially due to an unrelated budgetary fight between Tillis and Senate leader Phil Berger, according to Gerry Cohen, a Wake County board of elections member who helped draft the bill. 

“In budget fights, people trade things — ‘we’ll do this, if you’ll do that,’” Cohen said. “I think that Berger wanted something from the House and in return would pass the bill, and it didn’t pass.” 

A decade later, Cohen is once again squarely in the center of the latest controversy over deceased voters. Cohen is one of several county board of elections members who ignored State Board of Elections guidance to remove dead voters from the count in the 2024 general election. 

Based on its interpretation of North Carolina law, the state elections board issued a 2022 memo instructing county election boards to judge voter qualifications as of Election Day, not the day when that person cast a ballot. By this logic, a voter who died by Election Day would not meet the state’s voter residency requirements. 

But Cohen doesn’t agree with that interpretation. And neither do some election board members in Wake and Rowan counties. 

Others, including several state residents who filed complaints over the issue, assert that county election boards don’t have authority to make their own interpretations. 

“The danger is that board of elections members decided to pick and choose what law they want to follow,” said Michael Frazier, the GOP election integrity chair for Rowan County. 

Deceased ballots and their gray area

Each week, the N.C. Department of Health and Human Services provides the state elections board a list of dead people. 

The board uses that information to remove the deceased from the voter rolls in accordance with state law. That process doesn’t stop during election cycles. 

The confusion for some is that North Carolina law isn’t explicitly clear on whether a voter can be removed from the rolls after casting a ballot because they’ve died. 

Ten states, including Florida and Maryland, allow dead voters’ ballots to count if they were alive when they cast them, according to the National Conference of State Legislatures. 

Nine states, including Delaware and Iowa, require them to be removed from the count. 

In three states (Colorado, Kansas, New York) there’s no blanket ban but challenges over dead voters are allowed.

And in 26 states, including North Carolina, the issue exists in a legal gray area. 

“It’s not so much that I see vagueness. I just don’t see where it says if you die before Election Day and you’ve already voted, then your vote doesn’t count,” said Greg Flynn, a Wake County board of elections member. 

A ‘nightmare’

In the past, there may have been a concern about people using a dead person’s identity to vote, Flynn continued. But now, technology and voting laws have progressed to the point where elections officials know exactly who is voting. The original impetus for such a law is gone, he added. 

In the absence of a clear legislative mandate, Flynn said the State Board of Elections has tried to manage the situation. 

“I think what’s happening is that a series of logical decisions has created a process that’s kind of a nightmare for the surviving families,” he said. 

When elections staff challenge the ballot of a person who died after voting, a hearing is scheduled. There, voters who have been mistakenly identified as deceased can testify to have their ballots counted. 

During this past election, however, relatives of Shea, Talbot and Smith-Davis showed up at the Wake County Board of Elections instead.

One of the family members representing Shea, who was an N.C. State track coach in the 1970s, sobbed for several minutes at the podium before she was able to testify, Cohen recalled. 

“The testimony was, ‘I got this challenge letter in the mail last night, and I saw the hearing was today, and I came in. My father was 96 years old. It was the last thing he wanted to do in life,’” Cohen recalled. “And she stood on the stand crying, and I thought this process was unspeakably cruel.” 

Down for the count

When it came time to vote on whether to throw out their votes, Cohen, Flynn and Wake County Board of Elections member Erica Porter decided not to sustain the challenges against the relatives. They also removed all other challenged dead voters from the count. 

Further west, a similar situation occurred in Rowan County. Faced with a choice on whether to count the ballots of 13 residents who died after making their decision, four members of the Rowan County Board of Elections opted not to vote on the matter, effectively dismissing the challenges. 

Frazier filed a complaint against the board members, asking the state elections board to consider their removal from office. To Frazier, it didn’t matter whether the challenged votes were Republican or Democrat. It was their decision to “subvert the law knowingly.” 

The state election board decided that the Wake and Rowan election board members could remain in their posts. But they all agreed that the county boards should not have acted in such a manner. 

“For me, it is disturbing when our memos are not adhered to,” State Board member Jeff Carmon said. “In two of these situations, I find that the lack of clarity from our legislature gives them an out. It is my hope that the legislature will make it crystal clear to give our memos even more weight.”

Republican State Board members Kevin Lewis and Stacy “Four” Eggers voted in the minority. Eggers said it’s been “quite clear for several decades” that the procedure is to not count these voters’ ballots. 

Lewis said that the State Board is the final arbiter of North Carolina law, not the county boards. 

“As a county board member, I had to follow a lot of numbered memos that I would have perhaps drafted differently or have had a different interpretation of, but as a county board member, I felt that and understood that I was obligated to comply,” he said. 

Will the legislature act on dead ballots? 

There seems to be not much of a legislative appetite to clarify the issue. 

It’s one of the few election debates that may not fall along ideological or partisan lines, Western Carolina University political science professor Chris Cooper said, so it’s unclear how the legislature would change the law if it chose to do so. 

“Who wants to come out and say you want to deny grandma the right to vote after she’s died?” Cooper asked. “It’s a very small number of people we’re talking about, and it’s a sensitive topic, so I don’t think there’s a lot of incentive to make it a policy issue right now.” 

As for Cohen, he’s made his point. If the situation arose again, he would follow the State Board’s guidance. 

“Did I step out of line? Maybe so. But the situation was so cruel, I decided I need to take a stand to change things,” he said. “I don’t need to stick my neck out again.” 

This article first appeared on Carolina Public Press and is republished here under a Creative Commons license.