RALEIGH, N.C. - An untold number of ballots from people who have died since casting them will be counted this year because of the haphazard and cumbersome process of enforcing laws in many states to weed out these votes.
With millions of voters taking advantage of new, in-person early voting in at least 30 states this year, it's even more likely that such "ghost" votes will be counted because, in most cases, those ballots are impossible to retrieve. Besides, it could be days or weeks after the election before local officials get word someone has died.
Earlier this month, in what would be her last conscious act, 90-year-old Trixie Porter gripped a pen in her weak, trembling hand, checked the candidates of her choice and scrawled a squiggled signature on her absentee ballot.
Within an hour, the petite woman who had been suffering from heart problems lay back in her hospital bed, closed her eyes and never woke up. Her ballot arrived at her local elections board two days later, Oct. 5 the day she died.
"We commented that day that it probably won't count," said daughter Cheryl McConnell. "But she went to her grave not knowing any different. It counted with her."
The thousands of lawyers from both parties who will be descending on battleground states Tuesday looking for reasons to pick up a few votes could find the phenomenon of dead voters more than just an Election Day curiosity.
In Florida alone, more than 1.8 million people, many of them elderly and sick retirees, have cast absentee ballots or voted early in person in the past two weeks.
How many of those voters won't be alive on Election Day? Considering that an average of 455 voting-age people die in Florida every day, and that the 2000 presidential election was decided by a mere 537 votes, dead votes that slip through the cracks could become a meaningful bloc.
"There are lots of examples of elections being decided by one vote or 300 votes," said Tim Storey, a senior fellow with National Conference of State Legislatures in Denver. "It's the classic policymaking dilemma when you're trying to embark on new methods like early voting."
The problem has arisen as an unintended consequence of laws meant to prevent a repeat of the 2000 presidential election debacle. Unlike traditional mail-in absentee ballots that are stored in labeled envelopes and can be pulled if someone dies, most of the new "in-person" early voting is being done on machines with no paper ballot to tell how those people voted.
So if a person in Florida casts an early ballot, then is run over by a truck right outside the polling place, there's no way to rescind the vote. But the vote of a Florida soldier who mails an absentee ballot from Iraq (news - web sites), then is killed in action, won't or shouldn't be counted.
"You've got potentially two people with exactly the same situation being treated differently under the law," said John Green, director of the Bliss Institute of Applied Politics at The University of Akron in Ohio. "And on the face of it, that's unfair."
Some elections officials go to great lengths to purge voter rolls of dead people. In Flagler County, Fla., elections supervisor Peggy Rae Border has staff members scan the obituaries regularly.
"Here we check our newspapers every single day," she said. "We're still a fairly small county, so we're able to do that on a regular basis."
In Florida and other states, the vital statistics agency sends local elections officials monthly computer lists of people who have passed away to be checked against the voter rolls.
But if that data dump occurs at the beginning of the month, as in North Carolina, the death of a voter may not be caught until after the election, when it's too late to take it back.
In Missouri, absentee voting began Sept. 21, but the latest state-provided list of dead people was only current through Oct. 15 and only went out late this past week.
"I personally know at least two absentee voters who are in hospice care and their minds are clear and they know what they want when they vote," said Christian County Clerk Kay Brown. "But who knows if they will be alive Election Day?"
Pennsylvania Secretary of State's spokesman Brian McDonald said enforcing that state's disqualification of dead voters is just impractical on the eve of a big election. "How the heck is the county supposed to know if an absentee voter has died?"
Several states including California, Texas, Tennessee and the presidential battlegrounds of Ohio and West Virginia specifically allow absentee votes from those who die before the election. This patchwork of state laws also means two identical sets of circumstances can lead to very different results.
Take the hypothetical of two Fort Campbell soldiers who cast absentee ballots and were killed in the same incident overseas. The vote of the soldier who lived on the Tennessee side of the base would be counted. The vote from the soldier who lived on the Kentucky side should be pulled because an attorney general's opinion in that state says those ballots should be tossed.
But such opinions are not legally binding allowing the Christian County, Ky., clerk to count them with impunity.
"As far as I'm concerned, Christian County will count their vote," says Clerk Mike Kem, who is also chairman of that Kentucky county's election board. "I think if somebody votes, their vote ought to count."
North Carolina structured its early voting process specifically to address this situation, with a retrievable ballot that is not counted until Election Day. So if election officials are notified that an early voter has died, that ballot can be removed.
The only two ways those ballots can be removed is if the computer crosscheck catches it, or the family submits written proof to election officials that the voter has died.
"We don't check the hospitals on the day before the election," said Don Wright, general counsel for North Carolina's Board of Elections. "We're not at the morgue."
Cheryl McConnell won't say how her mother voted before she died, but she made a copy of the ballot to keep.
As for the real absentee ballot, election officials hadn't pulled it because the family had yet to notify them of her death. McConnell says she's in no hurry.
