INDIANAPOLIS — Consider it the ultimate absentee ballot.
The Indiana Senate has approved Senate Bill 155, requiring mail-in or early votes cast by Hoosiers who subsequently die before Election Day be counted in the official results.
Under current law, if ballot counters have proof that an absentee voter's life ended prior to Election Day, then his or her ballot must be discarded.
Though existing law also makes clear that an Indiana election is not invalid if absentee votes from dead Hoosiers are inadvertently included in the final tally.
State Sen. Greg Walker, R-Columbus, the sponsor of the measure, said in the hectic days leading up to an election, county voting officials should not have to spend their time checking newspaper obituaries or procuring local death records, and then trying to match them to returned absentee ballots.
"They could be using all that time and attention for the more serious matters that they have," Walker said. "They're trying to deliver quality service, they're trying to assure the security of the voting process, they're trying to make sure that members of the community have access to the vote."
Walker also observed that election officials in each of the state's 92 counties individually decide how much effort to put into checking for absentee ballots from deceased voters.
He said simply counting them all would ensure consistency across the state.
"We're not talking about voter fraud, we're not talking about stuffing ballots with individuals who are deceased, we're talking about those who have cast a legal ballot and they are otherwise eligible to vote," Walker said.
In addition, he said counting the absentee ballots of deceased voters could give their relatives and friends the feeling that their late loved one still is part of their community.
"There's almost no chance that one or two ballots in an election cycle in a very large county can affect the outcome of a race," Walker said. "But it may be very material for those families who worked to see that a loved one got an opportunity to cast a ballot and did so."
Doomed in House?
Despite the overwhelming support for Walker's legislation in the Senate, where it passed 46-2, state Rep. Milo Smith, R-Columbus, chairman of the House Elections Committee, said he plans to kill the measure in the coming weeks by denying it a committee hearing and vote.
Smith said he supports the concept in general, especially for military absentee ballots where the voter might have died defending the United States.
But Smith was persuaded by Republican Attorney General Curtis Hill's recent pronouncement that the legislation is unconstitutional.
Hill explained in Official Opinion 18-01 that a deceased voter no longer qualifies to vote, as he or she ceased being an Indiana resident at the moment of death.
"To our best earth-bound knowledge, a deceased person is not a 'resident' of any precinct, and therefore, is ineligible to vote according to the ... Indiana Constitution," Hill said.
The attorney general also distinguished an absentee ballot from voting in person using a registration attached to a former legal residence, which the Constitution explicitly permits so long as the voter's name has remained on the registration roll.
Hill said an absentee ballot merely expresses the intent to vote for certain candidates. It does not become an actual vote until it is unsealed and deposited in the ballot box on Election Day.
"It stands to reason, then, that if the voter is deceased on the day that the provisional document is opened — deriving its legal significance as a vote — the intended 'vote' is clearly void, having been delivered by the lifeless hand of a non-citizen," Hill said.
Walker disagreed with the attorney general's opinion, which is advisory and in no way binding on any judge that might address the question in the future.
The senator said as Indiana moves toward greater use of early voting, the law needs to reflect that Hoosiers believe their vote will be counted no matter if it's submitted 30 days before an election or one minute ahead of the polls closing on Election Day.
"You can argue about the language as to whether somebody can be a citizen or not when they're now deceased," Walker said. "But the issue is, in the common language of everyone that the Constitution is supposed to be written in, when I cast my ballot I have voted."
Smith said that reasoning isn't enough for him to consider allowing his committee to decide whether to advance Walker's proposal to the full House.
"I trust the attorney general ... and you should, too," Smith said. "The Constitution says it's illegal to count people's vote except on Election Day."