Wake County Board of Elections counts 3 ballots of voters who died before Election Day

RALEIGH, N.C. (WTVD) -- As the Wake County Board of Elections met Friday to certify its results, it went through 70 different challenges of cast ballots. Forty-five of those challenged ballots revolved around dead voters, specifically individuals who cast ballots but died before Election Day.

In response, testimony was provided by family members of two of the individuals, and in a third case, Board member Greg Flynn, in support of counting the ballots.

"Please don't rob a civil servant, 78-year-old veteran of one of his last acts when he took such pride in doing," explained the daughter of one man.

In emotional remarks, she pleaded with the Board to allow the votes to stand.

"He legally voted during the allotted timeframe with his ID. There is no reason his vote should not count," said the woman.

Ultimately, the Board voted to allow all three votes in which testimony was provided to count while voting against counting 42 ballots of dead voters in which no testimony was provided.

"It's evidence that they voted, that that was their ballot, and that the law, which is meant to defend against other people voting a dead person's ballot, is out of date," said Flynn, explaining why he personally voted to count the three ballots, but not the other 42.

Board Member Keith Weatherly objected to counting any of the ballots.

"I spoke up that we've got to obey the law and the law now as it stands. That hasn't been refuted by any legal source that I know of, that we have no discretion in this matter. If the person votes and then dies before the Election Day, we're required to remove them, remove that ballot," said Weatherly.

A 2022 memo from the State Board of Elections addressed the issue: "As a reminder, the qualifications for all voters, including early and absentee voters, are judged as of Election Day. G.S. 163-55, -59." Plainly, a spokesperson for the State Board of Elections confirmed that per the memo, "a voter who dies after they cast their ballot and before Election Day is ineligible to vote in that election."

"How do you decide which laws you're going to follow and which laws you're going to not follow (or) violate, then that is a slippery slope," said Weatherly.

"They were legal to cast their ballot. These aren't folks who came up in our felony registry. These are not people who came up as noncitizens. These are folks who did everything that we asked them to do, and they completed their challenge. And the only thing they did wrong was they passed away," said Erica Porter, Chair of the Wake County Board of Elections.

Porter acknowledged that the decision to allow the three votes could open the Board of Elections to lawsuits, as she stressed her desire for the State Legislature to take up the issue.

"It's something I feel passionate about, and I'll be there the whole way if needed," said Porter.

Board Member Gerry Cohen, widely regarded as an expert in North Carolina elections law, shared that a prior legislative effort to address the matter moved forward in the House, but stalled in the Senate.

"One way to get the law changed I think perhaps is to make some noise about it," Cohen said.

ABC11 reached out to the State Board of Elections to confirm what, if any, measures could be taken to challenge the county board's decision. At this time, there has not been a response.

Other challenges over ballots included 12 cases of an individual with a felony conviction, two noncitizens casting ballots, and 11 in various categories of already voted.