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According to this Michigan Senate Report it appears that a voter who has (in apparent good faith) cast a ballot prior to election day may have that ballot nullified if they die prior to election day. Quoting from this report:

the secretary of state and clerks were able to discover and remove approximately 3,500 absentee ballots submitted by voters while they were alive but died before Election Day, which is a commendable accomplishment.

Presuming that the Michigan law requires the voter be alive on Election Day to ensure that their ballot be qualified to be counted (so I'm not questioning a Michigan Statute), is this a common practice in the other states and territories?

As an aside comment, if this is a common practice, it's understandable that election results might be delayed until the County Clerks are able to establish who was alive at 12:01AM on Election Day.

EDITED to ADD: According to the verbal contact with Michigan Secretary of State's office there is no specific statute that authorized the removal of these ballots, however, Michigan does not view a ballot being "cast" until the time of "counting and tabulating" (approximately 8PM on election day). Consequently the event that a voter may consider his vote "cast" (having delivered to post office or dropped) is not what determines if the ballot is legitimate or not.

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    afterthought : absentee ballots were nullified; Were in-person early voting ballots also nullified?
    – BobE
    Jun 25, 2021 at 3:17
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    Minor nitpick, you cannot disenfranchise a dead person. They have self-defranchised to an unenfrachisable state.
    – Stian
    Jun 25, 2021 at 14:20
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    @StianYttervik - nullifying a ballot is basically disenfranchising the voter, no? Nullification (in these cases) is an action by the state, not the voter. Your novel term " self-defranchised" seems to suggest the voter intentionally died before 12:01 am on election day. That's cold!
    – BobE
    Jun 25, 2021 at 14:48
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    @BobE But people who unfortunately die, lose their right to vote, no matter when next election day is. Tomorrow, next week, next year. They cannot be franchised, thus cannot receive enfranchisement which it is why I think it wrong to call it disenfranchisement to nullify the votes...
    – Stian
    Jun 25, 2021 at 18:36
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    A simile: You can't be fired after you die, even if you had employment when living.
    – Stian
    Jun 25, 2021 at 18:39

2 Answers 2

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According to this article in the Independent, 17 states have laws prohibiting counting ballots of people who die in the interim, 10 states have laws explicitly stating that such votes be counted, and the remaining 23 states have no laws on the matter at all (meaning that such votes are de facto counted).

The number of people who die after casting an early/mail-in ballot but before the election is bound to be small, so I doubt this is an issue people have put much thought into, but I can see there might be two schools of thought on it.

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    Small in a normal year, but this particular election took place during a pandemic, which not only resulted in a higher-than-normal death rate, but also a record number of people voting absentee, and likely earlier than normal, giving a wider window for this to occur.
    – Darrel Hoffman
    Jun 25, 2021 at 13:58
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    would be interested in the rationale offered by those "two schools"
    – BobE
    Jun 25, 2021 at 18:32
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    @BobE: Nothing really dramatic there. One school of thought says: "Votes are cast on election day; early voting is merely a convenience; thus someone who dies before election day is not entitled to vote, and their ballot should be discarded." The other school says: "Votes are cast when voters submit the ballot; early voters have registered their choice, so even if they die their votes count."
    – Ted Wrigley
    Jun 25, 2021 at 18:43
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    @BobE: There are metaphysical questions, perhaps, about whether the recently deceased should have a say in governance going forward. And then you have potentially weird and dark questions like what happens if people are murdered specifically to keep their votes from counting (I mean, that's not an efficient or effective political gambit, but that logic won't stop the more arrogant idiots of the world...)
    – Ted Wrigley
    Jun 25, 2021 at 18:53
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    @TedWrigley: Murdering people to stop their votes from counting after they have been cast is uncommon, but murdering people to stop them from casting votes in the first place has a long and sordid history in the United States. There may be a certain amount of guilt by association here.
    – Kevin
    Jun 26, 2021 at 2:13
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The National Conference of State Legislatures research that the Independent article in Ted Wrigley's answer refers to appears to have been updated - it now reads that thirteen states explicitly direct election officials to count these ballots; Arkansas, Connecticut, Idaho, Florida, Louisiana, Maryland, Massachusetts, Minnesota, Montana, New Mexico, North Dakota, Tennessee and Virginia.

On the other hand, according to their research, another thirteen explicitly state that these ballots are not to be counted: Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky (by an AG’s opinion, 77-667), Mississippi, Missouri, New Hampshire, New Jersey, Pennsylvania, South Dakota and Wisconsin. The article does mention that the interested researcher may email them for full citations, but I've yet to receive a response. The list is clearly incomplete though, as the question gives the example of Michigan: section 168.767 of Michigan's election law explicitly states that absentee ballots from voters who have died should be rejected.

I also took a look myself at the laws in the territories which send non-voting representatives to the House of Representatives:

Article 6.1110 of American Samoa's electoral code states that the ballot of a voter who died prior to the opening of the polls on election day should be disposed of in the same way as questionable absentee ballots.

§ 10122 of Title 3: Elections of the Guam Code Annotated also states that if "due proof" is presented to the precinct board that an absentee voter "died before the ballot is deposited in the ballot box" then that vote shall be rejected unopened.

§ 6213 (d) (6) of the Northern Mariana Islands' Public Law 12-18 states that an absentee ballot should be rejected if the voter "has died or has otherwise become ineligible to vote on the election day".

§ 670 of Title 18, Chapter 25 of the 2019 US Virgin Islands Code states that no absentee ballots shall be counted if "the board of elections is cognizant of the fact that the voter has died prior to the opening of the polls on the day of election".

I was unable to find anything in Puerto Rico's electoral code which refers to the death of absentee voters before election day.

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    CDJB, my communication (as added by edit) was just today and verbally!. However, on close review of your citation it does seem to be clear that the statue seems to say that if the election officials are aware that a voter has died at the time of examination of the ballot envelope it shall be rejected. That citation leads me to conclude that instant of that rejection/acceptance is on examination of the voter's envelope which in the case of Michigan cannot begin until election day.... so "counting" has nothing to do with it, rather envelope examination is the critical stage. But IANAL, thanks.
    – BobE
    Jun 30, 2021 at 17:42

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