In a precedential decision, the North Carolina Board of Elections voted Wednesday to censure Wake County election board members Gerry Cohen and Greg Flynn for counting ballots cast by voters who died after voting.<\/p>\n
Read more Why does it cost so much to eat out anymore? Charlotte chefs blame \u2018economic whack-a-mole\u2019<\/a><\/p>\n At the forefront of the case is the interpretation of whether the law is clear or not for county board members to make a decision unaligned with state directives. Democratic board members Jeff Carmon and Siobhan O\u2019Duffy Millen repeatedly emphasized that the law is ambiguous and unclear, and that even if it\u2019s been the long application adhered to, it does not necessarily make it right.<\/p>\n \u201cThere\u2019s no statute or rule that clearly instructs the boards of election to remove the ballots of voters who cast a ballot while alive and then predecease the election,\u201d Millen says. \u201cI can\u2019t believe this.\u201d<\/p>\n Steve Holland of Weaverville who is one of the voters who brought the complaint forward told the Raleigh News & Observer it\u2019s not about politics, but that its been long interpreted to require that a voter be alive on Election Day for their ballot to count, pointing to roughly 25 years of consistent election practice.<\/p>\n \u201cI hope it sends a message to all of the county board members across the state that, for consistency purposes and for voters getting equal protection under the law, they need to follow the directives of the State Board,\u201d he said.<\/p>\n The ongoing legal battle was prompted<\/u><\/a> in 2022 after the North Carolina State Board of Elections attempted to clear up whether a voter\u2019s ballot is counted normally or if it gets removed from the count due to their death. The state board issued formal guidance to counties, instructing them to remove any ballots cast by voters who died before election day.<\/p>\n In 2024, the issue came to a head when<\/u><\/a> election officials in Wake and Rowan counties counted 16 ballots from deceased voters. At that time, county election boards had a 3-2 Democratic majority, which in Wake split along party lines to count the votes.<\/p>\n Holland and Michael Frazier of Salisbury filed a complaint<\/u><\/a> against the elections board, alleging that seven Wake and Rowan County members of the boards of elections failed to follow the requirement to remove early votes cast by individuals who died before election day, Nov. 8, 2024.<\/p>\n \u201cIf I achieve nothing else it\u2019s to spread awareness that this practice cannot continue,\u201d Flynn said during his cross-examination.<\/p>\n In one case, the Wake County board heard testimony<\/u><\/a> about a 78-year-old Vietnam War veteran who cast his ballot early and died three days before the election. Cohen, a Democrat, said at Wednesday\u2019s hearing he cried at the testimony and said \u201cit was frankly an emotional aberration.\u201d The family told the board to not rob the veteran of one of his last acts he took pride in doing legally, according to Cohen.<\/p>\n Sitting before the board, Cohen opened his remarks by quoting Alexander Hamilton\u2019s advice to Aaron Burr to \u201cspeak less and listen more\u201d before launching into defense of counting the votes.<\/p>\n \u201cIf you were to choose to reprimand me, I would accept that. If you ever want to censure me, I would stand and accept the censure as is required, but please don\u2019t remove me from the board over this issue,\u201d he told the board.<\/p>\n Cohen told board members he first became involved in voter registration disputes in 1971, later he helped rewrite the state\u2019s voter-challenge statues and served in a variety of election-administration roles, including ballot counter, election observer, special registration commissioner and Wake County election board member. He also served for the North Carolina General Assembly for 37 years as a legislative attorney and bill director.<\/p>\n By the time he addressed the disputed ballots, Cohen said he saw himself not as a partisan actor but as a veteran election official.<\/p>\n Separately, in Rowan, a Republican board member joined three<\/u><\/a> Democrats in allowing 13 votes from deceased voters to be counted in 2024 as well.<\/p>\n The confusion is that North Carolina law isn\u2019t explicitly clear<\/u><\/a> on whether a voter can be removed from the rolls after casting a ballot because they\u2019ve died.<\/p>\n Holland told the board Wednesday that uniformity is \u201cnot merely a policy preference. It is the foundation of statewide election administration.\u201d Frazier, the Republican election integrity chairman for Rowan County, previously said<\/u><\/a> that the officials \u201cknowingly\u201d went against state guidance.<\/p>\n Holland tried to press Cohen whether he knowingly departed from state election guidance when he voted to allow certain ballots from deceased voters to remain counted and what legal authority he believed justified that decision.<\/p>\n Read more Out! Raleigh Pride 2026: Map, street closures, free parking & events planned<\/a><\/p>\n Cohen acknowledged he was aware of the State Board Memo and understood it addressed how counties should handle ballots cast by voters who died before Election Day. He confirmed he had even helped shape legislation on the issue, and that he had publicly commented before the 2024 canvass about how such ballots would typically not count if a death was known in time.<\/p>\n And while he said this decision was not pre-planned nor a choice he would make again, the emotional pressures from the grieving families is what ultimately informed his decision to keep the ballots.<\/p>\n After the hearing, Holland told The News & Observer he was encouraged to hear Cohen and Flynn publicly apologize for the decision, but re-affirmed he wants to ensure that election laws are applied evenly.<\/p>\n In the same canvass process, about 42 deceased-voter ballots were removed, while three others were left in the count. Cohen maintains that his vote was not about \u201cchoosing to count\u201d ballots but about not sustaining a challenge.<\/p>\n He emphasized that the North Carolina Constitution says ballots are valid if cast by a properly registered voter at the time of voting. Therefore, the state memo, in his view, is guidance, not binding law, and he disagrees with its interpretation.<\/p>\n \u201cI find a little gray in here,\u201d board member Millen said during the hearing after asking Holland to find where in the memo it says that if a person dies after they\u2019ve cast their vote and before election day that that ballot clearly should not be counted.<\/p>\n \u201cI don\u2019t know that I have any additional comments from that. I think the memo speaks for itself,\u201d Holland responded.<\/p>\n When Flynn was cross-examined by Holland, he said those who die after voting cast their votes deliberately, knowing they were in the last stages of their lives.<\/p>\n \u201cWe have a duty to treat those votes as sacred, as sacred as any other,\u201d he said. \u201cThose votes were cast, and as soon as they were cast, they were sacred.\u201d<\/p>\n Moreover, he said this process makes the vote of the deceased to that of a felon who did not do anything wrong and that technology has advanced to where officials can now accurately determine both when someone dies and when they cast a ballot.<\/p>\n \u201cI started to cry\u2026when the motion to remove was defeated\u2026I wasn\u2019t happy being put through all this it took an enormous amount of time…I\u2019ve never been in a court,\u201d Cohen told the Raleigh News & Observer after the hearing. \u201cI think today\u2019s hearing was fair. Everyone got to present their case.\u201d<\/p>\n In January 2025, the State Board of Elections \u2014 which also had a Democratic majority at the time \u2014 voted along party lines to<\/u><\/a> dismiss the complaints.<\/p>\n Frazier and Holland appealed the state board\u2019s decision to North Carolina\u2019s Office of Administrative Hearings, which reviews the actions of state agencies.<\/p>\n On Feb. 13, the judge in the case, Linda Nelson, ruled that the state board<\/u><\/a> violated its own rules by dismissing the complaint without a hearing. Just a day later, Nelson rescinded her own ruling \u2014 leaving the case unresolved again.<\/p>\n \u201cI was very disappointed that the board initially made a determination, and turns out incorrectly, that there was not prima facie evidence to have a hearing,\u201d Holland told The N&O.<\/p>\n Less than two weeks after that, Nelson issued a new, longer ruling with the same ultimate result: compelling the state board to hold a hearing on whether to remove<\/u><\/a> the county board members at issue. The state board could choose to appeal the ruling.<\/p>\n Republicans hold majorities on all state and county election boards due to controversial legislation that stripped appointment power from Democratic Gov. Josh Stein and transferred it to the state auditor, a Republican.<\/p>\n