Wake officials can keep seats despite bucking guidance on counting ballots of dead voters

Two members of the Wake County Board of Elections are allowed to keep their seats, despite knowingly counting the ballots of three deceased voters in the 2024 election, the State Board of Elections determined Wednesday after a lengthy hearing over a voter complaint. The state board’s decision upholds a similar determination made by the state board in January 2025.

Gerry Cohen and Greg Flynn were among the sitting county board members who voted to count the ballots — even while acknowledging at the time that their actions went against the state’s guidance on what to do when someone votes early but then dies before Election Day.

The decision to include the ballots happened as Wake officials were finalizing the county’s vote tallies for the 2024 election. The state’s largest county by population had 45 people who legally cast a ballot during early voting but then died before Election Day. State or county officials flagged their ballots after they died. But after emotional testimony by three families challenging the deletion of their votes, the Wake board voted to accept those ballots and throw out the remaining 42 ballots.

One of the deceased voters was an 18-year-old woman who was participating in her first election but died from cancer just before Election Day.

“I cried at the board meeting,” Cohen said Wednesday at the hearing. “Those subsequent days, the process of sending out notices to grieving family members is unspeakably cruel.”

Steven Holland, a voter from Salisbury, filed the initial complaint days after the county completed its 2024 vote count. In it, he asked the state board to remove the county board members who voted to allow the ballots to count. Those members were Flynn, Cohen and Erica Porter. Porter no longer sits on the board and wasn’t part of Wednesday’s hearing.

“Similarly situated voters were treated differently,” Holland said Wednesday. “The Wake County Board counted three ballots cast by voters who died before election day, while removing numerous other ballots cast by voters who also died before election day. Election law cannot mean one thing for some voters and another thing for others. Uniformity is not merely a policy preference; it is the foundation of statewide election administration.”

In January 2025, when they initially heard Holland’s complaint, the state board said that while the county decision was ill-advised, the members hadn’t broken the law and therefore were allowed to keep their seats. The five-member state board’s initial decision on the complaint came down along party lines, with three Democrats voting to allow Flynn, Cohen and Porter to keep their seats. Flynn, Cohen and Porter are Democrats.

After Holland appealed the state board’s decision in court, an administrative law judge in February ordered the state board to take another look at the complaint. That hearing happened on Wednesday. Since the first hearing, the state board has flipped to three Republicans and two Democrats. 

State law requires county elections officials to remove deceased voters from the rolls within a week of receiving a signed statement of a near relative or personal representative indicating that the voter has died. But the law doesn’t specify what county officials must do with ballots that have been legally cast — either early in person or via mail — by a voter who then dies before Election Day, the final day of voting.

The State Board of Elections has long provided guidance to county officials, advising them to reject such ballots. But there's not a specific law requiring that practice. 

Holland argued that the county board members broke laws that allow votes only by people who are legally registered to vote, and state law says voters become disqualified when they die. But those rules don’t apply, Flynn and Cohen argued, because the now-deceased voters were eligible to vote when they submitted their ballots because they were alive at the time. 

“These people cast their votes deliberately, knowing that they were in the last stages of their lives,” Flynn said. “Those votes were cast, and as soon as they were cast, they were sacred. We have a duty to treat those votes as sacred as any other vote. But this process makes us turn around and treat them like felons, worse than felons.”

At the time of the 2024 vote-count, the county board members said they believed that the votes of people who legally cast early ballots should count even if they die before Election Day. It’s a decision that Cohen and Flynn are apologetic for now.

“I apologize to the State Board of Elections,” Cohen said. “I believe strongly in my opinions on what the law was on the subject, but in the heat of hearing testimony, I believe I made a mistake.”

About six hours into the hearing, Republican state board member Angela Hawkins made a motion for Flynn and Cohen to be removed from their positions. Hawkins had spent time working alongside Cohen and Flynn with the Wake County Board of Elections in the past. 

But the motion did not pass. Chairman Francis De Luca voted against the motion. Instead, the board decided to censure both men in a unanimous vote while allowing them to keep their seats. 

Both men will be able to finish out their terms on the Wake County Board of Elections. Cohen said he’s open to fulfilling another term if the State Board nominates him again. He’s spent some 60 years in and around politics and elections and doesn’t want this misstep to define his storied career. 

“I am sorry this all happened,” Cohen said in an interview after the hearing. “Part of this was to honor the memory of those three [voters]. I’m glad that this process honored their deceased relatives.”

When asked if he had any regrets about how he handled this, Cohen said: “I regret the interpretation of the law.”