RALEIGH, N.C. — In a precedential decision, the North Carolina Board of Elections voted Wednesday to censure Wake County election board members Greg Cohen and Jerry Flynn for counting ballots cast by voters who died after voting.

Democratic board members Jeff Carmon and Siobhan O’Duffy Millen repeatedly emphasized that the law is ambiguous and unclear, and that even if it’s been the long application adhered to, it does not necessarily make it right.

“There’s 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,” Millen says. “I can’t believe this.”

The ongoing legal battle was prompted in 2022 after the North Carolina State Board of Elections attempted to clear up whether a voter’s 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.

In 2024, the issue came to a head when 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.

Steve Holland of Weaverville and Michael Frazier of Salisbury filed a complaint 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.

“If I achieve nothing else it’s to spread awareness that this practice cannot continue,” Flynn said during his cross-examination.

Greg Cohen’s history as an election official

In one case, the Wake County board heard testimony 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’s hearing he cried at the testimony and said “it was frankly an emotional aberration.” 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.

Sitting before the board, Cohen opened his remarks by quoting Alexander Hamilton’s advice to Aaron Burr to “speak less and listen more” before launching into defense of counting the votes.

“If 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’t remove me from the board over this issue,” he told the board.

Cohen told board members he first became involved in voter registration disputes in 1971, later he helped rewrite the state’s voter-challenge statues and served in a variety of election-administration roles, including ballot counter, election observer to 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.

By the time he addressed the disputed ballots, Cohen said he saw himself not as a partisan actor but as a veteran election official.

Counting ballots from deceased voters

Separately, in Rowan, a Republican board member joined three Democrats in allowing 13 votes from deceased voters to be counted in 2024 as well.

The confusion for some is that North Carolina law isn’t explicitly clear on whether a voter can be removed from the rolls after casting a ballot because they’ve died.

Holland told the board Wednesday that uniformity is “not merely a policy preference. It is the foundation of statewide election administration.” Frazier, the Republican election integrity chairman for Rowan County, previously said that the officials “knowingly” went against state guidance.

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.

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.

And while he said this decision was not preplanned nor a choice he would make again, the emotional pressures from the grieving families is what ultimately informed his decision to keep the ballots.

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 “choosing to count” ballots but about not sustaining a challenge.

‘We have a duty to treat those votes as sacred’

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.

“I find a little gray in here,” 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’ve cast their vote and before election day that that ballot clearly should not be counted.

“I don’t know that I have any additional comments from that. I think the memo speaks for itself,” Holland responded.

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.

“We have a duty to treat those votes as sacred, as sacred as any other,” he said. “Those votes were cast, and as soon as they were cast, they were sacred.”

Technology, he says, has advanced to where officials can now accurately determine both when someone dies and when they cast a ballot.

NC elections board votes to dismiss complaints

In January 2025, the State Board of Elections — which also had a Democratic majority at the time — voted along party lines to dismiss the complaints.

Frazier and Holland appealed the state board’s decision to North Carolina’s Office of Administrative Hearings, which reviews the actions of state agencies.

On Feb. 13, the judge in the case, Linda Nelson, ruled that the state board violated its own rules by dismissing the complaint without a hearing. Just a day later, Nelson rescinded her own ruling — leaving the case unresolved again.

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 the county board members at issue. The state board could choose to appeal the ruling.

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.

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