Lawson, 012318 INAGO, AGO 2018-1

Case DateJanuary 23, 2018
CourtIndiana
The Honorable Connie Lawson
AGO 2018-1
Official Opinion 2018-1
Indiana Attorney General Opinion
State of Indiana Office of the Attorney General
January 23, 2018
         The Honorable Connie Lawson          Indiana Secretary of State          Indiana State House, Room 201          200 West Washington Street          Indianapolis, IN 46204          RE: The Constitutionality of 2018 Indiana Senate Bill 155          Dear Secretary Lawson:          You have requested an opinion on the constitutionality of Senate Bill 155, a proposed law which has been introduced by Senator Greg Walker in the current session of the General Assembly.          REQUESTOR STANDING          Ind. Code § 4-6-2-5 contemplates that a state officer may request an official opinion of the Attorney General "touching upon any question or point of law concerning the duties of the officer." The question presented pertains to a provision of election law, and "The secretary of state shall perform all ministerial duties related to the administration of elections by the state." Ind. Code § 3-6-4.2-2(a). The manner in which elections are conducted, therefore, is an issue within the jurisdiction of the Office of the Indiana Secretary of State, at whose request this opinion is rendered.          QUESTION PRESENTED          May the General Assembly enact legislation that would allow the absentee ballot of a person who dies before election day to be counted on election day?          BRIEF ANSWER          No. A deceased individual is not a resident of a precinct. Counting that person's absentee ballot would effectively rewrite the residency requirements for the Indiana electorate as set out in Article 2, § 2(a) of the Indiana Constitution and a change in what constitutes the electorate may only be made by amending the constitution.          BACKGROUND          Under existing law an absentee ballot is not counted on election day if the person who filled out the ballot dies before election day. The current law is quoted below.[1]
If proof is given to a precinct election board that an absentee voter marked and forwarded an absentee ballot but died before election day, then the inspector shall return the ballot of the deceased voter with the other defective ballots to the officer issuing the ballots. However, the casting of an absentee ballot by a deceased voter does not invalidate an election.
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