Maryland elections officials will be able to open and tabulate ballots submitted by mail and drop box as they come in this fall, a judge ordered on Friday.
The ruling means that results from a significant portion of mail ballots will be available on election night, and it’s likely that candidates and voters won’t have to wait long to know the outcome of many races.
The ruling suspends the state law that requires mail ballots to be counted starting two days after Election Day — a schedule put into place before the coronavirus pandemic led to the rapid popularization of voting by mail.
More than half a million people requested mail ballots for the July Republican and Democratic primary elections, making up more than one-third of those who voted. And more than 1 million Marylanders are expected to vote with mail ballots in the general election.
That sheer volume of mailed ballots would take too long to count if counting starts after Election Day, noted Montgomery County Circuit Court Judge James Bonifant. Deadlines for certifying the election results and swearing in winning candidates would be in jeopardy, he said. County officials and school board members often begin their terms in early December, for instance.
“Mandatory deadlines will be missed if the court takes no action,” Bonifant said as he read his ruling in a Rockville courtroom Friday afternoon.
It was not immediately clear if Republican gubernatorial nominee Dan Cox, who intervened in the case in opposition, would appeal. His attorneys, Ed Hartman of Annapolis and Matthew Wilson of Tupelo, Mississippi, were not present in the courtroom and joined via an audio link. Cox also was not present.
Others welcomed the judge’s ruling.
The Maryland State Board of Elections issued a statement saying it was “pleased” by the judge’s decision.
“This ruling provides election officials with additional time to canvass and tabulate these ballots to ensure that all critical election-related deadlines established by law are met,” the statement read.
The board’s statement said it would work with local elections boards on setting up the procedures for tabulating the mail ballots, which started going out to military and overseas voters on Friday. The ruling allows the boards to count mail ballots starting Oct. 1.
Outgoing Republican Gov. Larry Hogan also said he welcomed the ruling. “We thank the court for acting swiftly, and encourage Marylanders to take part in the electoral process, make sure their registration is up to date, and consider volunteering as an election judge,” Hogan said in a statement.
The matter of early counting of mail ballots ended up in court in part due to actions by Hogan.
During the height of the coronavirus pandemic in 2020, Maryland’s elections were conducted largely by mail under the governor’s pandemic state of emergency. Elections officials were allowed to confidentially tabulate mail ballots as they arrived, releasing the results after the polls closed on Election Day.
After the state of emergency expired, state lawmakers passed a bill that would have permanently allowed the early counting, but they were thwarted by a veto from Hogan, who objected to other provisions of the bill. On Friday, Hogan said “partisan legislators dropped the ball” on making the new schedule permanent.
Hogan’s veto of the bill meant the July primaries were conducted with the pre-pandemic schedule for counting mail ballots after Election Day, and, in several cases, it took weeks to know the winners and certify results.
So the Maryland State Board of Elections turned to the courts, submitting a petition asking for permission to change the counting schedule for just this one election.
Cox filed to intervene in the case in opposition to the change. His lawyers argued in court earlier this week that it’s inappropriate for the courts to change how elections are conducted, as that is a power vested in the legislature. They also said this situation is not an emergency because it was foreseeable.
An attorney for the elections board, Daniel Kobrin, said that while elections officials knew mail ballots would be popular, they did not know the full scope and problems of the situation until they went through the primary election process.
The judge found both that it was constitutional for the court to intervene and that an emergency situation existed that warranted the change in the ballot tabulation schedule.
Democratic gubernatorial candidate Wes Moore, meanwhile, has made statements in support of counting the mail ballots early. He has alleged that Cox is trying to sow distrust in the electoral system.
“The court today ruled in the interests of democracy and common sense and shot down Dan Cox’s dangerous efforts to undermine our electoral process,” Moore campaign spokesman Carter Elliott IV said in a statement.
Elliott noted that every other state in the nation counts mail ballots ahead of Election Day.
“With this ruling, it’s time for Dan Cox to finally put our democracy ahead of his blind loyalty to Trump and commit to accepting the results of this election,” Elliott said.
State Sen. Cheryl Kagan, who had sponsored the bill that would have made early counting of mail ballots permanent, said she was “thrilled and relieved” with the judge’s ruling.
“Indeed it was right for democracy that mail-in ballots be counted in a timely way,” Kagan, a Montgomery County Democrat, told reporters outside the courthouse.
The judge’s ruling only applies to this fall’s general election, and Kagan said lawmakers are already discussing drafting a bill for 2023 that would make the early counting permanent.