Lawyers for state elections officials and gubernatorial candidate Dan Cox argued in court Tuesday over whether mailed ballots should be processed and counted as they come in for the general election, rather than after the polls close.
Montgomery County Circuit Court Judge James Bonifant said he’d issue a ruling at 3 p.m. Friday on the request, which was made by the Maryland State Board of Elections. Lawyers for both sides spent 90 minutes arguing before Bonifant on Tuesday, and he rated their efforts as “excellent.”
At issue is whether elections officials can, starting Oct. 1, process ballots that are returned by mail or dropbox. Elections officials want to start that work early as they anticipate a deluge of those ballots, and it could take weeks to process and count them all following the current schedule that allows for counting of those ballots to start two days after Election Day.
The early work on mailed ballots took place without incident in Maryland’s 2020 elections during the height of the coronavirus pandemic. It was allowed under a state of emergency that was in place. After the state of emergency expired, state lawmakers sought to change the law that sets the ballot-counting calendar, but was foiled by a veto from outgoing Republican Gov. Larry Hogan.
The arguments for and against the early processing of ballots boiled down to two questions: whether it’s appropriate for a court to step in and change the calendar, and whether a true emergency exists that necessitates the change.
Here’s are key points the lawyers made to the judge on Tuesday:
Can the court intervene and change the election calendar?
Cox’s lawyers argued in filings and in open court Tuesday that this request runs into an issue of separation of powers. In short, they said the state constitution dictates that the legislature makes decisions about elections, not the court.
The legislature already had its chance to change the law and update the ballot-counting calendar, and they were not successful, argued Ed Hartman, an Annapolis-based attorney for Cox.
“You don’t get two bites at the apple,” he said.
Hartman noted that lawmakers did not give themselves enough time to override Hogan’s veto.
“This was a conscious decision by the General Assembly,” Hartman said.
Daniel Kobrin, an assistant attorney general representing the Maryland State Board of Elections, said there are numerous examples of judges issuing orders that affect elections. Among them: The Court of Appeals postponing this year’s primary while there were challenges to the new district maps. He also noted that judges have extended Election Day voting hours when there have been problems at the polls.
There are specific instances when the judicial branch can make decisions about elections, just as the executive branch is given authority to actually run the elections, Kobrin said. Cox is taking an “absolutist” position on the separation of powers, which is “demonstrably incorrect,” he said.
The elections board isn’t asking the court to permanently change the law, which would be the purview of lawmakers, Kobrin said. Rather, the board is asking for a one-time suspension of the law to allow for the calendar adjustment.
Is there a true emergency that needs to be addressed?
Kobrin and the Maryland State Board of Elections said that while they knew there were likely to be more mail ballots this year, they didn’t fully know the extent of the problems that would cause until the primary election took place.
Elections officials did not know exactly how many people would vote with mailed ballots and how long it would take to count them all, Kobrin. In some cases, it took more than a month after the July 19 Election Day to certify the elections and conduct recounts where they were requested.
Armed with that information, the elections board now worries that it could take until the end of December to finalize the fall election — well after county executives and county council members are supposed to be sworn into office, he noted.
“The question becomes who is the county executive after that date?” Kobrin said.
It’s important, he said, to make sure elections results are settled in a timely manner to that the public has confidence the process.
Cox’s team, meanwhile, argued that the ballot-counting issues were forseeable. After all, the 2020 elections were conducted largely by mail, the legislature tried to change the calendar and there was plenty of public discussion about the ballots.
While elections officials may be in a “tough situation,” it doesn’t rise to the level of an emergency, Hartman said. The problems were not a surprise, and therefore not an emergency, he said.
“The emergency concept is right out the window,” Hartman said.
Opposing points of view
While Cox argued against the early processing of ballots, his opponent, Democrat Wes Moore, has said he has no qualms with the early processing. Moore told The Baltimore Banner last week that he’s concerned Cox is attempting to sow doubt in the elections process. Cox participated in former President Donald J. Trump’s legal efforts in Pennsylvania after losing the 2020 election.
“This is just a continuation of my opponent throwing conspiracy theories and doubts into the election cycle,” Moore said. “He continues to get talking points from Mar-a-Lago.”
Cox told reporters outside the courthouse that this is a matter of election integrity and respecting the separation of powers between the branches of government.
“That just undermines the confidence of the voters ... if we start to try to convene a legislative session here at the Montgomery County Circuit Court, rather than the constitutional process at the State House in Annapolis,” Cox said.
Cox would not say whether he would appeal the judge’s ruling if it does not go in his favor.