Maryland’s highest court allows early counting of mail ballots in general election

Published on: October 07, 2022 6:00 AM EDT|Updated on: October 07, 2022 5:12 PM EDT

Ballot counters remove ballots from the envelopes.
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Maryland elections officials will be able to tabulate mail ballots as they arrive from voters this fall — but not release the results until after polls close — the state’s highest court ordered on Friday.

The ruling from the Maryland Court of Appeals means that Maryland voters and candidates are likely to get results from the election much faster than in the summer primary, which in some cases took weeks.

The Court of Appeals issued only a brief order on Friday afternoon; a full ruling explaining the court’s rationale is expected later. The order came just hours after lawyers argued for and against early counting.

The order allows local boards of election to start setting up plans for processing and counting the mail ballots as soon as possible. No results would be released until after polls close for in-person voting on Election Day, Nov. 8.

“This decision will be instrumental in assisting local election officials complete the timely canvassing and tabulation of these ballots and meet all relevant statutory deadlines,” the Maryland State Board of Elections said in a statement Friday.

The question before the court was whether to uphold a lower court’s ruling that allows the early counting of mail ballots for this election, rather than the standard post-Election Day counting that could take weeks due to an expected crush of Marylanders voting by mail.

The issue of counting mail ballots has been the subject of a series of legal filings and court decisions in recent weeks.

The Maryland State Board of Elections sought and won permission from a lower court judge to begin processing and tabulating vote-by-mail ballots as early as Oct. 1. Results of those mail ballots would not be released until after the polls close on Election Day.

Republican gubernatorial candidate Dan Cox appealed that ruling to the Court of Special Appeals, the lower of the state’s two appeals courts. That court ordered that the pre-Election Day ballot counting can proceed while the case plays out.

Then the case was moved to the state’s highest court, the Court of Appeals, and put on an expedited schedule at the request of the Maryland State Board of Elections.

Cox sought to reverse the lower court’s ruling that allowed the early counting of mail ballots, and asked the court to invalidate the Maryland law that allowed elections officials to go to court in the first place.

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The case featured two central legal questions: Is it appropriate for the judicial branch to change the counting schedule, given that the legislature has the responsibility to set out election rules? And does an emergency exist that warrants intervention?

Cox’s attorney, Ed Hartman, argued in court Friday morning that having the court adjust the ballot-counting schedule is a violation of the separation of powers between branches of government. The Maryland constitution vests authority over elections in the legislative branch, not the judicial branch.

If the court changes the ballot tabulation schedule, that would amount to a change in state policy, Hartman said, which is the job of the legislature.

Additionally, Hartman argued that the situation at hand — having a crush of mail ballots to count — was a foreseeable problem and does not amount to “emergency circumstances” that requires court intervention.

The enormous number of mail ballots in the 2022 election should have been anticipated after strong participation in 2020′s elections that were held mostly by mail, Hartman argued. This year’s situation, Hartman told the court, was “not sudden.”

“It’s been coming since 2020,” he said.

State lawmakers attempted to change state law to permanently allow the early counting of mail ballots, but their legislation was vetoed by Gov. Larry Hogan this spring because he said it lacked a signature verification requirement for mail ballots.

Daniel Kobrin, an assistant attorney general representing the Maryland State Board of Elections, countered that while elections officials could anticipate some of the popularity of mail ballots, they couldn’t predict precisely. Before the coronavirus pandemic, only 5% of voters used mail ballots, compared to 51% in this summer’s primary.

“We didn’t know between 5% and 51% how many people would vote by mail” this fall, Kobrin said.

Both attorneys were peppered with questions from the appeals court judges throughout their presentations. Some of the questions focused on whether the current situation meets the definition of “emergency circumstances” and whether the proposed solution of tabulating mail ballots as early as Oct. 1 would be the most narrowly-tailored solution.

Ultimately, the seven-judge court agreed with the Maryland State Board of Elections and upheld the lower court’s ruling.

Cox did not immediately respond to the court’s order on Friday afternoon. Earlier in the day, he did not rule out the possibility of appealing to the U.S. Supreme Court. Such an appeal would be required to involve a question of federal law; no such question has been raised in this case.

Cox was asked by reporters if he would honor the election results, should the court allow the early counting of mail ballots.

“I certainly will respect the court’s decision,” Cox said. “And in terms of the election, we’re going to make sure that we uphold the process of the Constitution and law.”

Hogan praised the court’s ruling, noting that under a pandemic state of emergency he had allowed early counting of mail ballots in the 2020 election. That election proceeded without issue.

“I want to thank the Court of Appeals for upholding the decision to allow for early canvassing for the general election,” Hogan said in a statement. “This means we will have the same process that I instituted for the 2020 election.”

Even though the prior rulings in the case allowed mail ballots to be counted as early as Oct. 1, no local boards of elections have started tabulating ballots.

As of Thursday, only 1,237 mail ballots had been returned to local elections officials. Already, more than half a million Maryland voters have requested mail ballots, and voters can continue to request them through early November.

In-person early voting in the general election starts Oct. 27 and traditional Election Day is Nov. 8. Mail ballots must be postmarked or placed in ballot drop boxes by 8 p.m. on Election Day in order to be counted.

While Cox, the Republican nominee for governor, has challenged the early count of mail ballots, his opponent, Democrat Wes Moore, has offered no objections. Moore and the Maryland Democratic Party have questioned whether Cox’s true intent is to sow distrust and confusion in election results, as polls indicate Cox is significantly trailing Moore.

“Dan Cox’s disrespect for the democratic process is never-ending,” Maryland Democratic Party spokesman Ernest Bailey said in a statement. “Cox seems more focused on forcing ballots to be counted late, reproducing the same situation he used to claim fraud as a part of Trump’s legal team in Pennsylvania in 2020, than actually trying to win support from Marylanders.”