BALTIMORE — Maryland’s highest court upheld a decision to allow early counting of mail-in ballots prior to the November election, overruling an argument raised by Republican governor candidate Dan Cox that the move is unconstitutional.
The opinion, issued by the Maryland Court of Appeals Friday, affirms a decision made by Montgomery County Circuit Court Judge James A. Bonifant last month to allow ballot counting to begin as early as Oct. 1 to accommodate a deluge of mail-in ballots expected this fall. State law, established before the widespread use of mail-in ballots that began during the pandemic, does not allow the ballots to be counted until after the election — a scenario elections officials say would have meant blown certification deadlines.
Although Bonifant’s ruling was issued last month, no local election boards have begun counting ballots yet for practical purposes. Mail-in ballots were not sent to most voters across the state until this week, and local boards have too few in hand to count.
The Court of Appeals decision marks the end of the in-state options for Cox, who has not ruled out the idea of appealing to the U.S. Supreme Court. Cox declined Friday to speculate on his options.
“As a member of the Supreme Court bar, I am always proud of the constitutional process, that you can always appeal to the Supreme Court, but that’s not something that’s even considered at this point,” he said before the decision came down.
Cox, represented by attorney Ed Hartman, argued Bonifant’s ruling violated the state constitution and the powers of the judicial system.
“They probably do have a daunting task ahead of them. The good people who work there are going to be under an immense amount of pressure,” Hartman told the court, acknowledging the challenge election boards will have in processing the ballots that are expected to arrive.
With five weeks to go before the election, 549,681 voters had requested mail-in ballots. Maryland has about 3.8 million eligible active voters.
Hartman said the difficulty of the ballot count is “not relevant.” It’s up to the legislature, not the courts, to make election decisions, he said.
The legislature did attempt to address the timing crunch. Lawmakers passed a bill ahead of the July primary that would have permitted counting to begin in advance, provided results are embargoed until Election Day. Gov. Larry Hogan vetoed the bill in May, saying he supported the canvassing change, but objected to other elements of the legislation dealing with election security. By that time, the General Assembly was no longer in session and could not override the veto.
Without legislation in place, counting of mail-in ballots for the July primary did not begin until after the election. Races with wide margins, such as Cox’s victory over Republican Kelly Schulz, were settled on primary night. But others, like Democrat Wes Moore’s victory in his party’s nine-way gubernatorial primary, had to wait until after the second full day of mail-in counting to become clear.
The extended counting process in some counties delayed final results in some races for up to 30 days. State elections officials argued they cannot sustain such a delay this fall because some local officials are due to be sworn in in early December.
During a hearing Friday, judges on the seven-member Court of Appeals asked numerous questions about deadlines that were likely to be missed if ballot counting were to be delayed.
Judge Angela M. Eaves asked what Maryland’s voters are to think if the court does not act, knowing that deadlines for certifying the results of the election likely would not be met.
“The question isn’t whether we should or shouldn’t,” said Ed Hartman, an attorney for Cox. “The question is whether you can. Under the United States and American constitutions, this is not a judicial function.”
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