Start of early ballot counting unsettled in Maryland pending outcome of legal challenge

A legal battle over when Maryland can begin counting mail-in ballots for the Nov. 8 election continued Wednesday with only days remaining until an anticipated early start date of Saturday set by a judge last week.

Dan Cox, the Republican nominee for governor, filed Tuesday for an emergency stay of ballot counting across the state, arguing Montgomery County Circuit Court Judge James Bonifant’s order allowing early counting violates Maryland law.


Cox asked the Maryland Special Court of Appeals to hear the case quickly, saying it will become moot if ballot counting begins Saturday as scheduled.

Thus far, the appeals court has granted Cox’s motion for expediting filings in the case, but no decision had been made by 6 p.m. Wednesday on his request to put early ballot counting on hold. The Maryland State Board of Elections has until Thursday afternoon to file a response in the case.


Nor had the state board of elections issued guidance to local election boards across the state about whether their counting can begin Saturday. It’s not planning to because none of the local boards has enough ballots in hand to count, said Nikki Charlson, the board’s deputy administrator.

Most ballots won’t be mailed out to voters until Thursday or later, and most of Central Maryland’s ballots won’t be mailed until next week. The installation of ballot drop boxes began Monday and is expected to be completed Friday.

Asked his understanding, David Garreis, director of the Anne Arundel County Board of Elections, said Wednesday the “current canvass schedule begins the Thursday after Election Day.” He referred any further comment to the state board of elections due to the pending litigation.

Katherine Berry, director of the Carroll County Board of Elections, said the county’s board likely would not start counting mail-in ballots until the week of early voting, which begins Oct. 27.

Guy Mickley, director of the Howard County Board of Elections, said the county does not yet have mail-in ballots ready to send out.

“If we were to count early, it wouldn’t be until the Oct. 22-23 timeframe,” he said.

The state board of elections requested the Oct. 1 early start date for ballot counting in response to delays in counting and the release of results following the July 19 primary due to a deluge of mail-in ballots. An attorney for the board successfully argued before Bonifant last week that delays were again likely this fall and an emergency order to begin counting early was necessary.

Use of mail-in ballots has surged in Maryland since 2020, when the pandemic first interrupted the state’s traditional voting systems. That year, with a state of emergency declared by Republican Gov. Larry Hogan, elections officials began counting ballots weeks ahead of the election with emergency authorization from the Maryland State Board of Elections.


Since then, the state of emergency has been lifted, and Maryland reverted to a law that forbids canvassing of mail-in ballots until the Wednesday following an election. An additional state regulation set by the board of elections further delays that counting process until 10 a.m. the Thursday after an election. That’s the latest start in the nation for mail-in ballot counting.

State lawmakers attempted to rectify the situation ahead of the July primary, passing a bill that would have permitted counting to begin in advance provided results are embargoed until Election Day. 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.

Cox’s attorneys acknowledged the likely delays that would be caused by counting a large number of mail-in ballots, but argued governing elections is a legislative function, not an issue for the court system to decide. They also argued the situation was not an emergency since the legislature addressed the issue earlier in the year.

Bonifant said last week there’s “no doubt that the increased amount of mail-in ballots will have an enormous effect on the process in this election.”

“The court is satisfied the undisputed facts of this case amount to emergency circumstances envisioned by the law,” he said.

The state board of elections met Wednesday and was briefed on the pending appeal. A question on the matter was reserved for a closed session meeting.


“We’re hoping to have a decision soon in that case,” said Daniel Kobrin, the board’s attorney.

Meanwhile, the board voted unanimously to suspend the regulation requiring local boards to begin counting mail-in ballots at 10 a.m. the Thursday following the election.

During a Tuesday evening forum at Morgan State University, Cox said he supports early ballot counting and is not opposed to changing the law “if we do it constitutionally.” As a state delegate, Cox voted earlier this year against the bill that would have allowed early counting.

“My concern is we’re midstream — we’re literally 42 days out from the election,” he said. “And with 42 days out from the election, one way to create confusion is to change the law midstream.”

Maryland Policy & Politics

Maryland Policy & Politics


Keep up to date with Maryland politics, elections and important decisions made by federal, state and local government officials.

Asked whether he would accept the results of the election, Cox said he has “always embraced and respected election outcomes.” An ally of former Republican President Donald Trump, Cox helped spread the president’s unproven claims of widespread election fraud in 2020.

“I don’t believe in making a system that creates a question,” Cox said. “I don’t believe in losing our chain of custody with our mail-in ballots.”


During the July primary, about one-third of participating voters made their choices using mail-in ballots. Another 48% voted on Election Day, while 17% opted for early voting.

Voters already have signaled they plan to participate in higher numbers using mail-in ballots this fall. As of Tuesday, five weeks ahead of the election, 539,291 voters had requested mail-in ballots. That eclipses the 508,000 who requested such ballots for the spring primary.

Armstead Jones, Baltimore’s election director, said the city will not be counting ballots this weekend. Ballots are not due to be sent to city voters until next week, and Jones said he needs to have several thousand on hand before employees will be summoned to begin counting.

“You’ve got to have enough for a day of work,” Jones said.

Baltimore Sun reporter Hannah Gaskill and Baltimore Sun Media reporters Dana Munro and Sherry Greenfield contributed to this article.