A request for an emergency order to delay the start of mail-in ballot counting in Maryland has been denied by the Special Court of Appeals, allowing election officials to begin counting as soon as Saturday though many said they would not.
In a one-paragraph order issued late Thursday, Judge Douglas R.M. Nazarian struck down an effort by Republican gubernatorial nominee Dan Cox to put a hold on ballot counting as he appeals a lower-court ruling allowing the process to begin as early as Saturday.
The Maryland State Board of Elections asked for the early start to accommodate a deluge of mail-in ballots expected to be cast this fall. Montgomery County Circuit Judge James Bonifant sided with the board last week, agreeing the situation constitutes an emergency.
Maryland law, established before the widespread use of mail-in ballots that became popular during the pandemic, forbids the 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.
During the pandemic, election officials across the state counted ballots weeks in advance under an emergency authorization from the Maryland State Board of Elections. That move was permissible due to the state of emergency declared by Republican Gov. Larry Hogan.
Since then, the state of emergency declaration has expired and the state’s election process has reverted to existing law, causing delays during the July primary, when mail-in ballots were not tallied until after the election.
The general election is Nov. 8.
The state election board filed a petition seeking to begin counting ballots Saturday, a move challenged by Cox, who argued it would violate the separation of powers outlined in the state constitution. He also said the situation was not an emergency.
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.
On Tuesday, Cox filed a notice of appeal and asked the Court of Special Appeals to prevent early ballot counting, arguing his appeal would become moot once ballot counting begins.
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Earlier Thursday, the State Board of Elections filed an argument against the delay of ballot counting, saying Cox failed to meet the standards for such a stay. Cox needed to show he would be irreparably harmed by the decision and demonstrate that it would be in the public’s interest, the board said. The likely success of his appeal also must be weighed. The board argued Cox is unlikely to succeed.
While Cox’s motion to delay ballot counting has been denied, his appeal remains active, said Ed Hartman, one of his attorneys. Asked whether his appeal would become moot once ballot counting begins as he argued in several filings with the appeals court, Hartman said, “I am concerned.”
“We’ll know more tomorrow, I suspect,” he added.
The Maryland State Board of Elections declined to comment on the court’s decision, saying it will not weigh in on pending litigation.
While the appellate decision clears the way for ballot counting to begin Saturday, election officials across the state said they were unlikely to start canvassing that day. The state’s ballot vendor did not start mailing the ballots to voters until Thursday, and voters in some parts of the state won’t have theirs mailed until the middle of next week.
Ballots for Carroll County voters were mailed Thursday. Those for Anne Arundel County voters will be mailed on Friday. Ballots for Harford and Howard county voters will be mailed Monday, while those for Baltimore City are expected to be sent Tuesday. Baltimore County voters will have their ballots mailed Wednesday.
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.