Maryland’s highest court to hear mail-in ballot counting dispute Friday

Maryland’s highest court will hear an appeal challenging the early start to mail-in ballot counting this fall.

The Maryland Court of Appeals has set a hearing date for Friday to hear arguments from the Maryland State Board of Elections, which asked to begin counting ballots Oct. 1, and from Republican gubernatorial candidate Dan Cox, who has challenged the move. Cox has argued that a court order allowing early counting would violate the state constitution.


Both parties have been asked to submit arguments ahead of Friday’s hearing.

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 in September, 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 coronavirus 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.

Cox challenged the state board’s petition last month, arguing it would violate the separation of powers outlined in the state constitution. He also said the situation was not an emergency.

Last week, Cox filed an appeal with the Court of Special Appeals, but lost a bid to get an emergency hold placed on ballot counting.

The Maryland State Board of Elections asked the Court of Appeals — the state’s highest — to hear Cox’s appeal on an expedited basis.

Each day “dedicated to litigation is one less day to alleviate the impact of the volume of mail-in ballots that will be cast in the upcoming election and will thus diminish the relief provided by the emergency remedy,” wrote Daniel Kobrin, an attorney for the elections board.


While local boards of elections were free to begin counting any mail-in ballots over the weekend, most said they would not because those ballots were just starting to be sent out and have not yet been returned. Ballots were not due to be sent to most Central Maryland voters who requested them until this week, although other areas started mailing them out Thursday.

Voters already have signaled they plan to participate in higher numbers using mail-in ballots this fall. As of Sunday, five weeks ahead of the election, 543,470 voters had requested mail-in ballots. That eclipses the 508,000 who requested such ballots for the spring primary.