The counting of mail-in ballots for the November election can begin Oct. 1 across Maryland, a Montgomery County Circuit Court judge ruled Friday.
The ruling, issued from the bench by Judge James A. Bonifant, sides with the Maryland State Board of Elections, which filed a petition asking for emergency authorization to begin counting earlier than state law allows in hopes of avoiding delays in results like Maryland saw after the July primary.
Bonifant’s opinion dismissed an argument from Republican gubernatorial nominee Dan Cox, who argued during a hearing earlier this week that such a move would violate the separation of powers established in the state constitution. Cox’s attorney also argued the situation did not constitute an emergency.
Cox has not yet said whether he plans to appeal the decision. His attorney Ed Hartman said after Friday’s ruling that he had not yet spoken to Cox about the prospect.
Maryland has been grappling with a surge in the use of mail-in ballots since 2020, when the pandemic first interrupted the state’s traditional voting systems. That year, with a state of emergency in place via a declaration from 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 the canvassing of mail-in ballots until the Wednesday following 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 that 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. Legislators can only call themselves back to Annapolis for a special session in the case of a budget bill veto, which Hogan’s decision was not. Otherwise, only Hogan could call legislators into a special session.
Cox’s legal team argued that it’s up to the legislature to manage elections, a task the General Assembly took up and failed to complete. Hartman, one of Cox’s attorneys, argued Tuesday that emergencies are unforeseen circumstances. The fact the legislature months earlier contemplated issues caused by a glut of ballots shows it wasn’t an emergency, he said.
Bonifant said Friday there’s “no doubt that the increased amount of mail-in ballots will have an enormous effect on the process in this election.”
It’s also clear, Bonifant said, that “a situation as drastic as a declared state of emergency is not necessary for the court to act.”
The judge said he believed his decision to be constitutional.
“The court is satisfied the undisputed facts of this case amount to emergency circumstances envisioned by the law,” he said.
Of the decision, Hartman said he was “very impressed with Judge Bonifant’s thoughtfulness and the care that he gave this ruling.”
The Maryland State Board of Elections released a statement saying it was pleased with the decision.
“This ruling provides election officials with additional time to canvass and tabulate these ballots to ensure that all critical election-related deadlines established by law are met,” the board said.
With no emergency measures in place, counting of the 345,000 mail-in ballots cast began two days after the July 19 primary. Another 646,000 voters cast ballots in-person or during early voting during the primary, which featured highly competitive Democratic and Republican contests for governor along with races for attorney general, comptroller, Congress and the Maryland General Assembly.
In-person returns were largely tallied and posted on primary night, but results of the mail-in ballots came later, causing candidates’ vote totals to change daily.
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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 vote counting to become clear.
An extended counting process in some counties delayed final results in some races up to 30 days, particularly those that required recounts. Recounts for state races, including localized contests for delegate, cannot begin until after the state has certified the election results. State certification cannot happen until ballot counting is complete across all counties.
Hogan issued a statement Friday saying he “welcomes” the court’s decision. The governor, whose term will expire in January, blamed “partisan legislators” for forcing the issue to the court system.
“It worked well in that election,” he said of 2020 when early canvassing was permitted.
Voters already are signaling they will participate in higher numbers using mail-in ballots this fall, Daniel Kobrin, an assistant attorney general representing the state election board, told the judge earlier this week. During the primary, 508,000 voters requested mail-in ballots. With the general election still seven weeks away, 524,000 voters already have requested them, he said.
Elections officials began sending ballots to military and overseas voters Friday. Ballots will be sent to other voters who requested them beginning Thursday.
The results of preelection ballot counting will be withheld until the polls close on Election Day.