Court of Appeals upholds judge's ruling that Maryland mail-in votes can be counted early

The Court of Appeals upheld a judge's decision that mail-in votes can be counted ahead of November's Election Day.

Last month, Montgomery County Circuit Judge James Bonifant granted an emergency petition filed by the Maryland State Board of Elections to allow the canvassing of mail-in ballots to begin Oct. 1.

Bonifant wrote that with so many mail-in ballots, which have become more popular amid the COVID-19 pandemic, local boards of election would not be able to verify the vote count within 10 days of the general election as required. That would put into jeopardy the seating of winning candidates by the dates of the next term of office, Bonifant noted.  

Republican Governor candidate Dan Cox appealed the judge's ruling.

Judges on Maryland's highest court questioned a lawyer's argument Friday that it would be unconstitutional to let mail-in ballots be counted earlier than currently allowed.

Attorney C. Edward Hartman told the Court of Appeals that it was up to the General Assembly, not the courts, to change the law. In fact, the legislature passed a measure to allow the earlier counting of mail-in ballots this year, Hartman noted, but Gov. Larry Hogan vetoed the bill because of other provisions in it he did not support.

That appeal was rejected Friday afternoon.

"The Maryland State Board of Elections (SBE) is pleased the Court of Appeals has upheld the Circuit Court's ruling to permit local elections officials to begin statewide canvassing of mail-in ballots prior to Election Day," the Maryland State Board of Elections said in a statement. "This decision will be instrumental in assisting local election officials complete the timely canvassing and tabulation of these ballots and meet all relevant statutory deadlines."

Mail-in ballots have already started getting mailed out to Maryland voters.

An election denier who has taken a series of hard-line conservative positions, Cox faces disdain from fellow Republican and outgoing Gov. Larry Hogan, who told WJZ he will not be voting for Cox in November.     

Hartman argued that the state needs to follow constitutional requirements because "once we begin approving the blurring of the lines between the three government branches, we start a slippery slope downhill."

But Court of Appeals Judge Angela Eaves asked: "We're talking about this general election only, so should we just accept the domino effect and the turmoil that that could cause?"

Hartman said it's not a question of whether the state should or shouldn't.

"The question is whether we can, and I believe we cannot. Under the United States and Maryland Constitutions, this is not a judicial function," Hartman said.

Eaves questioned how the delay in counting the ballots could prevent elected officials from beginning their terms to start addressing important issues for the public.

Eaves asked: "Should citizens just say, 'Well, I guess we'll just have to wait to address these important issues that affect us? ... So the domino effect doesn't matter at all?'"

Hartman replied: "It does matter, but it doesn't mean that it's one that this court can fix. Otherwise, this court becomes the legislature."

Dan Kobrin, an assistant attorney general who argued on behalf of the Maryland State Board of Elections, said the board petitioned the court under a constitutional delegation of power from the legislature to the judiciary for a narrowly tailored remedy that is available because of emergency circumstances for the public interest.

"You have a decision by the Circuit Court on the discrete set of facts with a remedy that only approaches and affects the discrete set of facts as to the party before it," Kobrin said.

Counting mail-in ballots before Election Day was allowed in 2020 during a state of emergency, when voting by mail increased due to the pandemic. But because the state of emergency expired, the state went back to a law that doesn't allow mail-in ballots to be counted until after Election Day.

Mail-in ballot counting did not begin until two days after the primary in July, leaving the outcomes of many races unknown for days.

This is a big election year in Maryland, with statewide offices like governor, attorney general and comptroller on the ballot, as well as all 188 seats in the General Assembly, the state's eight U.S. House seats and a U.S. Senate seat.

As of Wednesday, 549,681 voters had requested mail-in ballots in Maryland. That's more than the 508,000 who asked for them in the primary. Maryland has about 3.8 million eligible active voters.

Pre-Election Day canvassing would be conducted in public on published dates, the board said. The results of preelection canvasses will be withheld until the polls close on Election Day.