Maryland Mail-in Ballot Counting

On Friday, Oct. 7, the Maryland Court of Appeals heard arguments regarding an appeal of a Sept. 23 decision to allow local Maryland boards of elections to begin canvassing (the process by which the local board of canvassers “review[s] ballots and the envelopes with the ballots inside”) and counting mail-in ballots beginning on Oct. 1, 2022. This appeal stems from a lawsuit filed on behalf of the Maryland State Board of Elections (MBOE) seeking emergency relief to allow canvassers to “meet and to open envelopes, canvass, and tabulate mail-in ballots no earlier than 8:00 a.m. on October 1, 2022.” Currently, Maryland election law “[f]orbids the opening of any mail-in ballot envelope” before 8 a.m. on the Wednesday following Election Day. Maryland is the “only state with such a restriction.” The MBOE argued that the influx of mail-in ballots and the limitation on when they can be counted “caused cascading issues through the local and statewide canvassing and certification process” during the 2022 primary election. The Republican gubernatorial candidate, Dan Cox, intervened in the lawsuit, arguing “that the court did not have the power to intervene, saying the authority to change the rule rests with the General Assembly,” invoking the radical independent state legislature theory. On Sept. 26, Cox appealed the lower court’s decision to allow local boards of elections to begin counting mail-in ballots on Oct. 1. Today, the Maryland Court of appeals heard arguments from an attorney representing Cox and an attorney representing the MBOE. 

First, the court heard from the attorney representing Cox, who will hereafter be referred to as the appellant’s attorney. The appellant’s attorney argued that the lower court’s holding, which granted the MBOE’s requested relief — to begin canvassing and tabulating ballots after Oct. 1 — should not have been granted because “[this situation] does not constitute an emergency.” Additionally, the appellant’s attorney argued that deciding to grant the relief sought by the state is not a judicial function: “You cannot under the United States and Maryland constitutions. This is not a judicial function…This is not [the court’s] position.” When asked about the domino effect that not allowing boards to begin canvassing and tabulating ballots on Oct. 1 would cause, the appellant’s attorney argued that this is a question the court cannot fix: “Otherwise, this court becomes the Legislature and…then you become all powerful and you can decide the legislative policy, because the reply brief talks about how this this action is consistent with legislative policy. It is in fact directly contrary to and replacing your legislative policy on this issue that was set by the Legislature this year and by the governor whether we like it or not, that the current policy is that there are many changes to this law.”

Next, the attorney for the MBOE argued that the state is simply seeking a temporary suspension of the law in emergency circumstances to ensure there is ample time for boards of elections to canvass and tabulate ballots to meet deadlines for certification of election results. He argued that the main issue the MBOE is facing “is space. The mail-in canvass has to take place at a different spot, a different physical location, than the polling place or any other canvass. And in order to conduct the mail-in canvass, we have to have separate spaces for each ballot team because you don’t want a team of two people working on a stack of 25 ballots, mixing their ballots with another team of two people so you have to have enough space to place everybody at a good distance for health reasons as well. And those spaces are leased if those spaces are set at the beginning of the year. Actually, for a lot of the boards, they’re dedicated spaces, they’re in the board of elections offices.” 

The MBOE attorney then turned to addressing the appellant’s argument that the court does not have jurisdiction over this matter, stating “You have a decision by the [state] Supreme Court on a discrete set of facts with a remedy that only approaches and affects the discrete set of facts as to the party before it. You have the [Maryland] State Board of Elections required to certify results and to report results according to a timeline and an adjudication of the State Board of Elections’ right to violate or not on statutes and avoid violating those statutes by asking for remedy in circumstances where there’s a certain number of ballots in a certain election and certain provisions that apply to that election.”

The appellant’s attorney was then given 10 minutes for rebuttal. During this time, he once again argued that this is a decision for the Legislature, not the courts, arguing, “[t]hat is not [the court’s] job. That is the job of the General Assembly and shame on them if they didn’t do it right. But that doesn’t mean that the [Maryland] Constitution authorizes us to swoop in and fix what they did. The [state] constitution requires separation of the branches and governments for the very reason, imagine where this would go.” 

Finally, the court adjourned.