The Court of Appeals, Maryland’s highest court, upheld lower court rulings on Friday that allow state election officials to begin counting mail-in ballots ahead of the November elections. The decision came just hours after lawyers for Del. Dan Cox, the Republican nominee for governor, and the state Board of Elections argued their cases. In its order, the court affirmed the decisions of Montgomery County Circuit Judge James Bonifant and the Court of Special Appeals that had rejected Cox’s claims that early ballot counting was unconstitutional.
It said it would give its reasons in an opinion to be published later.
Those decisions allowed local elections officials to begin counting mail-in ballots as early as Oct. 1, though none have done so yet.
The arguments before the court Friday centered around the definition of an emergency. Under state law, elections workers cannot start counting mail in ballots until after election day unless there is an emergency. Maryland was under a state of emergency declared by Gov. Larry Hogan in 2020 and the count could begin early. But that state of emergency has expired.
Elections officials have said they still are faced with an emergency as they have been deluged with requests for nearly 550,000 mail-in ballots with five weeks to go before the election. They predicted final results could be delayed by more than a month, missing December deadlines for local officials to be sworn in to office. In Montgomery County, it took 36 days after the primary to finish counting and certifying results.
But Ed Hartman, Cox’s lawyer, told the court the law defines an emergency as something “sudden, unanticipated, unforeseeable, unexpected.” This was none of that, he argued. It is merely a “difficult situation” that had been contemplated earlier this year when the General Assembly passed – but Gov. Larry Hogan vetoed – a law that would have allowed for early counting.
Daniel Kobrin, the assistant attorney general representing the state board of elections, countered that there was no way the board could have foreseen that a “once in almost a lifetime event” like the pandemic in 2020 could “so fundamentally change the voting patterns in Maryland, and that the current statutory change framework for canvass and certifying results would not be fit would be so ill suited for that change in Maryland's voting patterns.”
Earlier in the day Cox said he was “very confident that the court is going to…uphold the constitutional process in Maryland so that regardless of the issue in the future, we don't have this continuing presidential concern.”
Cox hinted he might try an appeal to the U.S. Supreme Court if he lost, but said it was “not something that’s even considered at this point.” It isn’t clear what grounds there would be to get into the federal system.
