As the statewide results of the July primary were certified Monday — and multiple recounts in the state are set to get underway later this week — the Maryland State Board of Elections voted unanimously to seek legal action to allow earlier processing of ballots in November’s general election.
Maryland’s extended counting of ballots came after Gov. Larry Hogan (R) vetoed a bill passed by the General Assembly that would have allowed processing and counting of mail-in ballots eight days before early voting started in the July 19 primary.
As a result of the veto, the first canvass of mail ballots allowed under existing law started two days after election day; Montgomery County finished ballot counting this weekend, nearly a month after polls closed.
Compounding the issue has been an explosion in popularity of mail-in balloting during the COVID-19 pandemic.
More than 11 times as many mail-in ballots were requested this primary compared to 2018, the last time the current rules were used for counting mailed ballots.
The board’s decision to pursue a legal case came after multiple closed-session meetings about the issue in the run-up to the primary election and since.
In June, the board concluded there was no time before the primary to pursue legal relief to allow for early ballot counting, but Board Chair William Voelp indicated he would support a policy shift before the general.
The board currently includes three Republicans and one Democratic member after the death last month of Malcolm Funn.
“I think that this is a prudential step that we’re taking … and I think the appropriate avenue here is to seek judicial relief in a circuit court to allow the counting of mail-in ballots before Election Day so that we can get ahead of the curve, and to simply not release those results until after Election Day is completed,” Severn Miller, a Republican board member, said.
Justin Williams, the Democratic member of the panel, noted that without judicial relief, ballot counting after the general election could be further complicated by holidays and scheduling conflicts for election workers.
“The issue could be worse for the general election, given the timeline for election results to be certified, for candidates like those running for Congress to take office,” Williams said. “…If the timing is the same as for the primary election, it could be until Christmas or New Year’s that we get the results.”
The case is expected to be filed in Anne Arundel County Circuit Court.
The state board will ask a judge to find that emergency circumstances require the court to intervene to protect the integrity of the electoral process. The filing is not an adversarial petition, so there will be no defendant in the case.
In 2020, Hogan issued a pandemic-related executive order that allowed local boards of election to start counting more than a million mail-in ballots more than a month before election day.
Hogan was urged this June by Sen. Cheryl Kagan (D-Montgomery), who sponsored the vetoed bill, to take executive action to once again allow early counting. But the governor’s office said the conditions didn’t exist for him to change election deadlines by declaring a state of emergency under current state law.
According to the National Conference of State Legislatures, Maryland was the only state this primary election season that specifically prohibited processing mail-in ballots before the polls closed on Election Day.
Even as the July primary results were certified on Monday, some county elections boards were preparing for recounts.
In Frederick County, a manual recount of paper ballots in the one-vote race for a county council seat is expected to begin at 9 a.m. Tuesday.
In Prince George’s County, recounts in two races for the House of Delegates are expected to start next week.
In District 23, a three-member delegate district, Kym Taylor is 19 votes, or a .11%, margin, ahead of fourth-place finisher Jocelyn Collins.
In District 24, which is also a three-member district, third-place finisher Tiffany Alston, a former delegate, is 101 votes, or .19%, ahead of LaTasha Ward in the decisive Democratic contest.
And the closely watched Montgomery County executive race will head to a recount this week, which is expected to begin on Friday. After certification, incumbent Marc Elrich maintains a slim 35-vote lead over challenger David Blair in the likely decisive Democratic primary. That recount, a county-wide tabulation in the state’s most populous jurisdiction, is expected to continue for several days.
Editor’s Note: This story was updated to include a new anticipated start date for the Montgomery County recount.