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Election 2022 Government & Politics

Judge grants elections board request to count mail-in ballots as they arrive

The Montgomery County Courthouse in Rockville. Photo by Bruce DePuyt.

A Montgomery County circuit court judge sided with the state Board of Elections on Friday, ruling that Maryland elections officials may process and count mail-in ballots as they come in.

In granting the election board’s petition, Chief Administrative Judge James Bonifant accepted their argument that the expected deluge of mail-in ballots would result in a weeks-long delay before results could be tabulated, potentially creating turmoil. He rejected arguments advanced by attorneys for Del. Dan Cox (R-Frederick), the GOP candidate governor.

“There is no doubt that the increased number of mail-in ballots will have an enormous affect on the process of this election,” said Bonifant, in a ruling he delivered from the bench. “Mandatory deadlines will be missed if the court takes no action.” He stressed that his ruling applies only to this year’s elections.

The ruling followed a two-hour hearing that was held on Tuesday.

Speaking for the elections board, Assistant Attorney General Dan Kobrin warned that if elections officials were forced to let ballots pile up, untouched, until Nov. 9, the day after the election, charter counties like Montgomery, Prince George’s and Baltimore would likely not know by their December inauguration days which candidates for top local offices received the most votes.

Attorneys hired by Cox opposed the board’s request. They argued that the laws governing elections procedures are clear, and that only the General Assembly has the power to change them. Under current law, mail-in ballots must sit unopened until the day after Election Day.

Although Cox’s lawyers acknowledged that more voters than ever are likely to vote by mail this fall, they said the challenge of tabulating those ballots was foreseeable and did not constitute enough of an “emergency” to justify court action. They suggested that elections officials hire addition staff or recruit “volunteers.”

Bonifant, an appointee of Gov. Larry Hogan (R), rejected the candidate’s separation of powers argument, saying that it is “emphatically the province and duty of the judicial department to say what the law is.”

The state elections board applauded the judge’s ruling, which it said will allow local elections officials across the state to begin canvassing mail-in ballots on Oct. 1.

“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 in a statement. “It also enables elections officials to return to a well-established process of canvassing mail-in ballots prior to Election Day, which was allowed in the 2020 General Election.”

Ballots to military and overseas voters started going out Friday as required by federal law, and ballots to other requesting voters will be mailed next week, the board said. Pre-Election Day canvassing will be conducted in public on published dates, they added. The results of pre-election canvasses will be kept secret until the polls close on Election Day.

Hogan, a potential 2024 candidate for president, vetoed legislation that would have allowed local elections officials to count ballots as they arrive. Nonetheless, he said he welcomed the ruling, noting that Maryland waived its rules for the 2020 election, at the height of the pandemic, when the use of mail-in ballots skyrocketed.

“It worked well in that election, but partisan legislators dropped the ball on adopting our successful approach, making this step necessary,” Hogan said in a statement. “We thank the court for acting swiftly, and encourage Marylanders to take part in the electoral process, make sure their registration is up to date, and consider volunteering to serve as an election judge.”

Cox was in court for Tuesday’s hearing but not for Friday’s ruling. His campaign did not provide immediate reaction to Bonifant’s decision.

Sen. Cheryl Kagan (D-Montgomery), who introduced the bill Hogan vetoed, said she was “thrilled and relieved” by the ruling, which she said increases the likelihood that results will be tabulated in a timely manner. She suggested that Cox, who has embraced many of former President Trump’s baseless allegations about the 2020 elections, sought to block the election board’s petition as a way of drawing attention to his campaign.

“This was free press and an opportunity to pander to his base,” Kagan told reporters outside the courthouse.

Voters will elect a new governor, comptroller and attorney general in November. In addition, all 188 members of the General Assembly, all eight congressional seats, and a U.S. Senate seat are on the ballot, as are numerous local offices and statewide ballot questions.

Elections officials expect to see a record number of mail-in ballots this cycle.

Four years ago, 155,431 voters requested absentee ballots (now known as mail-in ballots), and 120,517 of those were utilized. As of Sept. 19, more than half a million Marylanders — 524,818 — had requested mail-in ballots.

The deadline for requesting a mail-in ballot is Nov. 1, though elections officials suggest voters not wait until the last minute.