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Judge rules that Md. can begin counting mail-in ballots before Election Day

ROCKVILLE — Election boards around the state can count mail-in ballots early under a ruling issued Friday by a Montgomery County Circuit Court judge.

The decision rebuffs a challenge filed by Republican gubernatorial candidate Dan Cox earlier this week that opposed the request by the state Board of Elections. The board sought a judicial order that would allow early counting for the November general election, citing an expected deluge of mail-in ballots that could delay final results, in some cases, until late December.

“The court is satisfied that the undisputed facts in this case amount to emergency circumstances envisioned by the law, said Montgomery County Circuit Court Judge James Bonifant, speaking from the bench. “This court does not believe it is violating the state constitution by granting the state board’s request for relief. To the contrary the court believes it is exercising the powers granted to it under the constitution to decide a case between competing parties who have different views on the interpretation of the law.”

Cox, through his attorneys, argued the request was unconstitutional and violated the separate of powers between the legislative and judicial branches. They also questioned if the court had the authority to make such a decision and asserted that the board had not met the threshold for an emergency circumstance because the large number of mail-in ballots was not unexpected nor unforeseen.

State elections officials filed a petition in Montgomery County Circuit Court asking a judge to suspend state law that prevents the counting of mail-in ballots until two days after the polls close. The board wants the judge to allow elections boards around the state to begin counting those ballots prior to Nov. 8 and release the results after the polls close.

Between 1 million and 1.3 million mail-in ballots are expected to be returned for the November general election. That number is three times more than what was received in the July primary, where final results in a few counties were delayed almost a month.

Elections officials worry the flood of ballots for the general election may delay final results until Christmas or later. Such delays would cause problems in most counties, where officials are sworn-in in early December.

“There is no doubt that the increase in mail-in ballots will have an enormous effect on the process of this election,” said Bonifant. “Mandatory deadlines will be missed if the court takes no action.”

Cox is represented by C. Edward Hartman, an Annapolis attorney, and Matthew Wilson, a Tupelo, Mississippi attorney. Wilson is a longtime friend of Cox. The two attended Regent University Law School together.

Hartman and Wilson argued for a more absolutist read of state law and the Maryland Constitution, arguing that the board’s request would require the court to impermissibly act in a legislative capacity.

But the judge in his ruling reached back into case law as far back as 1829 in explaining that such a strict sectioning of powers is not possible. That in many cases, the law contemplates an interdependence between branches even as it “fuses power” in individual branches.

Bonifant agreed with elections officials, saying that a suspension of the law prohibiting early counting was needed.

Attorneys for Cox have not decided if they will appeal.

“We respect and appreciate the care and thoughtfulness of Judge Bonifant’s decision process,” said Hartman in an email. “I have not yet had an opportunity to meet with Mr. Cox to discuss the next step.”

The state Board of Elections, through a spokesman, applauded the ruling.

“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.”

The General Assembly earlier this year passed legislation that would have allowed the boards to begin early counting of mail-in ballots. The law was similar to a 2020 executive order issued by Republican Gov. Larry Hogan during a state of emergency related to the COVID-19 pandemic.

That year, more than 1.5 million mail-in ballots were used, as many stayed away from in-person voting.

Hogan supported the early counting provisions of this year’s bill. However, he vetoed the measure, citing concerns about other provisions in the legislation. That veto came in May, after lawmakers ended their 90-day session and could not override his decision. That left asking the court for relief as the only option.

“We welcome Judge Bonifant’s decision allowing the State Board of Elections to institute early canvassing for the general election, as I did in 2020 during the pandemic,” Hogan said in a statement. “It worked well in that election, but partisan legislators dropped the ball on adopting our successful approach, making this step necessary. 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.”