Md. high court explains unanimous rejection of Cox’s challenge to early vote counting

The Maryland Supreme Court’s rejection of failed Republican gubernatorial candidate Daniel Cox’s challenge last fall to the pre-Election Day counting of mail-in ballots was unanimous, the justices explained last week.

The high court said a judge’s granting of emergency authority for the early count did not violate the separation of governmental powers enshrined in the Maryland Constitution despite a state law generally prohibiting mail-in ballots from being counted before Election Day.

In a terse order Oct. 7, the justices upheld Montgomery County Circuit Judge James A. Bonifant’s emergency grant, stating they would explain why in a later opinion. The Supreme Court issued its explanation March 29 in a 7-0 opinion written by Chief Justice Matthew J. Fader.

The high court’s decision centered on Election Law Article § 8-103(b)(1) , in which the General Assembly empowered circuit court judges to “take any action the court considers necessary to provide a remedy that is in the public interest and protects the integrity of the electoral process.”

Bonifant validly concluded last September that an anticipated barrage of early mail-in ballots for the November election would overwhelm local election boards’ ability to tabulate those votes in a timely fashion if they had to wait unit after Election Day, the Supreme Court held, citing the State Board of Elections’ argument in circuit court.

The high court rejected Cox’s argument through counsel that the election law’s emergency provision violated the constitutional separation of powers by enabling judges to perform the legislative function of regulating the time of elections.

To the contrary, the justices said § 8-103(b)(1) properly permits courts to perform its “judicial function” by enabling judges to act only upon receiving a petition from the SBOE, holding an adversarial proceeding, applying statutory factors and, if necessary, provide a remedy.

These actions do not turn on policy determinations or call on judges to “weigh in to tip the scales in a policy dispute between the political branches,” Fader wrote.

“Similarly, many pages of the Maryland Reports (of court rulings) are filled with decisions adjudicating election disputes and weighing whether judicial action was required to protect the integrity of the electoral process,” Fader added. “Indeed, the prospect of judicial intervention is a primary check ensuring the integrity of the electoral process.”

Cox’s counsel also argued in vain that the board’s purported inability to tabulate votes in a timely fashion was not an emergency necessitating judicial intervention under the controversial election law provision.

An emergency by definition requires urgency that was not foreseeable, said attorney C. Edward Hartman III, of Hartman, Attorneys at Law in Annapolis. He told the high court that the election board clearly foresaw the increase in mail-in ballots last fall based on their widespread use during the 2020 presidential election amid the pandemic and the General Assembly’s enactment of laws making it easier for Marylanders to vote that way.

But the high court call it “not unreasonable” for the election board to have presumed that the post pandemic general election of 2022 would see more people voting in person. That prediction of a sharp drop in mail-in ballots belatedly changed during the 2022 primary election, when the percentage of votes cast by mail did not fall to pre-pandemic levels.

“Given the historical trend of the number of absentee (mail-in) ballots cast increasing three-to-fourfold between a primary election and the succeeding general election, the experience of the 2022 primary election caused the state board to forecast the likelihood of a volume of absentee ballots cast in that year’s general election that would overwhelm the ability of local boards to process them, resulting in long delays in releasing results, missed statutory deadlines, and decreased public confidence in the integrity of the election,” Fader wrote.

“Significantly, there is no evidence in the record that contradicts the state board’s evidence that it was unaware of the full scope of the anticipated volume of ballots to be cast in the November general election, or of the likely consequences of that volume, until after the July 2022 primary election,” he added.

Cox lost the general election to now-Gov. Wes Moore, a Democrat, by a two-to-one margin.

Neither Cox nor the State Board of Elections immediately returned messages Thursday seeking comment on the Supreme Court’s opinion.

As guidance for the judiciary, the high court said judges who find a future election-related emergency must be careful to order a remedy “appropriately tailored to address the particular emergency circumstances at issue without going further than is necessary under the circumstances.”

Justice Jonathan Biran stressed that need for judicial caution in a concurring opinion.

“If the circuit court finds that there is an emergency that warrants relief, the court should then make findings as to whether the requested relief is tailored to address the emergency and, if it is not, the court should grant different relief that is so tailored,” Biran wrote.

The Supreme Court rendered its decision in In Re Petition for Emergency Remedy by the Maryland State Board of Elections, No. 21 September Term 2022.