Maryland Officials Can Count Mail-In Ballots Before Election Day: Judge

A ballot drop box in Silver Spring, Md., on July 7, 2022. Chip Somodevilla/Getty Images

Mail-in ballots in Maryland can be counted before Election Day, a judge has ruled.

Maryland Circuit Judge James Bonifant wrote in an 11-page ruling on Sept. 23 that while state law says officials can’t start tabulating mail-in ballots until “8 a.m. on the Wednesday following Election Day,” waiting that long would mean results couldn’t be verified within 10 days after an election, as required by another law.

Bonifant granted a request from the Maryland State Board of Elections, which claimed that a one-time suspension of the former law was required because of “emergency circumstances.”

Counting of mail-in ballots after primary elections earlier this year led to delayed election certifications, and without the ability to start counting absentee ballots before Election Day, local, statewide, and federal contests might not be certified until late December or January 2023, the board said in a statement in August, as it filed a petition with the court.

State Del. Dan Cox, a Republican who is running for governor, intervened in the case. He said that the state’s request shouldn’t be granted because no emergency exists.

Bonifant acknowledged that the situation was foreseen by state legislators, who approved legislation that would enable officials to count mail-in ballots before Election Day. Gov. Larry Hogan, a Republican, vetoed the bill.

The judge said that “the full extent of the difficult situation caused by so many mail-in ballots did not materialize until the primary election occurred this past summer,” necessitating the ruling.

“This Court does not believe it is violating the State Constitution by granting the State Board’s requested 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,” he concluded.

Cox’s campaign didn’t respond to a request for comment.

“We are very impressed with Judge Bonifant’s thoughtfulness and the care that he gave this ruling. Some very interesting legal questions arose,” one of his attorneys told The Baltimore Sun.

Hogan, Board Support Decision

Hogan, who is barred by term limits from running for reelection, said he welcomed the decision.

Allowing early canvassing worked well during the pandemic, which was allowed by Hogan, the governor said, “but partisan legislators dropped the ball on adopting our successful approach, making this step necessary.”

The board said that the decision means local officials across Maryland can start counting 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. 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 board added.

State Sen. Cheryl Kagan, a Democrat who penned the measure that was vetoed by Hogan, said on Twitter she was “thrilled and relieved” by the “well-reasoned ruling.”