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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鈥檚 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.
鈥淢andatory deadlines will be missed if the court takes no action,鈥� Bonifant said in a ruling he delivered from the bench on Friday. He stressed that his ruling applies only to this fall鈥檚 elections.
The ruling followed a聽聽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鈥檚 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鈥檚 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鈥檚 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 鈥渆mergency鈥� to justify court action. They suggested that elections officials hire addition staff or recruit 鈥渧olunteers.鈥�
Bonifant, an appointee of Gov. Larry Hogan (R), rejected the candidate鈥檚 separation of powers argument, noting that resolving conflicting聽 statutes is 鈥渆mphatically the province of the judicial department.鈥�
The state elections board applauded the judge鈥檚 ruling, which it said will allow local elections officials across the state to begin canvassing mail-in ballots on Oct. 1.
鈥淭his 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,鈥� the board said in a statement. 鈥淚t 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.鈥�
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,聽聽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.
鈥淚t worked well in that election, but partisan legislators dropped the ball on adopting our successful approach, making this step necessary,鈥� Hogan said in a statement. 鈥淲e 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.鈥�
Cox was in court for Tuesday鈥檚 hearing but not for Friday鈥檚 ruling. His campaign did not provide immediate reaction to Bonifant鈥檚 decision.
Sen. Cheryl Kagan (D-Montgomery), who introduced the bill Hogan vetoed, said she was 鈥渢hrilled and relieved鈥� 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鈥檚 baseless allegations about the 2020 elections, sought to block the election board鈥檚 petition as a way of drawing attention to his campaign.
鈥淭his was free press and an opportunity to pander to his base,鈥� 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 a million Marylanders 鈥� 524,818 鈥� 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.
