A mail-in ballot drop-off box used during the primary election. Credit: File photo

Pending an appeal, the Maryland State Board of Elections will be able to start processing mail-in ballots Oct. 1 for the Nov. 8 general election, a Montgomery County Circuit Court judge ruled Friday, rejecting a challenge from Republican gubernatorial nominee Dan Cox. 

The state elections board had filed a petition to the court to suspend a state law that prohibits the opening of mail-in ballots before the Wednesday after an election. The state elections board petitioned for the exception after jurisdictions received an unprecedented number of mail-in ballots during the July primary election, which resulted in weeks of ballot canvassing. About 75,000 mail-in ballots were counted in Montgomery County alone. The state elections board predicts more than 1 million mail-in ballots will be submitted in Maryland in the general election. 

In his ruling, Judge James Bonifant said it is reasonable to categorize the expected deluge of mail-in ballots in the general election as an emergency because the State Board of Elections would be unable to process more than 1 million ballots in the 10 days following the election as required by state election law. 

Cox had filed a challenge to the state elections board’s petition, with his counsel arguing in a hearing Tuesday that an increase in mail-in ballots does not constitute an emergency because more voters started using mail-in ballots after the COVID-19 pandemic began in March 2020 and therefore it is not a new practice.

Bonifant said the definition of emergency is ambiguous, and that an influx of ballots can be considered an emergency if it affects the election process. 

Cox’s lawyers had also argued Tuesday the separation of powers as outlined in the state constitution should not permit the judicial branch to make decisions about elections. They said these decisions should be left up to the General Assembly as the legislative branch, and the court should not be able to grant the state elections board’s request. Rather, Cox’s counsel argued, this should be an issue discussed during a legislative session.

Bonifant cited previous state decisions in his ruling, saying the branches of government are not siloed and this is not a separation of power issue.

“The court is not being asked to set public policy,” Bonifant said.

He noted that the State Board of Elections is asking for a one-time exception, not a permanent change to the state constitution that the General Assembly would have to make.

Cox could still file to appeal the court’s decision, but county election officials are moving forward on plans to begin processing ballots Oct. 1. 

“The Montgomery County Board of Elections will announce its canvassing schedule in the near future. Mail-in ballots will start to be mailed between now and next week to those who requested them, and drop boxes are scheduled to be installed by the end of next week,” Montgomery County Board of Elections Secretary David Naimon wrote in an email to Bethesda Beat. 

“More than 116,000 mail-in ballots in Montgomery County already have been requested for the general election, more than the final total requested for the 2022 primary, and more than twice as many as were requested for the 2018 general election.  In order to facilitate processing of vote by mail ballots, we encourage all mail-in ballot voters to return their mail-in ballots as soon as possible,” Naimon said. 

Gov. Larry Hogan released a statement Friday on the decision. In May, he vetoed legislation passed by the General Assembly that would have allowed election officials in the state’s counties and Baltimore city to count mail-in ballots up to eight business days before the start of early voting for the July primary.

“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. 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,” he said.