Local election officials are facing uncertainty concerning when they can start processing mail-in ballots now that Republican gubernatorial nominee Dan Cox has filed an appeal of last week’s court decision to allow early canvassing.
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.
Cox filed a challenge to the state elections board’s petition, with his counsel arguing in a hearing last week 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.
Cox’s lawyers filed the appeal Tuesday morning. It is unclear whether local election boards will be prohibited from beginning to process ballots if a ruling is not made by the appeals court this week.
Nikki Charlson, deputy administrator for the state elections board, said Tuesday the board does not comment on pending litigation, but it is unlikely canvassing would actually begin Oct. 1 because ballots are being mailed out Thursday and are highly unlikely to be returned by that date.
“The order did not require for local boards to start on [Oct. 1]; it allowed them to. So there’s no requirement that they start on [Oct. 1]. The first ballots aren’t in the mail yet, so there won’t be ballots to count on Oct. 1,” Charlson said.
David Naimon, secretary for the Montgomery County Board of Elections, said Tuesday he hopes the Court of Appeals is able to make a decision this week so the board will know how to proceed.
Naimon said there are several factors that make mail-in ballot processing complicated and require earlier processing. He said he predicts it could take up to Nov. 30 to have verified election results if the board isn’t granted the Oct. 1 start date.
“Since COVID started, there’s a new situation every day and we have to adapt to it,” Naimon said.
He said the major factors that affect canvassing efficiency and make an earlier processing date necessary are “place, people and ballots.”
The board needs a place to process the ballots, he said. And while school gymnasiums and other facilities are typically used on Election Day, the board can’t occupy a school’s facilities and disrupt instruction for days on end after the election, Naimon said.
In terms of people, Naimon said the board is experiencing the labor shortage that’s also impacting businesses. And even if the board had an unlimited number of volunteers, Naimon said it is constrained by how many can fit in a room to canvass.
Another factor is that processing of mail-in ballots is time consuming, Naimon said. While the county elections board has equipment and software to process the ballots, it lacks updated software that would making confirming receipt of each ballot quicker and easier. Web-delivered ballots also prove to be a stumbling block, he said, because a ballot printed at a voter’s home will not fit the standardized processing equipment for a mail-delivered or in-person ballot.
Naimon said it is like “using 17th century technology” to duplicate 21st century web-delivered ballots.
Charlson emphasized that if the initial decision is upheld and local boards can start canvassing ballots early, the process will be the same as for any other election. The processing will just start earlier.
“We’ve had mail-in voting for decades. So it’s a very mature, robust process, where we’re validating that each mail-in ballot meets the requirements of the law, and we will continue to do that whether that happens before Election Day or after Election Day,” Charlson said.
“The local election boards are very capable at counting ballots. They counted almost over 300,000 of them in the primary election. They know what they’re doing. It’s just a question of when they do it, but the same process exists whether it’s done before Election Day or after,” she said.