ROCKVILLE, Md. — Election Day is still nearly two months away, but behind the scenes a legal battle is underway. The dispute is pitting Republican Candidate for governor Dan Cox against the Maryland Board of Elections.
The central question of this debate is about when mail-in ballots should be allowed to be counted - before or after election day.
CURRENT MARYLAND LAW:
Current Maryland law mandates that the envelope holding the ballot can not be opened until the Wednesday after Election Day, and the canvassing process is not allowed to begin until Thursday.
"The board shall start to canvass the absentee ballots at 10 a.m. on the Thursday after the election," the Maryland code reads.
According to the National Conference of State Legislatures, Maryland is the only state in the country to restrict the processing of absentee ballots until after Election Day.
The policies for counting mail-in ballots in all 50 states and the district can be found here.
BOARD OF ELECTIONS FILING:
On Sept. 2, the Attorney General of Maryland Brian Frosh submitted a 24-page filing, pushing to change the mail-in ballot process. In the filing, Frosh asked a judge to allow canvassers to start the count on Oct. 1, more than a month before Election Day to speed up the process.
"The failure to ascertain election results in a timely manner may cause unintended and deleterious legal effects at the state and national level," the filing read. "That failure may also sow uncertainty and unjustified mistrust in the final results of the election."
The filing referenced the 2022 primary, arguing that an influx of mail-in ballots, lead to major delays, due to the late count.
According to the filing, there were an "unprecedented" 345,081 mail-in ballots during the 2022 primary election, which was "ten to 18 times as many ballots as past gubernatorial primaries."
"The issue is simply one of math," the filing read. "Faced with 345,081 mail-in ballots to count and beginning that count two days after election day, final ascertainment of the 2022 gubernatorial primary election results required 36 days."
The Board of Elections suggested that the count in the general election could take 100 to 120 days, if the count is not allowed to begin earlier in the process.
"Without the emergency relief requested, Maryland may not ascertain the results of the 2022 gubernatorial general election until after President's Day in 2023."
DAN COX FILING:
Republican candidate for governor Dan Cox has raised concerns about this motion, in an objection filed in Montgomery County court. The filing argues that election policy should be decided by the legislature, and not the Board of Elections.
"The BOE's naked attempt to assert control over the legislative process cannot be condoned," the filing read.
The Cox filing argued that the Board of Elections should not be able to make this change, because it argued that society is no longer experiencing "emergency circumstances," as we were in 2020 during the COVID-19 pandemic.
"As set forth above, the application of the state law sought by the BOE creates an unconstitutional exercise," the filing read.
Cox's lawyers argued that this is fundamentally about the separation of powers between the legislative branch and the executive.
"Election law is undisputedly the province of the General Assembly," the filing read. "The power to make laws affecting this important area of the law may not be transferred to another branch of the Maryland government, even by the legislature itself."
WHERE WE STAND NOW?
Current Maryland law still requires that the formal canvassing of the vote happens two days after Election Day.
Whether this remains the policy for the 2022 general election will be up to the judge hearing this dispute.
At a hearing earlier this month, the judge set a two-hour court trial for Sept. 20 and an oral opinion hearing for Sept. 23 to further discuss this motion.