In re Emergency Remedy by the Md. State Bd. of Elections
| Docket Number | 21-2022 |
| Decision Date | 29 March 2023 |
| Parties | IN RE PETITION FOR EMERGENCY REMEDY BY THE MARYLAND STATE BOARD OF ELECTIONS |
| Court | Maryland Court of Appeals |
Argued: October 7, 2022
Fader, C.J., Watts, Hotten, Booth, Biran, Eaves, Adkins, Sally, D. (Senior Justice, Specially Assigned), JJ.
This appeal presents a challenge to an order of the Circuit Court for Montgomery County that permitted local boards of election to begin "canvassing" absentee ballots more than a month before the November 2022 general election. Canvassing ballots includes "the entire process of vote tallying, vote tabulation, and vote verification or audit, culminating in the production and certification of the official election results." Md. Code Ann., Elec. Law § 11-101(c)(1) (2022 Repl.). Under current Maryland law, although voters can submit absentee ballots weeks before election day, local boards of election are prohibited from opening them, and thus beginning the canvassing process, until after election day. Id. § 11-302(b)(1).
In connection with the November 8, 2022 general election, the State Board of Elections (the "State Board"), filed a petition asking the circuit court to authorize local boards of election to begin canvassing absentee ballots on October 1, 2022. The State Board sought that authority under § 8-103(b)(1) of the Election Law Article, which provides that "[i]f emergency circumstances, not constituting a declared state of emergency, interfere with the electoral process, the State Board . . . may petition a circuit court to take any action the court considers necessary to provide a remedy that is in the public interest and protects the integrity of the electoral process." According to the State Board, emergency circumstances existed because of the State's combined experience with absentee ballots during the 2020 primary and general elections and the 2022 primary election, as well as historical trend data. Those experiences and data led the State Board to conclude that the volume of absentee ballots it was likely to receive during the 2022 general election could not be processed timely if local boards could not start canvassing the ballots until after the election. The State Board further alleged that the ensuing delay would render the State incapable of complying with statutory requirements related to the certification of election results and would undermine the integrity of the electoral process.
Daniel Cox, a candidate for governor in the November 8, 2022 general election and then-member of the Maryland House of Delegates, intervened and opposed the State Board's petition. Candidate Cox opposed the petition on two bases: (1) § 8-103(b)(1) violates the separation of powers guaranteed by Article 8 of the Maryland Declaration of Rights by delegating to the courts the nonjudicial function of regulating the timing of elections; and (2) the problems forecasted by the State Board did not constitute "emergency circumstances" because they were foreseeable.
The circuit court held that § 8-103(b)(1) is constitutional, determined that the State Board had proven the existence of emergency circumstances, and permitted the State Board to begin canvassing absentee ballots on October 1, 2022.
After Candidate Cox appealed to the Appellate Court of Maryland (then named the Court of Special Appeals),[1] the State Board sought certiorari review in this Court, which we granted. In re Petition for Emergency Remedy, 482 Md. 7 (2022). In a per curiam order issued after oral argument, we affirmed. In re Petition for Emergency Remedy, 482 Md. 12 (2022) (per curiam). We now explain the basis for our order.
There are three ways to vote in Maryland: (1) in-person on election day, Elec. Law § 10-301; (2) in-person during the early voting period, id. § 10-301.1; and (3) by absentee ballot, id. §§ 9-301 - 9-312. Our focus here is on voting by absentee ballot.[2] Absentee voting was first introduced in Maryland in the State's 1864 constitution, to permit Union soldiers to vote. Dan Friedman, The Maryland State Constitution 86-87 (G. Alan Tarr ed., 2011). Provision for absentee voting was left out of the 1867 Constitution initially but was added in by amendment in 1918, limited at that time only to "qualified voters serving in the 'Military or Naval Service of the United States.'" Id. at 87. Further constitutional amendments permitted the General Assembly to extend the right: (1) in 1954, to "anyone who was physically absent from the state at the time of an election," id.; (2) in 1956, to "disabled voters," id.; and (3) in 1974, to any "qualified voters who are unable to vote personally," Md. Const. Art. I, § 3 (1974).[3] Finally, in 2008, the General Assembly was given the power to extend the right to any "qualified voters who might otherwise choose to vote by absentee ballot."[4] 2007 Md. Laws ch. 513.
As amended, Article I, § 3(a) authorizes the General Assembly:
to provide by suitable enactment for voting by qualified voters of the State of Maryland who are absent at the time of any election in which they are entitled to vote, for voting by other qualified voters who are unable to vote personally, or for voting by qualified voters who might otherwise choose to vote by absentee ballot, and for the manner in which and the time and place at which such voters may vote, and for the canvass and return of their votes.
The General Assembly has carried out that power by adopting Election Law §§ 9-301 - 9-312, which govern absentee voting generally, and Election Law § 11-302, which governs the canvassing of absentee ballots.
A registered voter who wishes to cast an absentee ballot must request one, which can be done by mail or online until the week before the election, or in person as late as election day. Id. § 9-305. As of June 2021, voters may also request to be placed on a "permanent absentee ballot list." Id. § 9-311.1. Once a local board validates a voter's eligibility to vote absentee and ballots are available, the local board must provide the voter an absentee ballot as soon as practicable. Id. §§ 9-306, 9-309.
Although absentee ballots may be returned at any time after they are received, § 11-302(b)(1) prohibits a local board of elections from opening an absentee ballot envelope "prior to 8 a.m. on the Wednesday following election day." Once canvassing begins, the local boards are required to "release a report of the unofficial results of the absentee ballot vote tabulation" each day. Id. § 11-302(e). To be counted, an absentee ballot must be (a) received by a local board, dropped off at a polling place, or deposited into a ballot drop box before the polls close on election day, or (b) sent by the United States Postal Service on or before election day and received no later than "10 a.m. on the second Friday after an election." Md. Code Regs. ("COMAR") 33.11.03.08B (2022); see Elec. Law § 11-302(c).
The time-consuming process of canvassing absentee ballots is spelled out in detail by regulation. That process must "[b]e conducted separately from the review, inspection, and tabulation of polling place ballots," but still "in the same manner as for polling place ballots, insofar as those procedures are appropriate." COMAR 33.11.04.01A(2), (3). Each local board, acting "in its role as a board of canvassers," is responsible for canvassing absentee ballots from its jurisdiction. Id. 33.11.04.02 (2022). The election director begins by sending batches of "a controllable number of ballots" to each "team" of reviewers. Id. 33.11.04.05A. For each ballot, the assigned team is charged with (1) verifying the timeliness of the ballot and that the oath is signed and the envelope is sealed, (2) opening each envelope by a "means that will not damage the contents," and then (3) placing "the envelope with the mailing address face down on the table without removing the contents." Id. 33.11.04.05B-D. The team then removes the contents "one at a time, taking care that each envelope remains face down." Id. 33.11.04.05E. The team must separate any voter assistance certificates into separate stacks and verify that no more than one ballot is in any envelope, before setting the envelopes aside. Id. 33.11.04.05G-H. The team then inspects "each ballot for compliance and tabulating acceptability." Id. 33.11.04.07A. Any issues that arise while opening the envelopes or during initial review or ballot inspection are referred to the local board to decide whether to reject or accept the ballot. Id. 33.11.04.06, .08.
Once a team has completed a batch, the election director must file the return envelopes, place "the ballots in appropriate groups for tabulation," and give the team a new batch for processing. Id. 33.11.04.07D. The local board is required to group ballots according to whether they are (1) acceptable for tabulation, (2) acceptable to the board but objected to by a contesting party, or (3) rejected by the board.[5] Id. 33.11.04.09A. The votes from the ballots in each of the first two groups are tabulated separately and then reported and included in the unofficial vote totals. Id. 33.11.04.09B. Once removed from their envelopes, ballots must be tabulated "without unreasonable delay." Id. 33.11.04.10.
Section 11-308(a) of the Election Law Article requires that "[w]ithin 10 days after any election, and before certifying the results of the election, each board of canvassers shall verify the vote count in accordance with the regulations prescribed by the State Board for the voting system used in that election." Once the required...
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