Maryland Court Affirms Decision Allowing Early Counting of Mail-in Ballots

WASHINGTON, D.C. — On Friday, Oct. 7, the Maryland Court of Appeals (the state’s highest court) affirmed a Sept. 23 decision to allow local Maryland boards of elections to begin canvassing and counting mail-in ballots beginning on Oct. 1, 2022. This ruling stems from a lawsuit filed on behalf of the Maryland State Board of Elections (MBOE) seeking emergency relief to allow canvassers to “meet and to open envelopes, canvass, and tabulate mail-in ballots no earlier than 8:00 a.m. on October 1, 2022.” Currently, Maryland election law “[f]orbids the opening of any mail-in ballot envelope” before 8 a.m. on the Wednesday following Election Day. The board argued that the influx of mail-in ballots and the limitation on when they can be counted “caused cascading issues through the local and statewide canvassing and certification process” during the 2022 primary election. The Republican gubernatorial candidate, Dan Cox, intervened in the lawsuit, arguing “that the court did not have the power to intervene, saying the authority to change the rule rests with the General Assembly,” invoking the radical independent state legislature theory. On Sept. 26, Cox appealed the lower court’s decision. 

During the oral arguments held earlier today, the attorney representing Cox again invoked a version of the independent state legislature theory, arguing that the issue should be reserved for only the state Legislature: “Otherwise, this court becomes the Legislature and…then you become all powerful and you can decide the legislative policy.” The Maryland Court of Appeals disagreed, affirming the lower court’s decision and finding that allowing local boards to begin canvassing and counting ballots is constitutional. 

Ultimately, the affirmation of the Sept. 23 decision is a win for voters as the boards will be able to canvass and count ballots in a timely manner this November and is yet another rejection of the radical theory Cox advanced. 

Read the opinion and order here.

Learn more about the case here.