WASHINGTON, D.C. — On Friday, Sept. 23, a Maryland judge issued an order allowing the state’s election officials to begin counting mail-in ballots over a month prior to Election Day. This decision stems from a lawsuit filed by Maryland Attorney General Brian E. Frosh (D) on behalf of the Maryland State Board of Elections seeking emergency relief to allow all local boards of canvassers to begin tabulating mail-in ballots on Oct. 1. Under current Maryland law, election officials cannot begin counting mail-in ballots until 8 a.m. on the Wednesday following Election Day. The plaintiffs in the case argued that during the midst of the COVID-19 pandemic, Maryland election officials were permitted to open and canvass mail-in ballots per a gubernatorial executive order, and that similar relief should be granted for this election cycle to prevent a delayed certification of results for the 2022 election. Notably, the Maryland 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” and invoking the radical independent state legislature (ISL) theory.
The court’s decision allows the Maryland Board of Elections to begin canvassing and counting ballots on Oct. 1 after 8 a.m. In the opinion, the court rejected Cox’s invocation of the ISL theory, noting that “it is exercising the powers granted to it under the Constitution to decide a case between competing parties who have different views on the interpretation of the law.” The court also acknowledged that given the increased use of mail-in ballots throughout the state, there is a strong interest in mitigating delays and commencing the ballot counting process earlier than is currently permitted under the state’s election laws.