Md. officials certify primary results, seek legal action to avoid delays

August 15, 2022

Washington Post

Wary after an unprecedented primary cycle plagued by delayed results, Maryland election officials on Monday decided to seek emergency legal action to prevent similar challenges in the fall.

After certifying the primary results in a meeting Monday afternoon, the State Board of Elections voted unanimously, saying absent action, vote counting in the November general election — which will, among other things, determine Maryland’s next governor — could stretch well into the holidays.

“It could be until Christmas and New Year’s that we get the results from the election,” board member Justin Williams said, noting that delays could be an even larger hurdle because of tighter certification deadlines.

Voters and candidates sometimes waited weeks for results after the July 19 election as officials tabulated a sweeping volume of mail-in ballots that Maryland law prohibits them from processing until two days after the polls close. State lawmakers passed a bill earlier this year that would have removed this provision — the only law of its kind in the country — but Gov. Larry Hogan (R) vetoed the bill, citing concerns with other aspects of the measure — cementing an election cycle riddled with delays and hurdles for election officials.

The board is seeking emergency relief from a circuit court that would allow mail-in ballots to be canvassed and tabulated before Election Day. No results would be released before the polls close on Election Day.

Sen. Cheryl C. Kagan (D-Montgomery), who carried the bill Hogan vetoed, said she was happy to see the board take action, and hoped the court would follow through.

“The veto of my bill, Senate Bill 163, caused a big problem in the delays, and it was unfortunate and avoidable,” Kagan said during the board meeting on Monday. “But really big kudos to the four of you for just voting unanimously to bring a legal initiative, and we will hope that it will be approved by the circuit court and we can make sure that votes are counted in a timely manner.”

Certification on Monday officially sealed Wes Moore (D), a best-selling author who garnered high-profile celebrity and political endorsements, and Republican Del. Dan Cox, a first-term delegate who embraced Donald Trump’s rhetoric and tried to impeach Hogan, as the gubernatorial candidates, along with any third-party contenders, to appear on the November ballot.

Voters waited days for Moore to be projected as the Democratic nominee in July, and Montgomery County election officials counted mail-in and provisional ballots for almost three weeks after the primary. The local board in Montgomery, Maryland’s most populous county, just certified results on Saturday, and the County Executive race is headed to a recount.

The logjam occurred as voting patterns that shifted during the coronavirus pandemic ran up against a rule rooted in election integrity concerns.

The law, enacted at a time few people voted absentee, sought to ensure that mail-in results could not be leaked early and sway the outcome of an election.

When vote-by-mail surged in popularity in Maryland and around the country in 2020, Hogan issued an emergency order allowing for mail-in ballots to be counted ahead of Election Day. But the order expired, and mail-in balloting remained popular.

The state received more than 345,000 mail-in ballots in the 2022 primary — up from nearly 30,000 in 2018.

Hogan, who in May vetoed the legislature’s effort to extend early counting over unrelated election security concerns in the same bill, welcomed the board’s decision on Monday.

“The governor strongly supports the board finally taking action to adopt early canvassing — as he did for the 2020 election — and address the General Assembly’s failure to pass a simple bill that would have allowed it to happen,” Hogan spokesman Michael Ricci said in a statement. “We hope that the court will act swiftly, and that the legislature will act in the future to codify the governor’s successful early canvassing measure.”

The state Board of Elections considered asking a court to waive the rule for the primary after Hogan’s veto, but decided against taking legal action as time ran short. After the board saw how the primary played out, members said they were prepared to seek relief.

“I think that this is a prudential step that we’re taking,” board member Severn E. S. Miller said in the meeting.

The board will file a petition in a circuit court “with sufficient time for the court to consider the request and for the local boards of elections to plan for pre-Election Day canvassing,” according to a release issued after the vote.

The board will have to prove to the court that this is an emergency circumstance affecting the electoral process, and the court’s help “is in the public interest and protects the integrity of the electoral process,” the release says. If the board makes its case, the court can take any action it considers necessary.

“I think most judges will be reasonable and sympathetic to the idea of moving forward with democracy,” Kagan said in an interview Monday. “But there is the risk of some outlier, some extremist, who says no, and then we’re really going to be in dire straits.”