June 1, 2022

Maryland Association of Counties

Written by Kevin Kinnally

Maryland Senator Cheryl Kagan (District 17, Montgomery County) today called on Governor Larry Hogan to address the “impending electoral crisis” by declaring a State of Emergency and allowing the canvassing of ballots to begin before the polls close on election day.

As previously reported on Conduit Street, Governor Hogan vetoed emergency legislation to provide local boards of elections with necessary and reasonable flexibility to canvass mail-in ballots, avoiding administrative complications that could disrupt the timely certification of election results.

State regulations prohibit local boards from canvassing mail-in ballots until the Thursday following an election. SB 163, sponsored by Senator Kagan, would have allowed the canvassing of mail-in ballots up to eight days before early voting. MACo supported the bill with clarifying and technical amendments.

The bill also addressed ballot curing, the process to allow voters to fix problems (such as missing signatures) with mail-in ballots to ensure that their votes count. The bill would have provided several ways for voters to deliver a missing signature — including in-person, mail, email, and text.

The veto will undoubtedly put more pressure on local boards of elections, which are already operating under strenuous circumstances because of delays with redistricting data, pandemic-driven supply shortages, difficulties recruiting election judges, and the spread of false information.

According to a letter from Senator Kagan to Governor Hogan:

During this election cycle, our Local Boards of Election (LBEs) are struggling with unprecedented challenges, including but not limited to:

• Delays in the approval of redistricting maps, leading to a later start in preparation;
• A rescheduled Primary Election Day that leaves significantly less time between thePrimary and General elections;
• A perception of poor performance by the U.S. Postal Service related to ballot deliveries (inboth directions) leading to a lack of confidence in its reliability; and
• Historic increases in requests for both mail-in and Internet-delivered ballots.

To make matters worse, your veto will guarantee the impossibility of timely reporting of comprehensive election results. Data released after polls close on July 19 and November 8, 2022 will include only the ballots cast in person, either during Early Voting or on Election Day itself. With the growing popularity of voting remotely, it won’t be until Thursday morning at 10am (July 21 and November 10th) that regulations allow the canvass to begin. (This includes opening envelopes and processing, scanning, and tabulating ballots). With each of our 24 LBEs manually processing ballots, we will be well into August before Primary Election winners in close contests can be certified. (The certification deadlines are supposed to be July 29 and November 18. It’s hard to imagine these dates being realistic under these circumstances.)

Another cause of delays in reporting election results stem from the large number of Internet-delivered ballots. As you know, every home-printed and mailed ballot must be hand-copied onto an official, scannable ballot by two election officials (from different parties). This ensures accuracy and helps prevent allegations of impropriety. There are nearly 400,000 such requests… and that is just as of May 30th. This will add a staggering challenge for our LBEs without the advance processing time permitted in 2020, especially for smaller counties.

Yet another worrisome threat from this veto occurs when voters decide to cast provisional ballots out of concern that their mailed-in ballots won’t arrive in time to be counted. Current law requires our LBEs to reject both ballots. This is more common than one might expect– potentially affecting thousands of ballots statewide.

Curing was addressed in SB163, which would apply if the oath on the ballot envelope had not been signed. In 2020, the State Board of Elections issued emergency regulations that set a statewide standard for curing. We want all valid votes to be counted!

Aside from the frustration, there are many serious repercussions from delayed election results, including:

• Maryland could be at risk of violating the MOVE Act requirement to mail ballots overseas not later than 45 days before a federal election. With a shorter timeline between elections, delayed Primary results could make it impossible for our LBEs to meet this deadline for the General Election in November.
• The State Board of Elections oversees and handles the proofing and printing of all ballot styles for all 24 jurisdictions. If, for example, there is a recount in one election in one county, other jurisdictions may be precluded from printing and mailing General Election ballots.
• Without early canvassing of ballots in the General Election, we might not know who our County Executives, County Councilmembers, and County Commissioners are before they are required to be sworn in on the first Monday in December.

These are PROBLEMS.

Maryland has generally had a history of voter confidence in our election systems. Late reporting of results could provoke unfounded cynicism and doubt. We watched as conspiracy theorists inspected machines and ballots in Arizona, Pennsylvania, Georgia, and elsewhere. This is not the way that our elections should attract national attention.

By declaring a State of Emergency that would allow canvassing to begin 8 days before the start of Early Voting, you can help avoid the disastrous outcomes described above. I am hopeful that you will act quickly so that we don’t become the next national mockery for our maddening delays in knowing who our legislative and executive leaders will be. I look forward to your response and prompt action.

Stay tuned to Conduit Street for more information.