IN RE PETITION FOR EMERGENCY REMEDY BY THE MARYLAND STATE BOARD OF ELECTIONS
No. 21, September Term, 2022
IN THE SUPREME COURT OF MARYLAND*
Filed: March 29, 2023
Fader, C.J.; Watts, Hotten, Booth, Biran, Eaves, Adkins, Sally, D. (Senior Justice, Specially Assigned), JJ.
Argued: October 7, 2022
Opinion by Fader, C.J.
Biran, J., concurs
CONSTITUTIONAL LAW – SEPARATION OF POWERS – JUDICIAL FUNCTION
Section 8-103(b)(1) of the Election Law Article provides that in emergency circumstances falling short of a declared state of emergency that interfere with the electoral process, a circuit court that is petitioned by a board of elections may “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.” Section 8-103(b)(1) does not violate the separation of powers guaranteed by Article 8 of the Maryland Declaration of Rights because the task delegated to the court by the statute constitutes a judicial function. The Court based that conclusion on consideration of two factors it has traditionally used to determine whether a task is a judicial function: (1) whether the task is of a nature that has traditionally been delegated to the judicial branch; and (2) whether the legislative body has provided sufficient guidance limiting the court‘s discretion so that the court is not called upon to make a decision based on policy, expediency, or politics.
STATUTORY INTERPRETATION – DEFINITION OF EMERGENCY CIRCUMSTANCES IN ELECTION LAW ARTICLE § 8-103(b)(1)
The Circuit Court for Montgomery County did not err in its determination that the combination of the anticipated volume of absentee ballots in the November 2022 general election and the limited capacity of the local boards of election to timely canvass those ballots constituted “emergency circumstances” that “interfere with the electoral process” for purposes of § 8-103(b)(1) of the Election Law Article.
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2023-08-22 11:48-04:00 Gregory Hilton, Clerk
* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14,
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.”
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
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)
The circuit court held that
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.
BACKGROUND
A. Statutory and Regulatory Scheme
1. Absentee Ballots Generally
There are three ways to vote in Maryland: (1) in-person on election day,
As amended,
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
2. Absentee Ballots Canvassing
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.
Although absentee ballots may be returned at any time after they are received,
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.”
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.
3. Post-Election Deadlines
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 verification process is completed, each local board of canvassers must certify the accuracy of the results, and that they have been verified, to the Governor, the State Board, and the clerk of the local circuit court.
Based on the expected timing of the certification, several Maryland counties have set the terms of their respective offices to begin on the first Monday in December. See, e.g., Montgomery County Code, Part I, art. I, § 105 & art. II, § 202 (providing that terms of office for members of the Montgomery County Council and County Executive begin on the first Monday in December); Charter for Prince George‘s County, art. III, § 306 & art. IV, § 404 (providing the same for members of the Prince George‘s County Council and County Executive); Charter of Baltimore County, art. II, § 203 & art. IV, § 402(a) (providing the same for members of the Baltimore County Council and County Executive); Charter of Frederick County, Maryland, art. II, § 206(a) & art. IV, § 404(a) (providing the same for members of the Frederick County Council and County Executive).
The Board of State Canvassers is required to convene to certify the results of the statewide election within 35 days of the election,
Subtitle 1 of Title 8 of the Election Law Article contains three sections addressed generally to all Maryland elections. The first two, §§ 8-101 and 8-102, generally charge local boards with conducting elections, charge the State Board with supervising elections, require uniformity in elections, and establish requirements for providing notice of relevant information to registered voters.
Section 8-103 addresses two types of emergencies. First, pursuant to § 8-103(a), if the Governor declares a state of emergency “that interferes with the electoral process, the emergency proclamation may” postpone the election or specify alternate voting locations or systems.
Second:
If emergency circumstances, not constituting a declared state of emergency, interfere with the electoral process, the State Board or a local board, after conferring with 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.
5. Recent Legislative Activity
Three developments in the last two legislative sessions are relevant to our discussion below. First, during the 2021 legislative session, the General Assembly enacted two changes to make absentee balloting more accessible: (1) providing for the placement of secure drop boxes to collect absentee ballots; and (2) creating a permanent absentee ballot list. 2021 Md. Laws, ch. 56; see also
Second, during the 2022 legislative session, the General Assembly passed two companion bills that would have amended § 11-302(b)(1) of the Election Law Article to, among other things: (1) permit local boards to begin canvassing absentee ballots eight days before the first day of early voting;6 but (2) preclude local boards from tabulating absentee ballots before the polls close on election day. S.B. 163, 2022 Leg., 444th Sess. (Md. 2022) § 1; H.B. 862, 2022 Leg., 444th Sess. (Md. 2022) § 1.7 Governor Lawrence J. Hogan, Jr. vetoed the bills. In a letter explaining his vetoes, Governor Hogan lauded the change that would have permitted earlier processing of absentee ballots, saying it “would allow hard working election officials to get a much needed head start on the deluge of ballot envelopes that, under current law, must wait until after Election Day for processing.” His vetoes, he stated, were addressed not to that portion of the bills but to the legislation‘s failure to add “basic security measures such as signature verification” and protections against “ballot collecting.”
B. Absentee Ballots in the 2020 Primary and General Elections and the 2022 Primary Election
Both the 2020 primary and general elections were held during a declared state of emergency due to the COVID-19 pandemic.
Second, using authority granted pursuant to the state of emergency, the State Board suspended the application of § 11-302(b)(1) of the Election Law Article for the 2020
general election. The State Board permitted each local board to begin processing absentee ballots on October 1, 2020.
Governor Hogan announced the end of the COVID-19 state of emergency in June of 2021. Exec. Order No. 21-06-15-01 (terminating various emergency orders). The July 19, 2022 gubernatorial primary was thus the first election to occur outside of a declared state of emergency in nearly four years. In the primary, 346,113 absentee ballots were cast, comprising 34.8% of all ballots.11 Although much lower than during the 2020 presidential primary, those numbers were an order of magnitude greater than the highest total from the three previous gubernatorial primary elections, which was 30,122 absentee ballots cast, comprising 3.5% of the total, in the 2018 primary.12
The increase over the 2018 primary was particularly stark in some of the State‘s larger jurisdictions, including Prince George‘s County (1,138% increase); Montgomery County (606% increase); Baltimore County (1,330% increase); Baltimore City (1,205% increase); Anne Arundel County (1,538% increase); Howard County (1,737% increase); and Frederick County (1,671% increase).
With § 11-302(b)(1) of the Election Law Article no longer suspended by executive order, local boards were required to wait until after election day to open absentee ballots. As we discuss further below, that led to delays in reporting results in some jurisdictions.
Those delays ultimately caused Maryland to miss some statutory deadlines related to finalizing the general election ballot.13
On September 2, 2022, the State Board filed in the Circuit Court for Montgomery County what it styled a “Petition for Emergency Remedy to Permit Early Canvassing and Tabulation of Mail-In Ballots for the 2022 Gubernatorial General Election.” In the petition, the State Board included factual allegations concerning the relatively sparse use of absentee ballots before the 2020 election cycle, the significant use of them during the 2020 election cycle, and their continued substantial use in the 2022 primary election. According to the State Board, the 2022 primary had served “as a stress test of the State‘s new electoral paradigm,” and the results showed that the system was not up to the challenge unless local boards could start canvassing absentee ballots before the upcoming election.
The State Board focused on three points in making its case that an order allowing local boards to begin canvassing absentee ballots before the election day for the 2022 general election was necessary to preserve the integrity of the electoral process. First, it explained why it expected to be inundated with large numbers of absentee ballots in the 2022 general election, including: (1) the State‘s experience with the 2022 primary election demonstrated that increased use of absentee ballots was not exclusively a pandemic
phenomenon; (2) the General Assembly had recently made it easier to vote absentee; and (3) based on trends from the last three gubernatorial election cycles, in which three-to-four times as many absentee ballots were cast in general elections as in the primaries, “one could reasonably anticipate that local boards of election will receive between 1,000,000 and 1,300,000 mail-in ballots during the upcoming general election.”
Second, the State Board explained that it would take an extended period for local boards to count the anticipated volume of absentee ballots. In addition to setting forth the elaborate, time-consuming, largely manual requirements for canvassing absentee ballots discussed above, the State Board presented affidavits from representatives of five local boards, which explained in differing levels of detail the difficulties they expected to encounter if unable to begin canvassing absentee ballots early. For example, the Acting Election Director of the Montgomery County Board of Elections averred that: (1) in spite of the return to full availability of in-person voting for the 2022 primary, Montgomery County still received seven times more absentee ballots than in 2018; (2) Montgomery County already had 72,774 voters on its permanent absentee ballot list, including nearly 11,000 for receipt of web delivery ballots, which are even more time-intensive to process than paper delivery absentee ballots; (3) during the primary absentee ballot canvass, Montgomery County was able to process approximately 10,000 regular absentee ballots per day and approximately 3,000 web delivery ballots per day; (4) based on the number of absentee ballots received in the 2022 primary election, the local board was forecasting approximately 150,000 absentee ballots in the general election; (5) the local board expected to “need three weeks or more of continuous canvassing . . . just to complete the canvass part of the election process“; and (6) the local board did not have the capacity to “simply hire additional staff to process ballots more quickly,” due to a lack of
Third, the State Board identified election-related dates and deadlines it would be in jeopardy of missing if it had to wait to begin the canvass until after election day, including those identified above in Part A.3.
In its petition, the State Board requested that the circuit court issue an order: (1) suspending the application of § 11-302(a), (b)(1), and (e) for the 2022 general election;14 (2) allowing local boards of canvassers to meet to canvass absentee ballots (including tabulating those ballots) no earlier than 8:00 a.m. on October 1, 2022; and (3) permitting local boards of elections to release an unofficial report of absentee ballot tabulations no earlier than when polls close on election day and, after that, at the end of each canvassing day.
Candidate Cox moved to intervene as a party defendant, which the circuit court granted. Although Candidate Cox stipulated to the accuracy of the facts alleged in the
petition, he argued that the relief requested was nonetheless unavailable, because (1) Election Law § 8-103(b)(1) is unconstitutional and (2) the factual circumstances identified by the State Board did not constitute emergency circumstances because they were entirely foreseeable and, indeed, foreseen.
After a hearing, the court held that § 8-103(b)(1) did not violate the separation of powers required by Article 8 of the Maryland Declaration of Rights and that the facts presented by the State Board and stipulated to by Candidate Cox constituted emergency circumstances. The circuit court granted the State Board‘s petition and entered an order providing the remedy it had requested.
Candidate Cox noted an appeal. Before briefing in the Appellate Court, the State Board filed a petition for a writ of certiorari and a request for expedited review with this Court, both of which we granted. In re Petition for Emergency Remedy, 482 Md. 7 (2022). On October 7, 2022, following oral argument, we issued an order affirming the circuit court in all respects. In re Petition for Emergency Remedy, 482 Md. 12 (2022) (per curiam). We now explain the basis for that order.
DISCUSSION
Standard of Review
We review the circuit court‘s legal conclusions, including its construction of § 8-103(b)(1) and its determination of constitutionality, without deference. See
When evaluating the constitutionality of a statute, “[w]e begin with a presumption that the statute is constitutional.” Mahai v. State, 474 Md. 648, 661 (2021) (quoting Walker v. State, 432 Md. 587, 626 (2013)). To overcome that presumption, the party challenging the statute must demonstrate “a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication.” Mahai, 474 Md. at 662 (quoting Anderson v. Baker, 23 Md. 531, 628 (1865)).
I.
Candidate Cox contends that § 8-103(b)(1) of the Election Law Article violates the separation of powers guaranteed by Article 8 of the Maryland Declaration of Rights because it impermissibly delegates to the courts the nonjudicial function of regulating the timing and manner of elections. The State Board contends that § 8-103(b)(1) does not offend Article 8 because adjusting the timeline of an election is a judicial function. We agree with the State that § 8-103(b)(1) is constitutional, although our reasoning is a bit different.
A. The General Assembly Can Delegate Only Judicial Functions to the Judiciary.
The Constitution of Maryland, unlike the United States Constitution, contains an express guarantee of the separation of powers among the respective branches of government. Article 8 of the Declaration of Rights provides:
That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.
More than 170 years ago, this Court explained that “[t]he evident purpose of the declaration [of separation of powers] is to parcel out and separate the powers of government[.]” Sugarloaf Citizens Ass‘n, Inc. v. Gudis, 319 Md. 558, 569 (1990) (quoting Wright v. Wright‘s Lessee, 2 Md. 429, 452-53 (1852)). Doing so preserves to each branch of government its essential functions, protected from encroachment by either of the others, so that each may serve as a check and balance on the power of the others. McCulloch v. Glendening, 347 Md. 272, 283-84 (1997). The separation of powers thus serves as a fundamental building block of our constitutional structure that is critical to protecting against too great an aggregation of power in any one branch. See, e.g., Dep‘t of Transp. v. Armacost, 311 Md. 64, 77-78 (1987) (“Steeped in the political theories of Montesquieu and Locke, those who framed the constitutions of our states and of the federal government believed that separating the functions of government and assigning the execution of those functions to different branches was fundamental to good government and the preservation of civil liberties.“); Att‘y Gen. v. Waldron, 289 Md. 683, 688 (1981) (identifying the purpose of the separation of powers doctrine as “not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy” (quoting Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting))); Robey v. Prince George‘s County, 92 Md. 150, 161 (1900) (stating that permitting the same officers to exercise the functions of multiple branches of government “would be a menace to civil liberty“).
Although fundamental, the doctrine of separation of powers is not rigid and does not adhere to “clear lines of demarcation.” McCulloch, 347 Md. at 283 (internal quotation marks omitted). The three branches are thus not “wholly separate and unmixed[.]” Murphy v. Liberty Mut. Ins. Co., 478 Md. 333, 370 (2022) (quoting Crane v. Meginnis, 1 G. & J. 463, 476 (1829)); see also McCulloch, 347 Md. at 284 (“[T]he separation of powers doctrine does not require absolute separation between the branches of government.“). Recognizing that the functions of each branch of government must necessarily overlap to some degree, we have stated that the doctrine should be applied with a “sensible degree of elasticity,” and not “with doctrinaire rigor.” Dep‘t of Nat. Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 220 (1975); see also Murphy, 478 Md. at 371. Nevertheless, “this constitutional ‘elasticity’ cannot be stretched to a point where, in effect, there no longer exists a separation of governmental power[.]” Linchester, 274 Md. at 220. Thus, no branch of government may intrude on the core functions of either of the others. Waldron, 289 Md. at 688-89.
One way in which we have consistently maintained separation of the Judiciary from the core functions of the other branches is by “repeatedly [holding] that ‘Article 8 prohibits the courts from performing nonjudicial functions.‘” Sugarloaf, 319 Md. at 569 (quoting
Reyes v. Prince George s County, 281 Md. 279, 295 (1977)); see also, e.g., Duffy v. Conaway, 295 Md. 242, 254 (1983) (“[A] court has no jurisdiction to perform a nonjudicial function, and any enactment which attempts to confer such a function on a court is unconstitutional.“); Cromwell v. Jackson, 188 Md. 8, 28 (1947) (“[W]hen this Court is of opinion that the Legislature has exceeded its authority in placing a non-judicial function on the Court, we should not hesitate in declaring the Act void.“); Prince George s County Comm rs v. Mitchell, 97 Md. 330, 340 (1903) (holding unconstitutional a statute that indirectly required “[j]udges to discharge non-judicial functions“); Bd. of Supervisors of Election for Wicomico County v. Todd, 97 Md. 247, 263-64 (1903) (stating that “[c]ourts and [j]udges provided for in our system shall, not only, not be required but shall not be permitted to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of the judicial function“); Beasley v. Ridout, 94 Md. 641, 659 (1902) (stating that “[j]udges cannot be compelled to perform services not of a judicial nature“); Baltimore City v. Bonaparte, 93 Md. 156, 162 (1901) (holding that the “Legislature had no authority to impose” a nonjudicial function on judges). Thus, even when the General Assembly expressly delegates a task to the Judiciary, as it has done in
In considering whether a particular task is a judicial function, our focus is on the act, not the person performing it. See Schisler v. State, 394 Md. 519, 573-74 (2006) (stating that the “character” of a function “is dependent on its qualities, not on the mere accident as to the person who has been designated to do it” (quoting Robey, 92 Md. at 161-62)). Recognizing that there is no “precise definition” of judicial function that can be applied in every case, Sugarloaf, 319 Md. at 570, our caselaw reflects two factors we have used to determine whether a task is a judicial function: (1) whether the task is of a nature that has traditionally been performed by the judicial branch, see, e.g., Sugarloaf, 319 Md. at 570; Linchester, 274 Md. at 226; Todd, 97 Md. at 252; and (2) whether the legislative body has provided sufficient guidance limiting the court s discretion so that the court is not called upon to make a decision based on policy, expediency, or politics, see, e.g., Sugarloaf, 319 Md. at 568-70, 572; Cromwell, 188 Md. at 24-28; Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 391-92 (2010); Schisler, 394 Md. at 574.
First, we have considered whether the delegated task requires a court to: (1) act in a manner that is inconsistent with the “standards or rules normally applied by courts in the exercise of their usual judicial functions,” Sugarloaf, 319 Md. at 570 (quoting Beasley, 94 Md. at 658-59); or (2) exercise powers “not within the ordinary or recognized powers ” of a court, Sugarloaf, 319 Md. at 570 (quoting Close v. Southern Md. Agr. Assoc., 134 Md. 629, 642 (1919)). In Linchester, we collected examples of delegated tasks we had found to not constitute judicial functions, including to:
approve accounts of county officers before payment, Robey v. Prince George s County, 92 Md. 150 (1900); perform duties tantamount to a board of review in assessing property for tax purposes, Baltimore City v. Bonaparte, 93 Md. 156 (1901); appoint a board of visitors to supervise the county jail, Beasley v. Ridout, 94 Md. 641 (1902); provide for referendum concerning issuance of liquor licenses, Board of Supervisors v. Todd, 97 Md. 247 (1903); issue licenses permitting pari-mutuel betting on horse races, Close v. Southern Md. Agr. Asso., 134 Md. 629 (1919); and issue liquor licenses, Cromwell v. Jackson, 188 Md. 8 (1947).
274 Md. at 226 (Atlantic Reporter parallel cites omitted). In Todd, for example, we concluded that a law requiring a court “to order an election” on the question of whether to permit issuance of a liquor license was unconstitutional because it did not relate in any way to a judicial proceeding or judicial determination.16 97 Md. at 253.
Second, we have considered whether the delegating legislative body has provided sufficient guidance for the court s exercise of its discretion such that it is not called upon to render a decision based on policy, expediency, or politics. Thus, in Sugarloaf, we held unconstitutional a Montgomery County Code provision that allowed a court, in certain circumstances where there had been an ethical breach, to void an official act “if the court deems voiding the action to be in the best . . . interest of the public.” 319 Md. at 566 (omitting emphasis added in Sugarloaf) (quoting
We reached a similar decision in Cromwell, which concerned a law that delegated to judges the task of determining whether to issue liquor licenses. 188 Md. at 11, 13. The law required judges “to pass upon at least ten questions.” Id. at 25. Several of the questions, such as those calling for determinations as to whether the petitioners lived or owned property in the vicinity and whether they believed statements in the application to be true, were not problematic because they were “questions of fact and law upon which the [j]udge is required to exercise . . . judgment after hearing the evidence.” Id. The remaining questions were of a different kind. They asked, for example, whether the applicant was “a fit person” for a liquor license; whether the place where liquor would be sold was “a proper one“; and whether there was a “[p]roper allocation of licenses” in the area. Id. at 25-26. Those questions were “not questions of law or of fact, nor mixed questions of law and fact.” Id. at 26. Instead, they were questions of “public policy or expediency depending upon many matters,” with “no rule to guide the [c]ourt” in rendering a decision. Id.
Notably, the Court contrasted one of the impermissible questions posed by the law it struck down—whether an individual is “a fit person” for a liquor license—with the superficially similar question, addressed regularly by courts, of whether an individual is fit to have custody of a child. Id. at 26. As to the latter question, the Court reasoned, courts had a “firmly
B. The Task Delegated to the Circuit Court by Election Law § 8-103(b)(1) Is a Judicial Function.
Before applying the two complementary factors to determine whether the task delegated by
If emergency circumstances, not constituting a declared state of emergency, interfere with the electoral process, the State Board or a local board, after conferring with 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.
The provision has four components. The first three define the preconditions to court action: (1) there must be “emergency circumstances” that do not rise to the level of “a declared state of emergency“; (2) those circumstances must “interfere with the electoral process“; and (3) the State Board or a local board must “petition a circuit court” to intervene.
The fourth component is the circuit court s authority, if the three preconditions are satisfied, to impose a remedy that both “is in the public interest” and “protects the integrity of the electoral process.” Inasmuch as a remedy that protects electoral integrity is necessarily in the public interest to the extent that it does so, and considering the context provided by the preconditions, we interpret these dual requirements as authorizing a remedy that both (1) protects electoral integrity by addressing the emergency circumstances at issue, and (2) is not otherwise contrary to the public interest.
Applying the two complementary factors discussed above, we conclude that
With respect to substance, the
Similarly, many pages of the Maryland Reports are filled with decisions adjudicating election disputes and weighing whether judicial action was required to protect the integrity of the electoral process. See, e.g., Ademiluyi v. Egbuonu, 466 Md. 80, 136-37 (2019) (enjoining the State Board from certifying a general election ballot because a listed candidate was not qualified); Cabrera v. Penate, 439 Md. 99, 101 (2014) (ordering an ineligible candidate s name removed from a primary election ballot); Fritszche v. Maryland State Bd. of Elections, 397 Md. 331, 347 (2007) (concluding that the Supreme Court was compelled by precedent to exclude votes contained in noncompliant absentee ballots “in order to safeguard the election process“); Oglesby v. Williams, 372 Md. 360, 364, 384 (2002) (declaring a candidate ineligible for failure to satisfy constitutional residency requirements); Montgomery County v. Bd. of Supervisors of Elections for Montgomery County, 311 Md. 512, 513-17 (1988) (enjoining the Board of Supervisors of Elections from placing certain proposed questions amending a county charter on the general election ballot because they conflicted with a public general law); Lamb v. Hammond, 308 Md. 286, 308-09 (1987) (holding that ballots that did not comply with statutory requirements could not be canvassed); Fowler v. Bd. of Supervisors of Elections for Prince George s County, 259 Md. 615, 618-19 (1970) (choosing not to invalidate an election for irregularities because no individual voter was disenfranchised); Valle v. Pressman, 229 Md. 591, 596-99 (1962) (invalidating a nomination of a candidate for State s Attorney made by a body lacking the statutory power to nominate); Smith v. Hackett, 129 Md. 73, 76-77 (1916) (holding that votes cast at a polling place located outside the voters precinct were properly counted because the election supervisors, not the voters, were responsible for the improper location). Indeed, the prospect of judicial intervention is a primary check ensuring the integrity of the electoral process.
Second, the terms of
Furthermore, contrary to Candidate Cox s argument, there is nothing inherently nonjudicial in considering whether a remedy is in the public interest. Indeed,
The problem in Sugarloaf was thus not that the court was directed by the ordinance to consider the public interest. The problem was that the court was directed to make what was essentially a legislative determination based solely on the court s view of whether the official action was in the public interest. Sugarloaf, 319 Md. at 572-73. Here, by contrast, the circuit court s task in determining whether to impose a short-term remedy to address emergency circumstances affecting the integrity of an impending election is a judicial function. There is nothing inappropriate in the General Assembly directing the court to also consider the public interest in fashioning its remedy.
In sum, the task the General Assembly delegated in
C. The Circuit Court s Remedy Is Not Unconstitutional as Applied.
Candidate Cox contends that even if
As noted, in 2022, the General Assembly passed Senate Bill 163 and House Bill 862, which would have permitted local boards to begin canvassing absentee ballots eight days before the beginning of early voting. Governor Hogan vetoed the bills. In doing so, however, he issued a statement that lauded the aspect of the bills that would have permitted early ballot canvassing. His veto, he said, was addressed to the lack of additional ballot security measures. Candidate Cox contends that the circuit court s ruling has effectively and impermissibly overridden Governor Hogan s veto.
To be sure, it is not the role of a court to wade into a dispute between the political branches to impose an outcome different from that produced by the political process prescribed by our State Constitution. That is not what occurred here. The remedy imposed by the circuit court was a temporary, emergency measure that had effect in only one election, not a modification of State law with lasting effect, and it was imposed pursuant to an express statutory authorization that was itself passed by a General Assembly and signed by a Governor. See 1998 Md. Laws ch. 585. Moreover, even as to the November 2022 election itself: (1) as we will explain in more detail below, the emergency circumstances pursuant to which the court acted did not exist, at least not to their full extent, at the time of the Governor s vetoes; and (2) the Governor favored permitting the early canvassing of absentee ballots, even absent emergency circumstances. In short, this was not a circumstance in which the court was asked to, or did, weigh in to tip the scales in a policy dispute between the political branches.
II.
Candidate Cox also contends that even if
A. Statutory Construction of “Emergency Circumstances”
The goal of statutory construction “is to ascertain and effectuate the actual intent of the General Assembly.” Thornton Mellon LLC v. Adrianne Dennis Exempt Tr., 478 Md. 280, 313 (2022) (quoting Mercer v. Thomas B. Finan Ctr., 476 Md. 652, 694 (2021)). “[T]o determine [the General Assembly s] purpose or policy, we look first to the language of the statute, giving it its natural and ordinary meaning. We do so on the tacit theory that the General Assembly is presumed to have meant what it said and said what it meant.” Peterson v. State, 467 Md. 713, 727 (2020) (quoting Bellard v. State, 452 Md. 467, 481 (2017)). In interpreting a statute s plain language, we “[r]ead[] the statute as a whole . . . to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. ” Spevak v. Montgomery County, 480 Md. 562, 572 (2022) (quoting Moore v. RealPage Util. Mgmt., Inc., 476 Md. 501, 510 (2021)). In doing so, “[o]ur inquiry is not confined to the specific statutory provision at issue on appeal. Instead, [t]he plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim or policy of the Legislature in enacting the statute. ” Berry v. Queen, 469 Md. 674, 687 (2020) (internal citation and some quotation marks omitted) (quoting Johnson v. State, 467 Md. 362, 372 (2020)).
If the plain language of a statute is unambiguous, “we need not look beyond the statutory language to determine the General Assembly s intent,” Peterson, 467 Md. at 727 (quoting Bellard, 452 Md. at 481), although “we often find it prudent” to do so, Berry, 469 Md. at 687.
In its petition, the State Board argued that the anticipated volume of absentee ballots in the November 2022 general election, combined with the limited capacity of the local boards to canvass those ballots, satisfied the conditions for court intervention pursuant to
The ordinary meaning of “circumstances” is not controversial. A “circumstance” is “a fact or condition connected with or relevant to an event or action.” Circumstance, New Oxford American Dictionary 315 (3d ed. 2010).18 The focus of the parties arguments is on the meaning of “emergency,” which dictionaries generally define by reference to the dual concepts of (1) urgency, i.e., a situation requiring immediate attention to prevent harm, and (2) lack of foreseeability, i.e., a situation that was unexpected or unforeseen. See, e.g., Emergency, Merriam-Webster s Collegiate Dictionary 407 (11th ed. 2014) (defining “emergency” as “an unforeseen combination of circumstances or the resulting state that calls for immediate action” and “an urgent need for assistance or relief“); Emergency, New Oxford American Dictionary 567 (3d ed. 2010) (defining “emergency” as “a serious, unexpected, and often dangerous situation requiring immediate action“); Emergency, Black s Law Dictionary 660 (11th ed. 2019) (defining “emergency” as “[a] sudden and serious event or an unforeseen change in circumstances that calls for immediate action to avert, control, or remedy harm;” or “[a]n urgent need for relief or help“). According to the popular, ordinary definitions of the terms, therefore, “emergency circumstances” are unexpected or unforeseen conditions that require immediate attention to prevent harm.19
The statutory context in which the relevant terms appear is consistent with the
Although legislative history is scant, what exists also supports a broad interpretation of “emergency circumstances” that is consistent with its plain meaning. The predecessor statute to
In sum, based on plain language and context, and consistent with legislative history, “emergency circumstances” for purposes of
B. The Circuit Court Did Not Err in Concluding that the Anticipated Volume of Absentee Ballots in the November 2022 General Election Constituted “Emergency Circumstances” for Purposes of § 8-103(b)(1).
Candidate Cox contends that the anticipated volume of absentee ballots expected to be cast in the November 2022 general election could not have constituted emergency circumstances as of September 2, 2022, when the State Board filed its petition, because the problem had been foreseen in time to have made a legislative change during the General Assembly s 2022 session. As support for that view, Candidate Cox points primarily to: (1) the General Assembly s passage of Senate Bill 163 and House Bill 862 in 2022; (2) Governor Hogan s veto letter, which noted that permitting pre-election day absentee ballot canvassing “would allow hard working election officials to get a much needed head start on the deluge of ballot envelopes” (emphasis added); and (3) the experience of the 2020 elections.
The State Board concedes that it was foreseeable that there would be an increased volume of absentee ballots cast in 2022 as compared to pre-pandemic elections. The State Board contends, however, that “[e]lection officials could not have reasonably anticipated the degree to which voters would continue to use mail-in ballots after the COVID-19 health emergency had passed” and that the magnitude of the increased volume of ballots “and its effect on the electoral system statewide was entirely unknown” until after the July 2022 primary election. The circuit court agreed with the State Board. We find no error in that determination.
As noted, to constitute “emergency circumstances,” the conditions at issue must reflect both urgency and a lack of foreseeability. Here, urgency is not disputed, but the record concerning foreseeability is mixed. On the one hand, Candidate Cox is plainly correct that it was foreseeable that there would be an increased volume of absentee ballots cast in 2022, as compared to all pre-pandemic elections, based on the successful use of absentee ballots by many Marylanders in the 2020 primary and general elections and laws passed in 2021 making it even easier to vote that way. Candidate Cox is also correct that the General Assembly, the Governor, and the State Board all foresaw a benefit in permitting canvassing of absentee ballots before election day to accommodate the increased volume and avoid post-election delays.
The percentage of votes cast by absentee ballot during the 2022 primary election did indeed fall as compared to the 2020 general election, but not nearly to pre-pandemic levels. Moreover, as discussed above, processing those ballots led to significant delays in releasing election results. Given the historical trend of the number of absentee ballots cast increasing three-to-fourfold between a primary election and the succeeding general election, the experience of the 2022 primary election caused the State Board to forecast the likelihood of a volume of absentee ballots cast in that year s general election that would overwhelm the ability of local boards to process them, resulting in long delays in releasing results, missed statutory deadlines, and decreased public confidence in the integrity of the election. See, e.g., Richard H. Pildes, Election Law in an Age of Distrust, 74 Stan. L. Rev. Online 100, 107 (May 2022) (“[W]e cannot ignore the continuing risk that the longer it takes to resolve the vote count, the more distrust will feed on that delay.“). Significantly, there is no evidence in the record that contradicts the State Board s evidence that it was unaware of the full scope of the anticipated volume of absentee ballots to be cast in the November 2022 general election, or of the likely consequences of that volume, until after the July 2022 primary election.
For the foregoing reasons, we find no error in the circuit court s determination that the conditions confronting the State Board at the time it filed its petition constituted “emergency circumstances . . . [that] interfere with the electoral process.” The circuit court thus correctly rejected Candidate Cox s challenge to the court s authority to impose “a remedy that is in the public interest and protects the integrity of the electoral process.” For that reason, we affirmed the circuit court s judgment.
To provide guidance for future proceedings under
CONCLUSION
In summary, we hold that: (1)
For those reasons, we affirmed the opinion and order of the Circuit Court for Montgomery County entered on September 26, 2022.
IN RE: PETITION FOR EMERGENCY REMEDY BY THE MARYLAND STATE BOARD OF ELECTIONS
No. 21, September Term, 2022
IN THE SUPREME COURT OF MARYLAND*
Filed: March 29, 2023
Fader, C.J., Watts, Hotten, Booth, Biran, Eaves, Adkins, Sally D. (Senior Justice, Specially Assigned), JJ.
Concurring Opinion by Biran, J.
* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022.
Circuit Court for Montgomery County Case No. C-15-CV-22-003258 Argued: October 7, 2022
I join the Opinion for the Court in full. As Chief Justice Fader explains, Intervenor Daniel Cox challenged only the authority of the circuit court to impose a remedy in the circumstances presented by this case. He did not challenge the specifics of the remedy that the circuit court ordered. I write separately to underscore the Court s statement that any remedy a circuit court imposes under
The State Board of Elections (the “Board“) requested that, to address the emergency it identified, the circuit court issue an order permitting the canvassing and tabulation of absentee ballots to begin on October 1, 2022. The circuit court issued an order that included the October 1 start date.
At oral argument before this Court – which occurred on October 7, 2022 – counsel for the Board stated that few absentee ballots had arrived at the local boards as of that date. Based on past experience, the Board believed that the number of absentee ballots arriving at the local boards would increase “exponentially” once early (in-person) voting began on October 27. When asked why, therefore, a start date for canvassing and tabulating of absentee ballots of October 1 was necessary to address the emergency, counsel for the Board stated that the local boards needed all of October to plan how to allocate their space and staff in order to perform all the necessary tasks related to the general election.
In my view, the local boards needed no emergency relief as of October 1 to begin planning how to allocate their space and staff for the rest of October. If the circuit court had ordered canvassing and tabulating of absentee ballots to begin no earlier than October 15, 2022 or another date
If, in the future, the Board petitions a circuit court for emergency relief under
The correction notice(s) for this opinion(s) can be found here: https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/21a22cn.pdf
Notes
Exigent Circumstances, Black s Law Dictionary 306 (11th ed. 2019).A situation that demands unusual or immediate action and that may allow people to circumvent usual procedures . . . . Also termed emergency circumstances . . .