*Ellie Roser
The Supreme Court of Maryland determined that allowing the early canvassing of absentee ballots due to emergency circumstances is a judicial function. In re Emergency Remedy by the Md. State Bd. of Elections, 292 A.3d 319 (Md. 2023).
I. Introduction
In In re Emergency Remedy by the Md. State Bd. of Elections, the Supreme Court of Maryland evaluated whether its judicial function includes the power to permit early canvassing of absentee ballots as a result of emergency circumstances.[1] Judicial regulation of absentee ballot canvassing goes to the heart of present-day skepticism in the United States election process.[2] In the wake of the COVID-19 Pandemic, over 97% of voting occurred via absentee ballots during the 2020 election cycle.[3] The State Board of Elections (“State Board”) argued before the court that the rise of absentee voting in the 2020 election, combined with the Maryland General Assembly’s intent to make absentee voting more accessible, required lifting certain restraints on early canvassing of ballots.[4] The State Board asserted that a judicial remedy would reduce strain on local boards and allow the State Board to meet statutory deadlines necessary to finalize election results.[5] The court analyzed the circuit court’s authority under the separation of powers principle to determine if granting such an electoral remedy qualified as a judicial function.[6] The court then provided a subsequent analysis of the meaning of emergency circumstances that would permit a suspension of the Election Law.[7] The court concluded that granting an electoral remedy fell within its judicial function, and determined the imminent wave of absentee ballots was an emergency circumstance.[8]
II. Historical Development
A. Article 8 of the Maryland Declaration of Rights Establishes that the General Assembly May Only Delegate Judicial Functions to the Courts.
The Constitution of Maryland, unlike the United States Constitution, includes an express guarantee of separation of powers between the three branches of government.[9] The separation of powers principle “parcel[s] out and separate[s] the powers of the government”[10] so that each branch serves as a check and balance on the power of the others.[11] This principle first appeared in the Maryland Constitution of 1776.[12] Because there may be overlap between the branches,[13] the doctrine of separation of powers protects each branch in performing its core functions.[14] When the General Assembly delegates a task to the judiciary, that task may only be performed if it is a judicial function.[15]
B. The Supreme Court of Maryland Uses a Two-Factor Test to Determine if a Task is a Judicial Function.
In an action challenging a statute’s constitutionality, a plaintiff must show a “clear and unequivocal breach of the Constitution.”[16] The Supreme Court of Maryland relies on two factors to determine whether a judicial function exists: “(1) whether the task is of a nature that has traditionally been performed by 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.”[17] In their analysis, the court follows the approach of many Maryland lower courts.[18]
In Department of Natural Resources v. Linchester, the Court of Appeals reversed a trial court decision that held a statute allowing courts to oversee the issuing of permits to be unconstitutional.[19] The court reasoned the statute impeded the separation of powers principle regarding the legislative and judicial branches.[20] The court identified examples of nonjudicial functions from previous cases[21] to show how issuing permits did not fall under a court’s normal purview, thus exceeding the courts’ power.[22]
In Sugarloaf v. Gudis, the plaintiff sought a judicial remedy through Montgomery County Code § 19A-7(a)[23] to disqualify a councilmember from voting on a resolution when the councilmember held a financial interest in the company involved in the resolution.[24] The plaintiff relied on the section of the code allowing the court to issue “an order to cease and desist . . . if the court deems voiding the action to be in the best . . . interest of the public.”[25] The Court of Appeals refused to grant relief because the relief requested required the court to exceed its power by making a non-judicial decision based solely on the public interest.[26]
The Sugarloaf court relied on Beasley v. Ridout, where a statute gave judges in the Fifth Judicial Circuit of Maryland power to appoint members to the Anne Arundel County Jail’s Board of Visitors.[27] The Beasley court held the statute to be unconstitutional, reasoning that it used the judiciary as a mere “appointment agency”[28] without rules or standards to limit the court’s discretion.[29]
The Sugarloaf court turned to a similar decision in Cromwell v. Jackson for guidance.[30] In Cromwell, a statute directed courts to make a determination on issuing liquor license via a ten-question evaluation.[31] The series of questions required a court to consider whether an applicant was fit to have a license to sell alcohol and whether the location intended for the license was a proper place to sell alcohol, all while being confined in the number of licenses it could grant under the statute.[32] The court found the statute unconstitutional because it imposed a nonjudicial function on the court, requiring the court to make a pure policy determination, guided by individual judges’ opinions rather than a standard set by the legislature in the Act governing the issuance of liquor licensing.[33] In In re Emergency, the court relies on the standard developed in Cromwell and further emphasized in Beasley and Sugarloaf to evaluate whether an act is a judicial function.[34]
C. The Supreme Court of Maryland Reaffirms and Expands the Use of Absentee Ballots.
Maryland’s Constitution of 1864 first allowed absentee voting only to Union soldiers.[35] From 1954 to 1974, the General Assembly extended absentee ballot voting to others in the state.[36] In 1974, the General Assembly extended absentee ballot voting to “qualified voters who might otherwise choose to vote by absentee ballot.”[37]
Election Law §§ 9-301–12[38] and Election Law § 11-302[39] govern absentee ballot voting and the canvassing of ballots.[40] The 2020 election was conducted primarily by absentee ballot due to the declared state of emergency from COVID-19.[41] Thus, § 11-302(b)(1), which requires local boards to wait until after election day to canvass ballots, was suspended, allowing each local board to begin processing absentee ballots on October 1, 2020, before election day.[42] After the state of emergency ended, § 11-302(b)(1) was reinstated, yet absentee ballot voter numbers remained well above pre-pandemic levels.[43] Nearly 35% of June 2022 gubernatorial primary voters cast their votes using absentee ballots, compared to the pre-COVID-19 gubernatorial absentee ballot rate of 3.5%.[44] Because of the dramatic increase in absentee ballot use and the reinstatement of Election Law Article § 11-302(b)(1), some local boards had a delay in reporting, and Maryland missed statutory deadlines in finalizing its general election ballot.[45]
In 2021, the General Assembly increased the use and collection of absentee ballots.[46] In 2022, the General Assembly attempted to amend § 11-302(b)(1) to allow local boards to canvass ballots eight days before the first day of early voting.[47] Governor Hogan praised the changes that allowed for “earlier processing of absentee ballots,” but ultimately vetoed the legislation for lack of “basic security measures” the legislature failed to include.[48]
D. The Court May Offer a Remedy to Ensure the Integrity of the Election Process.
An overwhelming amount of case law allows the court to make decisions about election disputes and to protect the integrity of the electoral process.[49] In such circumstances, cases may be expedited to allow the judiciary to offer appropriate remedies in the interest of protecting Maryland’s electoral processes.[50]
III. Instant Case
On September 2, 2022, the State Board filed a petition in the Circuit Court for Montgomery County requesting the court allow local boards to begin canvassing absentee ballots before the upcoming general election.[51] The State Board focused on three main points in its request.[52] First, the State Board demonstrated an anticipated increase in absentee ballots based on trends from recent election cycles and the General Assembly’s legislative changes to absentee voting that made absentee voting easier.[53] Second, the State Board offered affidavits from members of local boards vocalizing their need for more time to count the absentee ballots.[54] Third, the State Board warned it would miss election certification dates and related deadlines if canvassing started after election day.[55] The State Board requested the circuit court suspend § 11-302(a), (b)(1), and (e), to allow local boards to canvass absentee ballots beginning October 1, 2022.[56]
Candidate Daniel Cox moved to intervene as a party, and the circuit court granted his motion.[57] Candidate Cox argued the relief requested by the State Board should be denied, contending Election Law §8-103(b)(1) was unconstitutional because it violated the separation of powers, and the factual circumstances presented by the State Board did not constitute emergency circumstances because they were foreseeable.[58]
The circuit court held § 8-103(b)(1) did not violate the separation of powers as required by Article 8 of the Maryland Declaration of Rights and that the facts presented by the State Board constituted an emergency circumstance.[59] Thus, the court granted the State Board’s request for relief.[60] Candidate Cox requested an appeal and the State Board filed a petition for writ of certiorari.[61] The Supreme Court of Maryland granted the petition for writ of certiorari and expedited review.[62]
On review, the Supreme Court of Maryland affirmed the decision of the lower court.[63] First, the court rejected Candidate Cox’s argument that § 8-103(b)(1) violates the separation of powers guaranteed by Article 8 of the Maryland Declaration of Rights.[64] The court concluded that the tasks presented to the judiciary under § 8-103(b)(1) constituted judicial functions because the tasks, as both procedural and substantive functions, were tasks usually performed by the judiciary.[65] The court held the facts presented to the lower court were relevant to the “discrete issue” at hand, and were not utilized to further policy questions or explain legislative considerations.[66] Further, the language of the Election Law Article, which includes “provisions permitting, contemplating, or requiring court intervention,”[67] along with a review of the case law,[68] permitted court intervention to maintain the integrity of the election process.[69] Unlike Sugarloaf, where the Court of Appeals made a legislative determination based on opinions about the public interest,[70] here, determining a remedy amid emergency circumstances was a judicial function.[71]
Second, the court affirmed the circuit court’s holding that the events did constitute an emergency circumstance under § 8-103(b)(1).[72] The court first looked to the plain language of the statute to dissect the definitions of “emergency” and “circumstance.”[73] The court determined that, based on the plain and ordinary meaning of the phrase, “emergency circumstance” refers to “unexpected and unforeseen conditions that require immediate attention to prevent harm.”[74] Similarly, the legislative history supported a broad interpretation of “emergency circumstance.”[75]
The court agreed with the State Board that the increase in absentee ballots did not become apparent until after the 2022 primary election.[76] Most importantly, the court noted that while some circumstances regarding an increase in absentee ballots may have been foreseeable, the full scope of the increased volume and the consequence of that increase could not be fully understood until after the July 2022 primary election.[77] As such, the court affirmed the lower court’s judgment in rejecting Candidate Cox’s challenge,[78] granted the State Board’s requested remedy, and allowed absentee ballot canvassing to begin on October 1, 2022.[79]
In his concurrence, Justice Jonathan Biran cautioned that the relief requested should have been narrowly tailored to address the present emergency.[80] The Justice challenged the majority’s view that the remedy was tailored specifically to the circumstances.[81] Justice Biran suggested the local boards would have been able to effectively perform their duties with an extension beginning on October 15, 2022, instead of October 1, 2022.[82] He noted that in the future, the court should more closely evaluate the relief requested and its adequacy for narrowly addressing the specific emergency.[83]
IV. Analysis
A. The Court’s Holding Strengthens the Line Distinguishing Judicial from Non-Judicial Functions as It Relates to the Separation of Powers Principle.
The court reasoned that, because the task of granting a remedy to protect electoral integrity and the public interest,[84] both procedurally and substantively, is usually performed by the court, it falls within its judicial function.[85] Alternatively, the court could have refused to authorize a remedy by focusing solely on the language of § 8-103(b)(1), because similar to Sugarloaf, § 8-103(b)(1) delegates a judicial determination based upon whether the determination is “in the public interest.”[86] However, the court accurately distinguishes this form of remedy in the public interest with the public interest determination from previous cases in Maryland.[87] By drawing a line between judicial functions aligned with the public interest and those that do not require the court to make a legislative determination, the court set a stronger precedent for the judiciary’s power to protect the electoral process while reinforcing the balance of the separation of powers. The court’s decision establishes new safeguards of judicial review to strengthen the integrity of the election process during emergency circumstances while protecting public confidence in the electoral process. [88]
B. The Court’s Holding Establishes a Broad Interpretation of Foreseeability.
If Candidate Cox had proven the State Board was indeed aware of the impacts that the increase in absentee ballots would have had on the electoral system, the court’s decision likely would have been different.[89] Because the facts showed the foreseeability of the increase in absentee ballots and its subsequent implications, a showing of the State Board’s awareness would have made it difficult for the court to find an emergency circumstance that was unforeseeable, barring the court from offering a remedy.[90] The future implications of In re Emergency center around the State Board’s inability to know the “full extent” of the effects of the increase in absentee ballots.[91] The court offers little analysis for future guidance on how uncertain a potential emergency must be to determine whether an event is unforeseeable.[92] It seems the court’s application of foreseeability follows their interpretation of “emergency circumstances” as one applied to a “broad range” of situations.[93] This precedent, specifically in relation to the electoral process, sets a higher standard to overcome for the challenger of a judicial determination, requiring the challenger to prove the foreseeability of the full scope of consequences flowing from an emergency circumstance.[94]
The court’s decision may have significance for those skeptical of the electoral process.[95] On one hand, the decision strengthens election integrity by showcasing the checks and balances of each government branch upon the other.[96] The court’s emphasis on the separation of powers encourages uniformity between the legislative and judicial branches in efforts to protect the integrity of local elections by ensuring canvassing is given ample time and is performed with due diligence.[97] Still, if the court allows itself to intervene in too broad a range of emergency circumstances, changes in election laws and emergency remedies may inspire more uncertainty, distrust, and skepticism among citizens.[98] Justice Biran’s concurrence, calling for remedies more narrowly tailored to circumstance,[99] may help set an adequate compromise between local boards’ need for extended time and skeptical citizens’ need for certainty and consistency in election laws.[100]
V. Conclusion
The court’s decision in In re Emergency reinforces the separation of powers by analyzing what constitutes a judicial function, specifically regarding emergency circumstances under Maryland’s Election Law Article.[101] Relying on Sugarloaf, Linchester, Beasley, and Cromwell, among other cases, the court issued a remedy allowing the canvassing of ballots to begin October 1, 2022.[102] The court agreed that foreseeability negates the existence of an emergency circumstance.[103] The court accepted that not knowing the full extent of foreseeable circumstances was enough to prove an unforeseeable circumstance as applied under the Election Law.[104] Justice Biran’s concurrence offers a narrower determination of the remedy to be granted by suggesting the petitioner should establish evidence that their extension is narrowly tailored to the emergency.[105] The public’s view of the integrity of the electoral process is a cornerstone of our democracy. When this integrity falls in question, it is legitimate for the court to grant an extension for canvassing ballots to maintain trust in the outcome of an election.[106]
*Ellie Roser is a second year student at the University of Baltimore School of Law and a staff editor for Law Review. Ellie serves as a UB LEAD mentor and is a distinguished scholar of the Royal Graham Shannonhouse III Honor Society. In the summer of 2024, Ellie worked as a judicial intern to the Hon. Laura S. Ripken at the Appellate Court of Maryland. Next summer, she plans to join Miles & Stockbridge as a summer associate.
[1] In re Emergency Remedy, 292 A.3d 319, 323 (Md. 2023).
[2] Richard H. Pildes, Election Law in an Age of Distrust, 74 Stan. L. Rev. 100 (2022).
[3] Emergency Remedy, 292 A.3d at 328 (“Pursuant to a series of emergency executive orders issued by Governor Hogan, the 2020 elections were conducted principally by absentee ballot.”).
[4] Id. at 329.
[5] Id. at 330.
[6] Id. at 331.
[7] Id. at 330–31.
[8] See discussion infra Section III.
[9] Id. at 331; Dep’t of Nat. Res. v. Linchester Sand & Gravel Corp., 334 A.2d 514, 520 (Md. 1975) (“Maryland’s statement of the separation of powers is a ‘more concrete barrier than any which the Supreme Court has had to hurdle under the Federal Constitution.’”).
[10] Emergency Remedy, 292 A.3d at 331 (quoting Wright v. Wright’s Lessee, 2 Md. 429, 452–53 (1852)).
[11] Id. (citing McCulloch v. Glendening, 701 A.2d 99, 104–05 (Md. 1997)).
[12] Cromwell v. Jackson, 52 A.2d 79, 81 (Md. 1947) (“That the legislative, executive, and judicial powers of government, ought to be forever separate and distinct from each other.”).
[13] Emergency Remedy, 292 A.3d at 332 (“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.’” (quoting Linchester, 334 A.2d at 521)).
[14] Id. at 332.
[15] Id.
[16] Id. at 331 (quoting Mahai v. State, 255 A.3d 1050, 1057 (Md. 2021)).
[17] Id. at 333 (citing Sugarloaf Citizens Ass’n. Inc. v. Gudis, 573 A.2d 1325 (Md. 1990)); Sugarloaf, 573 A.2d at 1331 (explaining there to be no “precise” test available for every case in determining if a nonjudicial function exists).
[18] See discussion infra Section II.B.
[19] Linchester, 334 A.2d at 525.
[20] Id.
[21] Emergency Remedy, 292 A.3d at 333 (finding tasks delegated to the court such as “approv[ing] accounts of county officers before payment; perform[ing] duties tantamount to a board of review in assessing property for tax purposes; appoint[ing] a board of visitors to supervise the country jail; provid[ing] for referendum concerning issuance of liquor licenses . . .” do not constitute judicial functions).
[22] Id.
[23] Sugarloaf, 573 A.2d at 1329.
[24] Id. (arguing that because the councilmember had a financial interest “by virtue of his stockholdings” in the company involved in the issue that required a vote, he should be barred from voting).
[25] Id. at 1329–30.
[26] Id. at 1331.
[27] Beasley v. Ridout, 52 A. 61, 66 (Md. 1902).
[28] Id. (“No argument is needed to show that the duty thus sought to be imposed is not judicial, and that in making these appointments the judges were not performing a judicial function.”).
[29] Id.
[30] Sugarloaf, 573 A.2d at 1332 (citing Cromwell v. Jackson, 52 A.2d 79 (Md. 1947)).
[31] Cromwell, 52 A.2d at 87.
[32] Id. at 82–83, 88.
[33] Id.; see also id. at 89 (“[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.”).
[34] In Re Emergency Remedy, 292 A.3d 319, 333–34 (Md. 2023).
[35] Id. at 324.
[36] Id.; see also Md. Const. art. I, § 3 (1974) (extending the right to people absent from the state during voting, disabled voters, and “qualified voters who are unable to vote personally”).
[37] Emergency Remedy, 292 A.3d at 324 (quoting 2007 Md. Laws ch. 513).
[38] Id. at 325 (governing absentee ballot voting generally).
[39] Id. (governing the canvassing of absentee ballot voting).
[40] Id. (“For each ballot, the assigned team is charged with (1) verifying the timeliness of the ballot and that the oath is signed and the envelope is sealed, (2) opening each envelope by a ‘means that will not damage the contents,’ and then (3) placing ‘the envelope with the mailing address face down on the table without removing the contents.”).
[41] See supra note 3.
[42] Emergency Remedy, 292 A.3d at 328.
[43] Id.
[44] Id.
[45] Id. at 326, 328 (“The Board of State Canvassers is required to convene to certify the results of the statewide election within 35 days of the election.”) (citing Elec. Law §§ 11-502(a), 11-503(a))).
[46] Id. at 327 (“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.”).
[47] Id.
[48] Id.
[49] Id. at 336; see generally Ademiluyi v. Egbuonu, 215 A.3d 329 (Md. 2019); Fritszche v. Md. State Bd. of Elections, 916 A.2d 1015 (Md. 2017); Montgomery Cnty. v. Bd. of Supervisors of Elections for Montgomery Cnty., 536 A.2d 641 (Md. 1988).
[50] Emergency Remedy, 292 A.3d at 336.
[51] Id. at 329.
[52] Id.
[53] Id.
[54] Id. (explaining that the local board anticipated needing “three weeks or more of continuous canvassing . . . just to complete the canvass part of the election process” to process the ballots).
[55] Id. at 330 (“The Board of State Canvassers is required to convene to certify the results of the statewide election within 35 days of the election.” (citing Elec. Law §§ 11-502(a) & 11-503(a)).
[56] Id. at 330.
[57] Id.
[58] Id.
[59] Id.
[60] Id.
[61] Id.
[62] Id. (citing In re Emergency Remedy, 282 A.3d 1107 (2022)).
[63] Id. (citing In re Emergency Remedy, 283 A.3d 1214 (2022)).
[64] Id.; see also discussion supra Part II, Section A.
[65] Emergency Remedy, 292 A.3d at 335 (“Section 8-103(b)(1) contemplates a decidedly judicial proceeding: initiated by a petition; implicitly allowing for the opposition of an adversarial party; setting forth statutory factors that can be established by evidentiary proof of adjudicatory facts; and . . . calling for the fashioning of an appropriate remedy.”).
[66] Id. at 335, 337 (“The court is thus called upon to resolve discrete issues based on adjudicatory facts, not ‘general facts which help the tribunal decide questions of law and policy and discretion.’”).
[67] Id.
[68] Id. at 336 (reasoning that case law is “filled with decisions adjudicating election disputes and weighing whether judicial action was required to protect the integrity of the electoral process,” so judicial intervention is appropriate to protect the electoral process).
[69] Id. at 335 (stating that when an “act or omission” affects either the rights of parties, or the integrity of the election process, the court may provide a remedy as a judicial function).
[70] Id. at 337.
[71] Id.
[72] Id. at 337.
[73] Id. at 338–39.
[74] Id. at 339.
[75] Id. at 340 (“The relevant language in Senate Bill 118, (1998) . . . was adopted ‘to address the potential problem of a wide range of “emergencies.”’”).
[76] Id. at 342.
[77] Id.
[78] Id.
[79] Id.
[80] Id. at 343–44 (Biran, J., concurring).
[81] Id.
[82] Id.
[83] Id.
[84] Id. at 335 (majority opinion).
[85] Id.
[86] Id.
[87] See discussion supra Part II, Section B and notes 66–67.
[88] Emergency Remedy, 292 A.3d at 331.
[89] Id. at 342 (“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 the absentee ballots to be cast in the November 2022 general election, or the likely consequences of that volume, until after the 2022 primary election.”).
[90] See discussion supra Part III.
[91] Emergency Remedy, 292 A.3d at 342.
[92] See discussion supra Part II, Section B.
[93] See supra note 71.
[94] Emergency Remedy, 292 A.3d at 342.
[95] Pildes, supra note 2, at 100 (2022) (“The distrust now also extends to the institutional side of the election process, with concerns that state legislatures, . . . or local election administrators . . . might seek to corrupt the process for partisan ends.”).
[96] See id.; See also Emergency Remedy, 292 A.3d at 331.
[97] Pildes, supra note 2, at 107.
[98] Id. at 104 (“Uncertainty creates opening for partisan manipulation . . . angry partisans can de-legitimate the outcome by asserting their preferred view of what the law ‘is,’ then claim the election was compromised because the ‘law’ was not followed.”).
[99] See discussion supra Part III.
[100] Pildes, supra note 2, at 107.
[101] Emergency Remedy, 292 A.3d at 323–24.
[102] Id. at 330.
[103] Id. at 341.
[104] Id. at 342.
[105] See supra notes 76, 81.
[106] See supra Section IV.B.
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