The year 2020, in its abundant mercy and generosity, will soon deliver to the American people a welcome respite of stability in this chaotic year of elections: Election Day. The “Time of chusing” remains “the Tuesday next after the first Monday in November” (for Congress as well as for the Presidential electors), and so, as is tradition, Americans eagerly wait for an early November day and the first bite of election results.

But below the surface of the stillness that precedes Election Day, canvassing operations around the country are churning through mail-in ballots. With still two weeks to go, many states have already begun counting votes-by-mail. Maryland’s local canvassing operations got the green light on October 1st, the earliest of any state, in order to handle the mail-in ballots from the 48% of its electorate that planned on using them in light of the pandemic. As of October 20th, the deadline for ballot requests, Marylanders had asked for 1.63 million mail-in ballots and voters had “cast” roughly 696,000 of those, returning them to local boards of elections by hand, mail, or through one of the state’s 283 drop boxes.

Certification deadlines (along with the state’s bumpy vote-by-mail ride through the primaries) provided the rationale for Maryland’s early canvassing push. Local boards of canvassers have ten days from the election, or until November 13th, to certify and transmit election results to the Governor, the State Board of Elections, and their respective circuit courts. The State Board of Canvassers has thirty-five days from the election, or until December 8th, to certify to the State Board of Elections, which then must deliver a sealed letter certifying the members of Maryland’s congressional delegation to the U.S. House of Representatives. And the Governor must declare the presidential electors before they meet on “the first Monday after the second Wednesday in December next following their appointment,” that is,  December 14th. Certification thus adds a new element to Maryland’s 2020 vote-by-mail odyssey: time.

Maryland’s ongoing State of Emergency provides the canvassing changes with the requisite cover of law. Prior to the pandemic, Maryland law prohibited local election boards from opening mail-in ballot envelopes and canvassing mail-in ballots until after Election Day. But Governor Hogan’s June 19th Order delegated his emergency authority to suspend certain “legal time requirements,” including even those statutorily defined, to the State Board. And, on August 19th, the State Board exercised this power, suspending the prohibitions against opening envelopes and early canvassing and replacing them with the October 1st start date.

While Maryland has faced no legal challenges to early canvassing, a Federal District Court in New Jersey turned away a request for a preliminary injunction of, in part, that state’s early canvassing operations. The court understood the federal Election Day statutes to mandate the final selection of a candidate to occur on Election Day and no earlier, but to allow pre-Election Day activity provided no premature final selection is made. Moreover, the court found that Congress’s intent in establishing a single day of elections was to avoid premature reporting of election results. In order to prevent such reporting, New Jersey law requires strict procedural safeguards be in place to ensure ballot secrecy. Finding the plaintiffs identified no reason that elections officials would ignore or intentionally violate those safeguards, the court held that there was no risk of premature reporting. Nor would a court be likely to find that risk in Maryland. In its August 19th notice, the State Board of Elections made sure to include language prohibiting reports of mail-in vote tabulation until after the closing of polls on Election Day.

At least in comparison to what is sure to be a stimulating Election Day, the lead-up has been (perhaps in a non-legal sense) relatively normal: some Americans are voting early, but most Americans are eagerly awaiting the results. Beneath the surface, however, the canvassing machinery is already grinding, preparing to deliver on an American civic tradition.

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