Emergency Remedy of Bd. of Elections

In re Petition for Emergency Remedy by the Maryland State Board of Elections, No. 21,
September Term, 2022.

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.
Circuit Court for Montgomery County
Case No. C-15-CV-22-003258 IN THE SUPREME COURT
Argued: October 7, 2022
OF MARYLAND*

No. 21

September Term, 2022

______________________________________

IN RE PETITION FOR EMERGENCY
REMEDY BY THE MARYLAND STATE
BOARD OF ELECTIONS

______________________________________

Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Eaves,
Adkins, Sally, D. (Senior Justice,
Specially Assigned),

JJ.
______________________________________
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
Opinion by Fader, C.J.
2023-08-22 11:48-04:00
Biran, J., concurs
______________________________________

Filed: March 29, 2023
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, 2022.
 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.” Md. Code Ann., Elec.

Law § 11-101(c)(1) (2022 Repl.). Under current Maryland law, although voters can submit

absentee ballots weeks before election day, local boards of election are prohibited from

opening them, and thus beginning the canvassing process, until after election day. Id.

§ 11-302(b)(1).

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 § 8-103(b)(1) of the Election Law Article, which

provides that “[i]f emergency circumstances, not constituting a declared state of

emergency, interfere with the electoral process, 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.” According to the State

Board, emergency circumstances existed because of the State’s combined experience with

absentee ballots during the 2020 primary and general elections and the 2022 primary

election, as well as historical trend data. Those experiences and data led the State Board

to conclude that the volume of absentee ballots it was likely to receive during the 2022

general election could not be processed timely if local boards could not start canvassing
the ballots until after the election. The State Board further alleged that the ensuing delay

would render the State incapable of complying with statutory requirements related to the

certification of election results and would undermine the integrity of the electoral process.

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) § 8-103(b)(1)

violates the separation of powers guaranteed by Article 8 of the Maryland Declaration of

Rights by delegating to the courts the nonjudicial function of regulating the timing of

elections; and (2) the problems forecasted by the State Board did not constitute “emergency

circumstances” because they were foreseeable.

The circuit court held that § 8-103(b)(1) is constitutional, determined that the State

Board had proven the existence of emergency circumstances, and permitted the State Board

to begin canvassing absentee ballots on October 1, 2022.

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.

1
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of Maryland
to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
2
 BACKGROUND

A. Statutory and Regulatory Scheme

1. Absentee Ballots Generally

There are three ways to vote in Maryland: (1) in-person on election day, Elec. Law

§ 10-301; (2) in-person during the early voting period, id. § 10-301.1; and (3) by absentee

ballot, id. §§ 9-301 – 9-312. Our focus here is on voting by absentee ballot.2 Absentee

voting was first introduced in Maryland in the State’s 1864 constitution, to permit Union

soldiers to vote. Dan Friedman, The Maryland State Constitution 86-87 (G. Alan Tarr ed.,

2011). Provision for absentee voting was left out of the 1867 Constitution initially but was

added in by amendment in 1918, limited at that time only to “qualified voters serving in

the ‘Military or Naval Service of the United States.’” Id. at 87. Further constitutional

amendments permitted the General Assembly to extend the right: (1) in 1954, to “anyone

who was physically absent from the state at the time of an election,” id.; (2) in 1956, to

“disabled voters,” id.; and (3) in 1974, to any “qualified voters who are unable to vote

2
In 2020, the General Assembly adopted § 9-301(c) of the Election Law Article,
which requires the State Board and local boards of election to “refer to absentee ballots as
‘mail-in ballots’ and absentee voting as ‘mail-in voting’ in all communications with voters
and the general public.” 2020 Md. Laws chs. 36 & 37; Elec. Law § 9-301(c)(1). That
change was intended to “bring clarity to the absentee voting process” considering the
expansion of absentee voting to any qualified voters. Election Law – References to
Absentee Voting in Communications – Mail-In Voting: Hearing on S.B. 145 Before the
Educ., Health & Env’t Affs. Comm., 2020 Leg., 441st Sess. (statement of Sen. Hester,
Member, Educ., Health & Env’t Affs. Comm.). Such communications are also required to
include a statement acknowledging that “mail-in voting” is still “referred to as absentee
voting in the Maryland Constitution, the Annotated Code of Maryland, and the Code of
Maryland Regulations.” Elec. Law § 9-301(c)(2). In this opinion, we will follow those
sources of law in continuing to refer to “absentee voting” and “absentee ballots.”
3
personally,” Md. Const. Art. I, § 3 (1974).3 Finally, in 2008, the General Assembly was

given the power to extend the right to any “qualified voters who might otherwise choose

to vote by absentee ballot.”4 2007 Md. Laws ch. 513.

As amended, Article I, § 3(a) authorizes the General Assembly:

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 Election Law

§§ 9-301 – 9-312, which govern absentee voting generally, and Election Law § 11-302,

which governs the canvassing of absentee ballots.

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. Id. § 9-305. As of June 2021, voters may also request to be placed on a

“permanent absentee ballot list.” Id. § 9-311.1. Once a local board validates a voter’s

3
Consistent with the constitutional limitations, until 2006, a voter’s ability to cast
an absentee ballot was also limited by statute to circumstances in which the voter was either
absent from the jurisdiction on election day or unable to go to the polls for an identified
reason. See Elec. Law § 9-304 (2003). In 2006, the General Assembly amended § 9-304
to eliminate those limitations and provide that “[a]n individual may vote by absentee ballot
except to the extent preempted under an applicable federal law.” 2006 Md. Laws ch. 6;
see also Elec. Law § 9-304 (Repl. 2022).
The same 2008 constitutional amendment that extended the General Assembly’s
4

power to authorize absentee voting to any qualified voters also permitted the General
Assembly to authorize early voting. See 2007 Md. Laws ch. 513.
4
eligibility to vote absentee and ballots are available, the local board must provide the voter

an absentee ballot as soon as practicable. Id. §§ 9-306, 9-309.

Although absentee ballots may be returned at any time after they are received,

§ 11-302(b)(1) prohibits a local board of elections from opening an absentee ballot

envelope “prior to 8 a.m. on the Wednesday following election day.” Once canvassing

begins, the local boards are required to “release a report of the unofficial results of the

absentee ballot vote tabulation” each day. Id. § 11-302(e). To be counted, an absentee

ballot must be (a) received by a local board, dropped off at a polling place, or deposited

into a ballot drop box before the polls close on election day, or (b) sent by the United States

Postal Service on or before election day and received no later than “10 a.m. on the second

Friday after an election.” Md. Code Regs. (“COMAR”) 33.11.03.08B (2022); see Elec.

Law § 11-302(c).

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.” COMAR 33.11.04.01A(2), (3). Each

local board, acting “in its role as a board of canvassers,” is responsible for canvassing

absentee ballots from its jurisdiction. Id. 33.11.04.02 (2022). The election director begins

by sending batches of “a controllable number of ballots” to each “team” of reviewers. Id.

33.11.04.05A. 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

5
envelope with the mailing address face down on the table without removing the contents.”

Id. 33.11.04.05B–D. The team then removes the contents “one at a time, taking care that

each envelope remains face down.” Id. 33.11.04.05E. The team must separate any voter

assistance certificates into separate stacks and verify that no more than one ballot is in any

envelope, before setting the envelopes aside. Id. 33.11.04.05G–H. The team then inspects

“each ballot for compliance and tabulating acceptability.” Id. 33.11.04.07A. Any issues

that arise while opening the envelopes or during initial review or ballot inspection are

referred to the local board to decide whether to reject or accept the ballot. Id. 33.11.04.06,

.08.

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. Id. 33.11.04.07D. The local board is required to group ballots

according to whether they are (1) acceptable for tabulation, (2) acceptable to the board but

objected to by a contesting party, or (3) rejected by the board.5 Id. 33.11.04.09A. The

votes from the ballots in each of the first two groups are tabulated separately and then

reported and included in the unofficial vote totals. Id. 33.11.04.09B. Once removed from

their envelopes, ballots must be tabulated “without unreasonable delay.” Id. 33.11.04.10.

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

5
The regulations contain extensive provisions relating to grounds for rejection of
absentee ballots. COMAR 33.11.05.01 – .08.
6
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. Id. §§ 11-308(b), 11-401. The transmittal of the certification is to “be made on the

second Friday after a primary or general election or, if the canvass is completed after that

date, within 48 hours after the completion of the canvass.” Id. § 11-401(c)(1). Circuit

court clerks are required to record the certified local election results. Id. § 11-401(d).

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, Elec. Law §§ 11-502(a) & 11-503(a), and

the certification triggers a three-day deadline to file a petition for a recount, id. § 12-101(d).

7
 Finally, the United States Congress is required to “assemble . . . at noon on the 3d

day of January.” U.S. Const. amend. XX, § 2.

4. Emergencies

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.

Elec. Law § 8-103(b)(1). This is the provision at the center of the present dispute.

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

8
secure drop boxes to collect absentee ballots; and (2) creating a permanent absentee ballot

list. 2021 Md. Laws, ch. 56; see also Elec. Law §§ 2-304, 2-305, 9-311.1.

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.”

6
Early voting centers are open from “the second Thursday before a primary or
general election through the Thursday before the election.” Elec. Law § 10-301.1(d)(1).
For the 2022 general election, the second Thursday before election day was October 27,
2022, and eight days before that was Wednesday, October 19, 2022.
7
The legislation contained an uncodified provision that would have permitted
tabulation of absentee vote totals before the polls closed only during the 2022 statewide
primary election. See S.B. 163, § 2; H.B. 862, § 2.
9
 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. As relevant here, that had two chief

consequences for those elections. First, absentee voting was strongly encouraged, and

voters made significantly greater use of it than ever before. Pursuant to a series of

emergency executive orders issued by Governor Hogan, the 2020 elections were conducted

principally by absentee ballot. In the June 2020 primary election, 97% of votes were cast

by absentee ballot. In the November 2020 general election, 1,528,327 ballots, 51.7% of

total non-provisional ballots,8 were cast by absentee ballot. See 2020 Presidential General

Election: Total Voter Turnout, State Bd. Elections, https://perma.cc/V7B6-GJZX (last

visited Mar. 20, 2023). By comparison, absentee ballots comprised 6.5% of total ballots

cast in the 2016 presidential general election9 and 5.3% of the total ballots cast in the 2018

gubernatorial general election, which was the highest of the three most recent gubernatorial

general elections before 2022.10

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

8
Consistent with the way the State Board has identified percentages, provisional
ballots are not included in any of the ballot totals identified in this opinion.
9
Official Turnout (By Party and County), Election: 2016 Presidential General
Election, State Bd. Elections, https://perma.cc/UL3S-CT4F (last visited Mar. 20, 2023).
10
Official Turnout (By Party and County), Election: 2018 Gubernatorial General
Election, State Bd. Elections, https://perma.cc/U4FZ-2H5C (last visited Mar. 20, 2023).
10
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.

11
Official Turnout (By Party and County), Election: 2022 Gubernatorial Primary
Election, State Bd. Elections, https://perma.cc/4KTJ-MMGH (last visited Mar. 20, 2023).
12
Official Turnout (By Party and County), Election: 2018 Gubernatorial Primary
Election, State Bd. Elections, https://perma.cc/R3V3-TGUK (last visited Mar. 20, 2023).
11
Those delays ultimately caused Maryland to miss some statutory deadlines related to

finalizing the general election ballot.13

C. Procedural Background

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

13
The deadlines missed after the 2022 primary election, none of which are relevant
to a general election, are established to enable the State Board to comply with the
requirement to timely “certify and publicly display” the general election ballot. See Elec.
Law § 9-207(a)(2). They include deadlines for primary winners to decline a nomination,
id. § 5-801(b)(2)(i), and for appropriate political bodies to fill any vacated nominations, id.
§§ 5-1002 – 1004.
12
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

13
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 physical space, an

inability to begin the process of allowing a voter to cure deficient web delivery ballots until

ballots are opened, the limited number of permanent board staff available to supervise

canvassing, and budget limitations, among other reasons.

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

14
In this opinion, we focus on Election Law § 11-302(b)(1), which contains the
prohibition on canvassing absentee ballots until the day following election day. The other
provisions the State Board asked the court to suspend are: (1) § 11-302(a), which requires
that each local board of elections meet to canvass absentee ballots “[f]ollowing an
election”; and (2) § 11-302(e), which requires each local board, “[a]t the end of each day
of canvassing,” to “prepare and release a report of the unofficial results of the absentee
ballot vote tabulation.” The first is complementary to § 11-302(b)(1) and the second had
to be suspended to prevent release of voting results before election day.
14
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 Md. Rule

8-131(c); see also Mayor & City Council of Ocean City v. Comm’rs of Worcester County,

475 Md. 306, 311-12 (2021) (“Our interpretation of the Maryland Constitution is a question

of law; therefore, we review a circuit court’s interpretation of the Maryland Constitution

15
under a de novo standard.”); Wheeling v. Selene Fin. LP, 473 Md. 356, 373 (2021) (“Where

questions of law and statutory interpretation are presented, this Court reviews them de

novo[.]”). Because Candidate Cox stipulated to the facts presented by the State Board,

there are no disputed factual findings for us to review. However, the circuit court’s

determination of whether the stipulated facts rise to the level of emergency circumstances

is a mixed question of law and fact, which is entitled to “deferential review” by this Court.

See, e.g., Liddy v. Lamone, 398 Md. 233, 247 (2007); Gore Enter. Holdings, Inc. v.

Comptroller, 437 Md. 492, 504-05 (2014).

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.

16
 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

17
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

18
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

§ 8-103(b)(1), the delegation complies with Article 8 only if the task to be performed

constitutes a judicial function.15

15
In discussing separation of powers vis-à-vis judicial action in Murphy v. Liberty
Mutual Insurance Co., this Court identified “four broad categories” of cases in which we
have “addressed the Judiciary’s place in Maryland’s system of government”:
(1) those involving a legislative attempt to assign to the courts a task that had
nothing to do with adjudicating cases . . . ; (2) those involving actions taken
19
 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

by, or requested of, a particular court in a particular proceeding that
encroached upon a legislative or executive function; (3) those that concern
whether the adoption of a particular rule by the Court of Appeals exceeded
the Court’s authority under Article IV, § 18(a) to adopt rules and regulations
concerning “the practice and procedure” in the courts; and (4) those
involving whether a particular rule or other action by the Judiciary exceeded
the rulemaking authority of the Court of Appeals under that same section
concerning “the administration” of the courts.
478 Md. at 373-74 (footnotes omitted). Here, we are concerned with the first category,
involving express legislative delegation.
20
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

16
In a somewhat related inquiry, we have considered whether tasks performed by
administrative agencies rely on individual grounds and adjudicative facts as opposed to
general grounds and legislative facts. See Talbot County, 415 Md. at 386-87. Adjudicative
facts generally include “questions of who did what, where, when, how, why, [and] with
what motive or intent[.]” Id. at 387-88 (internal quotation marks omitted) (quoting
Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 712 (1977)). Legislative
facts, by contrast, are typically “general facts which help the tribunal decide questions of
law and policy and discretion.” Id. at 388 (quoting Woodward & Lothrop, 280 Md. at 712).
The more a task delegated to a court is based on individual grounds and adjudicative facts
that resolve a specific dispute, the more likely it is to be viewed as a judicial function.
21
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 Montgomery County Code § 19A-22(b)).

We concluded that it was improper to provide a court with the “unguided discretion” to

decide whether to allow an official act to stand based solely on the court’s assessment of

whether voiding the act was in the public interest. 319 Md. at 572. That, our predecessors

held, was a “question[] of policy and expediency” that was a legislative, not a judicial,

function. Id.

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

22
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 established,” “definite guide” for the exercise of their discretion, applicable

“in all cases,” which is that “the welfare of the [child] is the primary consideration in

determining whether a person is fit to have custody[.]” Id. at 26-27. The difference lay

not in the terminology of the question, as both inquiries focused on the fitness of the

individual, but on the existence of guidance for the exercise of the court’s discretion.

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 § 8-103(b)(1) of the Election Law Article is a judicial function, we must be

clear on what that task is. We therefore return to the text of § 8-103(b)(1):

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

23
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

§ 8-103(b)(1) assigns a judicial function. First, the task is of a nature that has traditionally

been performed by the judicial branch, both procedurally and substantively. 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, if harm meeting the statutory

threshold is proven, calling for the fashioning of an appropriate remedy. Specifically, the

court is called upon to determine whether particular emergency circumstances identified

by a board of elections (1) exist and (2) interfere with the electoral process; as well as

whether the court can impose a remedy that will (3) protect the integrity of the electoral

process from the impending threat and (4) not be contrary to the public interest generally.

The court is thus called upon to resolve discrete issues based on adjudicatory facts, not

24
“general facts which help the tribunal decide questions of law and policy and discretion.”

Talbot County, 415 Md. at 387-88 (quoting Woodward & Lothrup, 280 Md. at 712).

With respect to substance, the Election Law Article is replete with provisions

permitting, contemplating, or requiring court intervention when necessary to ensure the

integrity of the electoral process. Subtitle 2 of Title 12 of the Election Law Article, titled

“Judicial Review of Elections,” “applies to an[y] issue arising in an election conducted

under this article.” Elec. Law § 12-201. Section 12-202(a) permits a registered voter to

“seek judicial relief from any act or omission relating to an election, whether or not the

election has been held[,]” based on an allegation that the act or omission is inconsistent

with the Election Law Article or other law, or “may change or has changed the outcome of

the election.” In any such proceeding in which a court determines that an “act or omission

materially affected the rights of interested parties or the purity of the elections process”

and changed, or may change, the outcome of an election, the court is authorized to impose

an appropriate remedy. Id. § 12-204. Such a remedy may include declaring void the result

of an election already held, or postponing and rescheduling an election not yet held. Id.

Consistent with the overarching concern of maintaining the integrity of the electoral

process, all such judicial proceedings must be expedited. Id. § 12-203.17

17
See also, e.g., Elec. Law § 3-602(c), (d) (providing for judicial review of
determinations concerning voter eligibility, and requiring the State Board to make any
corrections required by court order); id. § 5-305(b), (d) (permitting a registered voter to file
a petition in circuit court challenging the residency of a candidate and requiring expedited
judicial review); id. § 6-209 (providing for judicial review of decisions related to
sufficiency of petitions to appear on the ballot); id. § 9-207(b) (permitting the Supreme
Court of Maryland, on petition of the State Board, to postpone the date for certifying and
publicly displaying the ballot “in extraordinary circumstances”); id. § 9-209 (providing for
25
 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.

“judicial review of the content and arrangement, or to correct any administrative error,” on
the ballot once certified); id. § 9-404(c) (implicitly recognizing the right of a court, by
order, to “extend[] the time for closing the polls”); id. § 11-303(d)(4)(iii) (implicitly
recognizing the right of a court, by order, to “extend[] the time for closing the polls”); id.
§ 11-304 (authorizing appeals from a local board’s decision to reject or not reject an
absentee ballot).
26
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 § 8-103(b)(1) provide more than sufficient guidance to render

a court’s decision an exercise in judicial, rather than legislative, discretion. Specifically,

the court may impose a remedy only if it finds the existence of emergency circumstances

that interfere with an election, and its remedy must protect the integrity of the electoral

process by addressing those specific emergency circumstances. Candidate Cox’s contrary

contention focuses almost exclusively on the requirement that the court’s remedy be “in

the public interest,” equating that requirement to the flawed ordinance in Sugarloaf, which

permitted a court to void an official action if it found that doing so would be “in the public

interest.” See Sugarloaf, 319 Md. at 573. Candidate Cox’s reliance on that similarity in

language is misplaced. As an initial matter, the sole criterion in the ordinance at issue in

Sugarloaf was whether voiding the official action would be in the public interest,

seemingly leaving the matter entirely to how the court felt about the official action. Here,

by contrast, § 8-103(b)(1) also requires that any remedy protect the integrity of the electoral

process. And unlike the ordinance in Sugarloaf, which permitted the court to make the

permanent policy decision to void or maintain an official action, § 8-103(b)(1) necessarily

contemplates a temporary remedy narrowly tailored to addressing an immediate threat.

27
 Furthermore, contrary to Candidate Cox’s argument, there is nothing inherently

nonjudicial in considering whether a remedy is in the public interest. Indeed, Rule

15-504(a)(2)(D) requires that a court determining whether to grant a temporary restraining

order consider, as one of four factors, whether granting the order would be “contrary to the

public interest.” We impose the same obligation on a court determining whether to issue

a preliminary injunction. See, e.g., Ademiluyi, 466 Md. at 114 (quoting Eastside Vend

Distribs., Inc. v. Pepsi Bottling Grp., Inc., 396 Md. 219, 240 (2006)); State v. Falcon, 451

Md. 138, 157 (2017) (quoting Schade v. Md. State Bd. of Elections, 401 Md. 1, 36 (2007));

accord Ramirez v. Collier, 142 S. Ct. 1264, 1275 (2022) (identifying one of four factors

that a party seeking a preliminary injunction in federal court must establish as “that an

injunction is in the public interest” (quoting Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20 (2008))).

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.

28
 In sum, the task the General Assembly delegated in § 8-103(b)(1) is a judicial

function. That delegation thus does not offend Article 8 of the Declaration of Rights and

§ 8-103(b)(1) is not facially unconstitutional.

C. The Circuit Court’s Remedy Is Not Unconstitutional as Applied.

Candidate Cox contends that even if § 8-103(b)(1) is not facially unconstitutional,

it is unconstitutional as it was applied in this case because the circuit court’s remedy had

the effect of voiding a gubernatorial veto. We disagree.

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

29
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 § 8-103(b)(1) is constitutional, the circuit

court erred in finding that “emergency circumstances” existed that justified the court’s

intervention. We will first discuss the meaning of “emergency circumstances,” as used in

§ 8-103(b)(1), before turning to the court’s determination that such circumstances existed

and justified relief here.

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)

30
(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

§ 8-103(b)(1). Taking the contrary position, Candidate Cox argued that those

circumstances did not constitute “emergency circumstances” for purposes of § 8-103(b)(1).

Our analysis therefore “begins by discerning the ordinary and popular meaning,” Berry,

469 Md. at 688, of “emergency circumstances.”

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

18
See also Circumstance, Merriam-Webster’s Collegiate Dictionary 225 (11th ed.
2014) (defining “circumstance” as “a condition, fact, or event accompanying, conditioning,
31
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

breadth of that definition. See 75-80 Properties, L.L.C. v. Rale, Inc., 470 Md. 598, 624

(2020) (stating that the “meaning of the plainest language is controlled by the context in

or determining another[.]”); Circumstance, Black’s Law Dictionary 306 (11th ed. 2019)
(defining “circumstance” as “[a]n accompanying or accessory fact, event, or condition,
such as a piece of evidence that indicates the probability of an event”).
19
Black’s Law Dictionary also includes a definition of “emergency circumstances,”
by cross-reference to “exigent circumstances,” that is consistent with our interpretation:
A situation that demands unusual or immediate action and that may allow
people to circumvent usual procedures . . . . Also termed emergency
circumstances . . .
Exigent Circumstances, Black’s Law Dictionary 306 (11th ed. 2019).
32
which it appears” (quoting Md. Dep’t of the Env’t v. County Comm’rs of Carroll County,

465 Md. 169, 203 (2019))). Section 8-103 contains two subsections. Subsection (a) applies

“[i]n the event of a state of emergency, declared by the Governor in accordance with the

provisions of law, that interferes with the electoral process[.]” Elec. Law § 8-103(a). In

that context, emergency has a specific meaning defined by statute: “the imminent threat

or occurrence of severe or widespread loss of life, injury, or other health impacts, property

damage or destruction, social or economic disruption, or environmental degradation from

natural, technological, or human-made causes.”20 Md. Code Ann., Pub. Safety § 14-101(c)

(2022 Repl.) (defining “emergency”); id. § 14-107(a)(1) (“If the Governor finds that an

emergency has developed or is impending due to any cause, the Governor shall declare a

state of emergency by executive order or proclamation.”). During a declared state of

emergency, the Governor has the authority to postpone an election or specify alternate

voting locations or systems. Elec. Law § 8-103(a).

Section 8-103(b)(1) applies to “emergency circumstances, not constituting a

declared state of emergency.” Thus, “emergency circumstances” for purposes of

§ 8-103(b)(1) are circumstances that, while emergencies, fall below the threshold required

20
The current definition of “emergency” for purposes of a declared state of
emergency was enacted effective October 1, 2021, pursuant to Chapter 288 of the 2020
Laws of Maryland. Before October 1, 2021, § 14-101(c) of the Public Safety Article
defined an emergency as “the threat or occurrence of: (1) a hurricane, tornado, storm,
flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide,
snowstorm, drought, fire, explosion, and any other disaster in any part of the State that
requires State assistance to supplement local efforts in order to save lives and protect public
health and safety; or (2) an enemy attack, act of terrorism, or public health catastrophe.”
Pub. Safety § 14-101(c) (2011 Repl.).
33
to declare a state of emergency. The statute does not otherwise provide insight into the

meaning of “emergency circumstances.”21

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 § 8-103 was adopted by the General Assembly in 1998 as part of a comprehensive

revision of the State’s election laws. See 1998 Md. Laws ch. 585. According to a drafter’s

note, the relevant language in Senate Bill 118 (1998), which became Chapter 585 of the

1998 Laws of Maryland, was adopted “to address the potential problem of a wide range of

‘emergencies.’” S.B. 118, 1998 Leg., 412th Sess. (Md. 1998) at 118. That language, in

turn, seems to have originated in a report of a commission formed to revise the former

Article 33, then Maryland’s Election Code, see Comm’n to Revise the Election Code,

Report of the Commission to Revise the Election Code 56 (Dec. 1997), and also appeared

in a bill analysis prepared by the Senate Economic and Environmental Affairs Committee,

see Bill Analysis, Senate Economic and Environmental Affairs Committee, in Bill File for

S.B. 118, 1998 Leg., 412th Sess. (Md. 1998). Other than that thrice-repeated phrase

21
The term “emergency circumstances” is used in other places in the Maryland
Code in a manner that is consistent with our interpretation. See, e.g., Md. Code Ann., Env’t
§ 9-406(b) (2014 Repl.; 2022 Supp.) (permitting action by the Secretary to provide safe
drinking water “[i]f, in the judgment of the Secretary, emergency circumstances exist with
respect to a need for safe drinking water”); Md. Code Ann., Pub. Safety § 12-808(c) (2022
Repl.) (permitting an owner or lessee to register an elevator unit with less than 60 days’
notice “[u]nder emergency circumstances”); id. § 12-909(f)(1) (providing exception to
requirement to provide 30 days’ notice before installation of a boiler or pressure vessel
“[u]nder emergency circumstances”); Md. Code Ann., Health-Gen. § 19-126 (2019 Repl.)
(requiring decisions on an application for a certificate of need to be consistent with the
State health plan and other standards “except in emergency circumstances posing a threat
to public health”).
34
suggesting an intent for the provision to operate broadly, the legislative history also does

not shed light on the meaning of “emergency circumstances.”

In sum, based on plain language and context, and consistent with legislative history,

“emergency circumstances” for purposes of § 8-103(b)(1) includes any unexpected or

unforeseen conditions that require immediate attention to prevent harm, but that do not rise

to the level of urgency or threatened harm required for a declared state of emergency.

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

35
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.

On the other hand, the record also supports the State Board’s position that the full

extent of the anticipated increased volume of absentee ballots, and its accompanying

disruption, did not become apparent until after the 2022 primary election. The 2020

primary and general elections both occurred within the first year of the COVID-19

pandemic, at a time when many businesses and government entities remained closed and

many people were venturing out of their houses only seldomly. Even so, the percentage of

Marylanders who voted by absentee ballot dropped from approximately 97% in the June

36
2020 primary to approximately half in the November 2020 general election. The July 2022

primary election took place more than 20 months after the 2020 general election, more than

a year after the Governor’s emergency declaration was lifted, and at a time when in-person

voting options had largely returned to pre-pandemic norms. Given the unprecedented

circumstances that had accompanied the 2020 elections, it was thus not unreasonable to

expect that the percentage of absentee ballots cast would again drop significantly.

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.

37
 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 § 8-103(b)(1), we offer one final

note. In the circuit court and on appeal, Candidate Cox challenged the authority of the

circuit court to impose a remedy. He did not, however, challenge any specific aspect of

the remedy requested by the State Board or imposed by the circuit court. As a result, we

have no opportunity here to assess the appropriateness of the particulars of the remedy.

However, because such proceedings do not require participation of an opposing party who

might be able to seek further review in future proceedings, we make two observations.

First, as the State Board conceded at oral argument, any remedy a circuit court imposes

pursuant to § 8-103(b)(1) must necessarily be tailored to address only the particular

“emergency circumstances . . . [that] interfere with the electoral process.” Second,

considering the extraordinary and potentially non-adversarial nature of proceedings under

§ 8-103(b)(1), it is incumbent upon a court to scrutinize the evidentiary support for a

petition to ensure that the petitioning board carries its burden not only as to the

circumstances justifying court intervention but also as to the particulars of the remedy

sought. The court’s ruling on a petition should therefore explain the basis for the court’s

38
conclusion that its remedy is appropriately tailored to address the particular emergency

circumstances at issue without going further than is necessary under the circumstances.

CONCLUSION

In summary, we hold that: (1) § 8-103(b)(1) of the Election Law Article does not

violate the separation of powers guaranteed by Article 8 of the Maryland Declaration of

Rights, either on its face or as applied in this case; and (2) the circuit court did not err in

determining that the State Board carried its burden of demonstrating that the anticipated

volume of absentee ballots to be cast in the November 2022 general election constituted

“emergency circumstances, not constituting a declared state of emergency, [that] interfere

with the electoral process,” see Elec. Law § 8-103(b)(1).

For those reasons, we affirmed the opinion and order of the Circuit Court for

Montgomery County entered on September 26, 2022.

39
Circuit Court for Montgomery County
Case No. C-15-CV-22-003258
Argued: October 7, 2022

IN THE SUPREME COURT

OF MARYLAND*

No. 21

September Term, 2022
______________________________________

IN RE: PETITION FOR EMERGENCY
REMEDY BY THE MARYLAND STATE
BOARD OF ELECTIONS
______________________________________

Fader, C.J.
Watts
Hotten
Booth
Biran
Eaves
Adkins, Sally D. (Senior Justice,
Specially Assigned),

JJ.
______________________________________

Concurring Opinion by Biran, J.
______________________________________

Filed: March 29, 2023

* 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.
 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 Election Article § 8-103(b)(1) “must necessarily be

tailored to address only the particular emergency circumstances that interfere with the

electoral process.” Slip op. at 38 (cleaned up).

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 around that time, it seems likely that the local boards would have

been able to perform their work as effectively as they did with a start date of October 1.

Thus, I am skeptical that the October 1 date went no farther than necessary to address the

emergency that confronted the State’s election officials.

If, in the future, the Board petitions a circuit court for emergency relief under

§ 8-103(b)(1) of the Election Article, the Board should provide the circuit court with

evidence establishing that the requested relief is tailored to address the present emergency.

If the circuit court finds that there is an emergency that warrants relief, the court should

then make findings as to whether the requested relief is tailored to address the emergency

and, if it is not, the court should grant different relief that is so tailored.

-2-
The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/21a22cn.pdf