Appellate Standing in Maryland’s Mail-In Ballot Dispute
On Friday, the Maryland Court of Appeals granted the State Board of Elections’ petition for immediate review of the challenge by Delegate Daniel Cox to the circuit court order allowing the canvassing of mail-in ballots to begin on October 1 instead of November 9. The Court of Appeals expedited the appeal, with both sides’ briefs due Tuesday, and oral argument on Friday, October 7.
The questions presented are:
In re: Petition for Emergency Remedy by the Maryland State Board of Elections – Case No. 21, September Term, 2022
Issues – Election Law – 1) Did the trial court correctly rule that the remedy sought under Md. Code § 8-103(b)(1) of the Election Law (“E.L.”) article comports with the principle of separation of powers because the remedy, an adjustment to the electoral calendar, is a function routinely entrusted to the judicial branch? 2) Did the trial court correctly rule that the incoming volume of mail-in ballots and inadequate time frame in which to process them constitute “emergency circumstances” that “interfere with the electoral process” as those terms are used in E.L. § 8-103(b)(1)?
Election Law § 8-103(b)(1) provides, without elaboration: “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 State Board’s petition notes that the trial court allowed Delegate Cox, the Republican nominee for governor, to intervene as a matter of discretion, not right. The State Board welcomed his participation. A footnote states: “Delegate Cox’s intervention in the case mooted any concerns or controversies regarding the justiciability of the one-party proceeding.”
I don’t see the concern about justiciability in the circuit court. The Maryland Constitution has no “case or controversy” clause, and the State Board did not petition under a statute, such as the Declaratory Judgment Act, that requires an actual controversy. Many matters are justiciable in circuit courts when no controversy exists. For example, circuit courts decide uncontested petitions for adult name changes and can even waive the requirement of publication that would give notice to anyone who might object.
On the other hand, although I may well be missing something, I have trouble seeing why Delegate Cox has standing to appeal. Appellate jurisdiction requires a notice of appeal filed by a person aggrieved by the order or judgment, under the usual principles of legal standing. See Buchwald v. Buchwald, 175 Md. 103, 114 (1938). Standing requires a wrong different in character and kind from that suffered by the public generally.
So far as I can tell from the public filings, Delegate Cox asserts no competitive disadvantage from the circuit court’s order. The order has no effect on the casting of votes, just the timing of canvassing ballots. From a standing perspective, it is hard to see what legal harm Delegate Cox could claim from earlier canvassing. Delegate Cox appears to assert a generalized interest, as a participant in the electoral process, in seeing that the State Board follows the law.
But does a candidate’s interest, as a prospective officeholder, distinguish him from an engaged voter who cares intensely about the State Board’s compliance with the law? Although it is often easier in election law cases to identify a basis for standing, standing still requires more than “a claim of the right, possessed by every citizen, to require that the Government be administered according to law.” Kendall v. Howard Cnty., 431 Md. 590, 610 (2013) (quoting Baker v. Carr, 369 U.S. 186 (1962)).
It is easy to imagine § 8-103(b) cases where a candidate can allege the kind of harm that would give standing to intervene as of right and appeal any adverse ruling. Or if the Governor had intervened to claim that the order interfered with his power to claim an emergency, there would have been a stronger case for standing here.
From an institutional perspective, I tend to think the public interest is better served when Maryland’s highest court resolves disputes about compliance with election law. The State Board should get credit for welcoming Delegate Cox’s participation, and for petitioning to put this case before the Court of Appeals when Delegate Cox did not seek bypass certiorari. The public often sees standing as a “technicality.” But an aggrieved party, with standing to note an appeal, is necessary for a Maryland court to exercise appellate jurisdiction.
This case raises significant concerns whether Delegate Cox had a right to appeal the circuit court’s order. As I said, I may well be missing something, and I invite anyone to post a comment if they see something I don’t.