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Governor May Have Broad Power To Change Election Format

Rachel Baye / WYPR

The State Board of Elections plans to begin mailing all voters applications for absentee ballots on Aug. 24, State Elections Administrator Linda Lamone said Tuesday in a letter to Gov. Larry Hogan.

Although the state is encouraging all voters to submit their ballots by mail, Hogan has said state law requires every polling place to be open on Election Day this November. But legal experts say the state of emergency Hogan declared in response to the COVID-19 pandemic could give the governor broad power to change how and when people vote.


The call to open every precinct's polling location has created challenges for local election officials across the state who are struggling to recruit enough election judges to staff the polls.


The Baltimore City Board of Elections has recruited about 400 election judges but needs about 2,500 more to staff the city’s 296 precincts, said Election Director Armstead Jones. 


Without more judges, he estimated he could staff roughly a third of the precincts.


“To help with the judge situation, if there are three precincts in a school or building now, what we're going to do is just consolidate those, bring them together as one,” Jones said.


The city is missing more than judges. Some of the buildings that normally host polling places, such as churches, have said they cannot this year because of the pandemic, Jones said.


Local election officials across the state, as well as advocates and politicians, have said mailing ballots, rather than applications, would save time and money and prevent confusion among voters.


Jones said he lacks the manpower to process the ballot applications being mailed to every voter.


“We will be definitely overwhelmed with these applications and then processing everything else that we do and preparing for an election,” Jones said. “It’s like running two elections at one time.”


In her letter to Hogan on Tuesday, Lamone said the State Board of Elections is looking for a data center to help local elections officials process applications. 


“Since neither SBE nor the local boards of elections have the capacity to process the significant number of forms we expect to receive, we need another resource to help with this effort or voters will not receive their mail-in ballots in time to vote and return them,” Lamone wrote.


Some advocates have also called for vote centers where anyone in the jurisdiction can cast a ballot instead of precinct-specific polling places — enough locations to keep the lines short on Election Day but not so many that local officials can’t staff them.


But Hogan has said it’s not up to him.


“We're following the advice of health experts and existing state law, which was authored by the General Assembly, which requires voting on Election Day, and which requires the polls to be open, which requires early voting,” Hogan said at a press conference two weeks ago.


Last week, Hogan doubled down, saying the format of the election is up to the State Board of Elections.


“I have almost no role whatsoever in the election process,” Hogan said. “State law requires that they hold an election and that they open every precinct on election day, that they have eight days of early voting.”


In a letter to Lamone on Monday, Hogan said state law gives local election boards the power to consolidate some precincts.


“However, merging two polling places into one is very different than closing 90% of all of the polling places in a county,” Hogan wrote. “Local leaders have suggested massive closures of polling places, particularly in some of our minority communities. This would likely result in voter suppression and disenfranchisement on a significant scale, disparately impacting Marylanders of color.”


Hogan could have more power than he’s letting on. State law appears to give the governor the authority to postpone the election, change voting locations, or change “voting systems” during a state of emergency, such as the one Hogan declared in response to the pandemic, said Andy Levy, a partner at the Baltimore law firm Brown Goldstein Levy.


Levy said he is surprised that Hogan appears to be downplaying his authority.


“Governors are not known for having, you know, modest interpretations of their executive authority under normal circumstances, under non-emergency circumstances,” Levy said. “Here we have a declared state of emergency and a statute in the election code that specifically gives the governor the power to do quite a lot of things.”


Levy gave the caveat that it’s hard to know how much power the statute gives the governor until someone challenges it in court and a judge makes a ruling. And there has never been a situation quite like this one.


“My 93-year-old mother remarked to me not long ago, without intending any sense of irony, she said, ‘Wow, I've never lived through anything like this,’” Levy said. “This is a woman who lived through the Depression and World War II, and still this was not within her experience.”


Voters with a Maryland driver's license can request a mail-in ballot online. All other Maryland voters can use this form to request their ballot.

Rachel Baye is a senior reporter and editor in WYPR's newsroom.
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