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