Cox campaign appeals decision to allow early counting of mail-in ballots

September 27, 2022

Maryland Matters

Lawyers representing the campaign of Republican gubernatorial candidate Dan Cox have appealed a ruling from a Montgomery County Circuit Court judge that allows boards of elections in the state to begin counting mail-in ballots this weekend.

State law currently requires such ballots to be counted two days after Election Day. On Friday, an administrative law judge ruled that they could be counted starting Oct. 1, saying key deadlines would potentially be missed.

On Tuesday, the Cox campaign said it has appealed to the Maryland Court of Special Appeals, the second-highest court in the state, also asking the court to issue a stay on the ruling until judges decide whether to accept the appeal.

“It’s not in the court’s purview to do this,” said Ed Hartman, an attorney for the Cox campaign, in an interview. “Earlier this year, the legislature passed two bills that would arguably have remedied the problems that the board of elections contends that it has.”

“Gov. [Larry] Hogan (R) vetoed both those bills and that veto was not overridden. So, this has already been addressed in the proper domain, which is the General Assembly. So to all of a sudden allow the circuit courts to take over the role of the legislature is fundamentally unconstitutional.”

“Whether or not you agree or disagree with the policy behind those laws, that is the state of the law,” Hartman added.

Cox is squaring off against Democrat Wes Moore in the general election to replace Hogan, who is banned by state law from seeking a third term.

The State Board of Elections has not responded with a comment on the appeal, though a spokesman said typically it doesn’t comment on ongoing litigation. The board had asked the Montgomery County court to authorize early ballot-counting.

Hartman said it’s fair to be worried about how the counting of ballots would proceed in November, agreeing “there probably is a problem.” However, he contends that the situation doesn’t arise to the level of “an emergency” either, which he says both sides agree is defined as something “unforeseeable, unanticipated, and sudden.”

“This action, of which the board of elections complains, is none of those,” said Hartman. “Because the legislature changed the law allowing greater access to mail-in ballots we have known for some time that there will be a substantial number of mail-in ballots again, and frankly for every election cycle going forward, and that should have been accounted for. There should be a plan for that.”

“It’s not an emergency,” he added. “This is going to happen every year going forward.”

He said the Court of Special Appeals ruling may depend on what it says regarding his request for a stay on the circuit court ruling.

“If they deny the stay and they begin opening the ballots on the first [of October], the case may be moot at that point,” said Hartman. “At that point, the cat’s out of the bag.”

Maryland Democrats blasted the Cox campaign’s decision to appeal the earlier court ruling, pointing out that problems arose with the delayed tallying of primary ballots. Others compared the tactics to those of President Trump, who has endorsed Cox’s campaign.

State Sen. Cheryl Kagan (D-Montgomery), who sponsored Senate Bill163, the bill that would have allowed for early ballot-counting, said she was disappointed but not surprised by Cox’s appeal.

“Like Donald Trump, Cox seeks to raise doubts about the integrity of our election process,” she said. “Just last month, Cox seemed to have no concerns about the process when he won the Republican Primary Election!”