Dan Cox appeals ballot counting dispute to U.S. Supreme Court

Published 1/14/2023 12:02 p.m. EST, Updated 1/17/2023 8:58 a.m. EST

Maryland Republican gubernatorial candidate Dan Cox speaks to reporters outside Montgomery County Circuit Court in Rockville on Tuesday, Sept. 20, 2022. Cox is objecting to a proposal that would have mailed ballots processed ahead of Election Day.
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Former Republican candidate for governor Dan Cox is attempting to take his legal fight over Maryland’s ballot-counting schedule to the U.S. Supreme Court.

Cox announced on his social media accounts Friday night that he and his attorneys filed an appeal to the nation’s highest court.

During his unsuccessful campaign for governor in 2022, Cox spent considerable time waging a legal battle in Maryland courts in an attempt to prevent elections officials from confidentially counting mail-in ballots that arrived ahead of Election Day.

The state’s ballot-counting schedule, as laid out in state law, did not include the early tabulation. But officials with the Maryland State Board of Elections used a provision of the law to receive permission from the courts to do so on the grounds that emergency circumstances existed, including an influx of mailed ballots.

Cox disagreed and challenged the schedule, but lost in Montgomery County Circuit Court and on appeal in the state’s highest court. His appeal to the U.S. Supreme Court, known as a petition for writ of certiorari, was docketed on Jan. 6.

In his filing, Cox argues that when the courts changed the ballot-counting schedule, they were committing a violation of separation of powers provisions in the state and national constitutions, because the legislative branch is supposed to set the rules for elections. The Supreme Court of Maryland “ran roughshod” over those constitutional provisions, Cox wrote.

Cox also acknowledged in his filing that the 2022 election is over, but he suggested the same issue “will surface every election cycle.”

“Given the likelihood that mail-in ballots will continue to be popular, the BOE is likely to need and seek this relief every election cycle,” Cox wrote.

State lawmakers, however, have expressed an intent to pass a law this year permanently changing the elections calendar to allow the confidential early counting of mailed ballots going forward.

The U.S. Supreme Court is not required to consider all the cases that are filed; in fact, the court accepts only 100 to 150 of the estimated 7,000 petitions for writ of certiorari submitted each year.

Annapolis attorney C. Edward Hartman III is representing Cox, as he has throughout this legal fight.

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Cox was soundly defeated in the race for governor by Democrat Wes Moore, 65% to 32%. Moore will be sworn into office at noon on Wednesday.