Maryland GOP gubernatorial candidate Cox appeals court decision allowing earlier mail ballot counting

Published 9/27/2022 10:36 a.m. EDT, Updated 9/27/2022 5:23 p.m. EDT

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.

Maryland Republican gubernatorial candidate Dan Cox is continuing his opposition to a plan to confidentially tally mail ballots as they come in this fall.

An attorney for Cox on Tuesday filed an appeal of a ruling from a judge last week that allows the early counting of mail ballots on an emergency basis.

Cox’s attorneys also are asking for the judge’s ruling — and also the early counting of ballots — to be put on hold while the appeal is considered. Under the judge’s ruling, mail ballot counting can start as early as Oct. 1.

The appeal will “ensure the law is followed and to uphold the constitutional process in our election law and integrity,” Cox wrote in a Facebook post. “Mail-in ballots are rife with chain-of-custody concerns and counting them as they come in violates the law and constitution.”

The appeal could prolong uncertainty about how elections officials will count the general election ballots, just as those mail ballots are starting to go out in the mail to voters. The campaign of Cox’s opponent, Democrat Wes Moore, quickly blasted Cox for continuing to pursue a “bogus” attempt to create confusion in the electoral system.

Elections officials are anticipating a large volume of Marylanders — potentially more than 1 million — to vote with mail ballots this fall, either by returning them through the postal service or at ballot drop boxes. The Maryland State Board of Elections asked the courts for emergency permission to count the ballots early this fall in order to avoid problems seen in the primary election, when it took several weeks in some cases to determine winners and certify the results.

Maryland is the only state in the nation to forbid election officials from preparing and counting mail ballots until two days after Election Day. Lawmakers attempted to change the law this year, but Republican Gov. Larry Hogan vetoed the bill because he objected to other provisions.

Cox’s attorneys, Ed Hartman of Annapolis and Matthew Wilson of Tupelo, Miss., argued that it was unconstitutional for a judge to intervene in election matters, which are the responsibility of the legislature. They also argued that this isn’t a true emergency situation that needs to be addressed.

Montgomery County Circuity Court Judge James Bonifant disagreed, finding that it was appropriate and needed to change the calendar of counting ballots just for this one election. Bonifant issued his ruling on Friday.

The Maryland State Board of Elections opposes any efforts to put the ruling on hold, according to the Office of the Attorney General, which represents the board in court. The board and its attorneys plan to respond to Cox’s appeal “in due course,” the Office of the Attorney General said in a statement.

It’s likely that the state’s appeals courts will quickly move the case forward, given the issue of how ballots are counted is timely and of significant public interest, said Steve Klepper, head of the appellate practice at the Kramon & Graham law firm in Baltimore.

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“The Court of Appeals can and does decide election cases expeditiously as the circumstances demand,” Klepper said.

Moore, the Democratic nominee for governor, has raised no objections to the plan to count mail ballots as they come in, which was done in 2020′s elections without incident.

Moore’s campaign and the Maryland Democratic Party have alleged that Cox is trying to sow distrust and uncertainty in the electoral system. Under repeated questioning from journalists, Cox has not given a clear answer as to whether he will accept the general election results.

“Dan Cox is continuing his attempted assault on Maryland’s free and fair election system by doubling down on this bogus lawsuit to delay the electoral process,” Moore spokesman Carter Elliott IV said in a statement. “Cox has built a career on attacking elections and their outcomes. This kind of behavior is an attack on democracy and shouldn’t be allowed anywhere near the Governor’s office.”

He continued: “We’ve said it before — Dan Cox just isn’t too into democracy.”

The Democratic Party has noted that Cox is trailing Moore significantly in recent polling. Moore had a 53% to 31% advantage, with just 9% undecided, in a recent poll from Goucher College in partnership with The Baltimore Banner and WYPR.

The Democratic Party issued a statement Tuesday saying Cox’s latest move is straight from former President Donald Trump’s “playbook of deny and delay.”

“When an election process is dragged out, confusion, misinformation and tension can lead to negative things ... Everyone should have a chance to vote an dtheir vote should be counted efficiently,” the party said in the statement.

The notice of appeal was first reported by the Maryland Daily Record.

Kristen Mosbrucker of WYPR radio contributed to this article.

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