Republican gubernatorial nominee Dan Cox has filed a notice of appeal and is seeking an emergency order to block the early counting of Maryland’s mail-in ballots, set to begin Saturday under an order issued last week by a Montgomery County Circuit Court judge.
Ed Hartman, an attorney for Cox, said he filed a notice of appeal Tuesday morning.
The appeal would challenge a ruling by Judge James A. Bonifant, who sided with the Maryland State Board of Elections in its request to begin counting ballots earlier than state law allows in hopes of avoiding delays in results like those Maryland experienced after the July primary.
Bonifant’s opinion dismissed an argument from Cox, whose attorneys said that such a move would violate the separation of powers established in the state constitution. The situation did not constitute an emergency, they also argued.
The Maryland Court of Special Appeals released an order Tuesday giving Cox until Wednesday to file supporting documents, Capital News Service reported Tuesday evening. The board of elections must file a response to Cox’s appeal no later than Thursday afternoon.
Maryland has been grappling with a surge in the use of mail-in ballots since 2020, when the pandemic first interrupted the state’s traditional voting systems. That year, with a state of emergency declared by Republican Gov. Larry Hogan, elections officials began counting ballots weeks ahead of the election with emergency authorization from the Maryland State Board of Elections.
Since then, the state of emergency has been lifted, and Maryland reverted to a regulation that forbids the early canvassing of mail-in ballots before 10 a.m. Thursday following an election. That’s the latest start in the nation for mail-in ballot counting.
State lawmakers attempted to rectify the situation ahead of the July primary, passing a bill that would have permitted counting to begin in advance provided that results are embargoed until Election Day. Hogan vetoed the bill in May, saying he supported the canvassing change, but objected to other elements of the legislation dealing with election security.
By that time, the General Assembly was no longer in session. Legislators can only call themselves back to Annapolis for a special session in the case of a budget bill veto, which Hogan’s decision was not. Otherwise, only Hogan could call legislators into a special session.
Bonifant said Friday that there’s “no doubt that the increased amount of mail-in ballots will have an enormous effect on the process in this election.”
“The court is satisfied the undisputed facts of this case amount to emergency circumstances envisioned by the law,” he said.
Cox’s decision to appeal comes just days before Maryland was set to begin counting ballots under Bonifant’s ruling. Ballots already have been sent to military and overseas voters. They are due to be mailed beginning Thursday to state voters who requested them.
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Voters already are signaling they will participate in higher numbers using mail-in ballots this fall. As of last week, 524,818 voters had requested mail-in ballots for the November election. That trumps the 508,000 who requested such ballots for the primary.
Carter Elliott, communications manager for Wes Moore, Cox’s Democratic opponent, called Cox’s decision to appeal “an attack on democracy.”
“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,” Elliott said in a statement. “Cox has built a career on attacking elections and their outcomes.”
Cox is an ally of former Republican President Donald Trump and has helped spread the president’s unproven claims of widespread election fraud in 2020. As of last week, he would not say whether he would accept the results of the election if the counting timeline were changed.
“The answer to that question is very clear,” he told reporters a week ago following a court hearing on ballot counting. “Will the process now follow the constitutional approach to allow for confidence in that election? That’s the issue at stake here today.”
State Sen. Cheryl Kagan, a Montgomery County Democrat who sponsored the bill codifying early vote counting, said she was “disappointed but not surprised by Cox’s decision to appeal.
“Like Donald Trump, Cox seeks to raise doubts about the integrity of our election process,” Kagan said. “Just last month, Cox seemed to have no concerns about the process when he won the Republican primary election.”