Dan Cox isn’t challenging gubernatorial election, but asks U.S. Supreme Court to review early ballot counting by state

Republican Dan Cox, who lost a bid to become Maryland’s governor, is asking the U.S. Supreme Court to review a judge’s decision that allowed the state to count mail-in ballots before Election Day in November.

In a petition, Cox’s attorney argues a Montgomery County circuit judge incorrectly granted a State Board of Elections request in September to permit ballot counting as early as Oct. 1 to accommodate an expected deluge of mail-in ballots. The election was Nov. 8, and Democrat Wes Moore won by 32 percentage points, the largest margin of victory for a governor since 1986.


Cox, a state delegate from Frederick County, has conceded the election and isn’t challenging its outcome. But his attorney, C. Edward Hartman III, argues in the Jan. 4 petition that Circuit Judge James A. Bonifant’s decision, which was upheld on appeal, was flawed.

Bonifant relied on language in Maryland election law that gives courts flexibility to protect the electoral process in emergencies.


Cox’s petition says that the language — and the court’s interpretation of it — is unconstitutional.

“The U.S. Constitution requires that the rules for holding an election be made only by the legislative body of the state holding those elections,” the petition says. “It is indisputable in this case that the Maryland Circuit Court for Montgomery County prescribed the manner of holding elections in Maryland, in direct contradiction of the manner already set by the Maryland legislature.”

The Maryland Court of Appeals (now called the Supreme Court of Maryland) affirmed Bonifant’s decision on Oct. 7.

““I pray the Supreme Court will take up the case, as Maryland’s actions bear significant and permanent impact on election law, and whether the United States’ constitutional mandate that the legislature make the rules matters,” Cox said in a statement Friday to The Baltimore Sun.

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A spokesperson for Democratic Attorney General Anthony Brown decline to comment. Brown’s office said in a filing Thursday with the U.S. Supreme Court that it was waiving its right to respond to the petition.

Cox has raised doubts about the legitimacy of the 2020 presidential election and refused before the 2022 gubernatorial election to say whether he’d accept the results. Cox previously helped former President Donald Trump — who Cox referred to as a “hero” in his concession statement — spread his baseless claims of fraud in Pennsylvania.

Election issues had divided Republican Gov. Larry Hogan and the Democratic-controlled General Assembly before voting began.

State law, established before the use of mail-in ballots became widespread amid the pandemic, does not allow the ballots cast to be counted until after Election Day — a scenario elections officials say would have meant blown certification deadlines.


Lawmakers passed a bill ahead of the July primary that would have permitted counting to begin in advance, provided results were 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 and could not override the veto.

Cox’s attorney argues that state courts in the future, absent U.S. Supreme Court guidance, may repeat the 2022 mistake of intervening in election rules.

“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,” the petition says.