Attorneys for Dan Cox, the Republican candidate for governor, filed a notice Tuesday that they are going to appeal a Montgomery County Circuit Court judge’s Friday ruling that allowed early processing of mail-in ballots.
The notice does not lay out the arguments, but Cox’s attorneys have said election law is not for the courts to decide but for the legislature. Maryland law does not allow mail-in ballots to be counted until two days after Election Day.
“We are appealing because we believe the ruling to be in violation of the separation of powers expressly stated in the Maryland constitution,” said Ed Hartman, attorney on behalf of Dan Cox, in an email.
The judge’s ruling cleared the Maryland Board of Elections to begin processing and counting mail-in ballots as early as Oct. 1, this Saturday.
Attorneys for the Maryland State Board of Elections said in a statement it plans to respond to the appeal in court.
“The Board opposes any effort to stay the circuit court’s judgment pending the appeal and will respond to the appeal in due course,” according to the emailed statement.
The board filed the emergency petition, arguing it would take months to certify the election otherwise because 524,800 voters requested mail-ballots statewide for the Nov. 8 general election. That means results wouldn’t be certified until the end of December or even early January 2023.
The state plans to process mail-in ballots before Election Day, but would not post results online until after polls closed.
Maryland voters cast 345,230 mail-in ballots during the primary in July, but election officials couldn’t open them, let alone count them, until two days after.
Cox has repeatedly refused to say whether he will accept the results of the election if mail-in ballots are counted early.
Johns Hopkins political science professor emeritus Matthew Crenson said that the campaign is using the mail-in ballot question as a way to question election integrity, something that Donald Trump did in November 2020.
“It sounds like he’s setting the scene to declare that the election has been rigged,” Crenson said. “It’s a serious problem, it calls into question one of the traditions on which American democracy is based, which is the peaceful transition of power.”
Maryland is the only state that prohibits processing mail-in ballots until days after in-person voting on Election Day. Dozens of states begin counting mail-in ballots either before or on Election Day.
Gov. Larry Hogan vetoed legislation earlier this year that would have allowed county election offices to count ballots before in-person voting.
At the time, Hogan cited a lack of ability to verify signatures as a security threat. But on Friday, Hogan lauded the judge’s decision noting that his emergency order enabled mail-in voting during the coronavirus pandemic.
“It worked well in that election, but partisan legislators dropped the ball on adopting our successful approach, making this step necessary,” Hogan said in a statement.
On Tuesday afternoon, the Court of Special Appeals gave the State Board of Elections until Thursday afternoon to respond to Cox’s filing.
