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Election 2022 Justice

Appeals Court OK’s early count of mail-in ballots pending Cox’s appeal

GOP nominee for governor Dan Cox on Wednesday in Crisfield. Photo by Bruce DePuyt.

Maryland’s second highest court ruled Thursday that state and local elections officials can begin counting mail-in ballots as soon as Saturday while the court considers a broader challenge to early ballot counting from Del. Dan Cox (R-Frederick), the GOP nominee for governor.

In a brief order issued Thursday afternoon, three judges on the 15-member Maryland Court of Special Appeals denied Cox’s request for a stay order putting the counting on hold while he challenges a lower court ruling from last week that said the counting of mail-in ballots could begin before Election Day.

The order, signed by Judges Douglas Nazarian, Kevin Arthur and Donald Beachley, gave no explanation for their decision.

On Tuesday, lawyers for Cox’s campaign appealed a ruling from Montgomery County Circuit Court Judge James Bonifant last week that allows boards of elections in the state to begin counting mail-in ballots this weekend.

Last Friday, Bonifant said he was accepting the argument from the Maryland State Board of Elections, which had sought the early vote count, that an expected deluge of mail-in ballots could result in a potentially calamitous weeks-long delay of election results being tabulated and reported.

Cox’s lawyers said the decision to order early vote-counting should rest with the General Assembly and the governor, rather than the courts. The legislature passed a bill to mandate early vote-counting of mail-in ballots during the primary and the general election, but Gov. Larry Hogan (R) vetoed it. As a result, elections officials could not begin counting mail-in ballots until two days after the July 19 primary, delaying the final outcome of many elections for weeks.

The state elections board, with Hogan’s blessing, had sought a court decision enabling early vote-counting in the general election. Although mail-in ballots are only beginning to go out to voters who requested them, the appeals court order enables elections officials to begin counting them confidentially on Saturday.

There is no timetable for Cox’s broader appeal to be heard.

In a filing earlier Thursday, before the appeals court issued its order, Assistant State Attorney General Daniel Kobrin, representing the state elections board, wrote that Cox erred procedurally in filing his appeal and he rejected some of his lawyer’s arguments.

“As a current gubernatorial candidate, the early canvass of mail-in ballots likewise does not injure Delegate Cox,” Kobrin wrote. “An early canvass does not tally votes in a manner different than that prescribed by law. And an early canvass does not count the votes in the gubernatorial general election differently from any other race. Delegate Cox has not specified how he would be injured as a candidate by the grant of the State’s petition and how that injury would differ from any other candidate, or any other registered voter, in the State. He therefore cannot claim any unique injury because of the office he seeks.”