ROCKVILLE — Lawyers for Republican gubernatorial nominee Dan Cox, in asking a Montgomery County Circuit Court judge to block a request to allow early counting of mail-in ballots, contend that state elections officials have failed to prove there is an emergency requiring court intervention.
In the meantime, local election officials are warning that they expect to be deluged with mail-in votes for the November election and may need several days, if not weeks, to count them if they have to wait until after Election Day to begin.
State elections officials had gone to court earlier this month to ask for permission to begin early counting what is expected to be a flood of mail-in ballots. Cox says such a request should be denied.
“The Board of Elections attempts to justify its request by offering speculation that it will be unable to comply with deadlines required by Maryland statutes,” Cox’s attorneys argue in a recently filed memorandum.
Cox and his attorneys’ motion to intervene was granted Friday with a hearing scheduled for Tuesday morning in Rockville.
Cox is represented by Annapolis attorney C. Edward Hartman III and Matthew D. Wilson, a Tupelo, Mississippi, attorney who is a supporter of former President Donald Trump and campaign aide to Republican former Arkansas Gov. Mike Huckabee.
If approved by the court, elections boards across the state would be able to begin counting mail-in ballots as they are received later this year. Results of those counts would not be made public until after the polls close on election night.
Without court intervention, elections boards would not be able to count any mail-in ballots until two days after Election Day.
The process sought by state elections officials would be similar to that used in 2020 under an emergency order issued by Gov. Larry Hogan.
Earlier this year, the General Assembly passed a bill that would have made the practice of counting mail-in ballots used in 2020 permanent.
But Hogan vetoed that bill.
State law allows for elections officials to ask the courts to allow early counting.
Cox’s attorney’s acknowledge the court’s role but said elections officials failed to meet a definition of emergency that includes “sudden and unexpected.”
“The situation of which the Board of Elections complains is neither; rather it is by design of the legislature,” the attorneys write, noting that state officials acknowledge some of the laws that are applicable in this case are 5 years old.
“Five years ago is neither sudden nor unexpected,” Cox’s attorney’s write.
They go on to argue that the request is unconstitutional as it asks the Circuit Court to fill a legislative role.
State and local election officials, in affidavits filed with the court, point to delays in the recent July primary and concerns that expected high voter turnout will require nearly a month in some cases to count expected mail-in ballots.
More than 345,000 people statewide voted by mail in the July primary. That was 10 times more than in 2018.
The sheer number overwhelmed local boards of elections in large urban counties. As a result, a number of counties, including Baltimore and Montgomery, experienced days and weeks of delays in finalizing election results.
Alysoun McLaughlin, acting director of the Montgomery County Board of Elections, said in an affidavit that her office is preparing for 150,000 mail-in ballots. This is nearly twice as many as was received in July.
McLaughlin said such delays in producing final results will cause confusion and erode trust in the electoral system.
Barbara Wagner, elections director in Frederick County, said nearly 16,000 mail-in were received in July. In her affidavit, she said her county is expecting 45,000 in November.
City elections officials reported receiving nearly 35,000 mail-in ballots in July, “a 1200% increase” over the 2018 primary. City Elections Director Armstead Jones said he is expecting 90,000 mail-in ballots for the general election, which would require “nine full days” to count.
Cox, a Trump supporter, has rejected President Joe Biden’s victory in 2020. He organized a group of buses to a January Stop the Steal rally and was later endorsed by the former president. He also called then-Vice President Mike Pence “a traitor” for not blocking the certification of the election. Cox later apologized for that statement.
His running mate has made unsubstantiated claims about election chicanery in some rural Maryland counties.
During the primary election, Cox threatened to challenge the legality of mail-in ballots but ultimately did not follow through after he won the election.
“One of the reasons so many Marylanders, along with millions more around the country, have lingering questions and doubts about the 2020 election is precisely because of situations like this,” Cox said in a statement Thursday. “In 2020, courts and executives throughout the nation overrode election law in response to the COVID-19 executive orders, changing the rules in the middle of the game — without the democratically-elected legislatures having a say at all.”