Lawyers square off in court over whether Md. mail-in votes can be counted early

ROCKVILLE — Lawyers for the Maryland State Board of Elections and for Del. Dan Cox, the Republican nominee for governor, made arguments Tuesday before a Montgomery County Circuit Court judge on a petition that would allow for early counting of mail-in ballots in the General Election.

State officials say that waiting to count mail-in votes until after the election — now the law — could push election results for some races into December.

Cox and his attorneys argued that the large number of mail-in ballots was not unexpected and does not constitute an emergency. A court order would violate the Maryland constitution and the separation of powers between the judicial and legislative branches of government, they maintained.

“The simple facts of the matter are it’s our position that the constitution allows the legislature to make these rules and particularly midstream in the middle of an election it just undermines the confidence of the voters whom we have faith in here in Maryland,” said Cox, speaking to reporters after almost two hours of arguments in a Montgomery County Circuit Court Administrative Judge James Bonifant.

Bonifant is expected to rule on the petition Friday afternoon.

State elections officials filed a petition in Montgomery County Circuit Court asking a judge to suspend state law that prevents the counting of mail-in ballots until two days after the polls close. The board wants the judge to allow elections boards around the state to begin counting those ballots prior to Nov. 8 and release the results after the polls close.

Cox said such a request violates the Maryland Constitution and would erode voter confidence in the integrity of the election system. He compared the petition to attempting “to convene a legislative session here at the Montgomery County Court rather than the constitutional process, rather than at the State House in Annapolis.”

Daniel Kobrin, an assistant attorney general representing the state board of elections, argued that courts already have the ability to intervene in emergencies and extenuating circumstances including ordering polls to remain open as happened in 2008.

“Del. Cox takes an absolutist position that you have a constitutional provision and that no branch of government can therefore not only affect the election calendar but do anything with an election,” said Kobrin. “It is only the legislature that can set out election proceedings and how it is essentially counted or judged. That cannot be true.”

Kobrin said courts have the authority to decide challenges to residency. In extreme cases, judges can nullify an election and order a new one to take place.

Cox is represented by C. Edward Hartman, an Annapolis attorney, and Matthew Wilson, a Tupelo, Mississippi attorney. Wilson is a longtime friend of Cox. The two attended Regent University Law School together.

Hartman told reporters that Cox’s opposition is grounded in “making sure the three branches of government do their jobs and only their jobs.”

“This is not a determination of whether the ideas the board of elections is proposing are good,” he said. “That is not for the court to decide. The General Assembly has already debated that issue very thoroughly and they did, in fact, pass a bill that would be the exact remedy that the board of elections seeks. But the governor vetoed that bill and the legislature chose not to override it.”

Wilson told reporters that allowing the courts to do the job of the legislature now will affect future elections.

“It is a detriment to liberty. It is a detriment to freedom,” said Wilson. “We’re not fighting just for this particular case. We’re fighting for the people of Maryland in the decades to come because if we set a precedent today — that power can be delegated from the legislature to the courts in the instance of elections — then ladies and gentlemen we may have a problem with future elections long after we’re dead and gone.”

The board’s petition to the court follows the July primary where results in some counties were delayed almost a month.

The General Assembly earlier this year passed legislation that would have allowed the boards to begin early counting of mail-in ballots. The law was similar to a 2020 executive order issued by Republican Gov. Larry Hogan during a state of emergency related to the COVID-19 pandemic.

That year, more than 1.5 million mail-in ballots were used, as many stayed away from in-person voting.

Hogan supported the early counting provisions of this year’s bill. However, he vetoed the bill, citing other concerns. That veto came in May, after lawmakers ended their 90-day session and could not override his decision. That left asking the court for relief the only option.

Kobrin said the board did not ask for permission before the primary because no one knew how a higher volume of mail-ins compared to nonpandemic years would affect the counting process.

“Now we know. Now we have the case study of the primary election,”  said Kobrin.

Elections officials in affidavits cite delays in the primary election in which more than 500,000 mail-in ballots were requested and more than 345,000 were returned.

So far, more than 525,000 mail-in ballots have been requested for November.

Some elections officials worry the flood of ballots will delay final results until Christmas or later. Those delays would cause problems in most counties, where officials are sworn-in in early December.

“We’ll start missing the swearing-in of local offices,” said Kobrin. “The question becomes who’s the county executive after that date?”