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Cox appeals ruling that allows early counting of mail-in ballots

Tamara Debnam, an elections assistant for the Baltimore City Board of Elections, sorts mail-in ballots at a canvasing warehouse ahead of the 7th Congressional District special election on April 27, 2020, in Baltimore. (AP Photo/Julio Cortez)

Attorneys for Del. Dan Cox, the Republican nominee for governor, said they will appeal a court order that would allow early counting of mail-in ballots before the November general election.

C. Edward Hartman, an attorney for Cox, said in an email that the notice has been filed. The attorney confirmed Cox will also seek a stay of Montgomery County Circuit Court Judge James Bonifant’s order.

By late Tuesday, Court of Appeals Judge Douglas Nazarian, as part of a three judge panel, ordered attorneys for the board to respond to the motion filed on behalf of Cox by Thursday. The judge also ordered Cox’s attorney’s to file a supplemental memorandum detailing efforts to seek a stay of Bonifant’s order.

Hartman is also seeking a hearing on or before Friday.

State elections officials had 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 asked the judge to allow elections boards around the state to begin counting those ballots prior to Nov. 8. Results would be released after the polls close on election night.

Hartman and his co-counsel, Matthew Wilson, a Tupelo, Mississippi-based attorney, argued the board’s request was unconstitutional and violated the separation of powers between the legislative and judicial branches. They also questioned if the court had the authority to make such a decision and asserted that the board had not met the threshold for an emergency circumstance because the large number of mail-in ballots was not unexpected or unforeseen.

Bonifant, in an order issued Friday, disagreed.

“The court is satisfied that the undisputed facts in this case amount to emergency circumstances envisioned by the law, he said, speaking from the bench. “This court does not believe it is violating the state constitution by granting the state board’s request for relief. To the contrary the court believes it is exercising the powers granted to it under the constitution to decide a case between competing parties who have different views on the interpretation of the law.”

Bonifant’s order would allow elections boards in the state’s 24 major political subdivisions to begin counting any returned General Election mail-in ballots beginning Oct. 1.

As of Tuesday, more than 524,000 ballots subject to the order had been requested. The vast majority are traditional mail-in ballots. The second-largest tranche is emailed ballots that then have to be mailed back to boards of election.

A spokesman for the state board declined comment because of ongoing litigation.

A spokeswoman for the Office of the Attorney General, which represents the board, said the panel “opposes any effort to stay the circuit court’s judgment pending the appeal and will respond to the appeal in due course.”

Between 1 million and 1.3 million mail-in ballots are expected to be returned for the November general election. That number is three times more than what was received in the July primary, where final results in a few counties were delayed almost a month.

Elections officials worry the flood of ballots for the general election may delay final results until Christmas or later. Such delays would cause problems in most counties, where officials are sworn-in in early December.

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 measure, citing concerns about other provisions in the legislation. That May veto came after lawmakers ended their 90-day session and could not override his decision.

Sen. Cheryl Kagan, a Montgomery County Democrat who sponsored the vetoed legislation and was an early endorser of Democratic gubernatorial nominee Wes Moore, decried the appeal.

“Like Donald Trump, Cox seeks to raise doubts about the integrity of our election process,” Kagan said in a statement. “Just last month, Cox seemed to have no concerns about the process when he won the Republican Primary Election.”