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Court of Special Appeals panel denies Cox’s request for stay on mail ballot counting order

A three-judge panel of the Maryland Court of Special Appeals has denied a request to stay a lower court order that would allow mail-in ballots to be counted as early as Saturday.

The court issued its ruling denying the request by Del. Dan Cox, the Republican nominee for governor, late Thursday afternoon. The decision followed a series of memorandums and responses from attorneys representing the candidate as well as the Maryland State Board of Elections.

Cox, through his attorneys, sought a stay of Montgomery County Circuit Court Judge James Bonifant’s order earlier this week. The motion came as the candidate also seeks to have the appeals court review and possibly overturn Bonifant’s decision.

Last week, Bonifant granted a petition by the state Board of Elections seeking permission to begin counting mail-in ballots early but withholding the results until polls close on election night.

Elections officials said they expect more than 1 million ballots to be returned in the general election. They pointed to delays in results in the July primary. The expected deluge of mailed ballots could delay final results until Christmas or later if their petition was denied, elections officials said.

Cox and his attorneys argued the request was unconstitutional and constituted a violation of the separation of powers, requiring a judge to perform a function of the legislature.

Bonifant disagreed and granted the board’s petition.

C. Edward Hartman, an Annapolis-based attorney, and Matthew Wilson, a Tupelo, Mississippi-based attorney, argued for the stay on behalf of Cox. In a memorandum filed with the Court of Special Appeals, the pair argued that it was “impractical to seek a stay from the Montgomery County Circuit Court first, as time will expire rendering the case moot.”

Attorneys for the state Board of Elections argued in a response that Cox had not sought a stay from Bonifant in his motion to the Court of Special Appeals and failed to properly explain why it was impracticable to do so. Additionally, Assistant Attorney General Daniel Kobrin wrote, Cox “failed to show how he as a party suffers ‘irreparable injury’ without a stay, how he is likely to succeed on the merits of his claim, and how a stay would serve the public interest.”

The Court of Special Appeals has not publicly announced if or when a hearing on Cox’s challenge to Bonifant’s order will be heard.