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Cox appeals ruling on early mail ballot counting as unconstitutional

A lower court ruling clearing the way for the early counting of mail-in ballots violates the state constitution and should be overturned, according to a brief filed by an attorney for Del. Dan Cox, the Republican nominee for governor.

Cox is asking the Maryland Court of Appeals to overturn Montgomery County Circuit Court Judge James Bonifant’s order issued last month.

“Delegate Cox believes that if we do not protect the process, then one day, we will not have a process left to protect. Then when that process is all but gone, it will not be there to protect us (or our children, if we are not still around),” wrote C. Edward Hartman III, an Annapolis-based attorney representing the Republican candidate.

The court is scheduled to hold a hearing on the appeal on Friday.

Hartman, in his brief, argues that the underlying election law “is facially unconstitutional since it violates” the Maryland Declaration of Rights and state constitution as it violates the separation of powers between the judicial and legislative branches.

The Maryland State Board of Elections successfully sought a temporary suspension of state law that prevents mail-in ballot counting until after polls close on election night. In many jurisdictions, those ballot counts do not begin until two days later.

Under the Sept. 26 order, boards of election could begin to count returned mail-in ballots as early as Oct 1. Results would not be made public until after the polls close on Nov. 8.

The pandemic dramatically affected Maryland’s elections since 2020. Perhaps the biggest of those changes included the emergency expansion of the use of mail-in ballots as well as an order by the governor that cleared the way for early counting of those votes.

The expansion of vote by mail was made permanent. And while the vast majority of voters this year opted to vote in person during early voting or on election night, vote by mail is being used more than in pre-pandemic years.

Earlier this year, the General Assembly passed legislation that included provisions similar to the emergency orders issued two years ago by Gov. Larry Hogan that allowed early mail-in tabulation.

Hogan vetoed the bill for unrelated reasons more than a month after the end of the legislative session.

Hartman, in his brief, argues that the application of election law in the order to allow early counting of mail-in ballots “creates an unconstitutional effort by the circuit court to override Governor Hogan’s veto.”

“Accordingly, in addition to being unconstitutional on its face due to the legislature’s delegation of legislative discretion in the form of doing whatever ‘is in the public interest,” state election law as applied in this case seeks direct legislative action by voiding, whether temporary or permanent, two statutes legitimately passed and signed into law,” Hartman argued. “The attack on these statutes is not constitutional; rather, this petition was filed because the state board is not satisfied with the current state of applicable law.”

Elections officials successfully argued to Bonifant that a deluge of expected mail-in ballots, maybe as many as 1.3 million, would result in significant delays in finalizing elections. Some larger counties might not finish before the end of the year, missing deadlines for certifying and swearing-in county government officials.

An attorney for the board pointed to delays in July in jurisdictions including Baltimore and Montgomery counties as examples of what could happen following the November election.

Hartman, in his brief, argues that because the large number of mail-in ballots was foreseeable, it cannot constitute an emergency.

“With due respect to the state board, this representation is mind boggling,” Hartman writes. “As mentioned, the number of mail-in ballots that were returned increased by nearly twelvefold from 2018 to 2020. Thus, the General Assembly, the governor, and the state board all knew that a ‘deluge of ballot envelopes’ was, at least, possible. In fact, the General Assembly encouraged this deluge when it enacted legislation in 2021 to create a permanent absentee ballot list.”

Hartman acknowledged that the use of mail-in ballots, which included the mandatory mailing of ballots to every registered voter, was an anomaly even with the later expansion of mail-in voting.

“However, the General Assembly, the Governor, and the State Board all should have recognized that human nature takes the path of least resistance,” Hartman wrote. “In 2020, a million new voters had just tasted how easy mail-in voting could be. For the state board to even think that the genie might return to her bottle seems a bit of a stretch. This is especially true since they encouraged mail-in voting by creating a permanent absentee ballot registry after the 2020 election cycle. So, at the very least, the possibility of having a deluge of mail-in ballots was apparent.”

So far, nearly 550,000 mail-in ballots have been requested statewide. A number of counties started sending out those ballots this week.

Bonifant’s order allowed local boards to begin counting returned ballots as early as Oct. 1. The Court of Special Appeals declined to stay that order.

Hartman, in an email, said he “suggested to (the state board) that they may want to wait a week until the Court of Appeals ruled; it is my understanding that they did not follow my suggestion.”

It is unclear what would happen to mail-in ballots that are returned and counted if the court were to overturn the lower court ruling.

A spokesman for the state board of elections did not respond to questions about how local boards are being advised to handle ballots returned before the court rules. Hartman said state officials “are not telling me anything.”