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Md. elections board says part of Cox’s ballot counting appeal should be ignored

Republican gubernatorial nominee Dan Cox is fighting a court order allowing the early counting of mail-in ballots. (The Daily Record/Bryan P. Sears)

An attorney for the Maryland State Board of Elections is asking the state’s highest court to ignore a portion of an appeal by a gubernatorial candidate, claiming the issue was not argued in a lower court.

Del. Dan Cox, the Republican nominee for governor, is seeking to overturn a lower court ruling allowing local boards of election to count mail-in ballots as they are received. In filings, he argues, in part, that the September ruling by Montgomery County Circuit Court Judge James Bonifant is the equivalent of overriding Gov. Larry Hogan’s veto of a bill that included a provision for early vote counting.

Daniel Kobrin, an assistant attorney general representing the state board, argued in a response filed Thursday that Cox and his attorney should not be allowed to make that argument because it was not raised in a September hearing.

“For the first time in this litigation, Delegate Cox argues in his principal brief that the circuit court’s order violates separation of powers because it amounts to an overriding of the Governor’s veto of Senate Bill 163 and House Bill 862 of the 2022 Regular Legislative Session,” Kobrin said in the filing. “Because this issue was not ‘raised in or decided by the trial court,’ it is not preserved for review on appeal.”

The governor in May announced the veto of an election bill that would have, among other things, cleared the way for earlier counting of mail-ins ballots. The provision was similar to an order issued by Hogan during a state of emergency that was part of the response to the COVID-19 pandemic.

In his veto message, Hogan said that while he agreed with allowing boards to count mail-ins earlier than the current law allows, the bill contained other provisions with which he disagreed.

Both sides are scheduled to present oral arguments to the Court of Appeals on Friday morning.

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.

Elections officials worry that a deluge of mail-in ballots will delay final results until near the end of December. They point to delays in finalizing the July primary election as the example of a worse-case scenario. Those same officials estimate the number of mail-in ballots returned in the general election to exceed 1 million, far eclipsing the July total.

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.

C. Edward Hartman III, an Annapolis attorney representing Cox, has argued that the underlying election law on which Bonifant relied is unconstitutional because it violates the separation of powers between the legislative and judicial branches.

“Nowhere in that statute is the discretion found to take any action that is in the best interest of the public,” Hartman wrote, adding it is “meaningless to claim that because this statute exists” that the underlying election law “must be constitutional.”

Additionally, Cox’s appeal argues that no emergency exists because the increase in mail-in ballots was foreseeable after the 2020 elections.

Hartman also argues that Bonifant’s order, which affects only the November election, effectively serves as an override of a veto issued by Hogan.

“Then, when it was presented to the governor for review, he vetoed it,” Hartman wrote in a brief filed with the court earlier in the week. “Ergo, the decision to set (or to reset) the dates for counting ballots – as codified by state law – is a legislative question, not a judicial question. In this instance, the actions of the legislative branch prove this point; it is not merely hypothetical. The very same remedy sought by the state board was granted by the legislature earlier this year. The judiciary does not have the right to override Governor Hogan’s veto.”

Kobrin, the assistant attorney general, said the court order leaves Hogan’s veto intact while also serving the public interest.

“The court ordered a temporary remedy, applicable only to the 2022 gubernatorial general election,” Kobrin wrote. “That temporary remedy deals with an expected volume of mail-in ballots that cannot otherwise be counted, canvassed, and reported in time for the election to be certified in compliance with statutory deadlines. The circuit court’s order under authority of (election law) has no effect on the governor’s veto, and in no way restores the vetoed legislation.”