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Md.’s top court approves plan to count mail-in ballots early

ANNAPOLIS — The state’s highest court affirmed a lower court order that clears the way for the early counting of mail-in ballots.

The order issued Friday afternoon followed an hour of oral arguments before the court just hours earlier. A written opinion is expected later.

The order clears the way for the 24 local boards of election to begin counting mail-in ballots as they are received. Montgomery County Circuit Court Judge James Bonifant ordered last month that the count could begin as early as Oct. 1.

Del. Dan Cox, the Republican nominee for governor, opposed the state board of elections’ petition for an emergency order to allow the counts. He unsuccessfully sought a stay of Bonifant’s order.

Elections officials said they were not asking local boards to delay counts of a small number of returned mail-in ballots pending a court decision. However, they  said those counts had not started this week because so few have been returned.

Cox, immediately following the hearing, told reporters Friday he believed he would win an appeal of a lower court order that cleared the way for the early counting of mail-in ballots.

Lawyers for Cox, the Republican candidate for governor, and the Maryland State Board of Elections presented arguments before the Court of Appeals for about an hour Friday morning. Cox, who did not attend the hearing in person, spoke to reporters outside the courthouse about an hour after the hearing ended and expressed confidence in the outcome.

“We’re going to win,” Cox told reporters.

At issue was  Bonifant’s order last month granting permission to local boards of election to begin counting and tabulating mail-in ballots as soon as Oct. 1. The results of those counts would not be made public until polls close on Nov. 8.

Cox opposed the petition by the board of elections saying it was unconstitutional and violates the separation of powers between the legislative and judicial branches. His lawyer, C. Edward Hartman made similar arguments Friday.

Outside the court building, Cox expressed confidence in the coming order. He would not rule out a possible appeal to the U.S. Supreme Court, but some court experts said such a challenge is improbable because Cox’s case hinges on the state constitution and Declaration of Rights but no federal issues.

Federal courts have routinely declined to take up state elections cases, preferring to let state judges decide those issues.

The speed at which the Court of Appeals issued its order was not unusual for elections cases.

The Court of Appeals has frequently recognized the time pressures associated with elections in past cases including a recent challenge to redistricting maps. In those cases, it has not been uncommon for the court to quickly issue an order with a full written opinion to follow weeks or months later.