Court hears arguments in Dan Cox’s challenge to the Maryland Board of Elections

The Montgomery County Circuit Court on Tuesday heard arguments in a civil lawsuit filed by Dan Cox, Maryland’s Republican nominee for governor, against the Maryland State Board of Elections’ request to begin processing mail-in ballots on Oct. 1.

The board is seeking a court order to stay a state law prohibiting the opening of mail-in ballots before Wednesday after an election.

A lawyer for the election board explained that the board requested the exemption after jurisdictions received an unprecedented number of mail-in ballots during the July primary, prompting weeks of campaigning. About 75,000 mail-in ballots were counted in Montgomery County alone.

Daniel Kobrin, attorney for the Elections Committee, said the committee predicts it could be as late as Christmas or even New Year’s before the final results for the Nov. 8 general election are known if poll workers are not allowed to start processing ballots early.

Cox, on the other hand, believes this is a decision that should be made by the state legislature and not in a courtroom, he said in a news conference immediately after Tuesday’s hearing.

“[The Board of Elections] began trying to call a legislative session here in Montgomery County Circuit Court instead of calling the constitutional process,” Cox said.

Cox’s attorneys argued that the separation of powers enshrined in the state constitution should not allow the judiciary to make decisions about elections. They said these decisions should be left to the General Assembly as the legislature and the court should not be able to grant the Electoral Committee’s request. Rather, Cox’s attorney argued, this should be an issue to be discussed in the legislature.

Kobrin, speaking on behalf of the election committee, argued that there are other examples of electoral matters being delegated to the judiciary — for example, the court can order an election to be annulled — and that the election calendar is set by the judiciary. Kobrin said it’s not uncommon for one branch of government to delegate tasks to another.

Cox’s attorney also argued that the board had no valid reason that an emergency would require this extended period.

Ed Hartman, one of Cox’s attorneys, said that under the state constitution, an emergency that would justify an exception like that requested by the state elections committee must be “sudden, unexpected and unforeseen.” He argued that the flood of ballots was not unexpected and that the board had been addressing the issue since the COVID-19 pandemic began in 2020.

Kobrin said that while absentee voting can be expected to be more common than in the past due to the pandemic, it is not possible to predict the high number of absentee ballots that have been received during the primaries and that this constitutes an emergency.

Kobrin also said there are additional complications in processing postal ballots. For example, 10% of the votes in the primary were considered web submission, a process in which voters who register submit a web online ballot that you can print out and send in yourself. Kobrin said these ballots will not fit standard ballot processing machinery and will need to be resized. He also pointed to higher rates of provisional ballots being used with the proliferation of mail-in ballots, saying verifying those ballots is particularly time-consuming.

With the election fast approaching, Judge James Bonifant said he would make his decision at 3 p.m. Friday.

During a press conference after the hearing, Cox praised the work of Hartman and his other attorney, Matthew Wilson, whom he described as a classmate and friend in law school.

“If we set a precedent in the coming decades for electoral power to be delegated from the legislature to the courts, we may have an electoral problem long after we are dead. And that’s for the future. This is for the people of Maryland,” Hartman said.

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