A three-judge Maryland Court of Appeals panel denied a request to stay a lower court order that would allow absentee ballots to be counted as early as Saturday.
The court issued its decision denying Del’s claim. Dan Cox, the Republican gubernatorial candidate, on Thursday afternoon. The decision follows a series of memoranda and responses from attorneys representing the candidate as well as the Maryland State Board of Elections.
Cox, through his attorneys, requested 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 state’s highest court review and possibly overturn Bonifant’s decision.
Bonifant last week granted a petition from the State Board of Elections asking for permission to begin counting mail-in ballots early, but withholding results until the polls close on the evening of elections.
Election officials said they expected more than a million ballots to be returned in the general election. They pointed to delays in the results of the July primary. The expected deluge of mail-in ballots could delay the final results until Christmas or later if their petition is rejected, election officials said.
Cox and his lawyers argued that the request was unconstitutional and violated the separation of powers, requiring a judge to perform a function of the legislature.
Bonifant disagreed and granted the council’s request.
C. Edward Hartman, an Annapolis-based attorney, and Matthew Wilson, a Tupelo, Mississippi-based attorney, argued for the stay on Cox’s behalf. In a memorandum filed with the Court of Appeals, the couple argued that it was “impractical to seek a stay from the Montgomery County Circuit Court first, as time will expire, rendering the ‘matter of no object’.
Lawyers for the State Board of Elections argued in a response that Cox failed to ask Bonifant for a stay in his motion to the Court of Appeals and failed to properly explain why it was impossible to do so. . Additionally, Assistant Attorney General Daniel Kobrin wrote that Cox “has not shown how he as a party suffers ‘irreparable harm’ 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 Appeals has not publicly announced if or when a hearing into Cox’s challenge to Bonifant’s order will take place.