By Matthew Vadum
The Supreme Court rejected on Feb. 21 Republican Dan Cox’s challenge to a state court order he argued unconstitutionally allowed the early counting of mail ballots in the gubernatorial election he lost in the fall.
Cox, who was endorsed by former President Donald Trump, lost the Nov. 8, 2022, general election by a 2-to-1 margin to Democrat Wes Moore. Cox conceded the election to Moore and his Supreme Court petition did not seek to overturn the election. Until last month when his term expired, Cox was a member of the Maryland House of Delegates.
Cox argued that Maryland state courts were wrong to suspend the state election law that forbid local boards of election from opening any mail-in ballot envelopes before the morning after Election Day. The Democrat-controlled state legislature passed a measure allowing the count to begin earlier, but then-Gov. Larry Hogan, a Republican, vetoed the measure in May 2022.
The case is similar to Moore v. Harper, which the Supreme Court justices are now deliberating after holding oral arguments on Dec. 7, 2022. In that case, North Carolina Republicans, angered by state court rulings on the state’s electoral map, said the U.S. Constitution gives state legislatures preeminent authority to make the rules for presidential and congressional elections without interference from state courts. A decision in the case could come at any time.
At issue in both Moore v. Harper and Cox’s petition is the once-obscure independent state legislature doctrine, under which Republicans argue the Constitution has always directly authorized state legislatures alone to make rules for the conduct of federal elections in their respective states. The doctrine, if endorsed by the high court, could in theory allow state legislatures to select presidential electors in disputed elections, something critics decry as a threat to democracy. Democrats say the doctrine is a fringe conservative legal theory that could endanger voting rights but its advocates say it would restore reasonable rules to the electoral playing field by allowing elected state lawmakers, instead of state judges, to make election rules.
The request for the high court to look at Maryland laws came at a time when tensions between Republicans and Democrats across the nation over voting procedures have been growing in light of claims that the 2020 presidential election was marred by massive electoral fraud and various improprieties by election officials and the courts as voting and ballot-counting rules were relaxed during the pandemic. Many Republicans are also skeptical of the 2022 congressional election results in which a predicted “red wave” suggested by polls failed to materialize.
The justices did not explain why they dismissed the petition in Cox v. Maryland State Board of Elections, court file 22-620. There was no indication in the unsigned order how the justices voted and no dissents were recorded. For a case to proceed, at least four of the nine justices have to vote to hear the case.
In his petition, Cox argued through his attorney that on Sept. 20, 2022, facing an expected “deluge” of mail-in ballots, the Maryland State Board of Elections obtained an emergency order from the Maryland Circuit Court for Montgomery County suspending parts of the state election law that forbid local boards of elections from opening any mail-in ballot envelopes before 8:00 a.m. on the Wednesday after Election Day. The Maryland Supreme Court affirmed the ruling on Oct. 7, 2022.
The Montgomery County court violated the Elections Clause of the U.S. Constitution “when it suspended the laws enacted by the Maryland General Assembly” governing “the opening and tabulation of mail-in ballots more than a month prior to the date allowed by statute,” he argued.
And then the Maryland Supreme Court “ran roughshod over the prescriptions of the U.S. and Maryland Constitutions, as well as the separation of powers critical to a fair and impartial government.”
Cox’s lawyer, Annapolis attorney Ed Hartman, said the Supreme Court’s decision to decline the petition was “disappointing but not surprising.”
“The chance was always small,” the lawyer told The Epoch Times by email.
“Perhaps they believe it is not necessary in light of the existing case of Moore v. Harper,” Hartman added.