GOP’s 2022 Candidate for Maryland Governor Asks US Supreme Court to Undo State Court’s Suspension of Mail-In Balloting Rules

Petition invokes 'independent state legislature doctrine' now being deliberated by justices in high-profile North Carolina case

Maryland Republican gubernatorial candidate Dan Cox meets with former President Donald Trump in May 2022. (Courtesy of Cox for Freedom)

An unsuccessful Republican candidate for Maryland’s governorship is asking the U.S. Supreme Court to reverse a state court order he argues unconstitutionally allowed the early counting of mail-in ballots in the November 2022 election he lost.

The request for the Supreme Court to look at Maryland laws comes at a time when tensions between Republicans and Democrats over voting procedures have been growing in light of former President Donald Trump’s continuing claims that the 2020 presidential election was marred by massive electoral fraud and various improprieties by election officials and the courts.

Dan Cox, a Republican who was endorsed by Trump, was easily defeated in the Nov. 8, 2022, election by Democrat Wes Moore, who won 64.5 percent of the popular vote compared to Moore’s 32.1 percent, according to Ballotpedia. Until last month when his term expired, Cox was a member of the Maryland House of Delegates.

Cox previously conceded the general election to Moore and his petition (pdf) to the high court does not seek to overturn the election. In the document, he acknowledges through his attorney that “the 2022 election is over,” but says it is important to address the lawfulness of what Maryland State Board of Elections officials did because “the issue raised … will surface every election cycle.”

Cox argues the Supreme Court should hear the case because it “presents a question nearly identical to that of Moore v. Harper,” a pending case the high court heard on Dec. 7, 2022. North Carolina Republicans told that court during oral arguments that the U.S. Constitution gives state legislatures preeminent authority to make the rules for presidential and congressional elections without interference from state courts.

Although a decision in Moore v. Harper could come at any time, the high court’s work may be complicated by the fact that on Feb. 3 the Supreme Court of North Carolina decided to re-open the case. That state court will re-hear the case on March 14, NPR reported.

At issue in both Moore v. Harper and Cox’s petition is the once-obscure independent state legislature doctrine, under which Republicans argue that 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, enable extreme partisan gerrymandering in the redistricting process, and cause upheaval in election administration. Conservatives, on the other hand, say the doctrine is derived from the plain text of the Constitution and would restore reasonable rules on the electoral playing field and allow elected state lawmakers, instead of state judges, to make election rules.

As Cox’s petition states, on Sept. 2, 2022, facing an expected “deluge” of mail-in ballots, the Maryland State Board of Elections filed an emergency application with the Maryland Circuit Court for Montgomery County, the state’s most populous county. The board sought a court order 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 court granted the request on Sept. 20, 2022. The Maryland Supreme Court affirmed the ruling on Oct. 7, 2022.

Cox argues that 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.”

Cox argues 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.”

“This petition presents the opportunity for the United States Supreme Court to enforce the Elections Clause, [which is] vital to the continuation of our [republican] form of government.” The petition poses an “important and relevant federal question … that requires resolution by this Court.”

Cox’s lawyer, Annapolis attorney Ed Hartman, said his client filed the petition because it was the right thing to do.

“Mr. Cox was the only elected official who saw an issue with what the Board of Elections was doing,” Hartman told The Epoch Times by email.

“It is important to him that the branches of government comply with their constitutional duties, and that elections throughout Maryland are fair and legal.”

Hartman acknowledged it is difficult to convince the U.S. Supreme Court to hear any case.

“I am realistic about the percentage of petitions that are granted, but in light of the North Carolina case in which similar issues are raised, I am hopeful that the chances may be 2 percent, instead of 1 percent. The issue we have raised is an important one, as courts across the country have interfered in the electoral process,” he said.

The justices were scheduled to consider the petition in Cox v. Maryland State Board of Elections, court file 22-620, on Feb. 17. The court is next scheduled to release a list of orders in pending cases on Feb. 21, possibly including its decision in this case, and may separately release opinions in argued cases the next day.

The petition was filed on Jan. 4. The elections board waived its right to respond on Jan. 12.

The Epoch Times reached out to counsel for the elections board, Daniel Michael Kobrin of the office of Maryland’s Democrat attorney general, Anthony G. Brown, for comment but had not received a reply as of press time.