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Dan Cox questions election integrity as Md. officials ask judge for help

An election worker moves a sign as ballots are recounted for the democratic nominee for Montgomery County executive on Aug. 19 in Germantown, Md. The margin of ballots were 35 between Marc Elrich and David Blair. (Ricky Carioti/The Washington Post)

The State Board of Elections’ case before a judge on Tuesday to speed up Maryland’s stringent ballot-counting timeline this cycle found an opponent in Dan Cox, the Republican candidate for governor who was endorsed by former president Donald Trump and promised primary voters he would audit the 2020 election if he were elected.

The board’s effort, rooted in fears that an unprecedented and chaotic primary season marked by delays in counting mail-in ballots could portend months-long waits for general election results, drew condemnation from the freshman state delegate, who made election integrity part of his primary platform.

Cox told reporters on Monday that he would respect the outcome of the election if the current process stayed in place but would not say whether he would contest the results if the judge changed the timeline — a question he again did not answer on Tuesday.

“I firmly believe, I want this to be very clear, I firmly believe in our constitutional process,” Cox said at a news conference after the court hearing before Montgomery County Circuit and County Administrative Judge James Bonifant. “That’s all that I’m asking for here today.”

Dan Cox was a backbench Md. lawmaker. Then the pandemic hit.

Bonifant is slated to deliver a ruling Friday at 3 p.m. on the board’s request, which seeks to suspend a law unique to Maryland that prohibits canvassing mail-in ballots until two days after the election. The law originates from a period when mail-in ballots made up only a small fraction of the overall vote.

This year’s midterm election cycle will be under close watch around the country as Republican candidates refuse to say if they will accept results, showing the lasting effects of unproven claims of widespread fraud in the 2020 presidential race. After years of managing misinformation related to the accuracy of election results — much of it stemming from Trump — election integrity has become a key platform point for GOP candidates around the country as election officials strive to deliver timely, accurate and transparent results.

The hearing comes after a primary cycle marked by an unprecedented deluge of mail-in ballots and extended delays that took nearly a month to certify results. Expecting even higher turnout and longer turnaround times during the general election, the board argued that an emergency remedy from the court is necessary to meet local, state and federal certification deadlines.

“The local boards of election responsible for counting the vast majority of mail-in ballots require more time for canvassing and tabulating these ballots or there is a substantial risk that they will not be able to meet critical deadlines established by law,” read the petition filed in the Montgomery County Circuit Court this month.

If approved, the petition would allow election officials to begin canvassing and tabulating mail-in ballots Oct. 1. Results would not be released until after polls close on Election Day.

Cox, who made election auditing a key plank of his primary platform, filed an objection to the state’s petition. He said in a news release last week that the situation did not warrant an emergency and that changing the process weeks before the election “is unacceptable, and further undermines trust in the outcome of elections.”

The November ballot will feature Cox, a first-term delegate, and Wes Moore (D), a best-selling author who garnered high-profile celebrity and political endorsements, as gubernatorial candidates, along with any third-party contenders and a host of congressional, state and local offices.

In the courtroom, Cox’s lawyers argued that the situation did not warrant an emergency because the board already knew there would be an influx of mail-in ballots. They further argued that the court did not have the power to intervene, saying the authority to change the rule rests with the General Assembly.

“It might be a terrible situation,” Ed Hartman, Cox’s co-counsel, said during the hearing. “But it’s not an emergency.”

State lawmakers attempted to change the process during this year’s legislative session when they passed a bill that would have permanently removed the two-day wait provision, among other election law changes. But while Maryland Gov. Larry Hogan (R) supported counting mail-in ballots early, he vetoed the bill, citing concerns including the exclusion of “basic security measures such as signature verification.”

The veto came on May 27, after the legislative session ended. Daniel Kobrin, assistant attorney general representing the State Board of Elections, said in court that the General Assembly did not have the power to call a special session to override a veto.

Kobrin said the Board of Elections briefly considered seeking relief from a judge ahead of the primary but that it didn’t know the full extent of effects the surge of mail ballots would have. After assessing how long it took to certify results during the primary election, the board unanimously voted to seek action from the court last month.

“Now we know,” Kobrin said. “Now we have the case study of the primary election.”

The main sources of delays in this year’s primary race came from Montgomery County, Maryland’s most populous county that received more than 74,000 mail-in ballots during the primary and took 36 days to completely tabulate all ballots and conduct a recount in the Democratic primary race for county executive.

The petition argued that those kinds of delays after the general election could bump against tighter state and federal result certification deadlines: Some local office terms are slated to begin on the first Monday in December, and under the Constitution, Congress is to convene Jan. 3.

Tammy Patrick, senior adviser to the elections team at the nonpartisan Democracy Fund, said that either way, the court outcome will probably be leveraged to sow mistrust in the state’s election system. But she said a timeline change would not affect the integrity or fundamental process of counting ballots.

“The process will be the same if it’s done a week before the election or a week after the election,” Patrick said. “It’s not a question that they’re asking to completely change the process. They’re asking to move when the work is done to an early enough time period so that it aligns with the vast majority of what other states do.”

Erin Cox contributed to this report.