The Washington PostDemocracy Dies in Darkness

Opinion An overreaching Maryland judge hands a Republican candidate a gift

Guubernatorial candidate Dan Cox speaks with reporters during a primary election night event on July 19 in Emmitsburg, Md. (Nathan Howard/Getty Images)

Marylanders have good reason to want elections decided on, or promptly following, Election Day, so many might cheer a state judge’s ruling last week allowing election officials to start counting early mail-in ballots weeks before this year’s vote on Nov. 8. But in ordering that outcome, Judge James A. Bonifant overreached into what is properly legislative terrain.

Lawmakers in Annapolis this year tried to fix a state law that forbids mail-in ballots from being counted until two days after the elections — an antiquated rule that contributed to more than a month’s delay this summer in determining the winner in Montgomery County’s Democratic primary for county executive. Most states allow mail-in ballot counting to begin well before Election Day, all the more justified since nontraditional means of voting have surged since the pandemic.

Unfortunately, Republican Gov. Larry Hogan — who says he wants to see the ban on early counting of mail-in voting lifted — nonetheless vetoed the bill passed by the Democratic-dominated legislature. He offered the scant justification that it did not include measures to address what is a virtually nonexistent problem of election fraud.

Judges are not empowered to tear up every ill-considered thing the government does, barring a compelling constitutional or other reason to do so. In this case, Judge Bonifant went too far in accepting the state Board of Elections’ contention that an “emergency” posed by an expected crush of mail-in ballots justifies suspending state law. In fact, the likelihood that Marylanders might not know the results of some local or statewide elections this fall for days or weeks is an embarrassment, an annoyance and a sign of governmental dysfunction. It is not an emergency.

The most notable opponent of the board’s insistence that mail-in vote-counting start early is state Del. Dan Cox, the Republican gubernatorial nominee. Mr. Cox is right on the law — no emergency exists, and the courts should not usurp what is rightly a legislative function. Yet he is also an election denier who peddles the myth that President Biden stole the 2020 vote and is using the case as a pretext. Should early voting start this weekend, as the judge ruled, Mr. Cox has refused to say whether he will accept the results — leaving open the possibility that he will challenge the outcome.

Mr. Cox’s legal arguments are a smokescreen for his apparent agenda, which is to lay the groundwork for a preemptive attack on the result of the gubernatorial race, in which a recent poll shows him trailing by more than 20 points. In his petition to the court, he insisted that a ruling in the election board’s favor would subvert “trust in the outcome of the elections.” In fact, it is Mr. Cox’s own fables about election integrity, not Maryland’s voting rules, that corrode trust in the democratic process.

Mr. Cox is borrowing a page from the playbook of former president Donald Trump, who has endorsed him. By overreaching into what should be a legislative responsibility, Judge Bonifant has handed Mr. Cox an unwarranted gift — a grievance that he might use to challenge the legitimacy of Maryland’s election.

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Editorials represent the views of The Post as an institution, as determined through debate among members of the Editorial Board, based in the Opinions section and separate from the newsroom.

Members of the Editorial Board and areas of focus: Opinion Editor David Shipley; Deputy Opinion Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (national politics and policy, legal affairs, energy, the environment, health care); Associate Editor Jonathan Capehart (national politics); Lee Hockstader (immigration; issues affecting Virginia and Maryland); David E. Hoffman (global public health); James Hohmann (domestic policy and electoral politics, including the White House, Congress and governors); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; and Molly Roberts (technology and society).

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