The Supreme Court on Tuesday declined to take up former Maryland gubernatorial candidate Dan Cox’s (R) challenge to the timing of officials’ tabulation of mail-in ballots in his election.
Cox, who lost to Gov. Wes Moore (D), sought to reverse lower court rulings that allowed election officials to count mail-in ballots weeks before Election Day.
His challenge referenced a sweeping legal theory advanced by Republican state lawmakers in a separate election case currently before the justices that could hand state legislatures broad new powers over how federal elections are conducted.
That case remains on track for a ruling by this summer, but the justices in a brief, unsigned order on Tuesday declined to hear Cox’s case, as is typical for the thousands of requests that the Supreme Court denies each year.
Cox had argued that state courts in his election usurped the authority of the state legislature.
“The U.S. Constitution requires that the rules for holding an election be made only by the legislative body of the state holding those elections,” Cox’s attorney wrote in court filings. “It is indisputable in this case that the Maryland Circuit Court for Montgomery County prescribed the manner of holding elections in Maryland, in direct contradiction of the manner already set by the Maryland legislature.”
Cox contended the dispute presented the “exact same” legal issues as Moore v. Harper, a high-profile case currently before the justices that involves a challenge to North Carolina’s Republican-drawn voting map.
The justices in that case are weighing the “independent state legislature theory,” an interpretation of the Constitution’s Elections Clause that hands state legislatures near total control over how federal elections are carried out in their state and effectively shields them from judicial review.
The Republican lawmakers’ maximalist argument is that lower courts did not have the authority to strike down the legislature’s voting map as a partisan gerrymander, because the Constitution vested in the legislature the ultimate authority to prescribe election regulations.
Cox in a similar vein had argued state courts in his election went beyond their authority by allowing officials to circumvent a Maryland law prohibiting the canvassing of mail-in ballots until the Wednesday following Election Day.
After mail-in ballots became more popular during the pandemic, state lawmakers passed legislation to allow tabulations to begin earlier, but then-Gov. Larry Hogan (R) vetoed the law in May.
The elections board became worried that it wouldn’t be able to finish counting before statutory deadlines, so it leveraged a separate law allowing them to petition a court in “emergency circumstances” to take action that protects the election’s integrity.
A state court declared the impending influx of mail-in ballots an emergency and granted the request, allowing mail-in ballots to be counted beginning on Oct. 1.
Cox filed his challenge before the election but failed in state courts. He asked the justices to step in and weigh whether the court had the authority to issue its order, asserting that his case was not moot despite the election being over.
“Given the likelihood that mail-in ballots will continue to be popular, the [elections board] is likely to need and seek this relief every election cycle,” Cox argued.