WASHINGTON, D.C. — On Tuesday, Feb. 21, the U.S. Supreme Court rejected a petition filed by failed gubernatorial candidate Daniel Cox (R) asking the Court to review a Maryland Supreme Court decision that allowed the state’s election officials to begin counting mail-in ballots over a month prior to Election Day. Cox argued that “the Maryland Circuit Court for Montgomery County violated the Elections Clause of the United States Constitution” when the court allowed election officials to count mail-in ballots earlier than the statute provided, a decision that was affirmed by the Maryland Supreme Court on appeal. In his petition for a writ of certiorari, Cox invoked the radical independent state legislature (ISL) theory and asked the U.S. Supreme Court to decide if the Maryland courts violated the U.S. Constitution when they allowed for the pre-canvass of absentee ballots outside of the Legislature’s direction.
Throughout the case, Cox relentlessly argued that the Maryland Legislature, rather than state courts, has the sole authority to regulate federal elections and therefore “any statute giving any court the authority to make such a policy is unlawful and void.” This argument stems from the fringe ISL theory suggesting that state legislatures should set election rules unchecked by governors, state courts, the people or even state constitutions themselves. Cox asked the U.S. Supreme Court to adopt this theory by arguing that the Maryland Supreme Court usurped the power of the Legislature when it affirmed a lower court decision to pre-canvass undated mail-in ballots. Cox argued that this decision was “prescribed by a court and not the Legislature of Maryland” and is therefore unconstitutional. Today, the U.S. Supreme Court declined to take the case, putting an end to Cox’s effort to undermine Maryland courts’ mechanism of judicial review. Although the Supreme Court declined to take Cox’s case, the future of the ISL theory remains uncertain given that Moore v. Harper, a case on the Court’s merits docket this term that raises the novel ISL theory, remains pending before the Court.