MONTGOMERY COUNTY, Md. (DC News Now) — Maryland Republican gubernatorial candidate Dan Cox has filed a court response opposing the state’s desire to count mail-in ballots early, arguing the state Board of Elections doesn’t have an “actual emergency” and the action would affect his candidacy, DC News Now has learned.

The opposing memorandum, which was filed in Montgomery County Circuit Court late Wednesday, argues that the Maryland Board of Elections has failed to prove the “threshold of emergency” in anticipation of a Montgomery County judge hearing the case next week.

Cox, who is facing Democrat Wes Moore for the state’s top elected job and has been on record that the 2020 presidential election was stolen from Donald Trump, could be setting the stage to allege election integrity issues if mail-0in ballots are allowed to be counted early.

“The (Board of Elections) attempts to justify its request by offering speculation that it will be unable to comply with deadlines required by other Maryland statutes,” the filing states. “Election law is undisputedly the province of the General Assembly. The power to make laws affecting this important area of the law may not be transferred to another branch of the Maryland government, even by the legislature itself.”

The court document that Cox has “a vested interest in how ballots are counted in the 2022 gubernatorial election” and that his rights as a state delegate to vote on legislative matters “would be infringed” if the mail-in ballots are counted early.

The Maryland Board of Elections contend it needs to begin counting mail-in ballots much earlier than Election Day or else results in important races up and down the ballot could take several weeks to count given the surge in people not voting in person due in large part to the coronavirus pandemic.

Nikki Charlson, a spokeswoman for the elections board, said officials do not comment on pending litigation.

The Moore campaign declined comment. But Ernest Bailey, a spokesman for the Maryland Democratic Party, said that Trump “spent months planting the seeds for his baseless claims of election fraud, aided by cynical Republican legislators like Dan Cox.

“Now Cox, rather than trying to win by appealing to Maryland voters, is seeking to hold a smooth election process hostage to his conspiratorial nonsense,” Bailey said. “His obstruction of this common-sense measure with bipartisan support is further evidence of his lack of fitness to lead this state.”

In an exclusive interview with DC News Now earlier this week, Cox said this is a constitutional issue and one that only the state legislature should decide. It is the legislature’s job, the Frederick delegate said, to regulate when and how mail-in ballots should be counted.

“I think the issue before Maryland is are we going to follow the rule of law which says that the Constitution is the path that we have to follow for all elections or are we going to deviate from that and start using the tool of the courts every time somebody wants to change something that the legislature said no to,” Cox said.

“They’ve decided to file this now. Now they’re alleging substantive issues, which are completely secondary to the primary issues of law,” he added. “Why are we going to change the law by emergency means during an election? And I have concerns about that.”

At present, mail-in ballots cannot be counted until two days after Election Day, which prompted significant delays in deciding election primary victors around the state including in the Montgomery County executive race.

A bill passed by the General Assembly earlier this year would have allowed for the early counting but Gov. Larry Hogan, who has been a frequent critic of Cox for his belief that the 2020 presidential election may have been stolen from Donald Trump, vetoed the measure. The governor cited election integrity concerns as his rationale.

Montgomery County Circuit Judge James Bonifant is expected to hear the case next week and could have a decision as early as Friday, Sept. 23rd.

The Moore campaign referred questions to the state Democratic Party which lambasted Cox for opposing something that would make the election process smoother.

“Maryland is literally the only state in the nation where election officials are prohibited from processing ballots already sent in by mail prior to Election Day. Instead of supporting the common-sense reform endorsed by the current Republican governor, Cox continues to undermine our electoral process,” said state Democratic Party spokesman Ernest Bailey.

“For Cox, January 6th wasn’t just a day, it was the start of an anti-election, anti-democracy era,” he added. “What really threatens confidence in elections is self-serving conspiracy theorists like Dan Cox and Donald Trump who still falsely claim the 2020 election was stolen.”

When asked if he trusts the state election board, Cox said it’s about “trusting the Constitution.”

“Do they trust the Constitution of Maryland and the laws of the people,” he said. “If they don’t, why are they in office? They should resign.”