Supreme Court’s Moore v. Harper case could weaken Maryland’s election rules

Most of us learned about checks and balances in high school: the executive, legislative and judicial branches of government all minding each other, creating a harmonious system where no one branch triumphs over the other. In our textbooks, this system seemed infallible. But in real life, checks and balances are complex — and under threat.

Former Maryland gubernatorial candidate Dan Cox’s recently declined appeal to the U.S. Supreme Court is an example of how complicated our checks and balances system can get. In his appeal, Cox didn’t dispute that he lost the 2022 election, rather he argued that a Montgomery County Circuit Court judge incorrectly granted a State Board of Elections request in September 2022 to allow officials to begin counting mail ballots a week earlier, given an influx in voting by mail.

The circuit judge relied on language in Maryland’s election law that gives courts the flexibility to protect the electoral process in emergencies. But Cox tried to argue that only the legislative branch has the power to make decisions about federal elections, without facing the checks and balances of state judges.

The Supreme Court declined to take up this case, but this battle of the balances continues on. Cox’s argument falls in line with the independent state legislature theory, an extreme interpretation of the

U.S. Constitution being pushed by fringe politicians across the country. In fact, this question — about whether state lawmakers are the first and last word when it comes to setting election rules — is before the U.S. Supreme Court right now in Common Cause’s case Moore v. Harper. In Moore, North Carolina lawmakers were upset at a fair maps victory Common Cause secured for voters and are now trying to say state legislatures should have near absolute power to run federal elections, with no checks and balances from the courts.

Oral arguments were heard in December, and a decision is expected by June, and if the Supreme Court rules in favor of these lawless North Carolina lawmakers, it would have a near-immediate impact on Marylanders. This case could pave the way for dramatic and discriminatory cuts to our popular early voting and mail-in voting options, widespread voter roll purges, discriminatory barriers to voting access, baseless challenges to fair election results, fewer protections against voter intimidation and widespread gerrymandering.

Both Moore and Cox’s arguments are desperate and dangerous, and they are trying to take power out of the hands of voters and let politicians thwart our vote while upending centuries of practice and precedent.

We at Common Cause Maryland feel strongly that no one branch of government should have outsized power in America’s system of government.

We and our members have worked for years to protect and expand access to early voting and voting by mail. In 2021, we worked with partners to strengthen our mail-in voting process by securing a permanent ballot list, ensuring secure and accessible drop boxes, and providing usability testing for all mail voting materials. We’ve also worked with partners to secure meaningful access to voting for currently incarcerated eligible voters, and expanded access to early voting in recent years by providing all jurisdictions with additional voting centers as well as a 2-hour earlier opening time during gubernatorial elections.

We refuse to walk back access to the ballot box.

We need to build a democracy where everyone participates, every vote is counted and every voice is heard. In striving toward this, this year, we support efforts to pass a permanent legislative solution to allow for the early and secure processing of mail-in ballots following former Gov. Larry Hogan’s last-minute veto of the emergency legislation in 2022. We also support passage of the Maryland Voting Rights Act, which will bolster our state’s voter protections and provide much-needed legal recourse for voters whose rights are denied or abridged as well as increased pay and protection for those essential workers tasked with running our elections.

Here at Common Cause Maryland, we’re putting people over politics. We will continue fighting to protect our elections, and the well-established checks and balances that keep our democracy functioning.