The final word on when Maryland can begin counting mail-in ballots this fall rests with the state’s highest court following a hearing Friday.

State delegate and Republican gubernatorial candidate Dan Cox has sought to delay ballot counting, arguing an expedited schedule, approved by a lower court last month, violates the state constitution and is outside the authority of the judicial system.

On Friday, the Court of Appeals, Maryland’s highest court, vigorously questioned attorneys for Cox and the Maryland State Board of Elections. Judge Angela M. Eaves asked what Maryland’s voters are to think if the court does not act, knowing that deadlines for certifying the results of the election likely would not be met.

“The question isn’t whether we should or shouldn’t,” said Ed Hartman, an attorney for Cox. “The question is whether you can. Under the United States and American constitutions, this is not a judicial function.”

In August, the Maryland State Board of Elections asked the courts to allow counting as early as Oct. 1 to accommodate a deluge of mail-in ballots expected to be cast this fall. State law does not allow mail-in ballots to be canvassed until the Wednesday after an election, and election board policy further delays that process until the next day.

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Montgomery County Circuit Court Judge James A. Bonifant sided with the board in a Sept. 23 ruling, saying there’s “no doubt that the increased amount of mail-in ballots will have an enormous effect on the process in this election.”

Cox appealed. The Court of Appeals took up the case after the state’s Special Court of Appeals denied the delegate’s request for an emergency stay on ballot counting.

As he did during argument before the lower court, Hartman acknowledged Friday that the volume of mail-in ballots in Maryland will create a challenge.

“They probably do have a daunting task ahead of them. The good people who work there are going to be under an immense amount of pressure,” Hartman said. “It’s not relevant.”

It’s up to the legislature, not the courts, to make election decisions, Hartman argued. That, they failed to do, he said.

Knowing the use of mail-in ballots has surged since the pandemic interrupted traditional voting systems, state lawmakers attempted to change the law ahead of the July primary, passing a bill that would have permitted counting to begin in advance provided results are embargoed until Election Day. Gov. Larry Hogan vetoed the bill in May, saying he supported the canvassing change, but objected to other elements of the legislation dealing with election security. By that time, the General Assembly was no longer in session and could not override the veto.

Without legislation in place, counting of mail-in ballots for the July primary did not begin until after the election. Races with wide margins, such as Cox’s victory over Republican Kelly Schulz, were settled on primary night. But others, like Democrat Wes Moore’s victory in his party’s nine-way gubernatorial primary, had to wait until after the second full day of mail-in counting to become clear.

The extended counting process in some counties delayed final results in some races for up to 30 days. State elections officials argued they cannot sustain such a delay this fall because some local officials are due to be sworn in in early December.

On Friday, the judges questioned whether the state board’s request to begin counting ballots on Oct. 1 was narrowly tailored to what is absolutely necessary. Chief Judge Matthew J. Fader noted that media reports have said most local election boards do not intend to start counting ballots until mid-October. The ballots themselves were not mailed to some voters until after Oct. 1.

“I’m trying to get at what’s the difference between convenience, a wish list, and what’s necessary to address the emergency circumstance that the board has alleged exists,” Fader said.

Daniel Kobrin, an attorney for the State Board of Elections, said he knows of no board that has begun counting mail-in ballots thus far. Ballots were forced to be mailed later than usual this fall because the state’s primary was delayed from June until July as a result of redistricting.

The Oct. 1 start date allowed local boards to begin planning how to allocate staff, Kobrin said.

“How would there be any obstacle to preparation?” Fader asked.

Voters already have signaled they plan to participate in higher numbers using mail-in ballots this fall. As of Wednesday, about five weeks ahead of the election, 549,681 voters had requested mail-in ballots. That eclipses the 508,000 who requested such ballots for the spring primary. Maryland has about 3.8 million eligible active voters.

Cox and Hartman addressed questions following the hearing. Asked if he will consider the court’s eventual decision to be the “last word” on the case, Cox said it will be the “last word in the state of Maryland.”

“I’m not going to speculate on any attorney advice or any options,” he said. “As a member of the Supreme Court bar, I am always proud of the constitutional process, that you can always appeal to the Supreme Court, but that’s not something that’s even considered at this point.”

Asked if he will accept the results of the election, Cox said state law prescribes a process to examine any “anomalies.”

“I will support the process at every step and that includes, you know, the right of every candidate on the ballot, to have a recount if necessary to look at those results,” he said.

Baltimore Sun reporter Sam Janesch contributed to this article.