LAST UPDATE: Voter Sues to Block Trump-Endorsed Candidate for Governor Under the 14th Amendment
In the end, the judge also took the easy way out to duck a difficult case. Although we didn’t win, we learned some things that may be useful to know for future cases here and in other states.
If you haven’t done so, go back and read my other post for a full description of this case. People seemed to like it and there’s a clever Lion King reference. Here’s the link to the first update describing what happened at the hearing.
Let’s take a look at the judge’s decision on the motion to dismiss, then finish with the lessons learned.
Previously, At the Hearing
The defense relied on three main arguments why the court should dismiss:
- “We don’t have the authority to do anything to find out if Cox is ineligible.”
- “Plaintiff failed to file the complaint within 10 days.”
- “Even if he did, we’re too close to the election, so it would be too disruptive to do anything.”
I predicted that there was a 90% chance we lose and that the court would lean heavily on argument 3. I thought it was the most reasonable sounding straw to grasp if the judge wanted an easy out.
The Judge Finds a Way Out
He ended up taking a mix of 2 and 3.
Defense Argument Number 2, is where they tried some goalpost moving. The law says I have 10 days to file a challenge after becoming aware of the Board’s act or omission relating to an election. They were trying to say my 10 days started when I became aware of Dan Cox 1) doing insurrectiony stuff, 2) filing to run last year, or 3) not voluntarily quitting the race on April 25. They referenced some of my old tweets talking about the Cox/14th issue as some kind of gotcha.
Nope. It’s perfectly reasonable for me to wait and see if someone else (maybe a primary opponent) brings the issue. It’s like they are saying I have a stronger duty to call them out immediately than their duty to enforce the law on their own. Now, on February 15, finally someone did raise the issue with them: the Holt letter (Our Revolution). So it’s certainly reasonable for me to wait and see what the Board did with that. I found out on April 27 that they improperly did nothing.
The knowledge of the act/omission giving rise to the suit occurred on April 27. Trying to choose another date is garbage. The judge just wanted to get rid of the case.
Remember, at the hearing he asked, “How would the 1 of 20 people in Maryland who are actually Cox fans feel about a ruling removing him from the ballot?” You cannot decline to enforce the Constitution because it might make some people upset.
The fellow who made the decision to punt is Judge Mark Crooks. I don’t want any of you to make jokes about his name, so here’s a picture of him with Roy Moore.
The opinion didn’t bother discussing the issue whether Dan Cox is ineligible under the 14th Amendment. He actually didn’t have to in order to get rid of the case on other grounds. Of course, that is the point. It is common for courts to find some kind of an “out” to avoid having to rule on a controversial topic.
We could have appealed, but we would be arguing this timing issue. I don’t have the resources or interest to pursue this kind of side issue. If we were appealing something that would set a useful precedent for other 14th Amendment cases, maybe we would have gone for it.
I am not going to fall into the sunk cost fallacy. I stood up and had my say. It is the Board and this judge that have failed to defend our democracy.
Of course, if some other plaintiffs want to take on the Dan Cox eligibility issue, they will be pleased I saved a lot of posts, photos, and videos that Cox’s January 6 group is probably trying to scrub from Facebook.
Last but not least: Nathan Charles did an excellent job jumping in to help on short notice. He is a real patriot.
- Don’t rely on the Board’s Competence or Integrity. According to the judge, I made a mistake by waiting and assuming the Board would do the right thing. Either they are utterly feckless or they are right that they don’t have the capacity or procedure to enforce all ballot qualifications (even though the law gives them this duty). Maybe that is something for the legislature to correct.
- You Can Engage the Process to Speak More Effectively. My complaint in court was taken much more seriously than Our Revolution’s letter. Lamone took over a month to respond with her curt, dismissive letter. With my complaint, her lawyers responded fully in less than two days, and she personally showed up at the hearing. We made sure she knew that they turned their backs on our democracy.
- The Maryland Board of Elections is flawed (probably your state, too). In ordinary times, there’s little risk in operating as a rubber stamp for candidates. Not today. We have had a strike against the heart of our democracy, the peaceful transfer of power following a free and fair election. The law provides consequences for those that participate in these insurrections. The agency responsible for administering elections should be able to enforce those consequences. The current board should at least express some remorse or outrage that they can’t. Linda Lamone, William G. Voelp, Severn E. S. Miller, Esq., T. Sky Woodward, Esq., Malcolm L. Funn, and Justin A. Williams, Esq., should be ashamed.
- Maybe I’ll add more later, but I’m writing this on the evening of May 24, 2022. Like other American parents tonight I’m not feeling my best right now. OK, that’s enough.