UPDATE 1: Voter Sues to Block Trump-Endorsed Candidate for Governor Under the 14th Amendment

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 an update while it’s fresh in my head.

Today, Friday May 20, 2022, we had a hearing on the Motion to Dismiss/Motion for Summary Judgment.

TLDR: The Judge will issue a written ruling by the end of the day Monday. It seems like he wants to dodge the big issues and dismiss on a technicality related to the closeness of Election Day.

The good news that I am certain of: my suit still fits. Also, moths did not eat a hole in the seat of my pants. I made sure to check.

The rest is uncertain.

This is a case that needed to be handled quickly, so this motions hearing got moved up 11 days. As a result, we got assigned a different judge.

This guy was a Republican. That’s not necessarily a death-knell to the case. He was appointed by Larry Hogan who is not a Trump fan. Neither is Hogan a Cox fan, especially given Cox tried to have Hogan impeached over trying to help protect people from Covid. This judge also worked in the Hogan administration with Cox’s opponent in the primary.

Linda Lamone also showed up. I hope she enjoyed sitting there for an hour listening to how much her agency sucks at enforcing the Constitution.

I wore my mask in the courtroom. Covid is widespread around here again. I am vaxxed and boosted, but way too busy to deal with flu-like symptoms. Plus, the mask kept me covered in case I was making too many faces at all the nonsense.

At the beginning the judge brought the attorneys together to explain how there might be a conflict and let them know they have a chance to ask for a recusal. Neither side asked for a recusal. Getting another judge would cause more delay, and we didn’t think he would be significantly biased from his work on Team Hogan.

The hearing began with the party who made the motion to dismiss/summary judgment (for the non-lawyers, these are different things that have the same effect of killing the case early). Then the plaintiff team rebutted. Then the defense rebutted that. Finally one more turn for the plaintiff. Each time, the judge jumped in with questions of his own, and he made sure everyone said what they wanted to say. That was fair. He also pronounced my name right on the first try. Kudos!

My attorney did the talking for our team, but I whispered a few suggestions to him along the way.

To summarize the defense arguments:

1. “We don’t have the authority to do anything to find out if Cox is ineligible.”
2. “Plaintiff failed to file the complaint within 10 days.”
3. “Even if he did, we’re too close to the election, so it would be too disruptive to do anything.”

Defense Argument Number 1 admits a vulnerability of our democracy here in Maryland. The Board of Elections operates as a rubber stamp, despite the law — the actual statute — giving them the duty to ensure compliance with state and federal laws in all aspects of the election process. It doesn’t operate like other agencies that can make administrative findings of fact. It’s operation manual is essentially titled, “Meh, Whatever.”

This would mean, in practice, there is no official way to enforce the 14th Amendment against any insurrectionist who wants to take office. There is nobody whose job it is to make those determinations.

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. In the alternative, my attorney argued that in fact the Board is continuing to omit because they are still doing nothing and there’s still time to take action.

Defense Argument Number 3 is where the judge is most likely to grasp a handy straw. It is really close to the election as far as the ballot production process goes. It is not past the deadline for finalizing it though — but it would be if the Board loses then appeals (the judge knows this) or if it doesn’t appeal and we get that full trial with discovery that Cox and I deserve. We argued in our reply brief that if a candidate for governor were found to be disqualified as a J6 insurrectionist, another delay in the election would be warranted. So, yeah, it’s a heavy issue that nobody would want to have to decide.

Keep in mind that the delay was actually caused by the Board, 1) knowing of Cox’s J6 activity and doing nothing for months and months, and 2) delaying and hiding their response to the Holt letter. Now, they claim it is too late to do anything about it. How convenient.

One question/comment from the judge made me the most pessimistic about our chances. He said something to the effect of “How would the 1 of 20 people in Maryland who are actually Cox fans feel about a ruling removing him from the ballot?” (Side note: It is probably illegal for him to say that in Florida)

That’s not a direct quote, because my stupid pen ran out of ink, but the point is he thinks the law–a Constitutional Amendment–should not apply if a candidate is popular enough. I am shocked that a judge would make such a point. If you are popular enough, you are above the law–maybe he’s not a Hogan Republican.

My attorney made the counterpoint: what about the even larger group of people who would be upset if the Constitution was not applied?

My sense right now is that there is a 90% chance we lose this one right now. It is common for courts to find some kind of an “out” to avoid having to rule on a controversial topic. The gist of the ruling will be something like, “Thank you for raising these very important issues, but it’s too hard to do anything about it right now. Bye.”

Stay tuned for Monday.