Dan Cox as “Constitutional Attorney”

On January 6th, 2021, Maryland Del. (and now gubernatorial candidate) Dan Cox infamously tweeted “Pence is a traitor.” Brian Griffiths has a few things to say about that in a new Duckpin post this morning, but I wanted to add a further thought of my own.

Dan Cox styles himself a “Constitutional Attorney.” The problem here is not that there’s anything wrong with being a constitutional attorney — quite the contrary! — but that, on the available public evidence, Cox simply isn’t a very good one. His apparent notions of how the U. S. Constitution sets forth the presidential succession process proved embarrassingly wrong, which is why not a single federal judge or state legislative chamber was willing to go along with his side in January 2021, any more than Mike Pence was. His notions of how state and local public health powers fit in with constitutional law, again, are at variance with those of Justices Alito, Thomas and Gorsuch, not just those of the U.S. Court of Appeals for the Fourth Circuit.

If nominated, Cox would continue to run around Maryland making untenable claims about constitutional law, but now as his party’s official standard-bearer. And he would drag the Maryland Republican Party down to ignominious defeat in November.

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Jim Shalleck deserves nod in GOP AG primary

Amid other interesting primary battles it’s easy to lose sight of the one for the Republican nomination for Maryland Attorney General. But it’s important. Everyone in favor of a sane and relevant GOP should back Jim Shalleck of Montgomery County, an experienced prosecutor who’s campaigning primarily on the crime issue. Shalleck’s primary opponent is the appalling Michael Anthony Peroutka, the “wackypants theocracy buff” (as I’ve called him) whose crank constitutionalism and bizarre views on “Biblical law” I’ve written about for years.

Jim Shalleck is a credible figure who’d be an asset to a statewide Republican ticket. Michael Peroutka is working the Dan Cox circuit while somehow managing to be even more extreme than Cox himself. It shouldn’t even be a contest, but in today’s political atmosphere, you never know.

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Del. Dan Cox responds to my Maryland Reporter piece

Del. Daniel Cox reacts to my recent opinion piece with his usual degree of temperateness and accuracy:

“When you’re wrong on both the law and the facts, pound the table.”

On accuracy, for example, he baldly asserts that his constitutional claims failed “based on one point: mootness.” But as I noted in my piece, the Fourth Circuit explicitly carved out only his religion claims to dismiss as moot, while separately upholding as correct the district judge’s dismissal of all the rest of his claims on grounds unrelated to mootness. Does he even read the decisions he loses? (More here and here.)

As for Cox’s vicious invective against me personally, it hardly deserves to be dignified with a response. Seriously, who can read this sort of thing without concluding that this man is utterly unfit for public office?

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Cox’s Hogan suit bombs out at Fourth Circuit

I’ve written a new piece at Maryland Reporter on last month’s ruling by a federal appeals court confirming the demise of Del. Dan Cox’s suit against Larry Hogan claiming that the governor’s emergency COVID-19 orders had violated the law and the constitution. A few excerpts:

“Then there were the signs of hasty lawsuit drafting… One subhead in the original filing cited ‘Irreparable Injury To Plaintiffs From Governor Northam’s Gathering Orders,’ comically echoing a suit filed earlier in a different state – Virginia — against Gov. Ralph Northam.”…

“The suit was decked out with rhetorical flights and what you might call ambitious theories of constitutional law, such as that [Gov. Hogan’s pandemic] orders had had the effect of depriving Marylanders of a republican form of government. As the appeals court noted last month, Cox’s subsequent briefing did not go on to argue the merits of many of these theories, leaving Judge Blake free to dismiss them without discussion….

“Del. Cox will undoubtedly continue to work the campaign trail making strongly worded claims about the U.S. and Maryland constitutions as he understands them. Just remember that the actual federal courts keep making it clear that his ideas about the Constitution are not theirs.”

I covered the initial dismissal of Cox’s suit two years ago for the Frederick News-Post.

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Jim Swift on the GOP gubernatorial primary

At the Bulwark, Jim Swift sounds the alarm about the prospect that voters in the Maryland Republican gubernatorial primary might be seriously divided between a proponent of stolen-election craziness and one with a record of solid administration and sober conservative views. While much of the piece is good, I must disagree with Swift on several points. In particular, he’s far too credulous about a super-dodgy poll about Maryland GOP primary preferences put out by the *Democrats* (and not as far as I know as part of some wider poll release). It’s a blatant effort to mess with the other party’s deliberations by undercutting the candidate with a real chance to win a general election, Kelly Schulz, while boosting the candidate with no such chance, Dan Cox. Swift should have ignored this poll, and so should everyone else.

Schulz is not only ahead, but overwhelmingly so, in garnering endorsements from GOP electeds in the legislature and important county officeholders. The statewide business community knows her well from the 7 years she spent touring workplaces around the state as labor, regulation, and commerce secretary. She’s vastly outraised Cox financially.

Now, obviously, candidates who sweep the table on money and endorsements still lose sometimes to ideological fever chartists. (Swift has some chapter and verse on Cox’s erratic and conspiracy-prone thinking, and much more could be and has been said about that.) But personality counts too. Schulz was much liked and respected during her years in the legislature. She hasn’t become personally entitled or arrogant, despite her success in high-profile state jobs. Nor has she gone around picking needless fights.

Swift posits a rural/urban split that is overdone as far as the tensions in play here. Schulz has plenty of strength around rural areas, and, to be fair, Cox has fans among the GOP base in some more urban parts of the state. At any rate, the center of gravity of the Maryland GOP electorate remains in suburban counties. (The article is also way out of date in its implicit view of Frederick County, but that’s another story.)

In short, I know it can be tempting to warn Bulwark readers “See, practical/sane Republicanism is on the ropes even in Larry Hogan’s backyard — clearly its final doom is near.” But this piece allows itself to get way out ahead of the available evidence. We’ll see come July.

P.S. One final point. Cox’s calling card is his hard-line rejection of Gov. Larry Hogan — I don’t think I have yet met a vocal Cox supporter who wasn’t also a Hogan critic. Having earlier struck out in suing Hogan, Cox is perhaps best known for filing an attempt to impeach the governor that lasted all of six minutes and drew no colleague support. If Cox-ism were predominant among the state’s GOP voters, you’d expect the governor’s rating among them to have sagged. But the respected Goucher Poll, which does show its methods, last month found Hogan to be running 71 percent favorable and 23 percent unfavorable among Maryland Republicans. Cox and his Democratic Party well-wishers can’t take any comfort from those numbers.

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Montgomery County school curriculum to train K-12 students to “understand and resist systems of oppression.”

As noted by National Journal columnist Josh Kraushaar on Twitter, Montgomery County Public Schools has charged a team with drafting a K-12 curricular overhaul that “strengthens students’ sense of racial, ethnic, and tribal identities, helps students understand and resist systems of oppression, and empowers students to see themselves as change agents.”

Commentator Damon Linker responds:

“I’ll speak up: I wouldn’t want my kids’ sense of racial, tribal, or ethnic identity to be strengthened. I don’t want them to be trained to “resist” anything in particular. And most of all I don’t want them turned into “change agents,” which is corporatized activist-speak.”

I’d add, speaking for myself, that while families of varying political colorations might all agree that there are “systems of oppression” existing in the world, we are likely to disagree strongly on what those might be and where their definitional boundaries might be. For example, it’s routine for one or another consultant in the world of “anti-racist” training to label capitalism as a system of oppression, while others, like me, consider capitalism a system of liberation and compulsory state socialism a system of oppression. Whose view is going to prevail? Likewise, there are countless views of what does and does not constitute sexism, ableism, imperialism, ageism, racism, colonialism. When views diverge, whose will prevail? And even if agreement were reached on identifying some societal evil, who decides whether the appropriate response is to “resist” it in some visible and performative way, to set a better example by one’s personal conduct, to use one’s powers of persuasion and exhortation, or to withdraw from contact with and participation in the evil? Each approach has had philosophically serious advocates.

Some might even deem it an emergent system of oppression to employ the machinery of compulsory public education to remove children forcibly to a classroom where they will be indoctrinated into ideologies that may vilify or demonize beliefs held by members of their families, or even demonize those family members themselves, in a process to which members of their families would never willingly have subjected them.

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He’s back: Peroutka files for AG nomination

Wackypants theocracy buff Michael Peroutka, who served one term on the Anne Arundel County council, has filed to run for the GOP nomination for Maryland Attorney General to succeed two-term Democrat Brian Frosh. Brian Griffiths at The Duckpin is first with the report, which takes note of Peroutka’s involvement with the separatist League of the South and his involvement in R. J. Rushdoony’s Christian Reconstructionism movement.

I’ve written about Peroutka’s crank constitutionalism and bizarre views on “Biblical law” a number of times, including here and here at this site. He’s made noises about running for Maryland AG in the past.

Speaking at an Annapolis rally against COVID measures in 2020, reported by Len Lazarick at Maryland Reporter at the time, “Peroutka maintained that Gov. Larry Hogan had violated the constitution and effectively removed himself as governor.”

Fortunately, Peroutka’s will not be the only name on the GOP primary ballot for Maryland AG. Jim Shalleck of Montgomery County, a former prosecutor and U.S. Department of Justice official, is qualified for the position and well known in Maryland GOP circles.

Shalleck has been running a mainstream conservative campaign; you can read a candidate interview with him here. It’s also possible other candidates will file before the Feb. 22 filing deadline.

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In miniature, January 29

  • I’m honored to have joined the board of the Frederick County Landmarks Foundation, one of my favorite local organizations, which maintains historic buildings such as Schifferstadt and runs the wonderful annual Barnstormers Tour.
  • Howard Gorrell: More hypocrisy on Maryland redistricting [Maryland Reporter] LRAC’s legislative maps, unlike MCRC’s, split the city of Gaithersburg. Might that decision be vulnerable to a legal challenge? [David Lublin, The Seventh State] To help pry open the closed shop that is Maryland politics, try open primaries [Colin Alter, same]
  • Reminder: Del. Dan Cox’s many baseless election-theft claims include insinuations of “rampant” poll fraud in four GOP-heavy Maryland counties that did not return the sort of margins for Trump he expected a year ago: Frederick, Carroll, Anne Arundel, and Harford. [Brian Griffiths, The Duckpin] Numbers on county shifts here; note that while these four suburban counties all swung hard against Trump (10-13 points), as did more Democratic suburban jurisdictions like Howard (10) and Baltimore County (11), many counties that are partially suburban in character swung a lot too, such as Calvert and Talbot with 11-point swings, Washington 9, Wicomico and St. Mary’s with 8, and Queen Anne’s with 7.
  • The redistricting season has now wrapped up with the legislature choosing gerrymanders over our commission’s fair maps for both Congressional and legislative elections. Some clips: Henry Olsen/Washington Post, WTOP, Star-Democrat (Easton). And I’m quoted in this Frederick News-Post piece by Jack Hogan on the implications of the legislative maps for Frederick County.
  • Maryland ranks near the cellar in business tax climate and Andrew Macloughlin of the Free State Foundation explains why. [Maryland Reporter]

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Talking Maryland podcasts

Here’s a partial list of the times I’ve been interviewed as a podcast guest on Maryland-based shows and Maryland issues (redistricting in particular). Radio generally excluded.

New Jan. 14, 2022: I talk gerrymandering and redistricting reform with host Sunil Dasgupta of Montgomery County at his I Hate Politics podcast.

In March 2021 I joined Dan Sally, who makes a practice of getting past “red versus blue” narratives, at his You Don’t Have to Yell podcast.

In March 2020 I joined hosts Michael Sanderson and Kevin Kinnally at the Maryland Association of Counties’ Conduit Street Podcast. We ranged across all sorts of topics including how libertarians fit into politics and the role of emergency powers in the Covid-19 pandemic.

In March 2019, with the District 6 court challenge at its highest pitch, host Ryan Miner at A Miner Detail interviewed me and (no relation) Ashley Oleson, 2/3rds of the chairs of Gov. Hogan’s Emergency Commission on Sixth Congressional District Gerrymandering.

In December 2018 I joined Emma Kerr and Colin McGuire at the Frederick News Post’s Frederick Uncut, also on the District 6 battle. And there was a followup interview in June 2019 when the Supreme Court ruled.

In fact I think I was the first guest “Frederick Uncut” ever had back for a repeat interview. In 2016 I had discussed the role of third party candidates in politics.

In August 2018 I joined hosts Candace Dodson Reed and Tom Coale on the Elevate Maryland podcast to talk — what else? — gerrymandering.

In November 2017 Patrick Hanes at Frederick-based WFRE interviewed me on what it’s like to work at a think tank. It’s a completely different interview than others I’ve done, because the questions are different, and I recommend it.

I’m sure I’m forgetting some (as well as generally omitting the many radio and TV hits that weren’t in podcast format). So many good podcasts out there for those of us who follow Maryland issues. Check these shows out!

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The Democrats’ lone dissenter

I’d like to write a few words just to salute first-term Maryland delegate Gabriel Acevero (D-19; Germantown, Montgomery Village), someone whose politics differ widely from mine. I knew Del. Acevero’s name because last year he took a principled stand at likely cost to himself. Now he’s gone and done that again.

This week, Del. Acevero was the only Democrat in the Maryland legislature to vote against the leadership’s super-gerrymandered map of Congressional seats. He saw the principle of the thing.

You might guess that Del. Acevero would get primaried over that. But here’s the thing: he’s already being primaried in his three-member District 39 following the principled thing he did last year.

In 2020 Del. Acevero led the fight to repeal Maryland’s very bad police-tenure law, the Law Enforcement Officers’ Bill of Rights. His day job, however, was with MC-GEO, a powerful public employee union that represents some LEOs. It fired him.

In the event, LEOBR was modified, though not repealed. Meanwhile, a VP of the union that fired Acevero, MC-GEO, is running in his district, and the union says it’s “all in” on supporting the candidacy of its officer, who’s run before.

I don’t know what’s going to happen next to Del. Acevero in electoral politics. But I do know that at age 31, he’s already taken more meaningful stands on principle than many lawmakers get around to taking in their whole careers.

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