Saturday, October 23, 2010

Blumenthal, Bysiewicz And The First Amendment

The person who has written most sensibly about Secretary of the State Susan Bysiewicz and a recent Connecticut Supreme Court decision that did not allow Bysiewicz to run for attorney general in a Democratic primary, largely because Bysiewicz ran afoul of a statute requiring a candidate for the office to have completed a certain number of years in the active practice of law, is Chris Powell, the Managing Editor of the Journal Inquirer.

Powell pointed out that the statute itself contravenes a constitutional provision that sets only an age requirement for the office. The constitutional provision cannot by definition be unconstitutional. Therefore, the contravening statute must be unconstitutional.

This political hand grenade was tossed to the Supreme Court by Attorney General Richard Blumenthal, and the court, Powell reasoned, had got it wrong.

By setting other requirements not demanded by the state constitutional, the court, practically speaking, may have invalidated the constitutional provision, which was intended to open a wide door of liberty to attorney general candidates. Bysiewicz remarked wryly after the court’s decision that, under the auspices of Connecticut’s Supreme Court, U.S. Supreme Court Justice Elena Kagan could not have been appointed to the highest court in the land. Kagan, who came out of academia, had no practical experience at the bar.

Left undebated as the Bysiewicz decision wended its way through the court was the question: Why is practical legal experience at the bar more important than administrative experience in the attorney general’s office?

It might have been interesting to ask Blumenthal after the court decision had come down whether he thought Connecticut’s Supreme Court had got this one right. But the moment passed, and the hand grenade blue up Bysiewicz’s restless ambition, for the moment.

Now, once again, Bysiewicz finds herself in the pickle jar – this time on a matter of First Amendment rights.

Linda McMahon, Blumenthal’s Republican opponent vying for U.S. Sen. Chris Dodd’s seat, is the former CEO of World Wide Wrestling (WWE). Under protest from Republican Party Chairman Chris Healy and others, a spokesman for Bysiewicz, Av Harris, has issued a press release on behalf of Bysiewicz denying that the secretary of state issued a formal ban on the wearing of WWE gear at polling places.

According to a Hartford Courant report, while Bysiewicz has not issued a “formal ban” on the gear, “the issue has been discussed informally with local registrars. Harris said it will be left to the discretion of local poll workers whether to ask voters to remove their wrestling gear when they are inside the polling place.”

Through informal discussions, the First Amendment grenade has been placed in the hands of poll workers, according to Bysiewicz’s spokesman:

"If the poll workers feel like the wearing of WWE paraphernalia is in any way interfering with the voting [process], they can ask the individual to cover it up or leave and come back with something else on. We're aware that this is may be an issue and were prepared to evaluate every case on an individual basis.”

At this point, one would like the attorney general – who has sent out to the media a number of press releases on First Amendment issues recently, two of which would restrain advertisers from running material on social service sites the attorney general considers repugnant – to man up and retrieve the grenade from the poor poll workers.

Do voters have a First Amendment right to wear wrestling gear to the polls?

Some First Amendment scholars, very possibly a U.S. Supreme Court justice who has no practical experience at the bar, may believe they might. Some in Connecticut’s media may believe they do. Cynics who may think the secretary of state is in this instance carrying water for the Democratic Party and in particular for Blumenthal, who stands to benefit from intimidated McMahon voters, would be instantly disabused of their corrosive cynicism should the ambitious, lean and hungry attorney general put a quick stop to the abuse of the First Amendment by issuing one of his frequent advisories instantly reproduced by all the First Amendment lovers in the media.

Someone surely will put the question to Blumenthal, hopefully before voters compelled to strip by poll watchers enter voting areas to exercise their franchise and their First Amendment rights in November.
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