The Wig Man Waiteth

Centrist Libertarian Daniel "The Wig Man" Vovak, candidate for the US Senate GOP Primary in Maryland, had his day in court today, finally. He only filed his case back in February, fer gawsh sakes. The case, in keeping with his campaigns intentional use of farce, satire, and parody, was a suit against the MD State Board of Elections for its impromptu confiscation of the word "The" from his name on the ballot, based on a claim that somehow the word "The" is a title, in and of itself, under some system of heraldry somewhere in the world, or that it makes "The Wig Man" into a title from a nick name.

The problem with the state's claim, of course, besides the lack of any evidence or expert testimony in support of their argument, is that this would not only deny current day candidates like Jesse "The Body" Ventura (aka James Janos), Ronald "The Gipper" Reagan, Arnold "The Terminator" Schwartzenegger, Mike "The Mover" Shanks, from using their proper nicknames (not self created ones, mind you, but ones bestowed on them by their accomplishments, society, or the media). I mean, c'mon, Jesse "Body" Ventura doesn't quite sound right, does it?

Beyond such nicknames in the current day, Vovak has obtained the expert opinion of Georgetown University's Medeival History Professor Jo Ann Moran Cruz, who states:

"The" has been used through history for a nickname or name of rulers or leaders. For example, Peter "the Great" or Alexander "the Great". Their titles were Tzar of Russia and King of Macedon, respectively. "the Great" was not a proper title, historically, and was normally given as a descriptive name retrospectively by society on the heels of great achievements.

"The" was also commonly given as a nickname--for example, "Erik the Red" (presumably because he had red hair), who was one of the first to settle Greenland. The Norse commonly used such nicknames as names, e.g. Aud "the Deep-Minded" or Lief "the Lucky" Erikson, the son of Erik the Red and the first Norse leader to land on North America, or Sigurd "the Powerful", earl of Orkney, or Tyrkir "the Southerner". (see The Vinland Sagas: The Norse Discovery of America (1965), appended list of proper names.)

In addition, if you look at other languages, "the" is often part of an individual's surname, e.g. "LaBella" or "de la Cruz." If the court were to decide that "the" is a title, individuals such as this might find parts of their names excluded from the ballot.

What is so interesting about her commentary is that the woman at the Board of Elections who instigated this whole fight is named Linda LaMone (aka Linda "The Garden", in French), MSBE Chair, and superior of Donna Duncan, the defendant in the case. By her logic, if she ran for office, she could only appear on the ballot as Linda Mone, and, furthermore, given the US Constitutional prohibition on use of titles by citizens, every person with "le", "la", "de la", etc beginning their last name would be forced to have their names changed. The immense economic impact of reprinting all the phone books alone is stupefying...

In todays hearing, the state sought to have the case dismissed, claiming that Vovaks original filing before the US Supreme Court on February 4th (given it is a federal race) shouldn't count and therefore his case is dead for latches (i.e. he didn't file in the court they thought he should have within 10 days of the SBOE modification of his candidacy filing.) Apparently, the judge wasn't buying their arguments, particularly after Vovak stated that the US Senate race is a federal race, and that SCOTUS has original subject matter jurisdiction over all federal races, and that his case there was kicked to the state court by SCOTUS based on the long-suffered Hans v Louisian precedent.

After the hearing, the Asst. Attorney General, Mark Davis, admitted that Vovak's case citation was difficult to dispute, "Thats a good case."

The judge then asked the states attorney whether, if the timeliness issue was gone, what other arguments they had. Davis responded that they had nothing other than the claim that "The" was a title.

At that point, given that Vovak had filed a line seeking the whole case be heard today, Vovak was able to submit his expert evidence, and drew laughs from the gallery when he referred to Linda "The Garden" LaMone as an example, as well as current Connecticut Democratic US Senate nominee, Ned LaMont.

After some back and forth by Vovak and Davis, Judge Silkworth (who ruled twice last week in other cases, against Linda LaMone both times) then said, "Okay, now what about damages?"

Vovak detailed his actual damages, then went on about how his candidacy was brought to a halt by the court battle, which has been seen as oddball, and has stymied his ability to fundraise and campaign. Vovak talked about how weak the alleged front runner, Michael Steele was, yet kept getting almost daily press coverage while Vovak was ignored due to the presumption that his candidacy was dead.

The most striking thing about this hearing is that Vovak conducted his entire case pro se Wearing his Jeffersonian powdered white wig! When he strode out of the courtroom, a half dozen reporters with their photographers were shocked to see him in this manner, possibly the first time someone has argued a case in US court with such a wig since the very first SCOTUS abolished them as uniform court dress, in the 18th century. Perhaps more striking is that Maryland reporters have apparently gotten so used to Vovak in the wig that they forgot that he was wearing it, and none of the articles that have appeared have noted his peruke.

While there has been much humor about this whole case, there are possibly wide ranging impacts from it. Firstly, it creates the first precedent in Maryland interpreting its relatively new (passed 1998) election law permitting candidates to include their nicknames in quotes on the ballot. The Judges opinion, therefore, will dictate future SBOE policy. Secondly, as Vovak's written arguments discuss how Griswold v Connecticut, the case recognising one's right of privacy, upon which Roe v Wade rests, implies under the symmetry principle, that along with the right to privacy is the concommittant common law right to publicity (just as, for example, the right to speech (1st Amend) carries the concommitant right to not speak(5th), and the right to bear arms (2nd) carries the right to not be armed (concientious objection)), which he argues exists within the same 9th Amendment as the Griswold right to privacy. Vovak argues that,

Griswold decided government was controlling Defendant's Right to Privacy under Ninth Amendment. If government cannot control a Defendant's privacy, then it cannot control a candidate's publicity, a candidate's only communication with voters through a ballot. And who controls publicity on a ballot? Proper legal procedure is not MSBE — but a "candidate" — as written in §5-301(c)(1). ...

Mr. James Madison's Ninth exists because there are individual rights which are loosened (Bill of Rights) and government rights which are restricted (United States Constitution). As man expresses himself, all fruits may be eaten except those forbidden, leaving a spectrum of many un-enumerated Rights of man. Equally, Ninth Amendment is a constitutional equivalent of Ecclesiastes 3: 1-8 (King James Version), to which Plaintiff asks this Court to "Turn, Turn, Turn"

NOTE: Vovak says one of the court clerks, a Moody Blues fan, got a kick out of this...

In US judicial history, there have been remarkably few 9th Amendment cases other than Griswold v CT, and Roe v Wade. Judge Robert Bork referred to it as "a meaningless inkblot", apparently of the Roschach type, into which any judicial legislator seeks to find rights that are not otherwise enumerated. Despite the allegations of self described originalists like Bork, that WAS the original intent of Madison's 9th: to encompass all other English common law and Roman Civil Law rights held by Englishmen prior to the Revolution. The only reason the other enumerated rights of the earlier amendments were specifically enumerated was because those had been the most greivously offended against by the King prior to the Revolution, and it was deemed necessary to protect them the strongest only due to recent experience. They were most certainly not the only rights enjoyed by Englishmen, nor always the most important (for instance, one can argue the right to travel is just as important).

As one who espouses an originalist point of view on the Constitution, recognising the original intent and construction of the founders as paramount, I have no trouble recognising any common law or civil law right within the 9th Amendment.

So, we come to Maryland Law that applies: §5-301(c)(1) On the certificate of candidacy, a candidate shall designate how the candidate's name is to appear on the ballot. [Emphasis added.]

Other than use of unconstitutional titles (as demonstrated, "The" is not a title), and limited only by a candidate demonstrating proof that his nickname is recognised by the press, or by others in his community, there is no restriction as to how a candidate may choose to have his name appear, nor is there any authorization for the MSBE to alter the name chosen by the candidate.

It is therefore clear that the state has no case. As Vovak states, "In this case, the wig is on the other head." Lets see what the judge says in his ruling...