Delaware's major-party requirement for judges on top state courts won’t be enforced under consent decree

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A Delaware constitutional provision that effectively requires judges on its top state courts to be Republicans or Democrats won’t be enforced as a result of a consent decree reached between the governor and a litigant.

In a consent judgment, Democratic Delaware Gov. John Carney agreed that the requirement in Delaware’s state constitution violates the U.S. Constitution’s First Amendment.

Law.com, Law360 and the Associated Press have coverage.

But the consent decree did not disturb another requirement for political balance on the state’s top three courts.

U.S. District Judge Maryellen Noreika of the District of Delaware signed the consent judgment Jan. 30.

The governor in Delaware selects judges from a list provided by a judicial nominating commission and submits his choices to the Delaware Senate.

Under the Delaware Constitution’s political-balance provision, no more than a bare majority of seats on the state supreme court and its superior court can be members of any one political party. Nor can a bare majority of seats belong to any one political party for those two courts combined with the chancery court.

The Constitution’s major-party provision provides that, on those three courts, the remaining judges must belong to “the other major political party,” which limited judgeships to Republicans or Democrats.

Litigant James R. Adams, an independent, initially challenged the major-party requirement and the political-balance requirement.

The U.S. Supreme Court had ruled in December 2020 that Adams didn’t have standing to challenge either requirement because he didn’t show that he was “able and ready” to apply for a judgeship. Adams then applied for five Delaware judgeships and filed a new case challenging only the major-party requirement, according to Law.com.

David Finger, a lawyer for Adams, told the AP that he was pleased by the decision. He surmised that Carney wanted to keep the bare-majority requirement “to appear to the relevant constituencies like he won something.”

A spokeswoman for Carney told the AP in an email that keeping the bare-majority provision “will help ensure that Delaware’s courts continue to be recognized as the preeminent court system in the country.”

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