The United States Law Week

Delaware Judicial Partisan-Balance Rule Gets High Court Look (1)

Dec. 6, 2019, 7:17 PM

The U.S. Supreme Court agreed to rule on the constitutionality of Delaware’s requirement of a partisan balance on its top courts, which play an outsize role in American corporate governance.

The justices said Friday they will review a federal appeals court’s conclusion that the Delaware rules violate the First Amendment. Delaware requires judges to be either Republicans or Democrats, something no other state does, and bars either party from holding more than a one-vote majority on its most important courts.

Delaware said in its appeal that its state constitution has required a politically-balanced judiciary for more than 120 years. The rules “have well served the needs of the people of the state, creating a well-respected judiciary that is the envy of the nation,” the state argued.

The rules are being challenged by James Adams, an independent voter and lawyer who says he would like to apply for a judicial position. Adams is a former Democrat who changed his registration just before filing his suit.

“If Delaware law restricted judgeships by race, religion or gender, state sovereignty would not protect the law from being declared unconstitutional,” Adams argued. “It should be no less so in the case of political affiliation, which is a core freedom.”

Delaware’s courts are especially important to businesses because the state is the corporate home to more than half of U.S. public companies and more than 60% of Fortune 500 firms. The Delaware Court of Chancery specializes in quickly hearing big-dollar business cases.

The partisan-balance rules govern the Delaware Supreme Court and its trial court, known as Superior Court. The rules also apply to the total number of judges on those two courts and the Chancery Court combined.

The Supreme Court said it will consider whether Adams had the legal right to challenge the rules, along with Delaware’s substantive arguments in defense of the policy.

The U.S. Supreme Court justices themselves eschew partisan labels, sometimes even bristling at routine media references to the party of the president that appointed them. But states have a variety of systems, including partisan elections in some places.

Judges for Delaware’s top courts are appointed by the governor, who chooses from a list created by a bipartisan nominating commission.

The court will hear arguments, probably in March, and rule by the end of June. The case is Governor v. Adams, 19-309.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net
Laurie Asséo, Ros Krasny

© 2019 Bloomberg L.P. All rights reserved. Used with permission.

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