Delaware’s constitution provides that all members of its three highest courts—the Supreme Court, Superior Court, and Court of Chancery—must be members of one of the two major political parties. It also provides that no more than a bare majority of the members of each court can be from the same party. The plaintiff in this case challenged both provisions. The Third Circuit held that the major-party provision is an unconstitutional burden on the First Amendment’s protection for freedom of association. Without considering the bare majority provisions in isolation, it held that the provisions were not severable from the major-party provisions and struck them down as well. The State then petitioned the U.S. Supreme Court for review, and the Court granted the petition.
Public Citizen filed an amicus brief supporting the holding, but not the reasoning, of the Third Circuit. Our brief explains that the state law categorically disqualifies the approximately 25% of the state’s citizens who have no party affiliation, or who are members of minor parties, from serving as judges on these courts, unless they alter their affiliation to either the Democratic or Republican Party. Such an outright exclusion of a broad swath of the population from eligibility to hold public office based on their choices regarding political affiliation imposes a severe burden on the right to associate. In contrast, a bare-majority limitation, operating alone, would not severely burden the right to associate because it imposes no out-right disqualification from office on affiliates of any party or on unaffiliated citizens. Nonetheless, severability is an issue of state law, which is beyond the authority of the U.S. Supreme Court to address.
In a unanimous opinion, the Court held that the plaintiff lacked standing to challenge the state constitutionals provision because he could not show he was “able and ready” to apply for a judicial vacancy in the near future. Justice Sotomayor wrote a concurring opinion agreeing that the plaintiff lacked standing but highlighting the points made in our amicus brief for future consideration by lower courts should the issue be raised in another case by a plaintiff with standing.