Amicus Curiae Brief — John C. Carney, Governor of Delaware, Petitioner v. James R. Adams

No. 19-309

IN THE

Supreme Court of the United States

JOHN C. CARNEY, GOVERNOR OF DELAWARE,

Petitioner,

v.

JAMES R. ADAMS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF RESPONDENT

ALAN B. MORRISON

GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL

2000 H Street NW

Washington, DC 20052

(202) 994-7120

KAITLIN E. LEARY

Counsel of Record

SCOTT L. NELSON

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20TH Street NW

Washington, DC 20009

(202) 588-1000

kleary@citizen.org

Attorneys for Amicus Curiae

February 2020

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 6

I. The major-party requirement violates the First

Amendment. .......................................................... 6

A. Laws imposing severe burdens on the right

to associate must be narrowly tailored to

advance a compelling state interest. ............... 6

B. The major-party requirement imposes a

severe burden on the right to associate. ......... 8

C. The major-party requirement is not

narrowly tailored to serve a compelling

state interest. ................................................. 11

D. The major-party requirement does not

survive even “closely drawn” scrutiny. .......... 16

II. By itself, a bare-majority limitation would

not violate the First Amendment........................ 17

A. A bare-majority limitation is not a severe

burden on the right to associate. ................... 18

B. Operating alone, a bare-majority limitation

would be closely drawn to serve the substantial interest in maintaining political balance

on Delaware’s courts without unnecessarily

abridging associational freedoms. ................. 19

III. Whether judges are “policymakers” is

irrelevant to the questions presented here. ...... 21

A. The “policymaker exception” is limited to

patronage-based employment decisions. ....... 22

ii

B. The “policymaker exception” does not apply

to laws disqualifying citizens from judicial

office based on political affiliation. ................ 24

C. The First Amendment does not prevent

consideration of political affiliation in judicial

appointments. ................................................. 26

IV. The Third Circuit’s holding that the

unconstitutional major-party requirement

is not severable is controlled by state law......... 28

CONCLUSION.......................................................... 29

iii

TABLE OF AUTHORITIES

Cases

Pages

Anderson v. Celebrezze,

460 U.S. 780 (1983) ............... 6, 7, 8, 10, 12, 16, 21

Branti v. Finkel,

445 U.S. 507 (1980) ........................... 21, 23, 24, 25

Buckley v. Valeo,

424 U.S. 1 (1976) ....................................... 7, 17, 19

Burdick v. Takushi,

504 U.S. 428 (1992) ......................................... 7, 11

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) ............................................. 20

City of Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750 (1988) ............................................. 28

Clingman v. Beaver,

544 U.S. 581 (2005) ................................... 7, 11, 19

Elrod v. Burns,

427 U.S. 347 (1976) ............................. 6, 21, 23, 24

FEC v. Colorado Republican Federal Campaign

Committee,

533 U.S. 431 (1996) ............................................. 12

FEC v. Wisconsin Right to Life, Inc.,

551 U.S. 449 (2007) ............................................. 13

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................. 27

Hechinger v. Martin,

411 F. Supp. 650 (D.D.C. 1976),

aff’d mem., 429 U.S. 1030 (1977) ........................ 20

Keyishian v. Board of Regents of the University

of the State of New York,

385 U.S. 589 (1967) ............................................. 10

iv

Kurowski v. Krajewski,

848 F.2d 767 (7th Cir. 1988) ............................... 28

Kusper v. Pontikes,

414 U.S. 51 (1973) ................................................. 6

McCutcheon v. FEC,

572 U.S. 185 (2014) ............................................. 13

NAACP v. Button,

371 U.S. 415 (1963) ............................................. 13

New York State Board of Elections v. López Torres,

552 U.S. 196 (2008) ....................................... 12, 28

Newman v. Voinovich,

986 F.2d 159 (6th Cir. 1993) ............................... 28

Norman v. Reed,

502 U.S. 279 (1992) ................................... 7, 20, 21

Perry v. Sindermann,

408 U.S. 593 (1972) ......................................... 9, 11

Planned Parenthood of Central Missouri v.

Danforth,

428 U.S. 52 (1976) ............................................... 28

Riley v. National Federation of the Blind of

North Carolina, Inc.,

487 U.S. 781 (1988) ............................................. 13

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ......................................... 6, 10

Rosario v. Rockefeller,

410 U.S. 752 (1973) ............................................. 15

Rutan v. Republican Party of Illinois,

497 U.S. 62 (1990) ............. 9, 11, 21, 22, 23, 24, 27

Storer v. Brown,

415 U.S. 724 (1974) ....................................... 10, 15

v

Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997) ................... 7, 8, 11, 14, 16, 19

United Public Workers of America v. Mitchell,

330 U.S. 75 (1947) ............................................... 10

Williams v. Rhodes,

393 U.S. 23 (1968) ..................................... 6, 10, 16

Williams-Yulee v. Florida Bar,

575 U.S. 433 (2015) ........................... 11, 19, 20, 25

Delaware Authorities

Delaware Constitution art. IV, § 3 ....................... 8, 18

Delaware Supreme Court Rule 41(a)(ii) .................. 29

Gov. John Carney, Executive Order No. 7

(Mar. 9, 2017), https://governor.delaware.gov/executive-orders/eo07/. ............................................ 15

State of Delaware, Party Tabulation of Registered

Voters (Feb. 2, 2020),

https://elections.delaware.gov/reports/pdfs/

20200201_partytotals.pdf...................................... 9

Articles

Brian D. Feinstein & Daniel J. Hemel,

Partisan Balance with Bite,

118 Colum. L. Rev. 9 (2018) .......................... 13, 14

Scott Gross, Ominous Trend for Delaware GOP:

The Voter Registration Gap Is Widening, Wilmington News J., Aug. 9, 2018, https://www.delawareonline.com/story/news/politics/2018/08/09/delaware-gops-dirty-secret-voterregistration-gap-widening/937223002/ ................. 9

Leo E. Strine, Jr., The Delaware Way: How We

Do Corporate Law and Some of the New

vi

Challenges We (and Europe) Face,

30 Del. J. Corp. L. 673 (2005).............................. 20

INTEREST OF AMICUS CURIAE1

Public Citizen is a nonprofit consumer advocacy organization that appears on behalf of its members and

supporters nationwide before Congress, administrative agencies, and courts on a wide range of issues.

Among Public Citizen’s interests is the preservation of

First Amendment rights for individuals who are independent voters or affiliated with third parties. Public

Citizen recognizes the importance of protecting the

rights of such individuals to associate (or not to associate) with the political party of their choice to foster

the expression of a variety of viewpoints on political

and social issues. A state interferes with these rights

when it enacts laws conditioning the receipt of a government benefit, such as public employment, on one’s

political affiliation.

At the same time, Public Citizen also has a

longstanding interest in the actual and perceived fairness and integrity of our judicial systems. That concern is implicated in this case by Delaware’s attempt

to produce an impartial judiciary through political

balance requirements for state court judges found in

the Delaware Constitution.

Public Citizen submits this brief to assist the Court

in assessing these competing interests.

––––––––––––––––––––––––

1 This brief was not written in whole or in part by counsel for

a party and no one other than amicus curiae or its counsel made

a monetary contribution to the preparation or submission of this

brief. The petitioner has filed a blanket consent to amicus briefs,

and the respondent has consented in writing to the filing of this

brief.

2

SUMMARY OF ARGUMENT

Both parties to this case have assumed that the

constitutionality of Delaware’s requirement that state

Supreme Court, Superior Court, and Chancery Court

judges be members of one of the two major political

parties turns on whether those judges are “policymakers.” The policymaker inquiry, however, was developed to address issues concerning the constitutionality of political patronage that are irrelevant to

whether a state can by law prohibit individuals who

are not members of major political parties from serving as judges.

Instead, to assess the burden on association entailed by the major-party requirement, the Court

should apply its standard freedom-of-association analysis, which calls for strict scrutiny of laws imposing

severe burdens on associational rights. Under such

scrutiny, the major-party requirement fails. By contrast, a prohibition on one-party domination of the

courts imposes a much more modest burden that, if

not linked to a major-party requirement, would trigger less stringent scrutiny. Such a requirement would

pass muster because of its direct advancement of the

substantial state interest in the balance and fairness

of the state’s judiciary.

I. The First Amendment right to associate encompasses the right to affiliate with the political party of

one’s choice. Laws that impose a severe burden on that

right are subject to strict scrutiny: They must be narrowly tailored to advance a compelling state interest.

Laws imposing lesser burdens, however, trigger less

exacting review.

Delaware’s constitution provides that all members

of its three highest courts—the Supreme Court,

3

Superior Court, and Court of Chancery—must be

members of one of the two major political parties.

State law thus 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.

The major-party requirement is not narrowly tailored to serve a compelling state interest. No one asserts that citizens who are not Democrats or Republicans are unqualified to do justice or that their presence on a court would necessarily result in an imbalance that would result in either the appearance or reality of damage to the impartiality and nonpartisanship of the court. Rather, the justification offered for

the major-party requirement is that it is a prophylactic measure aimed at preventing circumvention of the

separate and more limited requirement that no more

than a bare majority of any of the courts in question

may be made up of members of the same major party.

Although prophylactic measures may sometimes satisfy strict scrutiny, the sweeping disability imposed on

unaffiliated citizens here does not. Significantly less

restrictive alternatives—such as a bipartisan nominating commission or a cooling-off period after a judicial nominee changes party affiliation—are available

to Delaware to prevent circumvention of the purposes

served by the bare-majority limitation. Therefore, the

major-party requirement violates the First Amendment.

4

II. In contrast to the major-party requirement, a

bare-majority limitation, operating alone, does not severely burden the right to associate. It imposes no outright disqualification from office on affiliates of any

party or on unaffiliated citizens; rather, it is a conditional limitation that only disqualifies from consideration for specific appointments candidates affiliated

with a political party that already occupies a majority

of the seats on the court on which there is a vacancy.

Because it does not impose a severe burden on freedom of association, a bare-majority limitation is subject only to intermediate scrutiny, to ensure that the

interests it serves are sufficiently substantial to justify whatever limitations it imposes on associational

freedoms. Under such scrutiny, even a significant interference with the right to associate must be sustained if it is closely drawn to advance a sufficiently

important interest without unnecessarily abridging

associational freedoms. A bare-majority limitation by

itself would pass muster here, because it would serve

Delaware’s compelling interest of maintaining an impartial, nonpartisan balance on its courts, and be no

broader than necessary to do so.

III. Although the Third Circuit correctly held that

the major-party requirement unconstitutionally infringes on associational rights, both it and the parties

wrongly approach the question by asking whether

judges are “policymakers.” Under this Court’s decisions concerning political patronage in government

employment, whether a government official is a “policymaker” is shorthand for whether the official occupies a position for which loyalty to the party in power

is a relevant qualification. Under such circumstances,

elected officials and governmental decisionmakers

who answer to them may make discretionary hiring

5

and firing decisions based on a subordinate’s political

affiliation without running afoul of the First Amendment. Whether government personnel decisions may

be based on an individual’s loyalty to or affiliation

with the party in power, however, is a different question from whether a state can by law make political

party membership a requirement for office. Furthermore, the “policymaker exception” does not apply

when the government’s asserted interest is something

other than the need to maintain politically loyal employees. Here, no one asserts that loyalty to any political party is a relevant qualification for holding a

judgeship or that the major-party requirement is intended to ensure such loyalty.

In short, the “policymaker” criterion is ill-suited to

informing the resolution of whether the tens of thousands of Delaware citizens who are not and do not

wish to be members of a major political party may be

completely excluded by law from serving on Delaware’s most important courts. Such exclusion is indefensible, regardless of whether judges make policy.

And because the conclusion that the major-party requirement is unconstitutional does not depend one

way or the other on application of the “policymaker”

label, it does not imply that political affiliations and

beliefs are impermissible considerations in the selection of judges.

IV. The court of appeals correctly held that the

question whether Delaware’s major-party requirement is severable from its bare-majority limitation is

a question of state law. This Court cannot authoritatively resolve that question.

6

ARGUMENT

I. The major-party requirement violates the

First Amendment.

A. Laws imposing severe burdens on the

right to associate must be narrowly tailored to advance a compelling state interest.

This Court has “long understood as implicit in the

right to engage in activities protected by the First

Amendment a corresponding right to associate with

others in pursuit of a wide variety of political, social,

economic, educational, religious, and cultural ends.”

Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). In

addition, “[f]reedom of association … plainly presupposes a freedom not to associate.” Id. at 623.

“The right to associate with the political party of

one’s choice is an integral part of this basic freedom.”

Kusper v. Pontikes, 414 U.S. 51, 57 (1973). Indeed, “political belief and association constitute the core of

those activities protected by the First Amendment.”

Elrod v. Burns, 427 U.S. 347, 356 (1976); see also Williams v. Rhodes, 393 U.S. 23, 30 (1968) (“[T]he right of

individuals to associate for the advancement of political beliefs … rank[s] among our most precious freedoms.”).

Like other First Amendment rights, however, the

right to associate is not absolute. Roberts, 468 U.S. at

623. To determine whether a government-imposed restriction on associational freedoms violates the First

Amendment, a court “must first consider the character and magnitude” of the infringement on protected

interests. Anderson v. Celebrezze, 460 U.S. 780, 789

(1983). “It then must identify and evaluate the precise

7

interests put forward by the State as justifications for

the” restriction. Id. Finally, the court must “determine

the legitimacy and strength of each of those interests,

[and] consider the extent to which those interests

make it necessary to burden the plaintiff’s rights.” Id.

A law that burdens the right to associate will be struck

down if it “sweeps broader than necessary to advance”

the state’s asserted interests. Norman v. Reed, 502

U.S. 279, 290 (1992).

Under this Court’s freedom of association jurisprudence, “the rigorousness of [the] inquiry … depends

upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992). “Regulations imposing severe burdens on plaintiffs’ rights

must be narrowly tailored and advance a compelling

state interest. Lesser burdens, however, trigger less

exacting review[.]” Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 358 (1997) (citing Burdick, 504

U.S. at 434); Clingman v. Beaver, 544 U.S. 581, 586–

87 (2005). Burdens on associational rights that are not

severe must be supported by interests “sufficient to

outweigh” the burden and must serve those interests

in a “reasonable” way. Burdick, 504 U.S. at 440–41.

Under this approach, “[e]ven a significant interference

with protected rights of political association may be

sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to

avoid unnecessary abridgment of associational freedoms.” Buckley v. Valeo, 424 U.S. 1, 25 (1976) (internal quotation marks omitted). However, “strict scrutiny” remains appropriate “if the burden is severe.”

Clingman, 544 U.S. at 592.

8

B. The major-party requirement imposes a

severe burden on the right to associate.

“A burden that falls unequally on new or small political parties or on independent candidates impinges,

by its very nature, on associational choices protected

by the First Amendment” and thus is likely to be severe. Anderson, 460 U.S. at 793. In contrast, a restriction that “applies to major and minor parties

alike” is less likely to constitute a severe burden on

the right to associate. See Timmons, 520 U.S. at 360.

Here, the major-party requirement “falls unequally”—in fact, exclusively—on Delaware citizens

who have either chosen to affiliate with third parties

or chosen not to affiliate with a party at all. Specifically, Delaware’s constitution prohibits anyone who is

not a member of the Democratic or Republican parties

from serving on the Delaware Supreme Court, the Superior Court, or the Court of Chancery. See Del. Const.

art. IV, § 3. The major-party requirement ensures

that, regardless of the political affiliations of the current judges on those courts, no candidate who is unaffiliated or who is affiliated with a third party can ever

be considered for a judgeship on one of those courts.

See Pet. App. 8a; Pet’r Br. 1, 4, 6.

These provisions of Delaware law exclude a broad

swath of the state’s citizens from eligibility for service

on the state’s principal courts. The latest available figures on party membership of Delaware voters show

that approximately 47% are Democrats, 28% are Republicans, and the remaining 25% of the electorate is

split between unaffiliated voters (approximately 23%

of all voters) and members of minor parties (approx-

9

imately 2%).2 The major-party requirement thus

makes one in four Delaware citizens constitutionally

ineligible for high judicial office solely because of their

exercise of associational rights.

The proportion of Delaware’s population that is excluded from judicial office is growing: Among new voters registered between 2010 and 2018, unaffiliated

and minor-party voters outnumbered Republicans by

approximately 2.5 to 1, and unaffiliated voters will

outnumber Republicans statewide within twenty-five

years if this trend continues.3 Even then, however,

Democrats and Republicans will retain their monopoly on judicial office because unaffiliated citizens are,

by definition, not members of a major party.

The major-party requirement forces those who aspire to judicial office and who are independents or

members of third parties to choose between exercising

their constitutionally protected right not to associate

with a major political party or seeking a state judgeship. But the government “may not deny a benefit to a

person on a basis that infringes his constitutionally

protected interests,” Perry v. Sindermann, 408 U.S.

593, 597 (1972), including the right to associate (or

not) with a political party. See Rutan v. Republican

Party of Ill., 497 U.S. 62, 77 (1990) (“The government

‘may not enact a regulation providing that no

––––––––––––––––––––––––

2 These percentages are based on the Delaware Department

of Elections’ tabulation of registered voters by party. See State of

Del., Party Tabulation of Registered Voters, https://elections.delaware.gov/reports/pdfs/20200201_partytotals.pdf (Feb. 1, 2020).

3 See Scott Gross, Ominous Trend for Delaware GOP: The

Voter Registration Gap Is Widening, Wilmington News Journal,

Aug. 9, 2018, https://www.delawareonline.com/story/news/polit

ics/2018/08/09/delaware-gops-dirty-secret-voter-registration-gap

-widening/937223002/.

10

Republican … shall be appointed to federal office.’”

(quoting United Pub. Workers of Am. v. Mitchell, 330

U.S. 75, 100 (1947))); Keyishian v. Bd. of Regents of the

Univ. of the State of N.Y., 385 U.S. 589, 609–10 (1967)

(holding unconstitutional a state law that disqualified

individuals for public employment based solely on

membership in the Communist Party). And because

freedom of association “plainly presupposes a freedom

not to associate,” Roberts, 468 U.S. at 623, it is no solution to say that one who wants to be considered for

a judgeship in Delaware can affiliate with whichever

of the two major parties more closely reflects his or her

views, even if the fit is not perfect. Cf. Storer v. Brown,

415 U.S. 724, 746 (1974) (holding that states cannot

require an independent candidate to affiliate with a

political party in order to appear on the ballot).

This Court has long recognized that provisions

that grant a “complete monopoly” on public office to

the two major political parties are subject to strict

scrutiny because they severely burden the associational rights of citizens who are not members of those

parties. Rhodes, 393 U.S. at 32; see also Storer, 415

U.S. at 729 (explaining that the restrictions in Rhodes,

which effectively barred independents and members

of third parties from running for office, “severely burdened the right to associate for political purposes”).

The Court has emphasized that restrictions that

“place[] a particular burden on an identifiable segment of … independent-minded voters” by precluding

their participation in public life are “especially difficult for the State to justify.” Anderson, 460 U.S. at

792–93. Conversely, when concluding that a law does

not impose a severe burden on association, the Court

has frequently observed that it does not “exclude[] a

particular group of citizens, or a political party, from

11

participation,” Timmons, 520 U.S. at 361, or “disqualify [a minor party] from public benefits or privileges,”

Clingman, 544 U.S. at 587 (plurality opinion).

The major-party requirement has exactly those

consequences. It “den[ies] a benefit to a person because of his constitutionally protected speech or associations,” and thus “penalize[s] and inhibit[s]” “his exercise of those freedoms.” Perry, 408 U.S. at 597. Indeed, if “Republican” is replaced with “independent,”

this Court’s description in Rutan of a law that would

be per se unconstitutional—one “providing that no Republican … shall be appointed to … office,” 497 U.S.

at 77—perfectly describes Delaware’s major-party requirement.

C. The major-party requirement is not narrowly tailored to serve a compelling state

interest.

Because the major-party requirement severely

burdens the associational rights of Delaware’s many

citizens who are not major-party members, it cannot

be upheld unless it is “narrowly tailored and advance[s] a compelling state interest.” Timmons, 520

U.S. at 358 (citing Burdick, 504 U.S. at 434). The requirement does not do so.

The petitioner asserts that Delaware’s interest in

the major-party requirement is the same one served

by provisions in the same section of its constitution

that limit any one party to no more than a bare majority on a court: the interest in “maintaining a politically

balanced judiciary.” Pet’r Br. 38. That interest is

closely tied to the undoubtedly compelling interest in

maintaining the appearance and reality of a fair and

impartial judiciary. See Williams-Yulee v. Fla. Bar,

575 U.S. 433, 444 (2015). And this Court has

12

recognized that states can legitimately “discourage

party monopoly” over their court systems. N.Y. State

Bd. of Elections v. López Torres, 552 U.S. 196, 208

(2008). But unlike the bare-majority limitation,

which, as explained further below, see infra pp. 19–21,

directly serves that interest by preventing one-party

domination of the judiciary, the major-party requirement does not advance the interest in political balance. No one suggests that independents and members of minor parties are intrinsically less likely to

possess the qualities of judgment and impartiality

that are essential to preserving the courts’ fairness

and appearance of fairness. Similarly, there is no reason to believe that judges who lack party affiliation, or

who are members of minor parties, have a greater tendency to make courts politically “unbalanced” than

judges who are members of major parties. Lack of partisan affiliation is hardly a sign of partisanship, and

the petitioner does not argue otherwise.

Rather, the “precise interest[] put forward by the

State as justification[] for the” major-party requirement, Anderson, 460 U.S. at 789, is that it is a prophylactic measure intended to prevent governors from circumventing the provisions that limit one party to a

bare majority on any court. Pet’r Br. 43. The petitioner

claims that, without the major-party requirement,

governors seeking to pack the courts with like-minded

judges would be able to “appoint[] nominal ‘independents’ once their own party’s quota is filled.” Id.

Even where First Amendment associational and

speech rights are implicated, prophylactic measures

aimed at preventing circumvention of laws that serve

legitimate state interests are constitutional if they

meet the applicable standard of scrutiny. See, e.g.,

FEC v. Colo. Republican Fed. Campaign Comm., 533

13

U.S. 431, 456 (1996). When strict scrutiny applies,

prophylactic measures must not burden constitutionally protected interests more broadly than reasonably

necessary to achieve compelling interests. Riley v.

Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781,

798–801 (1988).4 “Broad prophylactic rules” that severely burden free expression and association “are

suspect,” and “[p]recision of regulation must be the

touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U.S. 415, 438

(1963).

Here, however, the state has not shown that

broadly excluding citizens who are not affiliated with

a major party from serving as judges is a narrowly tailored anti-circumvention measure that serves the interest in achieving a balanced judiciary. In attempting

to justify the major-party requirement, the petitioner

relies on “a recent study of federal agency appointees”

that purportedly found that, “when one party dominates the appointment and confirmation process, partisan balance requirements without other-majorparty provisos are vulnerable to ‘gaming.’” Pet’r Br. 43

(citing Brian D. Feinstein & Daniel J. Hemel, Partisan

Balance with Bite, 118 Colum. L. Rev. 9, 20–21

(2018)). In reality, the authors of that study reviewed

216 cross-party appointments to twenty-three federal

agencies that have political balance requirements

(“PBRs”) but not major-party membership requirements, and they “identified only seven cases in which

––––––––––––––––––––––––

4 This Court has struck down anti-circumvention and prophy-

lactic measures that it determined to be insufficiently tailored to

the harm to be avoided in such cases as McCutcheon v. FEC, 572

U.S. 185 (2014). See also FEC v. Wisc. Right to Life, Inc., 551 U.S.

449, 479 (2007) (“[A] prophylaxis-upon-prophylaxis approach to

regulating expression is not consistent with strict scrutiny.”).

14

a President named an independent at a time when a

PBR prohibited him from appointing a member of his

own party to an agency.” Feinstein & Hemel, supra, at

19 (emphasis added). The authors concluded that

“[t]hese seven cases, moreover, do not suggest a pattern of Presidents attempting to manipulate PBRs by

filling cross-party seats with like-minded independents.” Id. (emphasis added).

Beyond unsupported speculation about executive

gamesmanship, the petitioner has not presented any

reason why the major-party requirement is necessary

to serve Delaware’s interest in maintaining political

balance on its courts. There is little reason to believe

that Delaware cannot achieve its interest in political

balance by limiting any one political party to no more

than a bare majority of seats on its principal courts,

without excluding citizens who are not affiliated with

a major party from the privilege of serving.

Furthermore, even if the state has a genuine need

to prevent circumvention of the bare-majority limitation, the major-party requirement is not narrowly tailored to advance that interest. Indeed, a categorical

exclusion of individuals based solely on their constitutionally protected political affiliations (or lack thereof)

will rarely qualify as “narrowly tailored.” See Timmons, 520 U.S. at 367 (explaining that states cannot

“completely insulate the two-party system from minor

parties’ or independent candidates’ competition and

influence”).

Delaware could enact other prophylactic measures

that are significantly less restrictive of associational

freedoms than the categorical exclusion imposed by

the major-party requirement. For example, if there

were reason to fear that major-party members might

15

disaffiliate from their party so that they could be appointed to courts where that party already had a majority, Delaware could provide that persons who had

left a party less than, say, one year before appointment would be counted as members of that party for

purposes of bare-majority limitations. Cf. Storer, 415

U.S. at 735–36 (holding that a state may exclude persons who have been disaffiliated from a party for less

than twelve months from running as independents);

Rosario v. Rockefeller, 410 U.S. 752 (1973) (upholding

similar waiting period before voters who switch parties may vote in their new party’s primary). Such a

provision would be more effective in preventing circumvention than the major-party requirement, which

does nothing to stop judicial nominees from evading

the bare-majority limitation simply by switching from

one major party to another.

In addition, by executive order, Delaware already

employs a judicial nominating commission composed

of a diverse range of Delaware citizens, of whom no

more than a bare majority may be from any one political party. In most cases, the governor must select a

nominee from lists of qualified candidates supplied by

the commission.5 This procedure renders it especially

unlikely that nomination of a disguised partisan

would undermine requirements aimed at preventing

partisan imbalance. And if there were, nonetheless, a

realistic possibility that a major party might be shut

out of the courts altogether, Delaware might require

that at least one position on its Supreme Court, and

some minimum number on its other courts, be occupied by members of each of the major political parties,

––––––––––––––––––––––––

5 See Gov. John Carney, Executive Order No. 7 (Mar. 9, 2017),

https://governor.delaware.gov/executive-orders/eo07/.

16

respectively. Such a requirement would provide a

backstop to a bare-majority limitation without categorically excluding individuals who do not belong to a

major party from serving on the courts.

In sum, although political balance in the abstract

is a worthy goal, a state’s interest in enforcing a conception of political balance that excludes a quarter of

the state’s population from consideration is not compelling. The state has no legitimate interest in categorically excluding from consideration for judicial office an otherwise-qualified candidate who is independent or affiliated with a third party. Just as there is “no

reason why two parties should retain a permanent

monopoly on the right to have people vote for or

against them,” Rhodes, 393 U.S. at 32, there is also no

reason why the two major parties should retain a permanent monopoly on the most important state judgeships in Delaware. Cf. Anderson, 460 U.S. at 794

(“[T]he primary values protected by the First Amendment … are served when election campaigns are not

monopolized by the existing political parties.”). Thus,

Delaware’s “interest in securing the perceived benefits

of a stable two-party [judiciary] will not justify unreasonably exclusionary restrictions” against independents and members of third parties. Timmons, 520 U.S.

at 367. The interest in political balance does not require making courts the exclusive domain of the major

parties.

D. The major-party requirement does not

survive even “closely drawn” scrutiny.

By forcing a choice between exercise of associational rights and eligibility for judicial office, the major-party requirement is, at a minimum, “a significant

interference with protected rights of political

17

association.” Buckley, 424 U.S. at 25 (internal quotation marks omitted). Even if that interference were

not severe enough to require strict scrutiny, it could

be sustained only “if the State demonstrates a sufficiently important interest and employs means closely

drawn to avoid unnecessary abridgement of associational freedoms.” Id. The major-party requirement

fails even this less-demanding level of scrutiny because it is not reasonably necessary as a prophylactic

measure to protect against partisan imbalance. The

state has not shown that whatever incremental increase in balance it might bring about is sufficient to

outweigh the significant burden on association caused

by the exclusion of independents and minor party

members. And that exclusion is not closely drawn to

achieve political balance in light of the significantly

less restrictive alternatives that the state could implement to serve its interests. Categorical exclusion of independents and members of third parties from the

Delaware judiciary is thus an “unnecessary abridgement of associational freedoms.” Id.

II. By itself, a bare-majority limitation would

not violate the First Amendment.

In holding that the major-party requirement is unconstitutional, the Third Circuit did not address the

constitutionality of a bare-majority limitation by itself. This Court should likewise avoid any suggestion

that such a limitation, by itself, is unconstitutional. A

true political balance requirement, such as a bare-majority limitation, without the additional major-partymembership requirement, would not violate the First

Amendment. Unlike the major-party requirement, a

bare-majority limitation serves the state’s substantial

interest in maintaining political balance on its state

18

courts without unnecessarily abridging associational

freedoms.

A. A bare-majority limitation is not a severe

burden on the right to associate.

Delaware’s constitution limits the number of judicial positions on Delaware courts that can be occupied

by members of the same political party to “not more

than a bare majority.” Del. Const. art. IV, § 3.6 Unlike

the major-party requirement, which operates as a categorical exclusion for independents and members of

the third parties, the bare-majority limitation presents a conditional infringement on the right to associate that is disqualifying only in limited circumstances and applies evenhandedly. It excludes from

consideration only those candidates who are affiliated

with the political party that already occupies a majority of the seats on a particular court at the time of a

vacancy, and it does so only as long as that majority

persists. Thus, a bare-majority limitation neither categorically excludes anyone from consideration for

state judgeships based on political affiliation, nor by

itself operates unequally on members of major or minor parties or on citizens unaffiliated with political

parties.

The burden on the right to associate imposed by a

conditional limitation, such as a bare-majority limitation, is much less likely to be severe than one imposed

by a categorical exclusion, such as the major-party requirement. For example, in Timmons, the Court

––––––––––––––––––––––––

6 The provision regarding the Supreme Court is not written

in those terms but has the same effect. It provides: “[T]hree of

the five Justices of the Supreme Court in office at the same time,

shall be of one major political party, and two of said Justices shall

be of the other major political party.” Del. Const. art. IV, § 3.

19

concluded that the burdens imposed by Minnesota’s

antifusion laws, which prohibit candidates from appearing on the ballot as the candidate of more than

one political party—“though not trivial—are not severe.” 520 U.S. at 363. In reaching this conclusion, the

Court noted that the Minnesota laws did not “exclude[] a particular group of citizens, or a political

party, from participation in the election process.” Id.

at 361. Similarly, a bare-majority limitation does not

exclude a particular political group from consideration

for a position on the state judiciary. To the contrary, it

ensures that courts will not be dominated by a single

party and thus expands the opportunity of persons of

all affiliations to serve as long as it is not coupled with

the major-party requirement.

B. Operating alone, a bare-majority limitation would be closely drawn to serve the

substantial interest in maintaining political balance on Delaware’s courts without

unnecessarily abridging associational

freedoms.

Because a bare-majority limitation is not a severe

burden on the right to associate, it “trigger[s] less exacting review” than does the major-party requirement. Timmons 520 U.S. at 358; see Clingman, 544

U.S. at 592. At most, a bare-majority limitation is a

“significant” burden on association that is subject to

Buckley’s “closely drawn” variant of intermediate

scrutiny. Buckley, 424 U.S. at 25.

As explained above, this Court has recognized that

the states have a “compelling interest in preserving

public confidence in the integrity of the judiciary[.]”

Williams-Yulee, 575 U.S. at 444. The “judiciary’s authority … depends in large measure on the public’s

20

willingness to respect and follow its decisions.” Id. at

445–46. Thus, “public perception of judicial integrity

is ‘a state interest of the highest order.’” Id. at 446

(quoting Caperton v. A.T. Massey Coal Co., 556 U.S.

868, 889 (2009)).

Maintaining political balance on the courts is one

component of the “public perception of judicial integrity.” The public is much more likely to “respect and

follow” the decisions of “a centrist group of jurists committed to the sound and faithful application of the

law,” Leo E. Strine, Jr., The Delaware Way: How We

Do Corporate Law and Some of the New Challenges We

(and Europe) Face, 30 Del. J. Corp. L. 673, 683 (2005),

than the decisions of a bench composed of partisan

judges who are perceived (rightly or wrongly) as effectuating the will of the person who appointed them.

Maintaining political balance on the courts is thus a

significant component of “preserving public confidence

in the integrity of the judiciary.” See Williams-Yulee,

575 U.S. at 444.

At the very least, maintaining political balance on

the courts is a substantial state interest that is closely

related to undisputedly compelling state interests.

“The concept of minority representation, or stated in

another fashion, limitations on majority representation, is entirely consistent with First Amendment

principles of freedom of expression and association,

and appears altogether legitimate as a legislative objective.” Hechinger v. Martin, 411 F. Supp. 650, 653

(D.D.C. 1976) (three-judge court), aff’d mem., 429 U.S.

1030 (1977). Whether the Court deems this interest to

be “compelling” or “important,” it is certainly “sufficiently weighty to justify the limitation” imposed by a

bare-majority limitation. See Norman, 502 U.S. at

288–89.

21

Unlike the major-party requirement, a bare-majority limitation is closely drawn to serve the state’s interest in maintaining political balance, without unnecessarily abridging associational freedoms. A baremajority limitation only disqualifies party members

from consideration for a state judgeship when their

party already occupies the majority of seats on a court,

and it always allows replacement of a retiring judge

by a member of the same major party, a minor party

member, or an independent, and, frequently, by a

member of the other major party. A bare-majority limitation thus neither penalizes party affiliation (or nonaffiliation) nor “sweeps broader than necessary to advance” Delaware’s interest in maintaining a politically

balanced judiciary. See Norman, 502 U.S. at 290. A

bare-majority limitation also promotes the representation of minority political viewpoints by “preventing

single party dominance.” See Pet. App. 34a. Thus, a

bare-majority limitation standing alone would be

“closely drawn” to serve its purpose, and “the character and magnitude of the” infringement on the right to

associate corresponds to the state’s important interest. See Anderson, 460 U.S. at 789.

III. Whether judges are “policymakers” is irrelevant to the questions presented here.

Although the Third Circuit correctly concluded

that the major-party requirement is unconstitutional,

it erred in holding that the validity of that requirement turns on whether judges are “policymakers”

within the meaning of this Court’s decisions concerning patronage-based government personnel decisions.

See Rutan, 497 U.S. 62; Branti v. Finkel, 445 U.S. 507

(1980); Elrod, 427 U.S. 347. Those decisions hold that

although government decisionmakers generally

22

cannot permissibly make employment decisions based

on an employee’s association (or lack thereof) with the

political party then in power, those decisionmakers

can permissibly make employment decisions on that

basis when loyalty to the party in power is a relevant

job qualification, as is frequently the case for employees with “policymaking” authority.

The Court’s patronage decisions have nothing to do

with the constitutionality of laws disqualifying classes

of citizens—here, individuals who do not belong to a

major party—from holding an elected or appointed office. Such laws are no more acceptable when directed

to “policymakers” than to other government officers

and employees. The governor of a state, for example,

is the quintessential policymaker, but no one would

suggest that a state could for that reason provide in

its constitution that only a Democrat or Republican

may serve as governor. The same is true of a state’s

judicial officers.

A. The “policymaker exception” is limited to

patronage-based employment decisions.

In the patronage cases, this Court considered the

constitutionality of hiring, firing, promoting, and demoting government employees based on their affiliation with “the political party in power.” Rutan, 497

U.S. at 64. Consistent with the Court’s other freedomof-association decisions, these cases establish that a

government official’s practice of hiring or firing public

employees based on their political affiliation violates

the First Amendment unless the practice is “narrowly

tailored to further vital government interests.” Id. at

74.

The “policymaker exception” defines one circumstance in which patronage practices are narrowly

23

tailored to further vital government interests and

thus do not violate the First Amendment. In Elrod, a

plurality of the Court held that patronage dismissals

cannot be justified by the government’s interest in

“the need for political loyalty of [its] employees [to further] the implementation of policies of the new administration” unless the dismissals are limited to only

those employees in “policymaking positions.” Elrod,

427 U.S. at 367.

In Branti, the Court reformulated the so-called

“policymaker exception” announced in Elrod. Branti

held that, in deciding whether a particular dismissal

on the basis of political affiliation violates the First

Amendment, “the ultimate inquiry is not whether the

label ‘policymaker’ or ‘confidential’ fits a particular position; rather the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of

the public office involved.” Branti, 445 U.S. at 518. If

“party affiliation is an appropriate requirement for

the effective performance of the public office involved,”

then the government official’s dismissal of that particular employee is narrowly tailored to further the government’s asserted interest in retaining employees

with “allegiance to the dominant political party,” id.

at 520, and thus does not violate the First Amendment.

In Rutan, the Court reaffirmed that “conditioning

hiring decisions on political belief and association

plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so.”

Rutan, 497 U.S. at 78. Moreover, the Court explained

that hiring decisions concerning most public employees cannot be justified by the government’s interest in

maintaining politically loyal employees because “a

24

government can meet its need for politically loyal employees to implement its policies by the less intrusive

measure of dismissing, on political grounds, only those

employees in policymaking positions.” Id. at 70 (citing

Elrod, 427 U.S. at 367).

In each of these cases, the Court was concerned

with defining the circumstances in which a government decisionmaker (usually an elected official or political appointee) could consider political affiliations

(usually of subordinates) when making employment

decisions without running afoul of the First Amendment right to associate. When the government’s asserted interest for such decisions is a “need for politically loyal employees,” id. at 70, the decisionmaker is

free to consider the employee’s political affiliation if

the employee is a “policymaker”—or, more precisely, if

“party affiliation is an appropriate requirement for

the effective performance of the public office involved.”

Branti, 445 U.S. at 518.

B. The “policymaker exception” does not apply to laws disqualifying citizens from judicial office based on political affiliation.

The so-called “policymaker exception” is only relevant in the circumstances that gave rise to it: when

political loyalty to the “party in power” is necessary to

serve the government’s asserted interest “in securing

employees who will loyally implement [that party’s]

policies,” Rutan, 497 U.S. at 64, 70, and will not “support … competing political interests,” Elrod, 427 U.S.

at 356. If the government asserts some other interest

to justify a challenged practice, the policymaker exception is inapplicable. A constitutional or statutory

provision that requires party membership as a qualification for public office for reasons wholly unrelated

25

to the need to advance the policy agenda of the political party currently in power, by definition, does not

serve the interest identified in Rutan, Branti, and Elrod.

Moreover, laws such as the major-party requirement impose far more onerous and lasting disabilities

on disfavored groups than do the more transitory

choices of political officials to appoint their allies to office during the time they are in power. Thus, while a

Democratic governor may legitimately prefer a Democrat as a speechwriter, and his Republican successor

may likewise hire a Republican for the same position,

see Branti, 445 U.S. at 518, a state law that said gubernatorial speechwriters must be Democrats or Republicans would not even arguably serve any interest

sufficient to justify the burden it imposed on associational freedoms. Nothing in the “policymaker” exception suggests otherwise.

Here, the major-party requirement has no relationship to the concerns that gave rise to this Court’s

recognition of a policymaker exception. Delaware’s asserted interest in the major-party requirement is in

maintaining political balance on the judiciary, not in

securing politically loyal employees to faithfully implement the administration’s policies. See Pet’r Br. 28

(“[N]one of the Court’s [patronage] decisions involved

a regime where party affiliation was considered to ensure bipartisanship or party balance.”). Furthermore,

the petitioner does not suggest that political loyalty to

the party in power is a relevant qualification for service as a judge, and any such suggestion would be contrary to the basic principle that a judge’s duty is to

“apply the law without fear or favor.” Williams-Yulee,

575 U.S. at 438.

26

That the major-party requirement is not aimed at

placing politically loyal employees in policymaking positions is confirmed by the fact that the constitutional

provisions in which it is embedded compel the governor to appoint a judge who is not a member of his own

party when the governor’s political party already

holds a majority of the seats on the court on which

there is a vacancy. And because of the major-party requirement, an independent or third-party governor

could never appoint a member loyal to his own political

orientation to a Delaware court. The reasons underlying the policymaker exception are not implicated by

the major-party requirement, and the policymaker exception is therefore irrelevant to whether the burdens

on association imposed by that requirement serve a

compelling governmental interest.

C. The First Amendment does not prevent

consideration of political affiliation in judicial appointments.

Because the conclusion that the major-party requirement is unconstitutional does not depend on the

premise that judges are not policymakers, that conclusion also does not imply that judicial appointments

cannot be based on partisan considerations. Rather,

political affiliation can be an appropriate consideration in making judicial appointments, and it is precisely for that reason that states may choose to pursue

partisan balance in their laws governing judicial appointment.

The Third Circuit’s reasoning, however, suggests

otherwise: By looking to the Elrod line of cases and

grounding its holding that the major-party requirement is unconstitutional on the view that Delaware

judges are not “policymakers,” the lower court’s

27

decision implies that elected officials may not consider

political affiliation when making judicial appointments. Thus, as the petitioner puts it, the Third Circuit’s rationale appears to “create a constitutional

anomaly: The people of the States could consider partisan affiliation directly in voting for judges, but an

elected official could not consider the same factor in

carrying out their wishes.” Pet’r Br. 30.

No such anomaly arises, however, from recognizing that the major-party requirement is unconstitutional—regardless of whether judges are characterized as “policymakers”—because it imposes a severe

and unjustified burden on associational rights. That

conclusion is entirely consistent with recognition that

elected officials may consider political affiliation when

making judicial appointments—not because, in Rutan’s terms, loyalty to the “political party in power” is

“an appropriate requirement for the position involved,” 497 U.S. at 64, but because the nature of a

judge’s responsibilities are such that considerations of

political association and belief are appropriate to, and

perhaps inseparable from, evaluation of potential judicial appointees. “In resolving disputes, although

judges do not operate with unconstrained discretion,

they do choose from among alternatives and elaborate

their choices in order to guide and … determine present and future decisions.” Gregory v. Ashcroft, 501

U.S. 452, 482 (1991) (White, J., concurring) (ellipsis in

original; internal quotation marks omitted). Thus, a

government official should be “entitled to consider” a

judicial appointee’s “views about the role of judges—

or even simply [the appointee’s] political affiliation—

when making the appointment, just as the voters may

consider these factors without violating the first

amendment when deciding whether to retain [the

28

judge] in office.” Kurowski v. Krajewski, 848 F.2d 767,

770 (7th Cir. 1988); see also Newman v. Voinovich, 986

F.2d 159, 162–63 (6th Cir. 1993).

Without Delaware’s bare-majority limitation, a

governor could “pack[] the courts with appointees

from [a] particular political party,” Pet’r Br. 1, undermining the public’s perception of judicial integrity and

impartiality. The First Amendment does not prohibit

appointing authorities from making such choices, but

it likewise does not deny states the power to constrain

them. See López Torres, 552 U.S. at 208. Recognition

that Delaware cannot by law exclude citizens who are

neither Democrats nor Republicans from serving as

judges does not foreclose all consideration of political

affiliation in judicial appointments.

IV. The Third Circuit’s holding that the unconstitutional major-party requirement is not

severable is controlled by state law.

The Third Circuit’s conclusion that the majorparty requirement unconstitutionally infringes on associational freedom is correct. The remedial question

whether an otherwise constitutional bare-majority

limitation must also be struck down as inseverable is,

as the Third Circuit held and the petitioner agrees, “a

question of state law.” Pet. App. 33a; Pet’r Br. 50. This

Court cannot provide an authoritative ruling on the

question, and its prediction of state law, like the Third

Circuit’s, would have preclusive effect only on the parties. See Planned Parenthood of Cent. Mo. v. Danforth,

428 U.S. 52, 101 n.4 (1976) (White, J., concurring in

judgment in part and dissenting in part). The Court

ordinarily does not address such questions. See City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,

772 (1988). However, if the Court is concerned about

29

the Third Circuit’s severability analysis, it has the option of certifying the question to the Delaware Supreme Court to allow the state court to decide the issue of severability definitively under state law. See

Del. Sup. Ct. R. 41(a)(ii).

CONCLUSION

For the foregoing reasons, the Court should affirm

the Third Circuit’s holding that the major-party requirement violates the First Amendment.

Respectfully submitted,

ALAN B. MORRISON

GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL

2000 H Street NW

WASHINGTON, DC 20052

(202) 994-7120

KAITLIN E. LEARY

Counsel of Record

SCOTT L. NELSON

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20TH STREET NW

WASHINGTON, DC 20009

(202) 588-1000

kleary@citizen.org

Attorneys for Amicus Curiae

February 2020