Adams v. Governor of Delaware (amended)–civil–partial reversal–Fuentes

The Third Circuit today granted panel rehearing, vacated its original panel opinion in the case striking down Delaware’s requirement that its judges be Democrats or Republicans, and issued a new panel opinion. The order granting panel rehearing stated in a footnote, ” As the merits panel has vacated the prior opinion and judgment, action is not required by the en banc court. Judges Jordan and Bibas have voted for rehearing en banc.”

What changed in the amended opinion? The new opinion itself does not say, but the changes I notice are:

• a corrected footnote 16,
• a new footnote 32 discussing standing and severability, and
• a new section starting on page 35 concluding that the political-affiliation requirement is not severable.

The rest of the opinion, including the three-judge concurrence, appears unchanged; here is my prior summary:

The Delaware Constitution sets out a unique method for selecting state-court judges: the Governor appoints them (based on recommendations from nominating commissions, and without legislative involvement) subject to a requirement that the judges of each court contain a balance of Democrats and Republicans. For example, ” three 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.” The goal was to create a bipartisan state judiciary, but one effect was to exclude candidates who aren’t members of either of the two major parties.

A Delaware lawyer who is registered as an Independent challenged the political-affiliation requirement as a violation of his First Amendment rights. The district court denied his challenge, ruling that restricting judgeship eligibility based on political affiliation was allowed because judges qualify as policymakers. Today the Third Circuit reversed, holding that judicial officers, whether appointed or elected, are not policymakers. In so holding, the court split with the Sixth and Seventh Circuits. The court also rejected the governor’s argument that the state’s interest in political balance supports its requirement, holding that even if the interest qualifies as vital the rule is not narrowly tailored to meet it. The court also rejected the Governor’s challenge to standing.

Judge McKee concurred, joined (unusually) by both of the other judges on the panel, emphasizing that the Delaware judiciary is highly regarded and expressing confidence that the state can preserve its esteemed legal culture without the current political-affiliation requirement.

Joining Fuentes were McKee and Restrepo. Arguing counsel were David McBride of Young Conaway for the challenger and David Finger of Finger & Slanina for the governor.

UPDATE: according to this post on Ballot Access News, the court denied en banc rehearing on May 7 by a vote of 9-4, with Judges Jordan, Hardiman, Krause, and Bibas voting to grant.