                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
             _________________

                  No. 18-1045
               _________________


               JAMES R. ADAMS

                        v.

          GOVERNOR OF DELAWARE,

                                Appellant
               _________________

   On Appeal from the United States District Court
           for the District of Delaware
             (D.C. No. 1-17-cv-00181)
     Honorable Mary Pat Thynge, U.S. Magistrate Judge

               _________________

            Argued September 25, 2018

Before: MCKEE, RESTREPO, and FUENTES, Circuit
                   Judges.

              (Filed: April 10, 2019)
David C. McBride [Argued]
Pilar G. Kraman
Martin S. Lessner
Young Conaway Stargatt & Taylor
1000 North King Street
Rodney Square
Wilmington, DE 19801

      Counsel for Appellant

David L. Finger [Argued]
Finger & Slanina
1201 Orange Street
One Commerce Center, Suite 725
Wilmington, DE 19801

      Counsel for Appellee

                    _________________

                OPINION OF THE COURT
                   _________________


FUENTES, Circuit Judge.

       James R. Adams is a resident and member of the State
Bar of Delaware. For some time, he has expressed a desire to
be considered for a judicial position in that state. Following
the announcement of several judicial vacancies, Adams
considered applying but ultimately chose not to because the
announcement required that the candidate be a Republican.




                              2
Because Adams was neither a Republican nor a Democrat, he
concluded that any application he submitted would be futile.

       Adams brings this suit against the Governor of the State
of Delaware to challenge the provision of the Delaware
Constitution that effectively limits service on state courts to
members of the Democratic and Republican parties. Adams
claims that under the Supreme Court’s precedent in Elrod v.
Burns1 and Branti v. Finkel,2 a provision that limits a judicial
candidate’s freedom to associate (or not to associate) with the
political party of his or her choice is unconstitutional. The
Governor argues that because judges are policymakers, there
are no constitutional restraints on his hiring decisions and he
should be free to choose candidates based on whether they
belong to one of the two major political parties in Delaware—
that is, whether they are Democrats or Republicans. We
disagree and conclude that judges are not policymakers
because whatever decisions judges make in any given case
relates to the case under review and not to partisan political
interests. We therefore conclude that the portions of
Delaware’s constitution that limit Adams’s ability to apply for
a judicial position while associating with the political party of
his choice violate his First Amendment rights, and we will
accordingly affirm in part and reverse in part the District
Court’s grant of summary judgment in favor of Adams.




1
    427 U.S. 347 (1976).
2
    445 U.S. 507 (1980).




                               3
       Background

       A.     Article IV, Section 3 of the Delaware
              Constitution

        In 1897, Delaware was unique in its method of judicial
selection—it was the only state in the country in which the
governor appointed judges without legislative involvement.3
Judicial selection became an important and contentious topic
during Delaware’s constitutional convention that year.
Debating whether or not to move to a system of judicial
election, delegates to the convention expressed their deep
concern over the politicization of the judiciary. John Biggs,
Sr., the president of the convention, explained his position that
the appointment of judges would enable judges to remain free
from political cronyism and partisanship:

              I think it would be very unwise that
              our Judges should be mixed up, I
              will say, in politics. We can obtain
              good men in this way, by the
              confirmation by the Senate,
              without those men being under
              political obligations, such as are
              engendered at primaries and at
              general elections.

              And there are reasons, it occurs to
              me, why the Judges should not be
              elected that perhaps do not apply to

3
  Randy J. Holland, The Delaware State Constitution: A
Reference Guide 128 (2002).




                               4
              any other officers. For after all,
              Judges are but human. Whoever
              sits upon the Bench to pass upon
              the rights of yours as to your
              liberty and your property ought
              certainly to be as free from all
              influence and bias, political and
              otherwise, as it is possible to throw
              around that man.4

       The delegates ultimately recommended amending the
Delaware Constitution to provide for gubernatorial nomination
of judges, with confirmation by the Senate. They did not stop
there, however, and debated a novel approach designed to
make the judiciary “non-partisan, or if it be a better word, bi-
partisan”—a limitation on the number of judges from one party
that could sit on the bench at any given time.5

         Some delegates voiced their support for the provision,
stating that minority representation on the judicial bench would
“bring about a fuller and freer discussion of these matters that
come before them and that they may make fair and impartial
decisions on those questions.”6 Some, however, expressed
concern that the provision would bring about the opposite
result. As delegate Andrew Johnson explained:

              It is well known that [judges
              serving on Delaware’s] Judiciary
              at the present time have been

4
  J.A. 117–18.
5
  J.A. 130.
6
  J.A. 133.




                               5
                appointed from one political party.
                That probably is not the best
                course to pursue, and I would be
                very glad to see the Governor of
                this State appoint well equipped
                men from another party. I would
                hail the day when it was done and
                would be glad to have it; but to
                vote to compel a Governor to
                appoint a man on account of his
                political affiliation, you are simply
                saying, “You are put upon the
                Bench to look out for our party
                interests whenever they come up.”
                There is no other construction that
                you can put upon it. There can be
                no other, in my own mind,
                established, and that man is
                expected, whenever a political
                question arises, before that Court
                to take care of his own party rights
                or privileges.7

       Ultimately, the provision prevailed, and Delaware’s
constitution has included some form of a political balance
requirement ever since. In 1951, as part of a wider series of
structural changes to the Delaware judiciary, the provision was
modified to exclude third party and unaffiliated voters from
applying to serve as judges on the Supreme Court, Superior
Court, and Chancery Court in Delaware. The system thus
created is binary, excluding all candidates from consideration

7
    J.A. 134.




                                 6
except those of the Republican or Democratic parties. The
provision has been reaffirmed during the amendment process
several times, including in 2005. Article IV, Section 3 of the
Delaware Constitution now reads in relevant part:

             Appointments to the office of the
             State Judiciary shall at all times be
             subject to all of the following
             limitations:

             First, 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.

             Second, at any time when the total
             number of Judges of the Superior
             Court shall be an even number not
             more than one-half of the members
             of all such offices shall be of the
             same political party; and at any
             time when the number of such
             offices shall be an odd number,
             then not more than a bare majority
             of the members of all such offices
             shall be of the same major political
             party, the remaining members of
             such offices shall be of the other
             major political party.




                              7
Third, at any time when the total
number of the offices of the
Justices of the Supreme Court, the
Judges of the Superior Court, the
Chancellor and all the Vice-
Chancellors shall be an even
number, not more than one-half of
the members of all such offices
shall be of the same major political
party; and at any time when the
total number of such offices shall
be an odd number, then not more
than a bare majority of the
members of all such offices shall
be of the same major political
party; the remaining members of
the Courts above enumerated shall
be of the other major political
party.

Fourth, at any time when the total
number of Judges of the Family
Court shall be an even number, not
more than one-half of the Judges
shall be of the same political party;
and at any time when the total
number of Judges shall be an odd
number, then not more than a
majority of one Judge shall be of
the same political party.

Fifth, at any time when the total
number of Judges of the Court of




                 8
              Common Pleas shall be an even
              number, not more than one-half of
              the Judges shall be of the same
              political party; and at any time
              when the total number of Judges
              shall be an odd number, then not
              more than a majority of one Judge
              shall be of the same political
              party.8

        Thus, the provision is made up of five sections—one
addressing the Supreme Court, one addressing the Superior
Court, one addressing combined membership of those courts
and the Chancery Court, one addressing the Family Court, and,
finally, one addressing the Court of Common Pleas.
Significantly, there are also two separate, but connected,
substantive components: the bare majority component (which
limits the number of judicial positions that can be occupied by
members of a single political party) 9 and the major political
party component (which mandates that the other judicial
positions must be filled with members of the other major
political party in Delaware). In practice, then, most courts
must be filled with Democrats and Republicans exclusively.




8
  Del. Const. art. IV, § 3.
9
  When there are an even number of judges on a given court,
no more than half of the judicial seats may be held by members
of a single political party. When there is an odd number of
judicial positions, no more than a bare majority (that is, one
seat above half) may be held by members of a party. Id.




                              9
       B.     Judicial Nominations in Delaware

         Since 1978, Delaware governors have relied on judicial
nominating commissions to identify qualified candidates for
judicial appointments.10 Eleven of the twelve commission
members are appointment by the Governor, and the twelfth is
appointed by the president of the Delaware State Bar
Association with the consent of the Governor.11 The
commission provides a list of three recommended candidates
to the Governor. The Governor is not free to ignore the
commission’s recommendations; if he is not satisfied with the
list, the commission generates another list of candidates.12 The
nominating commission is politically balanced and comprised
of both lawyers and non-lawyers.13

       When a judicial position becomes available, the
nominating commission gives public notice of the positions
available, the salary, and the job requirements, including the
party membership required for nomination. For example, in
August 2012, the commission gave notice of five open judicial
positions, of which three were open only to candidates who
were members of the Democratic Party and two were open to
members of either political party.




10
   Holland, supra note 3, at 129.
11
       See    Executive      Order   16,     available       at:
https://governor.delaware.gov/executive-orders/ eo16/.
12
   Holland, supra note 3, at 129.
13
   Id.




                              10
       C.     James Adams’s Search for a Judicial
              Position

       James Adams, a member of the Delaware State Bar, is
an Independent who desires a judicial position but has not
applied for one due to his current political affiliation.

        Throughout his career, Adams was a registered
Democrat and participated with the Democratic Party. In early
2017, that changed, as Adams became an Independent voter for
the first time.14 Adams explained that he changed his
affiliation because he is progressive and grew frustrated with
the centrism of the Democratic Party in Delaware. He now
describes himself as “more of a [Vermont Senator] Bernie
[Sanders] independent.”15

       Around the same time, Adams read an essay
questioning the constitutionality of Article IV, Section 3. The
essay focused in large part on the portion of the provision that
requires judicial applicants to be members of one of
Delaware’s two major political parties, and posed the question:
“May Delaware enforce a state law providing that no
Independent or member of a minor party shall be appointed to
a judgeship?”16 After reading the article, Adams decided to

14
   Adams’s new voter registration card, indicating that he is
unaffiliated with a political party, is dated February 13, 2017
and was mailed to him on February 14, 2017. Adams cannot
remember the exact day that he switched his party affiliation.
15
   J.A. 74.
16
    See Joel Edan Friedlander, Is Delaware’s ‘Other Major
Political Party’ Really Entitled to Half of Delaware’s
Judiciary?, 58 Ariz. L. Rev. 1139, 1154 (2016).




                              11
challenge the provision. He filed the instant lawsuit against
John Carney, the Governor of the State of Delaware, in
February 2017. At the time he filed the lawsuit, he pointed to
two judicial vacancies that both required Republican
candidates.

        Although Adams did not apply for either of those
judicial positions, he has applied to similar positions in the
past. In 2009, Adams applied to be a Family Court
Commissioner, but was not selected. In 2014, Adams
considered applying for judicial positions on the Supreme
Court and the Superior Court; however, at the time he was
registered as a Democrat and the positions were open only to
Republican candidates. Shortly thereafter, in 2015, Adams
retired and assumed emeritus status with the Delaware State
Bar. By 2017 he felt ready to resume searching for a judicial
position, and believed he was a qualified applicant. He
therefore returned to active status in 2017. Notwithstanding
his interest, Adams has refrained from submitting an
application based on his belief that he would not be considered
for a judicial position because of Article IV, Section 3 and his
new affiliation as an Independent voter.

       D.     The District Court Proceedings17

       Both parties filed cross-motions for summary judgment.
The Governor argued primarily that Adams lacks both Article
III and prudential standing to bring his claims, and Adams
argued that the political balance requirement violates the First

17
  Both parties consented to the entry of final judgment by a
Magistrate Judge. See Adams v. Hon. John Carney, Dkt. 2, No.
17 Civ. 181 (MPT) (D. Del. 2017).




                              12
Amendment because it conditions appointment on a judicial
candidate’s political affiliation.

        The District Court determined that Adams had Article
III standing to challenge some, but not all, of the sections of
the provision. Chief Magistrate Judge Thynge considered the
first three sections because they contain both a bare majority
component and a major political party component. She
concluded that although Adams did not apply for an open
judicial position on one of those courts, his application would
have been futile because the openings available around the
time he filed his complaint were not available to Independents
like himself.

       Sections four and five, however, contain only the bare
majority component, and Magistrate Judge Thynge concluded
that Adams did not have standing to challenge those sections
because his status as an Independent would not have prevented
his application from being considered. She nevertheless
concluded that he had prudential standing to challenge those
sections and found that sufficient to confer jurisdiction.

        Turning to the merits, Magistrate Judge Thynge
determined that Article IV, Section 3 restricted access to a
government position (here, a judgeship) based on political
affiliation. She found that the narrow policymaking exception
laid out in Elrod and Branti, which allows a government
employer to make employment decisions based on political
allegiance for policymakers, did not apply. In reaching that
conclusion, the District Court drew on Third Circuit and
Supreme Court cases emphasizing that a judge’s job is to
apply, rather than create, the law. The District Court also cited
the Delaware Judges’ Code of Judicial Conduct, which




                               13
mandates that judges refrain from political activity and
instructs judges not to be swayed by personal opinion. Because
political affiliation could not be seen as a necessary trait for
effective judicial decisionmaking, and because the District
Court concluded that judges do not meet the policymaking
exception established in Elrod and Branti, she found the
provision unconstitutional in its entirety.       This appeal
           18
followed.

       Discussion

       A.     Standing

              1.     Article III Standing

       We begin by addressing Adams’s constitutional
standing. Constitutional standing, also referred to as Article III
standing, is “a threshold issue that must be addressed before
considering issues of prudential standing.”19 Because it is an
essential component of subject matter jurisdiction, if Article III




18
   The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s grant of summary
judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).
19
   Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 269
(3d Cir. 2016) (quoting Miller v. Nissan Motor Acceptance
Corp., 362 F.3d 209, 221 n.16 (3d Cir. 2004)).




                               14
standing is lacking, our inquiry must end and Adams’s claim
must be dismissed.20

       To satisfy the “irreducible conditional minimum” of
standing, a plaintiff must show that he has: “(1) suffered an
injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.”21 Of standing’s three
elements, “injury in fact, [is] the ‘first and foremost.’”22 “To
establish injury in fact, a plaintiff must show that he or she
suffered ‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’”23 However, a plaintiff need not
make futile gestures to establish that injury is actual and not
conjectural.24

       It is black letter that standing may not be “dispensed in
gross.”25 Our cases demonstrate that we must ask not only
whether Adams has standing to sue at all, but whether he has




20
   See Lance v. Coffman, 549 U.S. 437, 439 (2007).
21
   Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
22
   Id. (quoting Steel Co. v. Citizens for Better Environment, 523
U.S. 83, 103 (1998)).
23
   Id. (quoting Lujan, 504 U.S. at 560).
24
   Sammon v. New Jersey Bd. of Medical Examiners, 66 F.3d
639, 643 (3d Cir. 1995).
25
   Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645,
1650 (2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S.
724, 734 (2008)).




                               15
standing to challenge part or all of Article IV, Section 3.26
Accordingly, we do not ask only whether Adams has been
injured by Article IV, Section 3 of the Delaware Constitution.
We must identify how, if at all, he has been injured, and
whether that injury stems from all or part of the provision.

        Adams desires a judgeship, and he has applied for, or
considered applying for, judicial positions since at least 2009.
If he felt his application would be reviewed, he would consider
applying for a judicial seat on any of Delaware’s five
constitutional courts. But because Adams is an Independent,
he has refrained from submitting an application in light of the
restrictions of Article IV, Section 3.

       The District Court agreed with Adams that it would
have been futile to apply for a judicial position on the Supreme
Court, Superior Court, or Chancery Court, because under
Delaware’s constitution, judges on those courts must be
members of one of Delaware’s two major political parties, and
Adams is not. The Governor does not contest that Adams has
constitutional standing to challenge these provisions, and we
agree that Adams has clearly been injured by the major


26
   See Contractors Ass’n of E. Pennsylvania, Inc. v. City of
Philadelphia, 6 F.3d 990, 995 (3d Cir. 1993) (“Our standing
inquiry has two parts: whether the Contractors have standing
to challenge the Ordinance at all, and if so, whether they have
standing to challenge all or just part of the Ordinance.”); see
also Service Employee’s Int’l Union, Local 3 v. Municipality
of Mt. Lebanon, 446 F.3d 419, 422 (3d Cir. 2006) (separately
considering a union’s standing to challenge each section of an
allegedly unconstitutional municipality ordinance).




                              16
political party component and therefore has standing to
challenge it.

        But the District Court also concluded that Adams’s
application to either the Family Court or the Court of Common
Pleas “would not have been futile, because there is no party
requirement constitutionally attached to either Court.”27
Adams argues that the bare majority component injures him
independently of the major political party component because
it “limit[s] the right to a bare majority to members of a
‘political party.’”28 In his view, the bare majority component
mandates that one of the two major political parties control a
bare majority of judicial seats on the relevant court, thereby
limiting an Independent’s ability to successfully apply for a
position. The component, however, creates a ceiling for
members of the same political party; it does not create a floor
entitling them to a certain number of judicial seats.29

       Therefore, we agree with the District Court’s reading of
Article IV, Section 3 and conclude that Adams does not have
standing to challenge the sections of the provision that contain
only the bare majority component. Nevertheless, the District
Court went on to conclude that Adams did not need to establish

27
   J.A. 13. The last two sections of the provision, which cover
the Family Court and the Court of Common Pleas, contain only
the bare majority component.
28
   Appellee’s Br. at 13–14.
29
   As the District Court explained, the bare majority component
“places no limitations on unaffiliated voters and only affects
judicial candidates of a major political party when the bare
majority of judicial offices on those courts is filled with
individuals affiliated with that major political party.” J.A. 29.




                               17
constitutional standing because he established prudential
standing. The District Court’s conclusion that prudential
standing can serve as “substitute” standing for a plaintiff who
cannot demonstrate constitutional standing is incorrect. While
Article III standing is a threshold issue that implicates subject
matter jurisdiction, prudential standing is not. Instead, it is a
“judicially self-imposed limit[] on the exercise of federal
jurisdiction.”30 Prudential standing cannot vest a court with
subject matter jurisdiction; therefore, it cannot replace or
substitute for constitutional standing, as without the latter, the
case must be dismissed.31 Therefore, because Adams does not
have Article III standing with respect to the Family Court and
the Court of Common Pleas, we may not consider the merits of
his argument with respect to those courts.32

30
   Davis v. City of Philadelphia, 821 F.3d 484, 487 (3d Cir.
2016) (quoting United States v. Windsor, 570 U.S. 744, 757
(2013)).
31
   See Lance, 549 U.S. at 439.
32
   The Governor argues that because Adams lacked standing to
challenge the sections of Article IV, Section 3 that contain only
the bare majority component, he also cannot challenge the bare
majority component even where it appears in the sections of
Article IV, Section 3 governing the makeup of the Supreme
Court, Superior Court, and Chancery Court, where the bare
majority requirement is tied to the major political party
component. The Governor’s argument confuses the standing
doctrine with the severability doctrine. When we consider
standing, we ask whether the plaintiff before us has actually
been injured by the statute or constitutional provision she
challenges. See Spokeo, 136 S. Ct. at 1547 (citing Lujan, 504
U.S. at 560–61). When we consider severability, we ask
whether all or only part of a constitutionally infirm statute must




                               18
              2.     Prudential Standing

       We next address whether the doctrine of prudential
standing should give us pause before reaching the merits of the
dispute over the first three sections of the political balance
requirement. Even when Article III standing is present, we
look to prudential considerations “to avoid deciding questions
of broad social import where no individual rights would be
vindicated and to limit access to the federal courts to those




be stricken. See Ayotte v. Planned Parenthood of N. New
England, 546 U.S. 320, 328–29 (2006). The Governor’s
argument puts the cart before the horse by asking us to consider
whether Adams would have standing to challenge the bare
majority component if the major political party component
were stricken from those sections. But that is not what is
before us, and we have never held that standing must be
established independently for each clause of a challenged
provision. Once a plaintiff has met the Article III requirements
for a particular constitutional or statutory provision, we have
jurisdiction to turn to the merits of her case. If we determine
on the merits that part of the statute that has injured her is
unconstitutional, we then ask whether part of the statute can
remain intact while the unconstitutional part falls. The
Governor, recognizing as much, relies on our severability
jurisprudence to argue that we should leave the bare majority
provision intact without explicitly referencing the doctrine.
Recognizing his argument for what it is, we will address the
severability of the two components after addressing the
constitutionality of Article IV, Section 3.




                              19
litigants best suited to assert a particular claim.”33 Prudential
standing requires “(1) that a litigant assert his or her own legal
interests rather than those of a third party; (2) that the grievance
not be so abstract as to amount to a generalized grievance; (3)
and that the [plaintiff’s] interests are arguably within the ‘zone
of interests’ protected by the statute, rule, or constitutional
provision on which the claim is based.”34

        We see no reason to ignore Adams’s challenge to
Article IV, Section 3 on prudential grounds. Although the
question is surely one of broad social import in Delaware,
Adams has established that aside from his political affiliation,
he feels qualified for a judicial position and intends to apply
for a judicial position if he is able. The provision may be of
interest to many residents of Delaware, but Adams has shown
that he has a particular legal interest in the constitutionality of
Article IV, Section 3 because of his desire to apply for a
judicial position while refraining from associating with either
the Democratic or Republican parties.

        The Governor’s arguments to the contrary are
unavailing. He states that Adams’s interest in this case is
“merely an academic exercise” because Adams switched his
political affiliation in the days before filing this Complaint, and
had not applied for a judicial position since 2009 although, as
a registered Democrat until 2017, he could have.35 Essentially,
the Governor’s argument asks us to discredit the portions of

33
   Joint Stock Society v. UDV N. Am., Inc., 266 F.3d 164, 179
(3d Cir. 2001) (quoting Conte Bros. Auto., Inc. v. Quaker
State-Slick 50, Inc., 165 F.3d 221, 225 (3d Cir. 1998)).
34
   Lewis v. Alexander, 685 F.3d 325, 340 (3d Cir. 2012).
35
   Appellant’s Br. at 24–25.




                                20
Adams’s deposition in which he explained why he decided to
leave the Democratic Party (he was frustrated by the lack of
progressive Democrats in Delaware) and why he did not apply
for a judicial position after 2009 (he found working for the late
Beau Biden rewarding and therefore did not consider other
career opportunities until after Biden’s death in 2015). But in
opposing a motion for summary judgment, the Governor was
required to do more than speculate that Adams has deceived
the Court about his genuine interest in applying for a judicial
position.36 The short time period in which Adams changed his
party affiliation, read the law review article, and filed suit,
without more, is insufficient to raise a genuine issue of material
fact about Adams’s prudential standing.

       B.     The Elrod/Branti Inquiry

       We now turn to the heart of this appeal: whether the
sections of Article IV, Section 3 of the Delaware Constitution
that govern the Supreme Court, the Superior Court, and the
Chancery Court run afoul of the First Amendment’s guarantee
of freedom of association. A trio of seminal United States
Supreme Court cases explain the limits on a government
employer’s ability to consider a job candidate’s political




36
  Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d
Cir. 2016) (a movant may not rely on “speculation and
conjecture in opposing a motion for summary judgment”).




                               21
allegiance and govern our analysis here: Elrod,37 Branti,38 and
Rutan.39 We discuss each case in turn.

        In Elrod v. Burns, Justice Brennan, writing for the
plurality, recognized that the practice of patronage
dismissals—dismissing a civil servant because his political
affiliation differed from the political party in power—is
“inimical to the process which undergirds our system of
government and is at war with the deeper traditions of
democracy embodied in the First Amendment.”40              He
explained that to justify terminating a public employee based
on political allegiance, the government must show that the
practice “further[s] some vital government end by a means that
is least restrictive of freedom of belief and association in
achieving that end, and the benefit gained must outweigh the
loss of constitutionally protected rights.”41 The plurality
suggested that the government’s interest in employee loyalty
would allow it to discharge employees in policymaking
positions based on political allegiance.42 Although “no clear
line can be drawn between policymaking and nonpolicymaking

37
   427 U.S. 347 (1976).
38
   445 U.S. 507 (1980).
39
   Rutan v. Republican Party of Ill., 497 U.S. 62 (1990).
40
   427 U.S. at 357 (internal quotations marks omitted (quoting
Illinois State Employees Union v. Lewis, 473 F.2d 561, 576
(1972))). In a concise concurrence, Justice Stewart, joined by
Justice Blackmun, stated that a “nonpolicymaking,
nonconfidential government employee” may not be discharged
or threatened with discharge on the sole ground of his or her
political beliefs. Id. at 375 (Stewart, J., concurring).
41
   Id. at 363.
42
   Id. at 367.




                              22
positions,” the plurality instructed factfinders to consider the
nature of the employee’s responsibilities to determine whether
or not he or she is in a policymaking position.43

       The Court next examined the First Amendment
implications of politically-motivated employment decisions in
Branti v. Finkel. Summarizing Elrod, the Court stated that “if
an employee’s private political beliefs would interfere with the
discharge of his public duties, his First Amendment rights may
be required to yield to the State’s vital interest in maintaining
governmental effectiveness and efficiency.”44 The Court,
however, moved away from Elrod’s policymaking distinction
and held that “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.”45 The
Court explained that some positions, like that of an election
judge, might be political without being a policymaking role,
and some, like that of a state university football coach, might
involve setting policy without being political.46

       In Rutan, the Court confirmed that the general
prohibition on politically-motivated discharge also applies to
decisions to promote, transfer, or hire an employee.47 “Unless
these patronage practices are narrowly tailored to further vital


43
   Id. at 367–68.
44
   Branti, 445 U.S. at 517.
45
   Id. at 518.
46
   Id.
47
   Rutan, 497 U.S. at 74.




                                23
government interests, we must conclude that they
impermissibly encroach on First Amendment freedoms.”48

        The Governor of Delaware sets forth two arguments to
justify his practice of requiring applicants for judicial positions
to be Democrats or Republicans: first, the Governor argues
that because judges are policymakers, they can be hired or fired
based on their political affiliation without restraint, and second,
the Governor argues that even if they are not policymakers,
Delaware has an interest in political balance that justifies the
restrictions set forth in Article IV, Section 3.

              1.      The Policymaking Exception49

       In our cases applying Branti, Elrod, and Rutan, we have
set forth criteria to aid us in determining whether an
employee’s job responsibilities would make political party
allegiance an appropriate condition of employment. We
consider “whether the employee has duties that are non-
discretionary or non-technical, participates in discussions or

48
    Id. at 74.
49
    Adams argues that after Branti, the question of whether a
government position involves policymaking is irrelevant. We
disagree. As we have explained before, after Branti, “the fact
that an employee is in a policymaking or confidential position
is relevant to the question of whether political affiliation is a
necessary job requirement but this fact is no longer dispositive
. . . .” Brown v. Trench, 787 F.2d 167, 168–69 (3d Cir. 1986);
see also Galli v. New Jersey Meadowlands Comm’n, 490 F.3d
265, 270 (3d Cir. 2007) (“The exception for ‘policymaking’
jobs exists because political loyalty is essential to the position
itself.”).




                                24
other meetings, prepares budgets, possesses the authority to
hire or fire other employees, has a high salary, retains power
over others, and can speak in the name of policymakers.”50
The “key factor” is whether an employee in that position “has
meaningful input into decisionmaking concerning the nature
and scope of a major program.”51 Using this analysis, we have
concluded that political affiliation is an appropriate
requirement for a director of a veterans’ administrative
services department,52 an assistant director of public
information,53 assistant district attorneys,54 city solicitors and
assistant city solicitors,55 a solicitor for the Northeast
Pennsylvania Hospital and Education Authority,56 and a city
manager,57 among others. We have never before considered
the role of a state judge. We now conclude that a judicial
officer, whether appointed or elected, is not a policymaker.

       This outcome is clear from the principles animating
Elrod and Branti. The purpose of the policymaking exception
is to ensure that elected officials may put in place loyal
employees who will not undercut or obstruct the new


50
   Galli, 490 F.3d at 271 (citing Brown, 787 F.2d at 169).
51
   Id. (quoting Armour v. County of Beaver, PA, 271 F.3d 417,
429 (3d Cir. 2001)).
52
   Waskovich v. Morgano, 2 F.3d 1292, 1298–1303 (3d Cir.
1993).
53
   Brown, 787 F.2d at 169–70.
54
   Mummau v. Ranck, 687 F.2d 9, 10 (3d Cir. 1982).
55
   Ness v. Marshall, 660 F.2d 517, 520–22 (3d Cir. 1981).
56
   Wetzel v. Tucker, 139 F.3d 380, 384–86 (3d Cir. 1998).
57
    Curinga v. City of Clairton, 357 F.3d 305, 313 (3d Cir.
2004).




                               25
administration.58 If a job “cannot properly be conditioned upon
allegiance to the political party in control,” the policymaking
exception is inappropriate.59 Judges simply do not fit this
description. The American Bar Association’s Model Code of
Judicial Conduct instructs judges to promote “independence”
and “impartiality,” not loyalty.60 It also asks judges to refrain
from political or campaign activity.61 The Delaware Code of
Judicial Conduct similarly makes clear that judges must be
“unswayed by partisan interests” and avoid partisan political
activity.62 The Delaware Supreme Court has stated that
Delaware judges “must take the law as they find it, and their
personal predilections as to what the law should be have no
place in efforts to override properly stated legislative will.”63
Independence, not political allegiance, is required of Delaware
judges.


58
    Elrod, 427 U.S. at 367 (“A second interest advanced in
support of patronage is the need for political loyalty of
employees, not to the end that effectiveness and efficiency be
insured, but to the end that representative government not be
undercut by tactics obstructing the implementation of policies
of the new administration, policies presumably sanctioned by
the electorate. The justification is not without force, but is
nevertheless inadequate to validate patronage wholesale.
Limiting patronage dismissals to policymaking positions is
sufficient to achieve this governmental end.”).
59
   Branti, 445 U.S. at 519.
60
   Am. Bar Ass’n Model Code of Judicial Conduct Canon 1.
61
   Id. Canon 4.
62
   Del. Judges’ Code Judicial Conduct Rules 2.4(A), 4.1.
63
   Leatherbury v. Greenspun, 939 A.2d 1284, 1292 (Del. 2007)
(quoting Ewing v. Beck, 520 A. 2d 653, 660 (1987)).




                               26
        Article IV, Section 3 itself illustrates that political
loyalty is not an appropriate job requirement for Delaware
judges. Delaware has chosen to considerably limit the
Governor’s ability to nominate judges on the basis of political
expediency. Instead, the Governor must ensure that there are
sufficient Democratic and Republican judges on the bench.
Far from nominating only judges who will be loyal to his party,
the Governor may be required by Delaware’s constitution to
nominate judges who belong to a different political party. The
Governor, therefore, cannot credibly argue that he must be free
to follow a rule excluding those who do not belong to the two
major parties in Delaware because allegiance to his party is an
appropriate condition for judicial employment.

       Nor are we swayed by his argument that the important
role judges play in Delaware transforms them into political
actors. The Governor argues that by interpreting statutes,
sentencing criminal defendants, and crafting the common law,
judges in Delaware make policy and exercise significant
discretion. But the question before us is not whether judges
make policy,64 it is whether they make policies that necessarily
reflect the political will and partisan goals of the party in

64
   Compare Matthews v. Lucas, 427 U.S. 495, 515 (1976)
(“Nor, in ratifying these statutory classifications, is our role to
hypothesize independently . . . . These matters of practical
judgment and empirical calculation are for Congress.”), with
Wetzel, 139 F.3d at 386 (“Tough legal questions are not
answered mechanically, but rather by the exercise of seasoned
judgment.       Judgment is informed by experience and
perspective . . . .”); see generally Gregory v. Ashcroft, 501 U.S.
452, 465–67 (1991) (explaining, without resolving, the debate
over whether judges make policy).




                                27
power. That is why, as the Court explained in Branti, a football
coach for a state university cannot be discharged because of
her political affiliation even though she may formulate policy
for the athletic department.65 And why public defenders, who
made some policy decisions in fulfilling their public office,
still could not be fired on the basis of their political
allegiance—because their policymaking activity did not relate
to “any partisan political interest.”66

       To the extent that Delaware judges create policy, they
do so by deciding individual cases and controversies before
them, not by creating partisan agendas that reflect the interests
of the parties to which they belong.67 Similarly, although the
Governor contends that Delaware judges have meaningful
input into a major government program because they set the
judiciary’s budget and create rules of civil and criminal
procedure, the operation of the judicial branch is not “so
intimately related to [Delaware] policy” that the Governor
would have “the right to receive the complete cooperation and
loyalty of a trusted advisor [in that position].”68

65
    Branti, 445 U.S. at 518.
66
    Id. at 519.
67
    See Branti, 445 U.S. at 519–20 (“[W]hatever policymaking
occurs in the public defender’s officer must relate to the needs
of individual clients and not to any partisan political interests.
. . . Under these circumstances, it would undermine, rather than
promote, the effective performance of an assistant public
defender’s office to make his tenure dependent on his
allegiance to the dominant political party.”).
68
     Ness, 660 F.2d at 522 (“[W]e agree with the district court
that, as a matter of law, the duties imposed on city solicitors by
the York Administrative Code and the undisputed functions




                               28
       The policymaking inquiry is designed to test whether
the position in question “is one which cannot be performed
effectively except by someone who shares the political beliefs
of [the appointing authority].”69 Put simply, while judges
clearly play a significant role in Delaware, that does not make
the judicial position a political role tied to the will of the
Governor and his political preferences. As such, the
policymaking exception does not apply to members of the
judicial branch.

        We are aware that two of our sister Circuits have
concluded otherwise. In Kurowski v. Krajewski, the Seventh
Circuit determined that the guiding question in political
affiliation cases was “whether there may be genuine debate
about how best to carry out the duties of the office in question,
and a corresponding need for an employee committed to the
objectives of the reigning faction,” and answered that question
in the affirmative with respect to judges and judges pro



entailed by these duties e.g., rendering legal opinions, drafting
ordinances, [and] negotiating contracts define a position for
which party affiliation is an appropriate requirement. In
relying on an attorney to perform these functions so intimately
related to city policy, the mayor has the right to receive the
complete cooperation and loyalty of a trusted adviser, and
should not be expected to settle for less.”).
69
   Brown, 787 F.2d at 170. See also Branti, 445 U.S. at 517
(“[I]f an employee’s private political beliefs would interfere
with the discharge of his public duties, his First Amendment
rights may be required to yield to the State’s vital interest in
maintaining governmental effectiveness and efficiency.”).




                               29
tempore.70 In Newman v. Voinovich, the Sixth Circuit similarly
concluded that judges were policymakers who could be
appointed on the basis of their partisan affiliation.71 We find
these cases unpersuasive for two reasons.

        First, we do not believe, as the Seventh Circuit does,
that the policymaking exception described in Elrod and Branti
is merely “shorthand for a broad category of public employees
whose work is politically sensitive and who exercise
significant discretion in the performance of their duties.”72
Under the Seventh Circuit’s view, so long as employees make
decisions involving issues about which “political debates
rage,” they may be hired or fired for their party affiliation.73

70
   Kurowksi, 848 F.2d 767, 770 (7th Cir. 1988) (“A judge both
makes and implements governmental policy. A judge may be
suspicious of the police or sympathetic to them, stern or lenient
in sentencing, and political debates rage about such questions.
In most states judges are elected, implying that the office has a
political component. Holders of the appointing authority may
seek to ensure that judges agree with them on important
jurisprudential questions.”).
71
   Newman, 986 F.2d 159, 163 (6th Cir. 1993) (“We agree with
the holding in Kurowski that judges are policymakers because
their political beliefs influence and dictate their decisions on
important jurisprudential matters. . . . Therefore, we believe
that Governor Voinovich’s appointment of judges based on
political considerations is consistent with Elrod, Branti, and
Rutan.”).
72
   Hagan v. Quinn, 867 F.3d 816, 824 (7th Cir. 2017) (finding
that arbitrators on the Illinois Workers’ Compensation
Commission are policymakers).
73
   Kurowski, 848 F.2d at 770.




                               30
We have always more narrowly applied the policymaking
exception to only the class of employees whose jobs “cannot
be performed effectively except by someone who shares the
political beliefs of [the appointing authority].”74 There can be
no serious question that judicial candidates of different
political parties can effectively serve as state judges. Thus,
while “political debates rage” about issues that judges must
decide in the course of their state employment, we do not
believe that this leaves judges entirely at the whim of state
governors and the patronage of the ruling party. While states
have nearly unfettered discretion to select state judges, states
cannot condition judicial positions on partisan political
affiliation alone.

        Second, the opinions in Kurowski and Newman conflate
an appointing authority’s ability to consider the political
beliefs and ideologies of state employees with that authority’s
ability to condition employment on party loyalty. Under our
case law, discrimination based on political patronage is only
actionable where the employee’s political affiliation was a
“substantial or motivating factor in the government’s
employment decision.”75            Elrod and Branti protect
affiliation—and decisions not to affiliate—with a political
party. We have never read them to prohibit an appointing
official from considering a job candidate’s views on questions
and issues related to the job itself. There is a wide gulf between
a governor asking a judicial candidate about his philosophy on
sentencing, for example, and a governor posting a sign that




74
     Brown, 787 F.2d at 170.
75
     Galli, 490 F.3d at 271.




                               31
says “Communists need not apply.”76 The former does not run
afoul of the First Amendment; but in our view, the latter does.
Because the approach of the Sixth and Seventh Circuits would
allow governors both to weigh an individual candidate’s
political beliefs and to condition judicial positions on party
allegiance, we must disagree.

       We therefore conclude that state judges do not fall
within the policymaking exception because affiliation with a
particular political party is not a requirement for the effective
performance of the judicial role.

              2.      Delaware’s Interest in Political Balance

          We next consider the Governor’s second argument,
that even if state judges are not policymakers, their political
affiliation is still an appropriate condition of state employment.
The Court in Rutan emphasized that politically motivated
employment practices could be constitutional if they are
“narrowly tailored to further vital government interests.”77
While most cases following Branti have focused on the
policymaking exception, which relates to a state’s interest in
the loyalty and efficiency of key state employees, the Governor
argues that Article IV, Section 3 can be justified by a different
interest—the interest in political balance. We need not dwell
long on whether Delaware possesses a “vital state interest” in
a politically balanced judiciary, because Delaware’s practice of
excluding Independents and third party voters from judicial
employment is not narrowly tailored to that interest.

76
   See Keyishian v. Bd. Of Regents of Univ. of State of N.Y., 385
U.S. 589, 605–10 (1967).
77
   Rutan, 497 U.S. at 74.




                               32
          The Governor posits that the Supreme Court has
always recognized the permissibility of conditioning
appointments on political affiliation when the goal is to ensure
political balance. In Branti, the Court stated that “if a State’s
election laws require that precincts be supervised by two
election judges of different parties, a Republican judge could
be legitimately discharged solely for changing his party
registration.”78 Similarly, in LoFrisco v. Schaffer and
Hechinger v. Martin, the Supreme Court affirmed two district
court decisions approving political balance statutes governing
elections for a state’s boards of education and the District of
Columbia’s city council, respectively. 79 The Governor also
points to several federal administrative agencies that use some
form of political balance requirement for decisionmaking
bodies, including the Federal Deposit Insurance Corporation,
the Federal Trade Commission, the Securities and Exchange
Commission, the Federal Communications Commission, the
Commission on Civil Rights, the Federal Energy Regulatory
Commission, and the Federal Election Commission. These
examples show some support for the Governor’s argument, but

78
   Branti, 445 U.S. at 518. The Sixth Circuit, following Branti,
has categorically held that employment decisions conditioned
on political party affiliation are permissible where the position
is one of several “filled by balancing out political party
representation, or that are filled by balancing out selections
made by different government agents or bodies.” McCloud v.
Testa, 97 F.3d 1536, 1557 (6th Cir. 1996).
79
   See LoFrisco v. Schaffer, 341 F. Supp. 743, 744–45, 750 (D.
Conn. 1972), aff’d 409 U.S. 972 (1972); Hechinger v. Martin,
411 F. Supp. 650, 653 (D.D.C. 1976), aff’d 429 U.S. 1030
(1977).




                               33
unlike elected officials and agency representatives who
explicitly make policy, judges perform purely judicial
functions. Further, it is difficult to see how the logic of
political balance and minority representation extends from
multimember deliberative bodies, like a school board, to
Delaware’s judiciary, most of whom sit alone.80

          The Seventh Circuit has also addressed the political
balance interest in the judicial context. In Common Cause
Indiana v. Individual Members of the Indiana Election
Commission, the court considered a municipal ordinance
prohibiting political parties from nominating candidates for
more than half of the eligible seats on its superior court.81 The
Seventh Circuit found that partisan balance concerns are less
compelling with respect to judges, who are “not elected [or
appointed] to represent a particular viewpoint” and instead are
required to “exercise [their] own independent authority to
make decisions that uphold and apply the law fairly and
impartially.”82 The court also emphasized that “partisan
balance amongst the judges who comprise the court, alone, has
little bearing on impartiality” because while it can “serve as a


80
   The Delaware Supreme Court is the only judicial body in
which a panel of judges regularly hears cases as a collective.
Even then, panels are usually comprised of three of the five
judges on the court. The political balance on a panel, therefore,
does not necessarily mirror the political balance of the
Supreme Court as a whole. See Randy J. Holland and David
A. Skeel, Jr., Deciding Cases Without Controversy, 5 DEL. L.
REV. 115, 121 (2002).
81
   Common Cause, 800 F.3d 913, 915 (7th Cir. 2015).
82
   Id. at 922–23.




                               34
check against contrary partisan interests,” it does not affect
“the impartiality of individual members.”83

          While we share many of the Seventh Circuit’s
concerns about conflating party balance with judicial
impartiality, we need not resolve the issue today. To justify a
rule that impinges an employee’s First Amendment association
rights, the state must show both that the rule promotes “a vital
state interest” and that the rule is “narrowly tailored” to that
interest. Even assuming judicial political balance is a vital
Delaware interest, the Governor must also show that the goals
of political balance could not be realized without the restrictive
nature of Article IV, Section 3, and this he has failed to do.

          The Governor describes the benefits of balance and
details the popularity Article IV, Section 3 has among
Delaware judges and former judges. But this cannot suffice as
a justification to bar candidates who do not belong to either the
Democratic or Republican parties from seeking judicial
appointment, because the Governor fails to explain why this is
the least restrictive means of achieving political balance.
Because the Governor has not shown that Article IV, Section 3
is narrowly tailored to further a vital state interest, the
infringement on judicial candidates’ association rights is
unconstitutional.

           C.   Severability

      We need not determine whether the bare majority
component, operating alone, would be unconstitutional,
because we conclude that the unconstitutional major political

83
     Id.




                               35
party requirement is not severable from the sections of Article
IV, Section 3 relating to the Supreme Court, Superior Court,
and Chancery Court.

        Severability of a state statute or constitutional provision
is a question of state law.84 The Chancery Court has explained
that severability analysis under Delaware law proceeds in two
steps: first, courts consider whether the “unobjectionable” part
of the provision, standing alone, would be capable of
enforcement; and second, courts consider whether the
legislature intended for the unobjectionable part to stand “in
case the other part should fall.”85 In determining whether one
portion of a statute or constitutional provision is severable from
another, the “touchstone” must always be legislative intent.86

       Here, there is no question that the bare majority
component is capable of standing alone, as it does in the
provisions of Article IV, Section 3 involving the Family Court
and the Court of Common Pleas. But because we do not think
the two components were intended to operate separately, we
find that the major political party component is not severable.

       For nearly seventy years, the bare majority component
and the major political party component have been intertwined
in the sections of Article IV, Section 3 pertaining to the

84
   See Contractors Ass’n of E. Pennsylvania, 6 F.3d at 997
(quoting City of Lakewood v. Plain Dealer Pub. Co., 486 U.S.
750, 772 (1988)).
85
   Doe v. Wilmington Hous. Auth., 88 A.3d 654, 669 n. 68 (Del.
2014) (quoting Farmers of Fairness v. Kent Cty., 940 A.2d
947, 962 (Del. Ch. 2008)).
86
   Ayotte, 546 U.S. at 330; see also Doe, 88 A.3d at 669 n. 68.




                                36
Supreme Court, Chancery Court, and Superior Court. Both
components operate in tandem to dictate the bi-partisan
makeup of Delaware’s courts. Operating alone, the bare
majority component could be interpreted to allow a Governor
to appoint a liberal member of the Green Party to a Supreme
Court seat when there are already three liberal Democrats on
that bench. Only with the (unconstitutional) major political
party component does the constitutional provision fulfil its
purpose of preventing single party dominance while ensuring
bipartisan representation.87

       Against this backdrop, the Governor has offered no
evidence suggesting that the Delaware General Assembly,
which authorizes constitutional amendments, intended for the
bare majority component to stand even if the major political
party component fell. The Governor points to no applicable
severability legislation passed by the General Assembly, nor
has he shown that in the history of this specific constitutional
provision, the General Assembly conceived of the components
as independent and separable.88

87
   Cf. id. (finding that two provisions of a housing policy were
not severable when they were “enacted[] together” and one
provision was designed to “enforce compliance” with the
other); Matter of Oberly, 524 A.2d 1176, 1182 (Del. 1987)
(explaining that severance is only possible if the residual
component has “separate purpose and independent legislative
significance”).
88
   This case, then, is a far cry from cases like Ayotte and
Executive Benefits Insurance Agency v. Arkinson, upon which
the Governor relies. In both cases, the laws at issue contained
severability clauses that are not present here. See Ayotte, 546
U.S. at 331; Exec. Benefits Ins. Agency, 573 U.S. 25, 36 (2014);




                              37
       While we are mindful that we should refrain from
invalidating more of a statute than necessary, 89 here, the two
substantive components of Article IV, Section 3 are
interdependent and equally integral to the political balance
scheme Delaware envisioned for the Supreme Court, Superior
Court, and Chancery Court. It is not our place to rewrite the
balance the General Assembly struck in crafting Article IV,
Section 3 ourselves.90 Finding that the major political party
component cannot be severed, we conclude that the sections of
Article IV, Section 3 containing the major political party
component are unconstitutional and must be stricken.

       Conclusion

       For the foregoing reasons, we find that Adams has
shown that his freedom of association rights were violated by
the political balance requirement that prevented his application


see also State v. Dickerson, 298 A.2d 761, 766 (Del. 1972),
abrogated on other grounds by Woodson v. North Carolina,
428 U.S. 280 (1976) (finding statutory provisions severable
because of Delaware’s general severability statute).
89
   Cf. Dickerson, 298 A.2d at 766 n. 11 (“Any doubt, as to the
correctness of our conclusion on severability, is resolved by the
maxims that a statute must be held valid if it is possible for the
court to do so; that every presumption must be resolved in
favor of its validity; and that it should not be declared
unconstitutional unless the court is convinced of that status
beyond a reasonable doubt.”).
90
   See Ayotte, 546 U.S. at 329 (“[W]e restrain ourselves from
rewriting state law . . . even as we strive to salvage it.” (internal
punctuation marks and citation omitted)).




                                 38
to the Supreme Court, Superior Court, and Chancery Court.
Therefore, we conclude that the first three sections of Article
IV, Section 3 violate the First Amendment. We affirm the
District of Delaware’s order granting summary judgment to
Adams on those sections. Because Adams had no standing to
challenge the sections of Article IV, Section 3 dealing with the
Family Court and the Court of Common Pleas, however, we
reverse the District of Delaware’s order as it pertained to those
sections.




                               39
McKEE, Circuit Judge, concurring.         Judges Restrepo and
Fuentes join.

        I join my colleagues’ thoughtful opinion in its entirety.
I write separately merely to add the perspective of someone
who has served as a state court judge in a jurisdiction that
selects judges in general elections preceded by partisan
political campaigning and the fundraising that is endemic to
political campaigns. In doing so, I certainly do not mean to in
anyway cast aspersions upon the many dedicated, intelligent
and hardworking men and women whom the electorate in such
jurisdictions ultimately select to serve as judges. I only wish to
note the potential damage to the image of the judiciary in such
jurisdictions and the extent to which it can undermine the
public’s faith in the judges who are elected.1

        All of us have a keen understanding of, and appreciation
for, the fact that the provisions we strike down today were
enacted to ensure selection of a judiciary whose political
balance would serve notice that judicial decisions were devoid
of politics and political motivations. Paradoxically, by
elevating one’s political affiliation to a condition precedent to
eligibility for appointment to the bench by the Governor,
Delaware has institutionalized the role of political affiliation

1
 The criticism of systems where judges are elected has stressed
the importance of such irrelevant factors as campaign
contributions and the importance of ballot position. See The
Inquirer Editorial Board, Editorial, Close Down the Circus:
Replace Judicial Elections with Merit Selection, PHILA.
INQUIRER,               (July             13,             2018)
(http://www.philly.com/philly/opinion/editorials/judicial-
election-merit-selection-pennsylvania-election-reform-
20180713.html) (“In Pennsylvania we elect judges in partisan
elections . . . The corrosive effects of money work over time
until it is impossible for people to trust the court system.”);
Ryan Briggs, Does Ballot Position Matter? Science Says ‘Yes,’
CITY AND STATE PENNSYLVANIA (Dec. 20, 2016),
https://www.cityandstatepa.com/content/does-ballot-position-
matter-science-says-%E2%80%98yes%E2%80%99                  (last
visited Jan. 17, 2019) (“Sheer luck has more to do with
becoming [a] judge in the city [of Philadelphia] than
experience or endorsements.”).
                                1
rather than negated it. As we explain, the resulting system of
judicial selection is in conflict with the First Amendment right
of association even though it has historically produced an
excellent judiciary; accordingly, it cannot survive this First
Amendment challenge. Although this is as paradoxical as it is
ironic, it is really not surprising that the judicial system that has
resulted from Delaware’s political balance requirements is as
exemplary as the judges who comprise it.

        In 2011, then-Delaware Supreme Court Justice Randy
J. Holland presciently observed that the “political balance
provisions appear to prevent the appointment of persons
belonging to a third political party or having no party
affiliation. To date, however, there has been no court challenge
to this requirement under the United States Constitution.”2
Justice Holland’s observation about the absence of challenges
to the 122 year-old constitutional framework that plainly
implicates the First Amendment is understandable given the
well-earned excellent reputation of the state courts it has
produced.

        Praise for the Delaware judiciary is nearly universal,
and it is well deserved. Scholars and academics routinely refer
to Delaware’s courts as the preeminent forum for litigation,
particularly for cases involving business disputes.3 On the
bicentennial anniversary of the establishment of the Court of
Chancery, then-Chief Justice Rehnquist observed that the
“Delaware state court system has established its national
preeminence in the field of corporation law” and identified
such hallmarks of the Court of Chancery as its “[j]udicial
efficiency and expertise, a well-paid and well-respected
judiciary, innovative judicial administration [and] courageous


2
  Randy J. Holland, THE DELAWARE STATE CONSTITUTION
149 (2011).
3
  See, e.g., Omari Scott Simmons, Delaware’s Global Threat,
41 J. OF CORP. L. 217, 224 (2016) (referring to the
“preeminence of Delaware’s courts in resolving corporate
disputes”); Ehud Kamar, A Regulatory Competition Theory of
Indeterminacy in Corporate Law, 98 COLUMBIA L. REV. 1908,
1926 (1998) (“Delaware courts have earned a unique
reputation for quality adjudication”).
                                 2
leadership.”4 Members of the Delaware bench credit the
political balancing requirement for at least part of this success.5
With that national reputation so firmly established, it is perhaps
not surprising that attorneys contemplating judicial candidacy
have not previously challenged this constitutional framework.6

4
  William H. Rehnquist, Chief Justice of the United States,
Address at the Bicentennial of the Delaware Court of Chancery
(Sep. 18, 1992) in The Prominence of the Delaware Court of
Chancery in the State-Federal Joint Venture of Providing
Justice, 48 THE BUSINESS LAWYER 1 (1992).
5
  See, e.g., Devera B. Scott, et al., The Assault on Judicial
Independence and the Uniquely Delaware Response, 114
PENN ST. L. REV. 217, 243 (2009) (quoting President Judge Jan
R. Jurden as saying the “Delaware judicial nominating process
goes to great pains to ensure a balanced and independent
judiciary, and, therefore, it is no surprise that the public
perceives Delaware courts as fair arbiters of justice.”); E.
Norman Veasey & Christine T. Di Guglielmo, What Happened
in Delaware Corporate Law and Governance from 1992-
2004? A Retrospective on Some Key Developments, 153 U. PA.
L. REV. 1399, 1401 (2005) (former Chief Justice of the
Delaware Supreme Court stating that Delaware’s judicial
“system has served well to provide Delaware with an
independent and depoliticized judiciary and has led . . . to
Delaware’s international attractiveness as the incorporation
domicile of choice.”); 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)
(Chief Justice of the Delaware Supreme Court noting that its
judicial selection process has resulted “in a centrist group of
jurists committed to the sound and faithful application of the
law.”).
6
  Indeed, one of this court’s two courtrooms is named for
Collins J. Seitz; a legendary judge of national prominence who
served with great distinction as a judge on the Delaware Court
of Chancery before being appointed to this court by President
Johnson in 1966.
    While sitting on the Delaware Court of Chancery, Judge
Seitz decided Belton v. Gebhart, 87 A.2d 862 (1952) in which
he courageously ordered the desegregation of the Delaware
public schools two years before the United States Supreme
Court struck down the doctrine of “separate but equal” in
                                3
       But that excellence cannot justify the constitutional
transgression that is baked into the selection process. As we
explain,7 despite the state’s interest in achieving a judicial
system that is as fair in fact as it is in appearance, the provisions
of the Delaware Constitution restricting who can apply for
judicial appointment are not narrowly tailored to achieve their
laudatory objectives. Accordingly, we need not decide whether
Delaware has a “vital state interest” that justifies the limitations
on political affiliation. That question may be decided in a
future case. Moreover, Delaware may choose to amend its
Constitution in a manner that achieves the goals of the
problematic political affiliation requirements without their
attendant constitutional infirmities.

       No matter what ensues, I have little doubt that the
constitutional provisions which we today invalidate have
resulted in a political and legal culture that will ensure the

Brown v. Bd. Of Educ. 347 U.S. 483 (1954). The appeal from
his decision there was one of the four consolidated cases before
the Court in Brown where the Supreme Court affirmed the
view Judge Seitz had expressed in ordering the desegregation
of the Delaware’s schools rather than ordering Delaware to
make its “Negro” schools equal to those serving White
students. In Belton, Judge Seitz based his ruling on his factual
conclusion that the Negro schools were inferior to White
schools and therefore not equal; the approach that was then
required under Plessy v. Ferguson, 163 U.S. 537 (1896).
    Nevertheless, in reaching his decision, Judge Seitz clearly
stated that the doctrine of Plessy was itself an anathema to the
United States Constitution because segregated schools were,
by definition, unequal. Foreshadowing Brown, he wrote: “I
believe that the ‘separate but equal’ doctrine in education
should be rejected, but I also believe its rejection must come
from [the Supreme Court.].” Belton, 87 A.2d at 865. His
decision was later aptly described as a demonstration of Judge
Seitz’s “courage and moral clarity.” William T. Allen, The
Honorable Collins J. Seitz: Greatness in a Corporate Law
Judge, 16 FALL DEL. LAW 5, 3. (1998).
   It is particularly appropriate to mention Judge Collins Seitz
here because he is such a dramatic example of the judicial
excellence I am referring to in extolling Delaware’s judiciary.
7
  Maj. Op, at 24–25.
                                 4
continuation of the bipartisan excellence of Delaware’s
judiciary. That culture appears to be so firmly woven into the
fabric of Delaware’s legal tradition that it will almost certainly
endure in the absence of the political affiliation requirements
that run afoul of the First Amendment.




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