The Bare-Majority Requirement of the Delaware Judiciary and Its Unfortunate Violation of the First Amendment

This Note will attempt to remedy the circuit split on the issue of whether judges are policymakers for purposes of the First Amendment, and if they are not—as this Note concludes—whether the Delaware Constitution is in violation of the First Amendment through its major-party and bare-majority requirement. First, this Note will analyze the development of the only challenge to article IV, section 3 of the Delaware Constitution as it proceeded from the U.S. District Court for the District of Delaware to the U.S. Supreme Court where it was thrown out on standing. Second, this Note will argue that judges are not policymakers under Elrod and Branti, and therefore, deserving of First Amendment protections. The major-party provision is unconstitutional because it places a one of two party requirement on judicial seats. Further, the bare-majority requirement is not severable since in order to keep a bare majority, some seats will become subject to the requirement to be of one political party. Third, this Note will argue that given the sophistication of the bar in Delaware, specifically the corporate bar, and the recognized need by the legislature and the governor to keep business in the state as a source of revenue and power, judicial nominees will remain non-partisan even after removing the provisions. This abstract has been taken from the author's introduction.