A lawsuit [complaint, PDF] was filed against Delaware Governor John Carney [official website] on Tuesday arguing that a provision in the state’s constitution [text, PDF] requiring a political balance of judges in the state’s courts is unconstitutional. In the complaint, attorney James Adams alleges that the provision, which mandates that nominations be evenly split between the two major parties, excludes minority parties and is therefore a violation of the freedom of political association guaranteed by the US Constitution. Adams claims that he and others who are not a part of one of the main political parties are “deprived of opportunities for judicial appointments because of their political affiliation, in violation of the First Amendment [text]. Supporters of the provision have argued that the it ensures higher quality, impartiality and independence for a judiciary that is not run by party politics. The complaint is seeking an order that will hold the political balance provision unconstitutional and permanently enjoin the use of political affiliation as criteria for the appointment of judges in Delaware.

The complaint comes after judicial elections and supreme court appointments were a highly politicized issue [JURIST op-ed] over the past year. The most recent example comes after President Donald Trump nominated Judge Neil Gorsuch [JURIST report] last month to fill the late Justice Scalia’s Supreme Court seat. Some have argued that Gorsuch’s nomination should be contested and blocked after the nomination of Judge Merrick Garland by former president Barack Obama expired in January without a vote [JURIST reports]. Others argue that judicial appointments deserve to be treated in a non-partisan manner [JURIST op-ed]. A Federal judge even dismissed a lawsuit [JURIST report] in November attempted to force a vote on former nominee Garland.