On October 5, the U.S. Supreme Court heard Adams v Carney, 19-309. This is the case over the Delaware law that requires the Governor to appoint only members of parties that have at least 5% of the voter registration to judicial posts. The Family Court and the Court of Common Pleas are exempt from the law, but the more important state courts, including the State Supreme Court, are subject to it.

Most members of the U.S. Supreme Court certainly seemed to feel that the exclusion of independent voters, and members of minor parties, is troubling. But the plaintiff, who is a registered independent, may not win the case because of minor problems with his case. He had said that he would “consider and apply” for a judicial position if it were offered. It would have been better if he had no used the term “consider”. One justice said if he received an application from someone to be his law clerk, who used that phrase, the justice might feel the applicant hadn’t really made up his or her mind whether the job is desired or not. If the justices feel the plaintiff wasn’t forthright enough about wanting to be appointed to a judicial position, they may find he lacks standing.

The attorney for the state of Delaware also emphasized that the plaintiff said he wanted to be appointed any type of judge, yet he didn’t really seem to care about being appointed to one of the two low-levels of court in which the restriction doesn’t apply.

The justices asked some interesting hypotheticals. They wanted to know if Delaware could have a law requiring all judges to be registered independents. They wanted to know if the state could have a law saying the Governor could only appoint members of the largest party. They asked about a hypothetical law in which state court judges would be elected, but only Democrats and Republicans could run. The state conceded that would be unconstitutional.

The state justfies its ban on minor party members by assuming that all minor parties are “allied” with one particular major party. For example, the state seems to think everyone agrees that a Green would be ideologically identical to a Democrat. That assumption is grossly in error, not only for the Green Party, but also for other minor parties. It ignores the existence of the third-largest political party in Delaware, the Independent Party, which is a centrist party.

On Monday, October 5, at 10 a.m., the U.S. Supreme Court will hear Carney v Adams, 19-309. This is the case over Delaware’s law that says most judicial appointments can only go to individuals who are registered members of a party that has at least 5% of the voter registration. The lower courts had invalidated the law. The plaintiff is a registered independent who would like to be considered for a judicial appointment.

The case was originally set to be argued on March 25, 2020, but was postponed due to the health crisis. The oral argument will be broadcast. Here is the Court’s explanation of how the hearing will be broadcast.

The court is sitting virtually. Each justice in turn has an opportunity to ask questions. There are only eight justices. The hearing will probably last one hour.

This is the first case involving independent and minor party voters that the court has heard since 2005. The 2005 case was about whether the Oklahoma Libertarian Party had a freedom of association right to decide for itself who can vote in its primary. The party lost the case by a vote of 6-3. Clingman v Beaver.

CTV News has this story about the leading minor party and independent presidential candidates in the U.S. Thanks to Chris Cole for the link.