DOVER, Del. - A Delaware attorney filed a lawsuit against Governor Carney on Tuesday. He says that the required political balance in the state's constitution is unconstitutional.
The man behind the lawsuit, James Adams, a former Democrat, says he wanted to apply for judgeships in the past.
But he says doing so would have been futile because he was not a member of the required political party.
Adams says the provision is unconstitutional under the freedom of political association guaranteed in the U.S. Constitution.
But Dr. Sam Hoff, a Delaware State University professor, says the line of attack that Adams is using will have a hard time standing up in court.
"Someone could use the same rationale to say where there are limits, such as age that they want on the court and the age restriction is limiting them," Hoff said.
He went on to question the wording "major parties" in the provisions and adds that the wording re-enforces the two-party system. Hoff says there are more registered Independents in Delaware than Republicans and therefore it might not be true to say that the GOP is a major party in The First State.
Delaware's Supreme Court, Court of Chancery and Superior Court under Article IV, section 3 of the state constitution have a political balance requirement.
"The focus is on that word 'major' in the suit and in the constitution. Since as I mentioned, the third or minor party, independent parties actually have more registrants than the GOP in the state of Delaware," Hoff said.
"So the question is, what happens if you have a person who actually is of the Independent party and wants to pursue that seat? I think that person would have a much better chance using that rationale that it's discriminatory toward third or minor parties than being discriminatory toward an individual."
In the end, Hoff says there potential that the longevity of the provision, introduced in 1891, may just win out in court.
"Then he would have to convince the courts that simply the language as it currently is, is unconstitutional. I think the length of time that we've seen that in there and the procedures that have come down the pike since we've seen that, which is over one hundred years, would mitigate that kind of challenge."
Governor John Carney's office declined comment.
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