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Published: 2022-01-16 06:00:00
Updated: 2022-01-16 06:00:00
Posted January 16, 2022 6:00 a.m. EST
By Bryan Anderson and Travis Fain, WRAL statehouse reporters
Raleigh, N.C. — As key lawsuits over North Carolina’s elections take place, groups across the political spectrum are calling for the recusal of state Supreme Court justices who may vote against them.
A panel of North Carolina judges on Tuesday ruled that Republican-drawn maps highly favorable to the GOP could go forward ahead of the May 17 primary election, prompting voting rights groups to swiftly file notices of appeal to the state Supreme Court. They also asked two of the justices not to participate, citing potential conflicts of interest.
Meanwhile, a pair of justices who are registered Republicans rejected calls for them not to participate in a separate case challenging North Carolina’s voter ID law. This comes after a pair of trial judges decided last year that the 2018 law had at least a partial unconstitutional goal of targeting Black voters.
Whatever the high court decides to do on voter ID and redistricting will carry major statewide and national implications. And they will be decided by justices who themselves are chosen in partisan elections, raising questions about whether the high court can act impartially.
The fight over maps that will set political boundaries for the next decade is of most immediate concern to Democrats. Under the state’s new congressional map, Republicans would likely gain 10 or 11 of the 14 U.S. House seats up for grabs, which could prove determinative this November as the national party looks to regain control of the chamber to thwart President Joe Biden’s legislative agenda.
If the state House and Senate maps remain in place, Republicans would be more likely to regain a supermajority. This expanded representation in the North Carolina General Assembly would give them the power to turn bills into law without the support of Democratic Gov. Roy Cooper.
The U.S. Supreme Court has left it up to state courts to resolve complaints that accuse lawmakers and redistricting bodies of drawing unfair maps created for pure partisan advantage.
Three North Carolina Supreme Court justices have been asked to recuse themselves from cases that could shape which politicians hold elected office for the next 10 years. The Democratic and Republican groups pushing for the recusals in the redistricting case cite real or perceived conflicts of interest as a motivating force.
North Carolina’s high court on Friday agreed to hear the redistricting case on Feb. 2, and possible recusals could decide the outcome.
Unlike many states, North Carolina voters see a judge’s party affiliation on their ballot when deciding which candidate to support. That has contributed to a growing perception of partisanship on the bench.
Of the seven justices, four are registered Democrats and three are registered Republicans. GOP lawmakers are looking to oust two registered Democrats, while voting groups are seeking to get a Republican justice off the case. A tie would allow the lower court’s ruling to stand, meaning the present maps would stay in place.
Recusals in the redistricting case may be unlikely. Justices Phil Berger Jr. and Tamara Barringer, registered Republicans, declined calls by the NC NAACP to recuse themselves from the case that will determine the constitutionality of the state’s voter ID law.
Pushing back against the NAACP’s call for Berger and Barringer to step off the voter ID case, lawyers representing GOP lawmakers said they reviewed 3,823 orders and opinions going between 1832 and October 2021 in which a justice either recused, was asked to or didn’t participate in the decision. In more than 43% of those cases, the GOP lawyers said it’s not clear why the justices didn’t participate, the lawyers said.
Of the remaining 2,177 cases where it was apparent the justice recused or was asked to recuse, just 21 came in response to recusal motions filed by one of the parties involved in the case.
“In 99% of those cases where recusal was evident, it was based on a single justice… exercising the justice’s own determination about impartiality or the perception of impartiality,” the brief states.
An administrative order the high court approved last month more clearly spells out the recusal process. It lets justices who are the subject of recusal requests decide entirely for themselves how they’d like to proceed. According to the order, a justice in question could make a sole decision or refer the matter for the full court to decide without their participation.
Graham Wilson, communications director for the North Carolina Judicial Branch, did not respond to a request for comment on whether any of the three justices being asked to recuse themselves had any statement they wished to make.
Amy Funderburk, clerk of the state Supreme Court, also did not provide any response from the three justices in question.
Wilson and Funderburk have previously said justices don’t typically comment on pending cases.
Here’s who’s being asked not to hear the case and why:
Justice Berger is the son of Republican Senate leader Phil Berger, one of the defendant’s in the case whose chamber voted to approve the congressional and legislative maps along a party-line vote.
Because of his father’s relevance to the case, lawyers representing Democratic voters argued in a court filing that the justice lacks “the appearance of impartiality” because he “has a close enough familial relationship with a party to a case.”
The law firm of Marc Elias, a prominent Democrat who has filed a number of legal challenges to election maps across the country, is among those asking for Berger’s recusal.
Elias’ group and other lawyers also note that the district the Senate leader would be running in this year was determined by the panel in Wake County Superior Court to be the “result of intentional, pro-Republican partisan redistricting.”
“A reasonable observer would not believe that Justice Berger can neutrally resolve a constitutional challenge to the boundaries of the specific district under which his father is elected, and to the districts statewide that determine his father’s leadership position in the General Assembly,” voting rights lawyers wrote in a court filing.
Funderburk, clerk on the high court, said Justice Berger signed the administrative order leaving the question of recusals up to the justices in question to decide how to proceed. She declined to say how many justices agreed with the directive, nor would she name those who did.
Lawyers representing the Republican lawmakers whose maps are in question are seeking to have Justice Anita Earls, a registered Democrat, removed from the redistricting case the court has agreed to hear.
They argue Earls could be unduly influenced by a group she founded that is currently involved in the lawsuit. They also note that she previously received campaign donations from an outside redistricting group that is also working against North Carolina’s newly drawn maps.
Earls’ bio on the high court’s website notes she founded the Southern Coalition for Social Justice in 2007 and served as its executive director for 10 years. The coalition now represents Common Cause, a voting rights group that is involved in the redistricting case.
“Any reasonable observer would think she could not be anything but partial to the plaintiffs in this case,” the GOP lawyers write in their motion for her recusal.
The Republican lawmakers’ lawyers also say Earls should not hear the case because an anti-gerrymandering group led by former U.S. Attorney General Eric Holder, the National Democratic Redistricting Committee, is helping fund the legal challenge to their maps.
They also note that the group’s political committee contributed more than $200,000 to Earls’ 2018 state Supreme Court campaign, mostly indirectly through the state Democratic Party, which, in turn, supported Earls.
“Defendants do not highlight these contributions to argue that they are necessarily unlawful,” the GOP lawyers wrote. “Rather, these contributions suggest influence.”
GOP lawyers allege that Justice Sam Ervin has already benefited from the redistricting process.
“Because Justice Ervin is the only sitting justice on this Court up for election this year, he has a unique personal interest in the laws governing this election cycle, including those setting up the legislative and congressional districts,” the lawyers wrote.
Supreme Court races are decided at the statewide level.
The GOP lawyers also argue that Ervin has a conflict of interest because he appeared to have participated in a decision last month that halted candidate filing, thus preventing potential primary opponents from formally filing for office to run against him.
Republicans cite previous justices who voluntarily chose not to participate in cases where the constitutionality of election laws are being considered while they are on the ballot.
Former Justice Bob Edmunds, a registered Republican who is now in private practice, chose not to participate or vote in a 2016 case challenging the constitutionality of Supreme Court retention elections—an election style in which voters decide whether to keep a justice or not, instead of the justice running against opponents. The courts struck down retention elections that year, and Edmunds unsuccessfully ran for reelection under the more traditional system.
“I just felt that, for appearance purposes, the better thing to do was not participate,” Edmunds said in an interview with WRAL News.
GOP lawmakers’ filing in the redistricting case also note that current Supreme Court Justice Robin Hudson didn’t participate in a 2006 redistricting case when she was up for reelection. Superior Court Judge Paul Ridgeway, who is up for reelection this year, has recused himself from hearing any election law cases in the 2022 cycle, saying in a letter to the chief justice that his “impartiality as a judge could reasonably be questioned.”
Democratic lawyers in the case say GOP lawyers’ recusal request should be rejected because it was not filed in a timely manner and is irrelevant since candidate filing is no longer underway.
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