Recusals sought as remapping case moves to NC Supreme Court

Published 5:00 pm Wednesday, January 12, 2022

The legal fight over North Carolina’s redistricting plans shifted quickly to the state Supreme Court the day after trial judges refused to throw out the new maps. By Wednesday, nearly half of the justices had been asked by lawyers to stay out of upcoming deliberations because of alleged conflicts.

Plaintiffs in the case filed appeal notices with the state’s highest court almost immediately after Tuesday’s ruling by a three-judge panel that allowed the use of congressional and legislative districts approved the Republican-controlled General Assembly for upcoming elections.

The court already signaled last month to expect a fast-moving hearing schedule. State election officials have said they need final maps in place by mid-February to keep the once-postponed primary election now set for May 17 on time. State law would give legislators two weeks to address any unlawful districts.

Lawyers for Republican legislative leaders asked Wednesday that Associate Justice Anita Earls be recused because of previous ties to groups involved with the plaintiffs. They had already demanded that Associate Justice Sam Ervin IV step away  because as the only sitting member running for reelection this year the court’s decisions could affect when elections he’ll be competing in are scheduled.

And attorneys for a group of voters who challenged the maps repeated late Tuesday their call to remove Associate Justice Phil Berger Jr. because his father, Senate leader Phil Berger, is a named defendant and whose district is among those being challenged.

Registered Democrats hold a 4-3 seat advantage on the Supreme Court, so any departure would be significant. Berger is a Republican. Earls and Ervin are Democrats. State law requires at least four justices to conduct business.

Recusals received intense scrutiny in recent months after the state NAACP asked the younger Berger and another Republican justice be disqualified from a case challenging two constitutional amendments approved by voters in 2018. Berger’s father also was a lawsuit defendant. One amendment authorized photo voter identification.

Those motions led the court to ask lawyers about the recusal process and whether it should be changed. Ultimately the court boiled down the process in late December to two options: an individual justice can either decide on a motion or ask the rest of the court to do so on their behalf. Last week, Berger and Associate Justice Tamara Barringer separately wrote they could be fair and impartial and wouldn’t step aside. Berger noted that his father was a defendant in his official capacity as Senate leader — just like he is in the redistricting litigation.

Lawyers for voters in the remapping case wrote Tuesday the older Berger’s involvement in this case is even more personal. They are directly challenging Berger’s Senate district as a unconstitutional partisan gerrymander, and the success or failure of the statewide Senate map could affect whether a Republican majority continues, they wrote.

“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,” according to the motion.

According to Republican legislative leaders, Earls should be recused because the National Democratic Redistricting Committee endorsed her for justice when she ran in 2018 and has been raising money for redistricting litgation. The NDRC’s nonprofit affiliate, the National Redistricting Foundation, has said it’s supporting the lawsuit filed by several voters incorporated into this case.

The NDRC’s political committee gave to Earls’ campaign in 2018 and sent $250,000 that year to the state Democratic Party. The state party also helped with Earls’ election bid, according to the motion.

Earls also helped create the Southern Coalition for Social Justice, which for years challenged legislation passed by Republicans. She left the coalition to run for justice. Its lawyers are now representing plaintiff Common Cause.

“Because of (Earls’) record of public advocacy against the legislative defendants, any reasonable observer would think she could not be anything but partial to the plaintiffs in this case,” the GOP leaders’ lawyers wrote.

In a nearly 260-page order, the judges wrote Tuesday the evidence from the plaintiffs’ mathematicians and researchers showed the maps “are a result of intentional, pro-Republican partisan redistricting.” But they said striking down such districts as state constitutional violations were outside the judicial branch’s purview, with redistricting largely in the legislature’s control.