Should Justice Phil Berger Jr. recuse himself from voter-ID law case in which his dad, Berger Sr., is a defendant?

A lawsuit challenging two constitutional amendments regarding a voter ID law and an income tax cap is in the state Supreme Court, but there are still important decisions about whether Justice Phil Berger Jr. should recuse himself before oral arguments, slated for Aug. 31.

The lawsuit NAACP v. Moore, filed in August 2018, named Senate President Pro Tem Phil Berger Sr. and House Speaker Tim Moore as defendants. Since then, two state Supreme Court associate justices, Berger Jr. and Tamara Barringer, who have close connections to the defendants, have been elected to the state’s highest court in 2020.

Plaintiffs are questioning the impartiality of Berger Jr. and Barringer, and requesting their recusal.

Canon 3 of the North Carolina Code of Judicial Conduct states, “A judge should perform the duties of the judge’s office impartially and diligently.”

It further explains that a judge should disqualify themselves when a person “within the third degree of relationship” to either themselves or their spouses is a part of the proceeding. The plaintiffs argued that Berger Jr. and his father Berger Sr. are within a first-degree relationship. However, the state Supreme Court itself wrote the Code of Judicial Conduct and has the authority over its scope and interpretation.

Phil Berger Jr., Associate Justice of N.C. Supreme Court

Berger Jr. has been a beneficiary of his father’s political clout in the state. His father’s appearance at an event helped him raise tens of thousands of dollars from lobbyists in his 2014 congressional bid, according to The News & Observer.

Plaintiffs said Justice Barringer has a potential conflict of interest, citing a state Supreme Court case that ruled “No judge should sit in [their] own case, or participate in a matter in which [they have] a personal interest, or [have] taken sides therein.”

Barringer served as a state Senator from 2013 to 2019. During the 2017–2018 sessions, she voted to pass the voter ID amendment bill and was thus a defendant in the case.

Plaintiffs contended that the laws were passed by legislators elected from gerrymandered districts that fail to represent the will of the people of North Carolina.

“A legislature which has been declared a racial gerrymander does not have authority to place constitutional amendments on the ballot,” Kym Hunter, a senior attorney at the Southern Environmental Law Center, representing the plaintiffs, told Policy Watch.

Plaintiffs filed a motion asking to disqualify Barringer and Berger Jr. from hearing the case in late July of this year.

Hunter told Policy Watch that attorneys filed the motion after seeing no indication of voluntary recusals by either of the two jurists.

She said that the decision on recusal could have a significant impact on future cases challenging the legislature and legislative actions to be decided by Berger Jr.

“North Carolina recusal is about the appearance of conflicts,” Hunter said. “And in a case this important about our state’s Constitution, we think it is really important that the public believes and the ruling.”

It is now up to the justices to decide how to respond to the motion for recusal. Berger and Barringer have not issued a response yet.

The state Supreme Court declined to comment on pending litigation before the court.

A dispute rooted in gerrymandering case

The appeal to the highest court came after a three-judge panel reversed the split lower court 2-1 ruling that previously voided the session laws, one requiring photo IDs for in-person voting and another lower the maximum income tax rate.

The plaintiffs’ argument is built upon a 2017 case Covington v. North Carolina, where a federal court found racial gerrymandering in 28 out of the 170 state House and Senate districts of the North Carolina General Assembly. Affirmed by the U.S. Supreme Court, districts were redrawn.

Thus, though voters approved the during the November 2018 election, plaintiffs argued that they never should have been presented the laws for them to vote on.

Tamara Barringer, Associate Justice of N.C.  Supreme Court.

Then an appellate judge on the state Court of Appeals, Reuben Young agreed with the plaintiffs in his dissenting opinion. “By necessity, once the legislature became aware that it was unconstitutionally formed, any actions taken to alter our State Constitution were void ab initio; the public vote could not cure that deficiency any more than it could cure any other unlawful action by the General Assembly.”

Gov. Roy Cooper, the North Carolina Legislative Black Caucus, Democracy NC, the ACLU of N.C., Carolina Advocates for Justice, as well as a number of constitutional law professors filed “friends of the court,”or amicus curiae briefs in support of the plaintiffs. The docket contains no amicus briefs backing the defendants.

However, Republican Judges Chris Dillon and Donna Stroud ruled in favor of the defendants, but for slightly different reasons. Dillon said the court should not take away the legislative power to pass and enact bills. Stroud wrote that the role of the court is limited — to correct errors, and that the lower court’s ruling exceeded its role, for basing on the Covington case and not on the question of law.

Counsel for Berger Sr. and Moore wrote in a response to the plaintiff’s motion that the recusal request should be dismissed because Berger Sr. and Barringer were acting in his official capacity, so the suit was against the state and not individuals. “There are no facts – let alone any ‘substantial evidence‘ – or legal grounds to support the recusal of Justice Barringer or Justice Berger,” it stated.

The response continued, “That conclusion is all the more true when considering that Plaintiff’s concerns for impartiality, however unfounded, only go so far.” It challenged the motion for not asking Justice Anita Earls to recuse herself. Earls, who used to serve as executive director of the Southern Coalition for Social Justice before her election in 2019, represented the plaintiffs of the Covington v. North Carolina case, which the NAACP v. Moore case relied on.

Earls argued after the U.S. Supreme Court remanded the Covington case that “The integrity and authority of the legislature is called into question,” citing widespread redraw of legislative districts.

“It is entirely possible that any legislative actions they take without being elected from legal districts could be subject to challenge under state law,” Earls said.

However, the defendants have not filed a motion to request Earls’s recusal.

In a recent state Supreme Court class action case Lake v. State Health Plan for Teachers & State Employees, five of the seven justices disclosed their ties with family members who could be among the 222,000 class members who were state employees. The Supreme Court concluded that they would be disqualified from participating in the case unless all parties agree to let them do so. The case is still pending.

Any justice’s recusal could alter the delicate balance of the partisan makeup of the highest court. Democrats have a slight advantage of four members on the seven-member court. Berger Jr., Barringer and Chief Justice Paul Newby are in the Republican minority.

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