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NC voter ID debate is clouded by the call for justices' recusal

One of several legal challenges to North Carolina’s contentious voter ID law is on hold amid a dispute over whether two justices on the state Supreme Court — one the son of arguably the state's most powerful Republican politician — should recuse themselves.

Phil Berger Jr. (left) and Tamara Barringer
Phil Berger Jr. (left) and Tamara Barringer

The state NAACP's request that Phil Berger Jr. and ex-Sen. Tamara Barringer be disqualified further clouds the future of photo voter ID requirements in one of the numerous Republican-dominated states where lawmakers have sought them, often successfully.

In some states, the laws have been blocked by voters and civil rights groups who have argued that they disproportionately harm Black voters. In addition to the Supreme Court case, two other lawsuits challenging North Carolina’s current law are pending in state and federal courts. Federal judges already struck down a previous version of the lawthat Republicans approved in 2013 and implemented briefly.

The case now before the Supreme Court began in 2018 when the NAACP challenged two amendments to the state constitution put on ballots by the Republican-controlled General Assembly and later approved by voters: the photo ID mandate and a separate provision to reduce the cap on income tax rates.

A trial judge struck down the amendments in 2019, declaring that since many legislators were illegitimately elected from what were previously declared as racially biased districts, they lacked the power to put the questions on the ballot. But an appeals court overturned that decision in 2020, sending the case to the Supreme Court.

The high court was scheduled to hear arguments in the case in August but paused the proceedings after the NAACP requested that Berger and Barringer step down.

Berger’s father is Republican state Senate leader Phil Berger, who is a named defendant in the NAACP's lawsuit seeking to overturn the photo ID legislation. When Barringer was a lawmaker, she voted in favor of holding the referendum on the voter ID amendment. Both justices joined the court in January after winning statewide elections.

“I would have no confidence that either Berger or Barringer would/could decide the issues in the case fairly,” said James Coleman, a Duke University law school professor not involved in the litigation. “My expectation is that they will vote their party’s position on the issues, regardless of how persuasive the other side is."
But Republicans who oppose any recusal say removing the two justices from the decision — there is no one to replace them — would automatically sway the court in favor of voiding the voter ID law. Registered Democrats currently hold a 4-3 advantage on the court, with Barringer and Berger being two of the three Republicans.

“The attempt to disqualify them from hearing cases the voters elected them to hear is a subversion of the will of the people and an insult to every informed voter,” House Speaker Tim Moore, who is also named as a defendant in the NAACP lawsuit, wrote in a recent letter to the editor.

Martin Warf, an attorney representing Moore and the elder Berger, stressed that Berger is a defendant only in his official capacity — he must be named when a lawsuit challenges a law’s constitutionality. And as far as Barringer is concerned, case law has established that being a former legislator who voted on a challenged law isn’t by itself grounds for removal, Warf said.

The state judicial conduct code says judges should disqualify themselves, when asked by a legal party, if they have “personal knowledge of disputed evidentiary facts” or if the judge’s near-relative is “a party to the proceeding.”

The code requires disqualification “even if they are in fact impartial and capable of presiding fairly over the matter before them,” NAACP attorney Kym Hunter wrote in July.

Recusal requests aren’t uncommon when attorneys worry a justice’s family or financial connections could influence the outcome or leave that impression. The named justice usually decides on the request. Recusal denials for an individual justice have been issued by the full court on extremely rare occasions.

What was unusual in this case is that before either justice indicated publicly whether they would step down, the full state Supreme Court last month asked lawyers on both sides of the lawsuit to submit briefs on more than 20 questionsrelated to the issue. Those briefs are due next week.

"It’s not uncommon for the court to ask for additional briefing on a legal question,” said Bob Edmunds, a North Carolina Supreme Court justice for 16 years through 2016. But a request for so much information on recusals, he added, “is something that I have not observed before.”

The one that got the most attention: “Does this court have the authority to require the involuntary recusal of a justice who does not believe that self-recusal is appropriate?”

The inquiry raises the possibility that one or both of the justices indicated that they would not recuse themselves. Neither responded to a request for comment that The Associated Press asked a court spokesperson to pass along to them.

The briefing order “makes the court seem dysfunctional” and creates the appearance that justices "aren’t working together in the normal collegial way,” said Jon Guze, a legal expert for the right-leaning John Locke Foundation.

Some states including Michigan, Mississippi and Texas, empower fellow justices to disqualify a colleague who declines to step down, according to the National Council for State Courts. But Guze said he fears disqualifications will become retaliatory and commonplace in North Carolina should Berger or Barringer be removed against their will.

Three former North Carolina chief justices — two elected as Democrats and one as a Republican — wrote in an op-ed recently that recusal decisions during their tenures were made by the jurist identified because “only the individual justice can examine her or his conscience.”

“Only the seven members of our Supreme Court can determine whether this should remain the policy on recusal and disqualification,” ex-Chief Justices Jim Exum, Burley Mitchell and Mark Martin wrote. “We trust our successors to resolve this difficult question in a way that promotes fundamental fairness, protects the integrity of our judiciary, and, above all else, preserves the rule of law.”

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