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Recusal order means NC voter ID case should soon resume

North Carolina's highest court has declared there are two paths that an individual justice can take when weighing a request to be removed from hearing a case due to an alleged conflict of interest.

The order, filed last week by the state Supreme Court but emailed to attorneys Thursday, applies to all cases before the justices. It allows a justice to either decide on their own or ask the rest of the court to act on a recusal or disqualification motion. Whichever option is used, the ensuing ruling is final, the order said.

But this resetting of recusal procedures resulted from one of several pending legal challenges to North Carolina's photo voter identification law. The order should allow that case, delayed in the summer and while the Supreme Court grappled with whether to alter its recusal standards, to resume soon.

Two of the seven justices are the subjects of a motion from lawyers seeking to block voter ID by having them disqualified from the case.

One justice is Phil Berger Jr., the son of state Senate leader Phil Berger, who is a defendant in the lawsuit that challenges in part the legality of a 2018 statewide referendum that enshrines a voter ID mandate in the North Carolina Constitution. The other justice is Tamara Barringer, who as a senator voted in favor of holding the referendum on the voter ID amendment.

The court's four-paragraph order would appear to ease concerns by some Republicans and their conservative allies that a majority of the court could remove Barringer and Berger Jr. against their will. Registered Democrats hold a 4-3 seat advantage. The lawsuit plaintiffs had argued that justices should not be allowed to judge their own impartiality, and that leaving a disqualification decision to colleagues was best for objectivity.

In recent North Carolina history, the identified justice has usually decided on the request. Recusal denials for an individual justice have been issued by the full court on extremely rare occasions.

In late September, the Supreme Court took the unusual step of asking lawyers in the case to address in court filings more than 20 questions related to recusals. Outside lawyers, professors and groups also filed friend-of-the-court briefs to weigh in.

The order says the court shall assign a recusal or disqualification motion to the justice who is the subject of the motion to make a determination. The justice, however, could decline to decide on the motion themselves and instead "refer the motion to the full court without their participation." A majority of the court would have to vote to disqualify the judge.

Any order reporting the result of a recusal motion must indicate whether the justice or the remaining members made the decision, the order said.

The North Carolina NAACP, which through its attorneys is challenging two constitutional amendments and seeking to disqualify Berger and Barringer, said in a news release that the order "brings much-needed transparency to a previously opaque process for the first time in history."

"Justices now have a clear pathway to allow the full court to make decisions about their potential impartiality, and will be able to remove themselves when necessary from a decision-making process that can be fraught with implicit bias," the release from the civil rights group and the attorneys said.

Senate leader Phil Berger and private lawyers representing him and House Speaker Tim Moore in the case had no comment, a Berger spokesperson said Thursday.

The actual disqualification motion had not been ruled on as of Thursday, said Kym Hunter, an attorney representing the state NAACP.

The NAACP challenges amendments put on ballots by the Republican-controlled General Assembly creating a photo ID mandate and a 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. A law implementing the voter ID amendment remains blocked.

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