Recusals of 3 North Carolina High Court Justices Sought in Fight Over Redistricting Maps

The recusals of three North Carolina Supreme Court justices are being sought in the legal fight over redistricting maps.

Lawyers for Republican legislative leaders on Wednesday requested the recusal of Associate Justice Anita Earls because of her prior ties to groups connected to the plaintiffs in the case over redistricting.

A three-judge panel refused to throw out the new maps of congressional and legislative districts approved by the GOP-controlled General Assembly for future elections in a Tuesday ruling. Plaintiffs in the case filed appeal notices with the state Supreme Court shortly after.

Republican legislative leaders' lawyers already asked that Associate Justice Sam Ervin IV be removed, as the court's decision could impact him. He is the only sitting member running for re-election this year.

On late Tuesday, attorneys representing a group of voters that challenged the maps again called for the recusal of Associate Justice Phil Berger Jr., as his father, state Senate leader Phil Berger, is a defendant. Phil Berger Jr.'s district is being challenged, as well.

The court signaled last month that this case is expected to have a fast-paced hearing schedule. State election officials said the final maps are needed by mid-February so the primary, which was already postponed once, scheduled for May 17 remains on time. Legislators have two weeks to address unlawful districts under state law.

North Carolina Redistricting Justices
The recusals of three North Carolina Supreme Court justices are being sought in the legal fight over redistricting maps. Above, protesters attends a rally for "Fair Maps" on March 26, 2019, in Washington, D.C. (Photo by Tasos Katopodis/Getty Images)

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.

North Carolina Supreme Court Justices, Recusals Request
This photo provided by the North Carolina Administrative Office of the Courts shows Associate Justice Anita Earls. Lawyers for Republican legislative leaders asked on January 12, 2022, that Earls be recused because of previous ties to groups involved with the plaintiffs. North Carolina Administrative Office of the Courts via AP

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 litigation. 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.

The Associated Press contributed to this report.

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