The North Carolina Supreme Court will soon decide whether the state legislature lost its authority to put constitutional amendments on the ballot after federal courts ruled in 2018 that 28 of its state legislative districts were illegal racially gerrymanders. One of the legislators who voted to put the amendment on the ballot now sits on the state Supreme Court, as does the son of the Senate majority leader who oversaw the amendment's passage. And it's not yet clear if these two justices will recuse themselves.
State ethics rules require the justices to sit out cases involving their relatives, as well as any case in which they might appear biased. Oral argument in the case, scheduled for last month, has been indefinitely postponed. Legislators and the North Carolina NAACP, which filed the lawsuit, have submitted their briefs.
The case began in the summer of 2018, months after the federal courts had made it clear that legislature's racially gerrymandered districts violated the U.S. Constitution and the Voting Rights Act. Before voters could choose new representatives in redrawn districts, the legislature voted to put a series of amendments to the state constitution on the ballot.
Two of the amendments — a voter ID mandate and a lowering of the constitutional cap on income taxes — passed the legislature by only a few votes, which might not have been possible without the discriminatory election districts. The NAACP sued the legislature in state court and challenged its authority to put them on the ballot.
The courts didn't take the amendments off the ballot, and they were ratified by voters in November 2018. The lame-duck Republican supermajority quickly passed a voter ID statute to implement the amendment, though this law was later blocked by state courts.
In 2019, Wake County Superior Court Judge Bryan Collins struck down the two amendments, ruling that the racially gerrymandered legislature had "lost its claim to popular sovereignty." His decision said the legislature "did not represent the people of North Carolina."
Collins' ruling was overturned by a three-judge panel of the North Carolina Court of Appeals last year. The ruling by two Republican judges suggested that Collins had overreached, and one of them argued there was "no North Carolina law to support" his decision. Judge Reuben Young, who is Black and a Democrat, dissented. "Only a legislature formed by the will of the people, representing our population in truth and fact, may … amend or alter the central document of this state's laws," he argued.
The NAACP appealed to the North Carolina Supreme Court, which has a 4-3 Democratic majority. The NAACP asked two of the newly elected justices to recuse themselves: Justice Phil Berger Jr., son of Republican Senate Majority Leader Phil Berger Sr., and Justice Tamara Barringer, a former Republican legislator. Berger Sr. and the Republican House speaker are defendants in the case. Before the group received an answer, the court postponed arguments in the case without saying why.
A first-degree connection
The North Carolina Code of Judicial Conduct requires judges to recuse themselves from any case "in which the judge's impartiality may reasonably be questioned." The rules specifically demand recusal in cases involving "relatives within the third degree," which encompasses immediate family members, as well as first cousins and nieces or nephews. A parent-child relationship is within the first degree under state law. Judges must also sit out cases if they have any "interest" that could be impacted by the outcome.
The NAACP's brief emphasizes that the rules require recusal even if there is just an "appearance" of bias. With respect to Barringer, the NAACP argued that she was "more than a participant, she was a decisionmaker in enacting the legislation that this case challenges and therefore … would be serving as judge of her own actions."
The defendants responded to the arguments for recusal by pointing to contrary decisions by courts in other states. With respect to Berger's father being a defendant, they argued that "courts often make the distinction between official capacity suits and suits against an individual when considering recusal motions." They asserted that "Senator Berger is a party in name only" and not one of "the real parties." Legislators similarly argued that Barringer shouldn't be recused because "participation in shaping the law as a legislator does not typically require recusal when that law comes before the former legislator as a judge."
When Berger served on the Court of Appeals, he recused himself when the court decided whether to review the decision blocking the voter ID statute. But the justice didn't explain the reason for his recusal, and the rules don't require him to provide one.
Dallas Woodhouse, former executive director of the North Carolina Republican Party, wrote about the request to recuse Barringer and Berger for Carolina Journal, a magazine published by a nonprofit founded and largely funded by major GOP donor Art Pope that has also received funding from Republican Chief Justice Paul Newby's wife. Woodhouse predicted that a majority of Democratic justices would vote to require Barringer and Berger to recuse themselves, calling that outcome a "bloodless coup d'état" and an "astonishing and unprecedented power grab." In 2018, when Woodhouse led the state GOP, he floated the idea of impeaching the Democrats on the state Supreme Court if they ruled against the legislature in a pending case.
An editorial in Raleigh's News & Observer suggested that it would be unrealistic for ethics rules to require Berger to recuse himself in every case in which his father is sued over laws that may be unconstitutional. But the court's ethics rules are clear. The justices could create an exception to the ban on hearing cases involving relatives, but they haven't.
Conflicts on the court
It's not even clear if Berger and Barringer will decide the recusal question for themselves. North Carolina isn't among the 15 states, including five in the South, that require recusal decisions be made by the entire court and not just the justice with a possible conflict of interest. Democracy advocates including the Institute for Southern Studies, publisher of Facing South, have called for stronger judicial ethics rules in North Carolina.
These ethical issues are likely to keep coming up for Barringer and Berger as well as other North Carolina judges on both sides of the aisle. Last week, for example, a group challenging the state's ban on voting for people on probation or parole also requested Berger's recusal from the case because his father is a defendant. And when Berger won a high court seat last year, his vacant seat on the Court of Appeals was filled by state Rep. Darren Jackson, who was the Democratic leader in the House.
North Carolina isn't the only state with former legislators or relatives of legislators serving on the high court. In South Carolina and Virginia, the only state where the legislature picks judges, the bench is filled with former lawmakers and people connected to them. Recently, Ohio Supreme Court Justice Pat DeWine explicitly recused himself to avoid any appearance of bias in a case challenging a policy enacted by his father, Gov. Mike DeWine.
The North Carolina Supreme Court has weighed a few conflicts of interest related to voting rights in the past decade, and each time the court decided against recusal. Justice Anita Earls, a Democrat elected in 2018, was asked to sit out the case involving the 2019 voter ID statute due to her involvement in litigation against a previous voter ID law. But the court let her remain on the case.
Justice Paul Newby was twice asked to recuse himself, once in 2012 and again three years later, when the court was deciding whether the election districts were racially gerrymandered. A GOP group that helped draw the districts spent big to reelect Newby in 2012. The court, which had a conservative majority, didn't require Newby's recusal. And he wrote one of the decisions upholding the districts, though both rulings were overturned by the U.S. Supreme Court.
Those conflicts of interest were less obvious than in the current case. The North Carolina high court's ethics rules are clear that judges must avoid any appearance of bias by sitting out cases involving themselves or their relatives.