This story was updated on Nov. 1 with new information about how the North Carolina Supreme Court has handled past motions to disqualify justices for conflicts of interest.
North Carolina courts are weighing challenges to a state law and a constitutional amendment that require voters to present a photo ID to cast a ballot. The two provisions were struck down by trial courts, and the 4-3 Democratic majority on the state Supreme Court will likely have the final say — after sorting through questions over two justices' apparent conflicts of interest.
The lawsuits began in 2018, when a racially gerrymandered North Carolina legislature put a series of constitutional amendments — including a voter ID mandate — on the ballot. Federal courts had struck down legislators' districts for discriminating against Black voters, and one court noted that the gerrymandered legislature's authority was an "unsettled question of state law" that should be decided by state courts.
The state NAACP and Clean Air Carolina filed a lawsuit challenging the legislature's authority to put the amendments on the ballot. They argued that "chaos will result if this undemocratically elected body is permitted to take such fundamental steps" as amending the constitution. But Dallas Woodhouse, then serving as the executive director of the state Republican Party, argued that a ruling to keep the amendments off the ballot would "eviscerate the separation of powers." Woodhouse raised the possibility of the GOP-led legislature impeaching any judges who struck down its amendments.
The courts declined to keep the amendments off the ballot, and voters ratified the ID mandate in November 2018.
The lame duck Republican-controlled legislature quickly met to pass a new voter ID law. Democratic legislators pleaded with them to wait until January, when a legislature that wasn't racially gerrymandered would be seated. But the GOP supermajority insisted on passing a strict voter ID bill while it still had enough votes to easily override a veto by Democratic Gov. Roy Cooper.
Judges strike down ID laws
Voting rights advocates immediately challenged the bill in federal and state court.
The federal lawsuit relied on a previous ruling that struck down North Carolina's 2013 voter ID law, which the 4th U.S. Circuit Court of Appeals in Virginia found targeted Black voters "with almost surgical precision." The lower court struck down the new voter ID law, but the 4th Circuit overturned the decision in December 2020. While it acknowledged a history of voter suppression, the 4th Circuit criticized the trial court for considering the legislature's recent history "to bear so heavily on its later acts that it was virtually impossible for it to pass a voter-ID law that meets constitutional muster."
Last month brought a ruling in the state lawsuit, when a panel of three state Superior Court judges in Raleigh struck down the law for violating the state constitution, which says that no one shall be "subjected to discrimination by the state because of race, color, religion, or national origin." The court partly attributed the legislature's motivation in passing the voter ID requirement to an intent to keep Black voters from casting ballots.
"Other, less restrictive voter ID laws would have sufficed to achieve the legitimate nonracial purposes of implementing the constitutional amendment requiring voter ID," the court found.
The panel's only Republican, Judge Nathaniel Poovey, dissented. "Not one scintilla of evidence was introduced during this trial that any legislator acted with racially discriminatory intent," he argued.
The voter ID amendment, which legislators cited in defending their voter ID law, was struck down by Superior Court Judge Bryan Collins in 2019. He held that legislators lost their "claim to popular sovereignty" when the U.S. Supreme Court ruled their election districts unconstitutional. "An illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state's constitution," Collins ruled.
State Senate Leader Phil Berger Sr. called the ruling "absurd" and claimed that "the idea of judicial restraint has completely left the state of North Carolina."
Legislative leaders appealed the ruling, and last year a panel of three state appellate judges overturned Collins' decision. The ruling by Judge Chris Dillon, a Republican, said that North Carolina courts don't have "power to deprive the General Assembly of authority … granted that body by our state constitution."
By this time Clean Air Carolina had dropped out of the case, so the NAACP appealed to the North Carolina Supreme Court. The justices were scheduled to hear oral arguments in August, nearly a year after the appeals court ruling, but they've been delayed by an intense debate over whether two justices should sit out the case due to conflicts of interest.
A justice's dad is a defendant
As a former Republican legislator, Supreme Court Justice Tamara Barringer voted to put the voter ID amendment on the ballot in 2018. And Justice Phil Berger Jr. is the son of the Senate leader who is a defendant in the case. The NAACP lawsuit challenges the legislative authority of Barringer and Berger Sr.
The court's ethics rules clearly require judges to sit out cases involving themselves or their relatives, stating that judges shouldn't hear any cases in which they could appear biased. But conservative media outlets from Wall Street to Raleigh have castigated the court for the possibility that it will enforce its ethics rules and require the justices to sit out the case. Woodhouse, who now writes for the conservative Carolina Journal, referred to what's happening as a dangerous effort "by Democrats on the court to upend 200 years of case law for partisan political purposes."
Despite the alarmist rhetoric, high court justices in other states have been routinely disqualified from cases by their colleagues due to conflicts of interest. This year, for example, the Georgia Supreme Court required Justice Carla Wong McMillian to sit out a few cases on which she had ruled as a lower court judge.
The North Carolina Supreme Court itself has ruled on three similar motions in voting rights cases, and each time, the justice remained on
it decided that the justice could hear the case. This time, though, the court could decide differently.
On Sept. 29, the court asked the parties to the case a series of questions about how it should handle motions to disqualify. The justices seem to be asking whether Barringer and Berger should decide the motions themselves, but they cited a state law that requires a quorum of four justices to take action.
The court called on the parties to recommend "written rules" on how it should handle motions to disqualify. The Institute for Southern Studies, the nonprofit publisher of Facing South, and other pro-democracy advocates have called on the court or the legislature to establish a clear, transparent process.
The court also asked legislators and the plaintiffs if elected justices have an "individual constitutional right to participate in deciding every case" — and that presumably includes any case in which a judge has a conflict of interest. However, the court's ethics rules would likely have mentioned any such right, and they do not. And it likely would've been discussed by the U.S. Supreme Court when it ruled in 2009 that the U.S. Constitution required a West Virginia judge to sit out a lawsuit against a company owned by coal mogul Don Blankenship, who had spent millions of dollars to get the judge elected.
The court gave the plaintiffs and legislative leaders a month to answer its questions. Once the court decides if the two justices can hear the case, it will finally hear arguments on whether a racially gerrymandered legislature can amend the constitution.
Justice Berger's conflict of interest could again become an issue later this year if the court reviews more rulings related to gerrymandering. Legal experts are already predicting that North Carolina's new election districts, which haven't yet been approved, will be challenged in court. In 2019 a state court ruled that extreme partisan gerrymandering violates the state constitution.
Sen. Berger will likely be the defendant in any redistricting lawsuits, and Justice Berger will be faced with another ethical dilemma. In a recent op-ed on the issue, Duke University law professor James Coleman said that "the bedrock of our legal system is the trust that judges will be impartial and administer justice free from personal interests. Judges must avoid any circumstance that erodes the public trust."