Full NC Supreme Court clears Berger to take part in voter ID case

N.C. Supreme Court Justice Phil Berger Jr. administers an oath of office. (Screen shot from ncleg.gov)

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  • The full N.C. Supreme Court has agreed that Justice Phil Berger Jr. can participate in the rehearing of the Holmes v. Moore voter identification case.
  • Court rules allowed Berger to make the decision himself, but he submitted it to his colleagues. The order allowing him to participate in the case shows no indication of any dissenting votes.

Just hours before the N.C. Supreme Court was scheduled to reconsider a case dealing with North Carolina’s voter identification law, the full court issued an order clearing Justice Phil Berger Jr. to take part in the new oral arguments.

The order dismissed a motion from voter ID critics for Berger’s recusal. Based on the court’s rules, Berger could have addressed the request himself. The justice instead submitted the decision to the rest of the court. He took no part in the decision.

The order Wednesday signed by Justice Trey Allen indicates that the justices made their decision “in conference.” There is no indication of dissent by any of the other six members of the state’s highest court.

The latest order arrived two days after Justice Tamara Barringer signed an order turning down a request for her recusal in the same case. That means the full seven-member court will hear and consider the case known as Holmes v. Moore.

Plaintiffs had filed motions on March 3 asking both Republican justices to remove themselves from the case.

“Justice Barringer’s impartiality may reasonably be questioned for several reasons,” wrote attorneys for the plaintiffs challenging North Carolina’s 2018 voter ID law. “As a North Carolina Senator, Justice Barringer actively participated in the events at issue in this case; repeatedly voted in favor of a law that Plaintiffs-Appellees proved at trial was enacted with unconstitutionally discriminatory intent; witnessed firsthand many of the relevant events that were the subject of proof at trial; and has personal knowledge of disputed evidentiary facts, including relevant facts outside of the record, concerning the legislative process that led to the enactment of the law in question in this case.”

Barringer dismissed the motion seeking her recusal as moot.

“I have concluded that I can and will be fair and impartial in deciding the rehearing” of Holmes v. Moore, Barringer wrote. She noted that she had rejected an “almost identical” motion in the same case over one year ago.

Barringer considered the arguments for recusal, “giving special attention to the possibility, however remote, that any material circumstances may have changed since my previous decision in this case, and it is self-evident that no facts or circumstances of my State Senate service have or even could have changed since I left that office on December 31, 2018.”

While voter ID critics questioned Barringer’s role as a state senator, they targeted Berger because his father serves as the Senate’s top officer. In that role, the older Phil Berger is a named defendant in the case.

Berger Jr. has rejected previous requests for recusal based on his father’s job. He has explained that the older Berger is sued in his official capacity, not as an individual or because of his personal actions.

In a 4-3 ruling issued on Dec. 16, the outgoing state Supreme Court affirmed a trial court decision ruling the voter ID law unconstitutional. That decision fell along party lines, with the high court’s Democrats outvoting their Republican colleagues.

The decision arrived just two weeks before two Republican justices replaced Democrats on the state Supreme Court.

Now with a 5-2 Republican majority, the court agreed in February to rehear Holmes v. Moore. Once the oral argument for the rehearing concludes Wednesday, there is no timetable for a decision from the state’s highest court.

If the court reverses its earlier ruling, voter ID could be reinstated for future N.C. elections.

But action in state court wouldn’t end the legal challenges against voter ID. A federal lawsuit against the 2018 voter ID law remains active in the U.S. District Court’s Middle District. No action has taken place in the federal case since July 2022.