Legislative defendants in North Carolina’s legal fight over new election maps are seeking Supreme Court Justice Sam “Jimmy” Ervin IV’s recusal from the case.
If Ervin, a Democrat, agrees with the request, the state’s highest court could face a 3-3 partisan split when justices review the case as early as next week.
Legislative leaders filed the recusal motion Thursday.
“Justice Samuel J. Ervin IV is the only sitting justice on this Court who is currently up for re-election in November 2022 and, therefore, the only sitting justice on this Court who may face a primary if another Democratic candidate files for his seat,” according to the motion from attorney Phil Strach, representing legislators in multiple lawsuits challenging legislative and congressional election maps.
“Decisions that he makes on redistricting may impact voter turnout or other factors of the general election,” Strach wrote of Ervin. “Decisions Justice Ervin makes directly about the election process could impact his own electability and creates a situation where his own impartiality may reasonably be questioned. Justice Ervin’s perfectly natural desire to continue public service as a Justice on the North Carolina Supreme Court is an interest that could be substantially affected by the outcome of this proceeding. Accordingly, Justice Ervin should follow the examples of other jurists and recuse himself from consideration of these matters.”
The motion arrives on the same day that a three-judge Superior Court panel wrapped up a four-day trial on the contested election maps. The panel’s ruling in the case is expected by Tuesday.
The state Supreme Court has ordered that any appeal from that ruling will bypass the N.C. Court of Appeals and head straight to the state’s highest court. The appeal must be filed within two business days of the three-judge panel’s ruling.
The recusal motion targeting Ervin arrives just days after the public learned about a Dec. 23, 2021, Supreme Court order on recusal of justices. In rejecting a request to remove two Republican justices from another case, the court confirmed its longstanding practice that decisions about recusal remain with the individual justice. A justice can put his recusal up to a vote of his colleagues, but he is under no obligation to do so.
The motion for Ervin’s recusal cites other recent examples of justices and judges taking similar actions.
“When previous justices have found their own race on the ballot and faced the constitutionality of election laws applicable to their election cycle, they have recused themselves,” Strach wrote. “For instance, in Faires v. State Bd. of Elections [in 2016], this Court was called upon to examine the constitutionality of retention elections for this Court. One of the justices, Justice Robert H. Edmunds Jr., was up for election in that cycle, and he, without motion from any party, ‘took no part in the consideration or decision of this case.’”
Nor did current Justice Robin Hudson take part in a previous redistricting case that reached the Supreme Court during her 2006 re-election bid.
“More specific to this election cycle, Superior Court Judge Paul C. Ridgeway recused from hearing any election law cases in this 2022 cycle,” Strach wrote. “In his letter to the Chief Justice, Judge Ridgeway noted that his ‘obligation under the North Carolina Code of Judicial Conduct is to carefully consider whether, as a candidate, [his] impartiality as a judge could reasonably be questioned when ruling on matters directly impacting the administration of the 2022 primary and general elections.’”
Ervin isn’t the only justice targeted for removal in the redistricting case. Before the Supreme Court issued its Dec. 23 order, challengers of North Carolina’s election maps had filed a motion seeking the “prompt disqualification” of Republican Justice Phil Berger Jr. Berger was targeted for removal because his father, in his official capacity as leader of the N.C. Senate, is a named defendant in the redistricting lawsuits.
The Dec. 23 order ensures the rest of the Supreme Court will not act to remove Berger, Ervin, or any other justice from a case against the justice’s will.
There’s no word on when Ervin will respond to the motion for recusal.