Voters would bear the brunt of the harm if the N.C. Supreme Court decides to boot two of its members from considering a high-profile case involving voter ID.

That’s a key message from a friend-of-the-court brief filed Thursday by the N.C. Institute for Constitutional Law and the John Locke Foundation.

“[We] believe that involuntary recusal of an elected justice would impair the rights of voters and compromise the constitutionally mandated selection of Justices by statewide election,” writes Jeanette Doran, NCICL president and general counsel. “Forcing the disqualification or recusal of a Justice would message to voters that their votes do not matter, that the Supreme Court could effectively override election results on a case-by-case basis, and that voters in future elections should not bother to participate in judicial elections. That should not be the Court’s message.”

The Supreme Court could decide soon whether to force Justices Tamara Barringer and Phil Berger Jr. to avoid taking part in a case titled NAACP v. Moore. The case will determine the fate of two 2018 state constitutional amendments. One mandates photo identification for voters. The other lowers a cap on state income tax rates.

Opponents of the two amendments want Barringer and Berger forcibly removed from the case. Without the two justices, both Republicans, Democrats on the Supreme Court would hold a temporary 4-1 majority in deciding the case’s outcome.

Carolina Journal has led coverage of ongoing developments in the case.

“The North Carolina Constitution places the selection of Justices firmly in the hands of voters,” Doran writes in the joint NCICL/Locke brief. “The election of Justices is not a suggestion, it is a constitutional mandate. Involuntary recusal would unconstitutionally violate the right of the people to elect Justices in violation of Article IV, [Section] 16.”

The Supreme Court has asked whether the fact that a justice is elected makes a difference. “The answer to that question is a resounding ‘Yes!,’” Doran writes. “The people elect Justices in a statewide election, and their votes matter. The fact that Justices are elected must be part of this Court’s calculus.”

North Carolina’s constitution has called for election of justices since 1868. Despite many revisions to the state constitution over the past 153 years, North Carolinians have “zealously safeguarded” their right to elect members of the state’s highest court, Doran writes.

“A forced recusal would amount to the Court elevating its seven votes over the votes of all other North Carolinians in determining who shall sit on the Court,” she adds.

Plaintiffs object to Barringer’s participation in the constitutional amendments case because of her previous role as a state senator. She served in the General Assembly when that body voted to place the amendments on the 2018 ballot. Berger faces opposition because his father, leader of the state Senate, is a named defendant in the case in his official capacity.

Voters were aware of the two prospective justices’ backgrounds when they elected them to the court in 2020, Doran argues. “Combined, Justices Barringer and Berger received a total of 5,470,066 votes, votes Plaintiff-Appellant now asks this Court to ignore.”

“Voters were aware of this case — including the appeal now at this
Court — before they elected Justice Barringer and Berger, justices whose professional and personal lives were well-known,” Doran writes. “This timing is critical.”

Removal of the two justices could have an impact on future elections. “A forced recusal of either Justice would be a repudiation of the constitutional right of the qualified voters of the State to elected justices,” Doran writes. “It would be a slap in the face of voters who took time to educate themselves about the candidates and to participate in the electoral process. It would discourage voter participation in future elections, especially judicial elections.”

Doran also takes aim at the timing of the plaintiffs’ motion to remove the two justices. “Justices Barringer and Berger were elected in November 2020, but Plaintiff-Appellant did not file its Motion to Disqualify until July 2021, little more than a month before the case was set for oral argument and many months after briefing. That delay constitutes a waiver,” she writes.

“Neither the Constitution nor a statute authorizes the Supreme Court to remove or suspend a Justice from participation in a case,” Doran adds. “The Constitution requires selection of Justices by the qualified voters of the State. Forced removal of a Justice by the Court risks reducing the Court to a fraternity-style, ‘we-pick-our-own-members’ club.”

Thursday marked the deadline for parties in the case to submit arguments for and against forced removal of justices. Lawyers on both sides will get additional time to answer opposing arguments.

It’s not clear when the Supreme Court will make a decision on whether to remove Barringer and Berger. Only after that issue is resolved can the court proceed to hear the case targeting the two constitutional amendments.