Legislative defendants in North Carolina’s redistricting lawsuits are opposing efforts to have Supreme Court Justice Phil Berger Jr. disqualified from the case.
In a brief filed Monday, the Republican defendants argue there’s no reason for Berger, also a Republican, to step away from the high-profile dispute over congressional and legislative election maps.
Critics urge Berger’s disqualification because his father serves as leader of the state Senate. Sen. Phil Berger’s official title is president pro tempore.
“Justice Berger has noted in a separate case challenging the constitutionality of amendments to the Constitution, wherein North Carolina Senate President Pro Tempore Berger is a party in his official capacity, that he can impartially and faithfully execute his role as a Justice in suits against the State,” according to the brief from attorney Phillip Strach. “The question is whether this redistricting challenge warrants a different recusal outcome than other suits challenging a North Carolina law. It does not.”
Strach disputed arguments from election map challengers, identified in this instance as “movants.”
“Movants argue that Senator Berger is more directly implicated in this case than in others. But that is not the case,” Strach wrote.
“It is true that Senator Berger’s senate district is challenged as a gerrymandered district; however, that is not why he is named party in his official capacity,” Strach added. “It is also misleading to suggest that the redistricting challenge here isolates Senator Berger apart from the dozens of other incumbent senators whose districts are being challenged in this litigation.”
“This litigation covers multiple congressional, state House, and state Senate districts. Further, the boundaries of Senator Berger’s district in the enacted maps were the subject of an amendment proffered by Senator Ben Clark, a Democrat, and supported openly in the Senate Standing Committee on Redistricting and Elections by Senator Gladys Robinson, an incumbent Democrat from Guilford County.”
“Senator Berger did not draw any of the boundary lines that are in question and even had an excused absence from voting on the enacted North Carolina Senate plan,” Strach added.
Strach also took aim at the argument that Justice Berger should avoid the case because of Sen. Berger’s role in appointing committee members during the redistricting process.
“That the President Pro Tempore of the Senate appoints senators to committees does not set the redistricting process apart from other legislation, but instead makes it similar to the process of other legislation,” Strach wrote. “Nearly all legislation in North Carolina is authored or sponsored by legislators and travels through committees appointed in part by the President Pro Tempore of the Senate before becoming law. There is no reason why this fact would support a unique basis for recusal of Justice Berger: his father is still named only in his official capacity.”
“At the end of the day the relevant decision for Justice Berger is whether this case presents itself as something other than a suit against the State,” Strach concluded. “It does not.”
Based on a Dec. 23 Supreme Court order, Justice Berger will make his own decision about whether to take part in the case. He already has decided to reject a similar request for disqualification from a case addressing two high-profile constitutional amendments.
Despite the Dec. 23 order, plaintiffs in the redistricting case titled Harper v. Hall have asked for Berger’s disqualification. Harper plaintiffs issued a Jan. 11 motion renewing their original Dec. 7 request for Berger to step away from the case.
On the other side of the case, defendants have challenged Democratic Justices Anita Earls and Sam “Jimmy” Ervin IV for potential recusal.
In contrast, a separate group of plaintiffs led by the N.C. League for Conservation Voters has asked all seven N.C. Supreme Court justices to take part in the redistricting case.
Oral arguments in the case are scheduled Feb. 2.