All seven N.C. Supreme Court justices will take part in Wednesday’s oral arguments in a high-profile challenge of the state’s new election maps.
In separate orders, three justices announced they were rejecting requests for them to step away from the case.
Plaintiffs who want the high court to throw out the maps had sought disqualification of Republican Justice Phil Berger Jr. Legislative defendants who drew the challenged maps called for the recusal of Democratic Justices Anita Earls and Sam “Jimmy” Ervin IV.
Berger had been targeted because his father, as leader of the state Senate, is a named defendant in the case.
“Pursuant to an administrative order entered by this Court on December 23,
2021, and having reviewed and considered precedent established by this Court, the North Carolina Code of Judicial Conduct, and the arguments of the parties, plaintiffs’ motions to disqualify the undersigned is denied,” read Berger’s one-sentence response.
In a longer court order issued Jan. 7, Berger addressed in more detail his unwillingness to step away from cases in which Sen. Phil Berger, R-Rockingham, is sued in his official capacity. In that instance, Justice Berger refused to recuse himself from a case challenging two state constitutional amendments.
The Dec. 23 order Berger mentioned in his latest statement confirms each justice’s right to determine for himself or herself whether to consider a case.
That means Berger, Earls, and Ervin all had the chance to make their own decisions about the election map challenge.
“Subjectively, a Justice must be satisfied that she can be fair and impartial and that she can rule on the case based on the facts and the law,” Earls wrote in her 14-page order. “I have subjectively determined that I can and will be fair and impartial in carrying out my duties in this case.”
Earls also tackled objective issues raised by legislative defendants. She assured the order’s readers that she has no financial stake in the redistricting case and has no conflict of interest based on her past work litigating previous battles over election maps.
“Every Justice comes to the Court having had a prior career in some substantive area of law,” Earls wrote. “No one suggests that a former prosecutor now serving as a Justice must be disqualified from criminal cases because of a bias against criminal defendants. For similar reasons, multiple courts have repudiated the argument that a judge should be disqualified based on prior work as a civil rights lawyer.”
Legislative defendants targeted Ervin for recusal because he’s the only sitting justice running for re-election this year.
“I have concluded that there is no reasonable basis for questioning my ability to fairly and impartially decide this case,” Ervin wrote in an eight-page order.
The court agreed on Dec. 8 to shut down candidate filing and delay the 2022 primary election from March to May. Ervin disagreed with critics who alleged that his participation in that decision could have helped his re-election bid.
“I am unable to see how either the Court’s 8 December 2021 decision to stay further filing and postpone the primary or any decision that the Court might make concerning the merits of this case in the future will have any substantial or measurable impact upon my ability to obtain reelection to the Court later this year,” Ervin wrote.
“Simply put, any attempt to determine the effect of the 8 December 2021 order upon the outcome of this year’s judicial elections is nothing more than an exercise in speculation, particularly given that the 8 December 2021 order has the same effect upon my reelection campaign that it does upon the campaigns of every other candidate who has announced or will announce that he or she intends to seek election to the seat on the Court that I now occupy.”
With the full slate of justices scheduled to take part in the case, that means Democratic justices will outnumber Republicans, 4-3.
The court will consider whether to affirm or reverse a unanimous bipartisan three-judge Superior Court panel’s Jan. 11 decision in the case. The panel of two Republican judges and one Democrat upheld challenged election maps.
At stake is potential control of the N.C. House and Senate after this year’s general election, along with the partisan makeup of North Carolina’s 14 members of the U.S. House of Representatives.