Forcing 2 Republican NC justices to recuse themselves would be a power grab by Dems

The future legitimacy of the North Carolina Supreme Court is at stake.

In its latest legal maneuver, the NAACP is working to get two N.C. Supreme Court justices removed from presiding over their lawsuit to stop implementation of the voter ID and income tax cap proposals. Their arguments to force recusal from such a critical case are politically motivated rather than legitimate questions of law. Here’s why.

The NAACP’s suit challenges only two of the four constitutional amendments that passed in statewide elections in 2018, claiming that because federal courts had ruled that the N.C. General Assembly was comprised of legislators from gerrymandered districts, the legislature was a de facto “usurper government” and therefore did not have authority to put the amendments on the ballot in the first place.

Judge Chris Dillon, ruled against the NAACP in the Court of Appeals, writing, “If there was a loss of popular sovereignty by our General Assembly, then all the laws passed by that body would be subject to attack, thus creating chaos and confusion.”

Setting aside that both amendments were passed through direct democracy, the NAACP filed a motion with the state Supreme Court to forcibly recuse Justices Tamara Barringer and Phil Berger, Jr. from the case. This would be an unprecedented power grab that would overturn 200 years of case law and prior precedents.

Based on questions presented to legal teams, the Supreme Court appears to be actually considering this recusal motion and voters should be alarmed.

In effect, the four-person Democratic majority could usurp the rule of law with no oversight or recourse for citizens, outside of impeachment by the General Assembly.

The NAACP’s argument to recuse Barringer is that she was a legislator during the session that passed these constitutional amendments. However, state history is replete with justices ruling on cases questioning the laws they voted for as legislators. Henry Frye, North Carolina’s first Black chief justice, served in the General Assembly for 13 years before serving 18 years on the court. The idea that he did not rule on laws for which he voted is impractical.

Further, the idea that justices like Frye were unable to “perform the duties of the judge’s office impartially and diligently,” according to the N.C. Code of Judicial Conduct, dismisses the faith voters placed in them. The argument to force Barringer to recuse herself is just as silly.

The NAACP’s argument to recuse Justice Phil Berger Jr. is that his father is the president pro tem of the N.C. Senate. Berger is listed as a defendant in the case — in his official capacity. That last detail is critical.

Phil Berger Sr., the justice’s father, is not a defendant in the case. The state of North Carolina is the defendant and the named person is the leader of the state Senate. Justice Berger’s father is not on trial — the state is. Any argument that this is a case of a son judging his father is a gross misinterpretation.

The question is whether the Democratic majority of the N.C. Supreme Court will forcibly oust two Republican justices from the case, disenfranchising the more than 2 million voters who approved each of the amendments in 2018 and the 2.7 million voters who voted for Barringer and Berger in 2020.

Such a move would amount to a bloodless coup of state government. The forced recusal of two justices on flimsy partisan arguments would be unprecedented. It would allow a partisan majority to rule as they please and create an anti-democratic precedent for removing inconvenient judges at any level of the state’s judicial system.

In our politically charged environment, it is easy to become tribal and distrustful of others based on their party affiliation. The precedent that would be set through a forced recusal would allow whichever party held the court majority to usurp law as it pleased and perform a judicial coup of government at a whim. Citizens will question the court’s legitimacy altogether and spin North Carolina into a constitutional crisis.