GOP justices asked to recuse themselves in Voter ID case

By Cash Michaels

If your father is one of the principals in a major voter ID case coming before your court, should you stand down, rather than raising questions about your court’s impartiality?

That’s the question NC Supreme Court Associate Justice Phil Berger Jr. is facing in the case of NAACP v. Moore and Berger. An order was issued last week for legal briefs dealing with questions about the recusal of two associate justices in the matter. Berger Jr. is one of them.

Justice Berger Jr.’s ability to fairly judge NAACP v. Moore and Berger is at question because one of the defendants named is NC Senate Pro Tem Phil Berger Sr., his father. The NC NAACP has petitioned the court for Berger Jr. to be recused since he won’t do it himself. The state’s judicial ethics code of ethics requires him to do so if a case involves a close family member, or even the appearance of conflict of interest, but thus far, Berger Jr. shows no signs of stepping off.

Justice Berger Jr. reportedly argues that he should remain because his father is being sued in his official, not personal capacity.

The case - the NC NAACP suing the Republican-led NC General Assembly under legislative leadership of Berger Sr. and House Speaker Tim Moore - is over passage of the 2018 voter ID amendment which the NC NAACP maintains the legislature was not legally empowered to ratify, nor the law derived from it valid, because the federal courts had previously ruled that 28 of the voting districts that that legislature was constituted of were illegal racial gerrymanders.

At issue per Associate Berger Jr. recusing himself in this case, is whether the NC High Court has the authority to involuntarily require him to do so. The stakes are high because the NC Supreme Court has a 4-3 Democrat/Republican split.

If Berger Jr. is removed, then at least one GOP conservative judge will not hear the case, and conservatives are desperately trying to keep that from happening.

They also very much want Berger Jr. to stay put so that not only the voter ID amendment, but the 2018 voter ID law that it is based on, remains intact.

Interestingly, this is all happening after a three-judge state Superior Court panel ruled recently that the 2018 voter ID law was unconstitutional because of its negative affect against Black and brown voters. That ruling is expected to be appealed.

Justice Berger Jr. isn’t the only Republican associate justice on the recusal hot seat. Associate Justice Tamara Barringer is a Republican former state senator who served right before being elected to the state Supreme Court in 2020. She also is facing questions about her ability to fairly rule, given her previous legislative involvement in voting for the 2018 voter ID amendment, and law.

The oral argument in NAACP v. Moore before the state Supreme Court was pulled from the court calendar in late August when neither Berger Jr nor Barringer responded to recusal inquiries, thus putting the rest of the court in the position of having to decide for them.

Ultimately, if justices Berger Jr and Barringer are forced to recuse themselves, the High Court’s 4-3 partisan split dramatically drops to 4-1 for this case, setting a precedent that could automatically affect subsequent cases.