Guest Opinion: New rule could offer useful information for Supreme Court elections

Published 6:58 am Tuesday, January 25, 2022

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By Mitch Kokai, Carolina Journal

It’s not easy to find helpful information about N.C. Supreme Court justices running for re-election. But a new court rule might offer additional insights that can help voters heading to the polls.

Many voters will look no further than the R or D after a candidate’s name on the election ballot. But those who hold no core allegiance to either party face a tougher choice.

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They can seek out an incumbent justice’s written opinions. They can search for clues from votes the justice has taken in other cases. They can scour campaign websites for generalities about a justice’s legal philosophy.

Each of those sources of information can prove useful. Now we can add another item to the list: official statements the justice issues when one party in a case asks him to step aside.

Those statements will be based on a new court order, issued just before Christmas. It establishes new rules dealing with judicial recusal.

For more than two centuries, little information emerged from the court about a justice’s decision to take part in or avoid a particular case. A decision to step away from a case, also known as “recusal,” remained with the justice himself. He faced no obligation to explain his choice.

Under terms of the new order, the individual justice maintains the ultimate decision-making authority. But he also can turn the decision over to his colleagues for a vote. If a party in a case asks for his recusal, the court must announce whether the justice acted unilaterally or called on colleagues when making the decision.

We’ve already seen the impact of the new rule. On Jan. 7, the court’s two newest justices, Republicans Tamara Barringer and Phil Berger Jr., issued separate orders. Both explained why they were rejecting requests that they step away from a high-profile case dealing with two state constitutional amendments. One amendment guarantees voter ID for elections. The other lowers the state’s income tax cap.

The recusal rule says only that the court must announce whether Barringer and Berger made the decisions themselves or left the decisions to a vote among colleagues. But both justices used their orders to explain why they decided to hear the amendments case.

Barringer had been challenged because she served as a state senator when the General Assembly voted to place the targeted constitutional amendments on the N.C. ballot in 2018. In her response, she noted that more than half of her predecessors as Supreme Court justices had prior service in the legislature. None had decided categorically to avoid dealing with cases involving legislation they had considered.

Meanwhile, critics sought Berger’s recusal because his father leads the state Senate. In that role, Sen. Berger is a named defendant in the amendments case. Berger the justice explained in his order why he is not backing away from the dispute.

“This Court has repeatedly held that ‘[a] suit against a public official in his official capacity is a suit against the State,’” Berger Jr. wrote. “With this straightforward precedent, a reasonable person would understand that a suit against a government official in his or her official capacity is not a suit against the individual.”

Voters elected Barringer and Berger in 2020. Neither faces re-election until 2028. But one suspects that both could have recurring opportunities over the next six years to address recusal requests.

Of more immediate interest to N.C. voters is the case of Democrat Justice Sam “Jimmy” Ervin IV. His seat is one of two up for grabs this year. He is the only incumbent seeking re-election.

Legislative defendants in a lawsuit challenging N.C. election maps have asked for Ervin’s recusal. They argue that any decision Ervin makes about candidate filing or election dates could have an impact on his own race.

They cite precedents from 2006 and 2016. One involved a Democratic justice; the other featured a Republican. Both recused themselves from election-related suits that could have affected their own bids for office.

An Ervin recusal could leave the high court with a 3-3 partisan split when making a decision about the highly political issue of electoral redistricting. If the remaining justices deadlock with a party-line vote, a lower court ruling upholding the maps would stand. The Supreme Court would set no new redistricting precedent.

On the other hand, if Ervin sticks with the case and justices split along party lines, he would end up casting the deciding vote. The ruling undoubtedly would generate criticism about partisan bias.

It’s a tough choice for Ervin. But it’s a choice that could prompt him to reveal more information to the public. If he follows Barringer and Berger’s lead in the amendments case, we could learn more about why Ervin will or will not consider the redistricting dispute.

That’s information that could help voters heading to the ballot box later this year.

Mitch Kokai is senior political analyst for the John Locke Foundation.