Redistricting challengers want Berger Jr. removed from case

By Mitch Kokai, Carolina Journal

Opponents of North Carolina's new election maps want the state Supreme Court to disqualify Justice Phil Berger Jr. from hearing their case.

Among a series of petitions and motions filed in the N.C. Supreme Court since Monday is a request to block Berger from considering lawsuits related to election redistricting.

"Here, Justice Berger, Jr.’s father, Senator Philip Berger Sr., is a named defendant in this case — 'a party to the proceeding,'” reads the motion from plaintiffs in the Harper v. Hall lawsuit. "The plain text of Canon 3C(1)(d)(i) thus unequivocally mandates disqualification. The parent-child relationship is a familial relationship of the first degree."

Harper v. Hall is a case challenging North Carolina's new congressional map. Plaintiffs in the suit are tied to former Obama-era U.S. Attorney General Eric Holder's national redistricting group and national Democratic elections lawyer Marc Elias.

"Indeed, Canon 3C(1)(d)(i) requires disqualification in situations where the appearance of impartiality is far more attenuated than here," according to the notion. "For instance, disqualification would be required if the spouse of a judge’s niece or nephew were a director of a corporation named as a party in a case. The appearance of impartiality is at its apex when, as here, the judge’s own father is a named defendant."

"It does not matter that Senator Berger is named as a defendant in his official capacity as Senate President Pro Tempore," the motion adds. "On its face, Canon 3C(1)(d)(i) makes no distinction between a judge’s family member named as a party in their personal, official, or any other capacity. It states without exception that disqualification is required if the judge’s family member '[i]s a party to the proceeding.'”

The argument for forced removal of Berger in Harper v. Hall is similar to the argument made in NAACP v. Moore, another case at the N.C. Supreme Court. In that case, plaintiffs want the court to disqualify Berger and colleague Tamara Barringer. The NAACP case will determine whether North Carolina can keep voter-approved constitutional amendments for voter ID and a lower state income tax cap. Carolina Journal addresses the controversy over NAACP v. Moore in detail at ExtremeInjustice.com.

The motion targeting Berger arrives along with a series of requests from plaintiffs in Harper v. Hall and another case, League of Conservation Voters v. Hall. Redistricting challengers in both cases want the state Supreme Court to step into the legal battle.

The challengers want the state's highest court to shut down candidate filing for elections linked to the new maps. Candidate filing in affected congressional and legislative races started Tuesday after a one-day delay.

The delay was tied to activity at the N.C. Court of Appeals. Just before filing was slated to begin at noon Monday, a three-judge Appeals Court panel issued a ruling blocking candidates from filling out their paperwork. Around 5:30 p.m. Monday, the full 15-member Appeals Court voted to reverse course. The court agreed to hear the redistricting challenges "en banc," holding a rare meeting as the full court.

If the Supreme Court responds to the redistricting challengers' request, justices would reverse the Appeals Court and shut down candidate filing.

Among the more than half-dozen documents filed to date in the Supreme Court on redistricting is a request from Democratic Gov. Roy Cooper and Democratic Attorney General Josh Stein. Cooper and Stein have a friend-of-the-court brief supporting the redistricting challengers. They oppose maps drawn by the Republican-led General Assembly.

There's no word on when the Supreme Court might issue a ruling.