Opinion | Scorched-Earth Judging in North Carolina

Donald Trump tried to overturn at least three state elections in 2020. But liberal groups in North Carolina are trying to overturn or sidestep four separate elections in that state from 2018 and 2020. Unlike the U.S. Supreme Court in 2020, a filing last week suggests North Carolina’s Supreme Court is willing to entertain the political revanchists’ claims.

The scorched-earth politics at work are elaborate, so bear with us. The two elections immediately under fire are a 2018 state referendum capping North Carolina’s income tax at 7% and another referendum requiring photo identification for in-person voting in the state.

North Carolina’s constitutional amendment process requires a three-fifths majority of the Legislature to put a measure on the ballot, and then for the public to ratify it in a referendum. The Republican Legislature placed the tax and voting amendments on the ballot in 2018, and voters approved them by about 15 and 11 percentage points, respectively.

Liberal groups want to throw out those decisive outcomes, and their sweeping claim extends beyond the 2018 election. It’s that the entire Legislature of America’s ninth largest state was essentially illegitimate for the better part of a decade due to gerrymandering. Federal litigation forced North Carolina to redraw its 2011 legislative maps in 2017.

Therefore, the plaintiffs argue in NC NAACP v. Moore, the Republican Legislature should not have been able to put the measures on the ballot, rendering both of the voters’ verdicts void. A North Carolina lower-court judge agreed. But he was reversed by a state appellate court, which balked at the notion of retroactively stripping an elected Legislature of its powers and nullifying referenda, no matter the outcome of litigation over district boundaries.

The shenanigans don’t end there. The case is now before the seven-member North Carolina Supreme Court, which is closely divided along partisan lines. The three Republicans include Tamara Barringer and Phil Berger, who were elected in 2020. That’s where the next layer of electoral subversion comes in.

The plaintiffs this July filed a motion for the two justices elected in 2020 to be removed from the case. The pretext is that Justice Barringer served in the North Carolina state Legislature when the constitutional amendments were passed, and Justice Berger’s father is a GOP legislative leader and therefore named as a defendant as a stand-in for the state.

Yet the public and the press were well aware of this high-profile case and the justices’ backgrounds when they were elected in 2020. Past service as a legislator is not normally disqualifying from hearing cases related to legislation passed during that service, and removing a judge at a “court of last resort” requires a higher burden since that judge can’t be replaced.

One of the liberal justices, Anita Earls, litigated extensively against North Carolina’s 2011 maps before she was elected to the Supreme Court in 2018. Yet Justice Earls’ removal is not sought because a liberal majority to overturn the two constitutional amendments would depend on her vote.

Recusals at the U.S. Supreme Court are at the discretion of the Justice alone, and it might be expected that Justices Barringer and Berger would see through this political gambit. But last week the court’s liberal justices suggested that they might be considering an unprecedented effort to evict their conservative colleagues involuntarily—a stunning and destabilizing prospect.

The court delayed argument in the case and last Tuesday sent out an unusual order asking the parties a number of questions, including, “Does this Court have the authority to require the involuntary recusal of a justice who does not believe that self-recusal is appropriate?”

That suggests that Justices Barringer and Berger believe, rightly, that they do not need to recuse from the case, but at least some (perhaps a majority) of the other justices have been moved by the liberal pressure campaign to consider a vote to oust them.

It’s worth reviewing the radicalism of what may be transpiring. Democrats in North Carolina lost policy votes in 2018 around taxation and voting, and elections for the state’s highest court in 2020.

Now liberal interests are seeking to reverse their 2018 election defeats using the courts. It would be one thing to challenge policy through the normal judicial process. But because Democrats lost seats on the state Supreme Court in the 2020 elections, they want to effectively undo the impact of those elections on this case with a selective removal of justices.

What’s remarkable is that the advocates claim that their tactics in serially subverting the judgments of voters are somehow a defense of democracy. If successful, this institutional mischief will reverberate far beyond North Carolina.