The plaintiffs in a lawsuit over redistricting are asking the North Carolina Supreme Court to remove Justice Phil Berger from the case. The Supreme Court justice’s father is North Carolina Senate leader Phil Berger, a defendant in the case.
The case argues that North Carolina’s new political maps are unconstitutional gerrymandering because they take power away from minority voters. On Monday, the first day of candidate filing, the state Court of Appeals paused filing for congressional and legislative seats, but then the full court reversed the decision and candidate filing opened Tuesday.
Wednesday afternoon, the court ruled to delay the 2022 primary elections to May 17. The primaries had been scheduled for March. The case has gone from Wake County court to the state Court of Appeals and now the North Carolina Supreme Court over the past week.
The Supreme Court again halted candidate filing while that case is heard in Wake County court.
The lawsuit, filed by the League of Conservation Voters and others in Wake County, asks the court to throw out the maps and delay next year’s primary elections to draw new political maps.
The plaintiffs argue that Justice Phil Berger should be removed from the case. But the defendants, including the chairs of the General Assembly’s redistricting committees and the Republican leaders of the North Carolina House and Senate, say he should be allowed to hear the case.
“Here, Justice Berger Jr.’s father, Senator Philip Berger Sr., is a named defendant in this case,” the plaintiff’s lawyers argue. “The parent-child relationship is a familial relationship of the first degree.”
The defendants, however, argue that the senior Phil Berger is named as a defendant in his official capacity as Senate leader, not as an individual.
“Justice Berger need not recuse from this matter. Although Philip Berger is named as a defendant in the suit, he is being sued in his official capacity as the President Pro Tempore of the North Carolina Senate, which makes this a suit against the State,” lawyers for the legislature argued.
This is not the first time Justice Berger has faced this problem. The North Carolina NAACP asked Berger to remove himself from a case over voter ID laws that named his father as a defendant in the same way as this redistricting case.
There are seven justices on the North Carolina Supreme Court, four are Democrats and three, including Berger, are Republicans. In heated partisan issues like voter ID and redistricting, losing one Republican on the court could swing the verdict.
The court still has not decided on whether Berger can be part of that voter ID case. But the issue is coming to a head as this case and other redistricting cases are likely headed to the state Supreme Court.
The governor and North Carolina Attorney General Josh Stein this week asked the state Supreme Court to step in and hear the case.
"Voters are stripped of their voices by technologically diabolical and unconstitutionally partisan districts," Gov. Roy Cooper said. "For the health of our democracy, the Supreme Court should hear this challenge quickly and thoroughly."
There are two other lawsuits challenging the redistricting process making their way through the courts. A second suit, filed by the North Carolina NAACP and Common Cause, argues the redistricting process itself was flawed because the GOP-led General Assembly did not include considerations of race and the Voting Rights Act.
The third suit, brought by the National Redistricting Foundation, argues that the new maps are a partisan gerrymander similar to the last maps that were thrown out by a court in 2019.
The lawsuits, including the one already before the Supreme Court, all ask the courts to delay the primary while they consider if the maps are constitutional. The primary is currently set for March 8, and candidates are already filing for seats in the U.S. House and the General Assembly.
North Carolina’s primary elections have typically been in May. The question of delaying the primary elections back to May came up multiple times during the public hearings over redistricting earlier this year. Speakers argued that pushing the primary back would give the general Assembly more time to draw the new maps. At the time, those arguments did not win over the Republican-led redistricting committees in the General Assembly.
In a separate court filing from the State Board of Elections, which is also a defendant in the case, Director Karen Bell said the primary could potentially be delayed to mid-May.
It would create more work for state elections staff to change the date, she said, but it was possible if the court decided to hit pause again and delay the election.