“The battle is bigger than redistricting,” he said. “The real battle is between a Democratic governor and a pretty durable majority in the General Assembly.” The calls for recusal, he said, “raised this to an unprecedented level.”
How U.S. Redistricting Works
Like North Carolina, some 34 other states allow Supreme Court justices to rule on recusal motions aimed at them. Most other states require independent reviews that even then may not be binding. Justices do disqualify themselves, but how frequently is unclear.
In the North Carolina case, the defendants in the redistricting suit — Republican legislators who drew and oversaw the political maps — acted first on Jan. 6, urging Justice Samuel J. Ervin IV, a Democrat, to recuse himself because he is seeking re-election in November. (Justice Ervin is the grandson of former Senator Sam Ervin, the longtime North Carolina Democrat and steward of Senate hearings on the Watergate scandal.) They argued that Justice Ervin should not hear election-law cases until his race is decided.
Days later, lawyers for two plaintiffs, the advocacy group Common Cause and an assortment of North Carolina Democrats, demanded that a Republican justice, Phil Berger Jr., withdraw from the case. He is the son of Phil Berger, the president of the State Senate, a party to the map drawing and, not least, a defendant in the case.
Republican legislators quickly asked another Democratic justice, Anita Earls, to recuse herself. Justice Earls, the founder and former executive director of the Southern Coalition for Social Justice, had battled Republican gerrymanders in North Carolina for years before winning election to the court in 2018. Republicans noted that lawyers from the coalition represent Common Cause in the gerrymander case.
Additionally, they said, Justice Earls’s 2018 campaign received a $199,000 donation that apparently had been channeled through the state Democratic Party from the National Democratic Redistricting Committee, an arm of the national party. The redistricting committee is underwriting the legal expenses of one plaintiff in the case.