North Carolina Supreme Court Issues Surprising Disqualification Order in Appeal of “Usurper” Lawsuit

Fox Rothschild LLP

Fox Rothschild LLP

In case you missed it, the Supreme Court of North Carolina issued a surprising disqualification order last week, setting up what could be a contentious internal fight within the Supreme Court as to which justices will determine a high-profile appeal with mammoth constitutional significance.

The case involves efforts by the NAACP to invalidate two recent amendments to the state constitution. The NAACP’s theory is that the General Assembly that proposed the constitutional amendments included some legislators that were elected from racially gerrymandered districts. The case is colloquially referred to as the “usurper” lawsuit because of its theory that the legislature that proposed the amendments were usurpers of a properly constituted legislature. According to the parties’ briefs, while other courts have examined the usurper theory, none have ever accepted it. And, notwithstanding the gerrymandering issues, North Carolina voters approved both challenged constitutional amendments by substantial margins.

The North Carolina trial court, however, accepted the NAACP’s usurper theory.  In a split decision, the Court of Appeals reversed, which led to the NAACP to appeal to the Supreme Court based on the dissent.  After the case was briefed at the Supreme Court, the NAACP filed a motion asking two of the Court’s three Republicans – Justices Berger and Barringer – to recuse. Interestingly, the NAACP did not ask Justice Earls to recuse from the case, even though she had advocated for the adoption of the “usurper” theory in a related case before she was elected to the Supreme Court.

A few weeks after the parties’ submissions on the recusal motion, the Supreme Court entered a surprise order asking the parties to file supplemental briefs on eight issues and sub-issues. This order has garnered national and local concern because it indicates that the full Court is considering whether to involuntarily disqualify Justices Berger and Barringer if they do not voluntarily recuse themselves.

My initial research indicates that no precedent exists for the North Carolina Supreme Court to involuntarily disqualify one of its own members. Similarly, at the federal level, individual justices of the Supreme Court of the United States decide for themselves whether to recuse.  In other words, disqualification motions have historically not been considered by the full Court.

But this is one to watch. Supplemental briefing is due by November 17, with a decision expected sometime after that date.

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