by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
In the first part of this two-part series, I reviewed attempts to get justices voluntarily or involuntarily removed from cases. I found that none of those attempts rose to the “extraordinary” level necessary to remove them from the positions voters put them in.
As I noted in part one, the recusal motion against Justice Anita Earls in the redistricting case North Carolina League of Conservation Voters v Hall (NCLCV v Hall) is multifaceted and, in part, more compelling than the motions against the other four justices.
Lawyers for the defendants have three main arguments. The first is her prior career; i.e., given “her record of public advocacy against the Legislative Defendants, any reasonable observer would think she could not be anything but partial to the plaintiffs in this case.”
Much like the motion against Justice Barringer in NAACP v Moore (covered in part one of this series), this part of the motion presumes that a prior association with a party to a case or previous advocacy on an issue before the court should disqualify her from hearing that issue in court. However, just as prior work on an issue or with a party involved in a case should not cause a presumption of bias by Justice Tamara Barringer (again, see part one), they should not cause a presumption of bias by Earls in this case. Doing so would deny the courts the service of numerous judges who have been politically active at earlier points in their lives.
The defendants’ second argument for Earls recusing herself is that the massive spending by a Democratic redistricting organization on behalf of her 2018 election campaign creates at least the appearance of bias. Eric Holder’s National Democratic Redistricting PAC made the $5,200 maximum legal contribution to her campaign and then went much further (page 4):
[O]n the same day the National Democratic Redistricting PAC gave Justice Earls $5,200.00 (20 September 2018) it gave $250,000.00 to the North Carolina Democratic Party’s “judicial coordination fund.” During 2018, Justice Earls was the only member of the Democratic Party seeking a seat on the North Carolina Supreme Court. In less than a month after the NDRC’s PAC contribution to the North Carolina Democratic Party, the Party contributed just over $199,000.00 in funds and in-kind contributions consisting of mailers and salaries for the Earls for Justice Committee – an amount equivalent to 80% of the NDRC contribution.
The premise here is that the National Democratic Redistricting PAC essentially bought Earls’ support on redistricting. There are two problems with that view. First, research has found that the relationship between political donations and politicians’ later actions on behalf of donors is weak.
Second, it presumes a causal relationship that is probably in the wrong direction. While defendants’ attorneys argue that the large donations from Holder’s group to Earls’ election campaign “suggest influence” towards their position, a more likely explanation is that Earls’ well-known left-wing positions caused Holder’s group to donate to her campaign.
While Eric Holder’s funding may have been instrumental in helping Earls win her 2018 election, there is no evidence it bought her vote in the redistricting case.
The defendants’ final claim that she has already publicly staked out a position on a case she is hearing is more problematic for the presumption that Earls can be unbiased in assessing the redistricting case. In one example, Earls said in a speech during her candidacy for the Supreme Court, “[p]artisan gerrymandered districts do not serve our democracy.” She is now hearing a case on whether courts can completely ban partisan considerations in redistricting. How can she be impartial in a redistricting case when she has already taken a position?
In 2020, I wrote that two judges in a voter ID case should have recused themselves because they had publicly opposed the constitutional amendment that led to the law over which they were sitting in judgment, undermining public confidence in the impartiality of those judges. The difference here is that Earls stated a general principle on redistricting rather than stating a position on a particular law or government action that would later come before her. That is perhaps a small distinction, but it is an important one. Earls declined to recuse herself from the case.
As I noted in the first part of this series, the trump card in recusal requests is the presumption of competence of the voters who elect justices. Voters, or at least a reasonable portion of them, knew of Earls’ prior activist career and political stances.
Justices should remove themselves from the positions voters put them in only under extraordinary circumstances. The case for Earls’ recusal was more robust for her than for any other justices. Still, it did not rise to the level of requiring that she recuse herself.