A GOP analyst mentions impeaching NC Supreme Court justices. Could it happen?

Dallas Woodhouse, the former executive director of the North Carolina Republican Party, sometimes makes bold comments just to be provocative., but other times he says what his party’s leaders are thinking.

That’s why, with a clash between the legislature and the state Supreme Court looming, it’s intriguing that he’s mentioning impeaching members of the court.

In 2018 Woodhouse talked about impeaching members of the state Supreme Court if they blocked constitutional amendments passed by the legislature from appearing on the ballot. Now he’s raising the “I” word again. This time it’s with regard to the state Supreme Court’s upcoming consideration of the heavily gerrymandered district maps drawn by the Republican-controlled legislature.

Woodhouse, now a political analyst for the John Locke Foundation’s Carolina Journal, wrote last week that Republican legislators want to push the North Carolina primary from May 17 into June. He said Republicans think they may need the extra time to redraw the maps if the state Supreme Court court rejects them. He was right. A bill that would move the primary date to June 7 was filed in the Senate on Monday.

However, should the state Supreme Court, frustrated by the legislature’s failure to adequately correct the maps, take it upon itself to redraw the lines, Woodhouse wrote, “Some legislators are pushing their leadership for an aggressive response.” As for what that would be, he wrote, “Other than the power to impeach the justices, it is unclear what the General Assembly could do.”

With that, Woodhouse raised a nuclear option for protecting the Republican maps. Under a 1868 state law, a vote by the House to impeach – only a simple majority is needed – would suspend the targeted justice or justices from voting until a Senate trial ends in a verdict.

Republicans have already called for Justices Anita Earls and Sam Ervin, both Democrats, to recuse themselves from ruling on the district maps because of their alleged conflicts of interest. On Tuesday, state Senate Republicans issued a news release about Earls receiving campaign contributions from the National Democratic Redistricting Committee. It said her “conflicts are obvious and egregious.”

If Earls and Ervin were impeached and suspended pending trial, the court would then have a 3-2 Republican majority that could uphold a lower court’s ruling that the maps are legally drawn.

Gerry Cohen, an expert on the General Assembly’s legislative processes and its history, said the legal basis for such an action would be dubious. The statute does call for the suspension of impeached officers, he said, but it conflicts with the U.S. Constitution’s 14th Amendment, which entitles citizens to a hearing before legal action is taken against them.

Cohen also pointed to a 2013 Superior Court ruling regarding an effort to remove a member of the New Hanover County Board of Commissioners. In that case, a court found that the commissioner could not be removed without first receiving a hearing before an independent fact-finding body.

“The 1868 statute saying someone is suspended pending trial is of questionable constitutionality based on case law and the 14th Amendment saying you have a right to a hearing,” Cohen said.

If House Republicans did impeach Earls and Ervin, it would likely be up to the state Supreme Court to decide whether their suspensions would be constitutional. That raises another question: Could Earls and Ervin vote on the legality of their own impeachment?

Certainly, this convoluted and extreme scenario is unlikely, but there is a sign that Republicans want to keep it as an option. The Dec. 10 joint resolution adjourning the 2021 legislative session stipulated that only 10 types of legislation can be considered after the legislature reconvened on Dec. 30. No. 8 on the list is this: “Bills providing for impeachment pursuant to Article IV of the North Carolina Constitution or Chapter 123 of the General Statutes.”

Chapter 123, section 12 says: “Every officer impeached shall be suspended from the exercise of his office until his acquittal.”

Stay tuned.

This story was originally published January 18, 2022 at 12:29 PM.