Statement from Sen. Berger on 4th Circuit Decision

Striking dissent reveals abnormal conduct from unnamed federal judge

Dissent: “Finding that he had been outvoted, the dissenting judge immediately initiated a [different procedural hearing] before the panel could even circulate its views to the entire court, let alone to the public”

Dissent: “…to witness our democratic dissolution in this manner is heart-rending…”

Raleigh, N.C. — Senate Leader Phil Berger (R-Rockingham) released the following statement regarding the Fourth Circuit Court of Appeals decision in Moore v. Circosta.

The decision included a remarkable and striking dissent (which begins on page 21) that revealed abnormal behavior by an unnamed federal judge. According to the dissent, legislative leaders won their appeal, but, “finding that he had been outvoted, the dissenting judge immediately initiated an en banc vote before the panel could even circulate its views to the entire court, let alone to the public.”

Sen. Berger said, “It’s incredibly frustrating to see a judge invalidate a bipartisan compromise supported by a supermajority of elected legislators after weeks of negotiations.

“According to the dissent, we actually won our appeal until one judge on the panel pursued a procedurally suspect scheme to overturn our victory before it could become public. The veteran judges who dissented are right to question whether the court undermines its legitimacy with such antics.

“Our only recourse is relief at the U.S. Supreme Court, where, thankfully, the rule of law is not a dead letter.”

Here are excerpts from the rare, striking dissent:

• “Then along come the disruptive efforts of [ ] a state election board to upend the set rules right in the middle of an election. The disruptors then hail their action as the new status quo, which is (the irony of this is rich) claimed to be beyond any power of disturbance.”
• “It takes no special genius to know what this insidious formula is producing. Our country is now plagued by a proliferation of pre-election litigation that creates confusion and turmoil and that threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves.”
• “When, as here, the plain wording of those [legislative] enactments is transgressed, the entire body politic pays a grievous price.”
• “In the service of policy objectives, the majority is stripping state legislatures of the responsibility our founding charter has assigned them. And in so doing, it has encouraged others to regard state statutes as little more than advisory and for pre-election litigants fair game.”
• “…to witness our democratic dissolution in this manner is heart-rending for the many good Americans of all persuasions who still view partisan advantage as subordinate to their country’s lasting welfare.”
• “This departure from our traditional process strikes me as needlessly divisive — even considering the matter’s time sensitive nature. I am saddened to see it, especially on a court that has taken such pride in its collegiality.”