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BlogsPublications | December 9, 2016
2 minute read

Two MSC justices recuse themselves, leaving 5 to hear a recount petition appeal

Chief Justice Young and Justice Joan Larsen have recused themselves from participating in two cases challenging the recount of votes by the Board of State Canvassers because President-Elect Donald Trump is a party to one of the cases and they both appear on Trump's list of 21 potential nominees to fill the vacancy on the United States Supreme Court.  See Donald J Trump v Board of State Canvassers, No 335958 and Attorney General v Board of State Canvassers No. 335947.  Justice Larson readily recused herself, whereas Chief Justice Young did so only reluctantly, stating that "anybody can make a list" and the chances of being selected from the list is remote and both “speculatively hypothetical and in his case, improbable.”  The Court highlighted the duty to sit is required because justices who recuse themselves cannot be replaced. Thus, their disqualification alters the composition of the Court that the citizens have chosen thereby disrupting the decision-making process in a particular case. Neither Chief Justice Young nor Justice Larsen sought inclusion on the list and both disclaimed any notice or contact with the President-Elect.

Though Chief Justice Young highlighted that recusal is mandated only when a judge is actually biased and cannot impartially hear a case, both disclaimed any actual bias and no one claimed otherwise. The justices instead granted the motion for disqualification because of the unique circumstances of the case and to avoid any perceived conflict. Interestingly, the Chief Justice noted that this case in particular called out for judicial restraint, and strongly suggested that his classmate, United States District Court Judge Mark Goldsmith, should have exercised more restraint, rather than ordering the recount to begin earlier than state laws allowed.