Former N.C. Supreme Court justice files lawsuit to establish right to 'fair' elections

Led by former Republican state supreme court justice Bob Orr, several North Carolina voters sued state leaders last week in state court to establish a right to fair elections under the state constitution.

The lawsuit, filed in Wake County on Jan. 31, aims to establish that voters retain an unnamed right to have fair elections. While the state constitution explicitly guarantees a right to free and frequent elections, it never mentions fairness in elections.

The new lawsuit comes less than a year after the latest partisan gerrymandering case in North Carolina, Harper v. Hall, was reheard and overturned by the new Republican majority on the state supreme court. In that case, Republican Chief Justice Paul Newby wrote that partisan gerrymandering is not an issue that can be decided on by state courts.

Newby said that process should be left entirely to the state legislature. The U.S. Supreme Court already said that federal courts could not rule on partisan gerrymandering claims in 2019.

The decision in Harper v. Hall allowed the state legislature to redraw the congressional and state legislative maps with no judicial oversight on partisan gerrymandering claims. The redrawn maps, passed in October, gave Republicans advantages in both houses of the General Assembly and a likely 10-4 or 11-3 advantage in the state's congressional delegation.

Orr, an ex-Republican who left the GOP because it embraced former President Donald Trump, said the idea for the lawsuit originated during the oral arguments for the Harper v. Hall rehearing in March 2023.

Then-Justice Michael Morgan — who is now running in the Democratic primary for governor — asked a lawyer for the legislature if he thought there is a right to fair elections, despite the state constitution not explicitly mentioning fair elections.

The lawyer responded by saying the elections in North Carolina were fair and well-run, and the redistricting process does not impact questions of fairness.

"Counsel for the defendants waffled and danced through the courtroom and never really gave an answer," Orr, who served on the state supreme court from 1995 until 2004, said. "And that got me thinking, especially after the decision came down — do the citizens have a right to fair elections? And if so, how would you articulate that under the state constitution?"

Orr's lawsuit asks the court to officially establish an unenumerated right to fair elections and to declare that the maps passed by the General Assembly in October were illegally unfair.

The lawsuit uses three flipped congressional districts and two flipped legislative districts to illustrate a larger problem of partisan gerrymandering and unfairness.

But, the standard for fairness may be a point of contention for the lawsuit as it makes its way through the state court system.

Andy Jackson, the director of the Civitas Center for Public Integrity at the conservative-leaning John Locke Foundation, said he thinks the standard laid out in the lawsuit — that the map drawing process intentionally gave a particular candidate or party an advantage — would be difficult to apply in practice.

The latest Harper decision dealt with claims of vaguely defining fairness. The Republican majority on the court said a previous Democratic majority created an unmanageable standard through its use of formulas and statistics to determine which districts were gerrymandered.

"I just wonder if this is a vehicle for [Orr] to try to either get the court to say, 'No, we don't believe in fair maps' and maybe push for a constitutional amendment," Jackson said. "But beyond that, he's going on well-trod territory at this point. Partisan gerrymandering claims are not considered justiciable."

Billy Corriher, the state courts manager at the People's Parity Project, said that the maps are a partisan gerrymander — and the courts do not need to spend much time deciding on which measure to use.

Duke's Quantifying Gerrymandering project found the new maps to be less responsive to the will of voters than the court-drawn maps used in the 2022 elections — which elected seven Democrats and seven Republicans to Congress.

Even in simulated elections when Democrats won nearly 55 percent of the vote, the GOP won at least nine of the state's 14 congressional seats and a majority in the General Assembly. The new maps were even less voter-responsive than those overturned at the start of the Harper v. Hall case in 2021.

In the oral arguments at the beginning of the Harper case in 2021 and during discussion about a Pennsylvania Supreme Court decision on fair elections, Newby, then in the minority on the court, said, "We have 'free.' We don't have 'fair.'"

"I think this lawsuit is about really putting that question before the justices — 'Did you really mean that, Paul Newby, when you said that we don't need to have to have fair elections under our state constitution?'" Corriher said.

@ethanehorton1

@DTHCityState | city@dailytarheel.com

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