‘Fair elections’ lawsuit hearing delayed until June

Former state Supreme Court Justice Bob Orr discusses his "fair" elections lawsuit. (Image via Zoom news conference)

Listen to this story (8 minutes)

  • A hearing in former state Supreme Court Justice Bob Orr's "fair elections" lawsuit has been delayed until June 13.
  • Lawyers representing Republican legislative leaders asked to have the original May 22 hearing delayed. They cited a conflict with a federal redistricting case, along with the recent death of longtime GOP redistricting lawyer Thomas Farr.
  • The hearing will address legislative leaders' motion to have Orr's lawsuit dismissed.

A three-judge panel overseeing former state Supreme Court Justice Bob Orr’s “fair elections” lawsuit has delayed a hearing in the case until June 13. The delay stems at least in part from the recent death of longtime Republican redistricting lawyer Thomas Farr.

A hearing had been scheduled for May 22 to address Republican legislative leaders’ motion to dismiss Orr’s suit. Farr was a member of the legal team representing state lawmakers.

In an April 8 court filing, Farr’s colleagues cited two reasons for seeking a delay. First, a federal three-judge panel had scheduled a May 22 hearing for two consolidated redistricting lawsuits. (That hearing now has been rescheduled for May 28.)

“Additionally, Mr. Thomas A. Farr, counsel for Legislative Defendants, passed away unexpectedly on April 1, 2024. Due to this tragic and unexpected event, counsel for Legislative Defendants are reorganizing their schedules and balancing various matters, including those that Mr. Farr was handling,”  the court document explained.

All parties in the case agreed to a two-week extension in the briefing deadline for the hearing. Legislative leaders’ attorneys also sought a two-week extension for the hearing itself, but Orr and his colleagues objected to that idea. They preferred a hearing date on another day during the week of May 20.

Phillip Strach, one of the attorneys listed in the court filing, told Carolina Journal earlier this month that Farr was a “titan” of the legal profession.

“He had a professionalism, a belovedness, that even people we are regularly against in court acknowledge,” said Strach. “Professionalism was one of his defining characteristics and incredibly important to him.”

A major player in the litigation over North Carolina’s district maps and fierce defender of North Carolina’s constitutional amendment for voter ID, Farr was twice nominated to be a federal judge by former President Donald Trump, and twice by former President George W. Bush.

“You don’t get nominated to that level without an astounding legal record,” said Strach. “You have to have an outstanding legal resume to even be considered, and he was considered not once but twice.”

The panel overseeing Orr’s lawsuit features Superior Court Judges Jeffery Foster of Pitt County, Angela Puckett of Stokes County, and Ashley Gore of Columbus County. All three judges are Republicans.

Orr was a Republican when he served for a decade on the state Supreme Court. He is now registered as unaffiliated.

North Carolina’s top Republican legislative leaders filed a motion on March 6 asking the three-judge panel to throw out Orr’s suit aiming to establish a state constitutional right to “fair” elections. Orr filed the suit in January.

“Plaintiffs’ Complaint should be dismissed with prejudice for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted as Plaintiffs’ Claim for Relief is non-justiciable,” according to the motion from lawyers representing top Republicans in the General Assembly.

A nonjusticiable claim cannot be decided by a court or legal principles. Dismissing the case “with prejudice” would prevent Orr from filing the same suit again.

Orr is asking North Carolina’s courts to declare that the state’s people have a constitutional right to “fair” elections. He filed suit in Wake County Superior Court in January on behalf of nine Democrats and two unaffiliated voters. Among the plaintiffs are former UNC System President Tom Ross and former Democratic state Sen. Allen Wellons of Johnston County.

The complaint targets North Carolina’s election maps as violating the “fair” elections standard. A news release from Orr described the case as the “first lawsuit in state history challenging the legitimacy of legislatively created election districts for violating voters’ constitutional right to fair elections.” 

“This case presents a major question of first impression for the courts of this State impacting the very foundation of our constitutional Republic’s underlying principles of democracy,” according to the complaint. “The issues presented deal with elections, the vehicle by which the citizens of the State, authorized to vote in those discrete elections, choose their officials to administer the government created by the people through their state constitution and the U.S. Constitution.”

“Plaintiffs contend that the right to ‘fair’ elections is an unenumerated right reserved by the people and fundamental to the very concept of elections and the underpinnings of democracy,” the lawsuit added. “Without ‘fair’ elections, the framework of our government would rest not on principle and the will of the people, but instead, on partisan politics, exercised not by political parties or particular entities, but by the heavy hand of government itself, in this case the General Assembly.”

The lawsuit targets new Congressional Districts 6, 13, and 14, state Senate District 7, and state House District 105. 

State Supreme Court Chief Justice Paul Newby appointed the three-judge panel hearing the case.

Newby wrote an April 2023 opinion suggesting that state courts could not develop a workable test for determining the “fairness” of election maps.

Orr distinguished his new lawsuit from the earlier case that prompted Newby’s “fairness” comment. In a video news conference, Orr compared the redistricting disputes to a college basketball game between the University of North Carolina and Duke.

“What if the General Assembly passed a law so that all state-supported schools start basketball games with a 15-point lead? I don’t think anybody would have any problem — probably even Carolina fans — saying, ‘Well, that’s unfair.’”

“Essentially, that’s what this legislature and prior legislatures from years ago have done,” Orr said. “They have sort of stacked the deck with voters that they think will be … determined to vote for their particular candidates. Thus, you lose any sense of fairness.”

The suit seeks a process for drawing election districts that’s “as politically neutral as possible,” Orr said. “I will admit that if there was an independent redistricting process that created the districts that we’re challenging, I don’t think we would have a constitutional challenge — even if they looked essentially the same.”

“The distinction here is where government — the all-powerful government — decides, ‘We’re going to cook the books,’” he added. The lawsuit asks for challenged districts to be redrawn in a “nonpolitical way.”

No Republicans signed onto the suit as plaintiffs. “This is not a partisan lawsuit — not intended to be a partisan lawsuit,” Orr said in the video conference. “This is a good-government lawsuit, and one that I think is extraordinarily important to the long-term well-being of this state.”

Orr’s lawsuit was the fourth filed against North Carolina’s new statewide election maps. It is the only case filed to date in state court.