- Former North Carolina Supreme Court Justice Robin Hudson is supporting another former justice's "fair elections" lawsuit at the state Court of Appeals.
- Hudson, a Democrat, is one of three people backing a friend-of-the-court brief supporting the lawsuit led by former Justice Bob Orr.
- Orr is asking North Carolina courts to recognize a constitutional right to "fair" elections. Based on that right, the lawsuit seeks to strike down targeted congressional and legislative election districts.
Former state Supreme Court Justice Bob Orr has recruited another former member of North Carolina’s highest court to support his “fair elections” lawsuit. Retired Justice Robin Hudson is backing a new friend-of-the-court brief in the case.
Hudson, a Democrat, served on the state’s highest court from 2007 through 2022. Orr was a registered Republican when he served on the court from 1995 through 2004. Orr has been registered as unaffiliated since 2021.
Orr represents nine Democrats and two unaffiliated voters who sued the North Carolina State Board of Elections in 2023 over North Carolina’s congressional and legislative election maps. The suit contends that the maps violate the plaintiffs’ state constitutional right to “fair” elections.
A three-judge Superior Court panel dismissed the suit. Orr is appealing that decision to the state Court of Appeals.
“This brief focuses on the legal history of the constitutional right to a fair election asserted by Plaintiffs, and this court’s obligation to vindicate it,” according to a motion filed on behalf of Hudson, Charles Plambeck, and Joni Walser. Plambeck and Walser are adjunct faculty members at the University of North Carolina law school.
“These individual rights and judicial obligations trace to the dawn of representative democracy in England,” the court filing continued. “They remain essential to keep the legislature accountable and within the limits assigned of their authority, and to preserve the liberties that are the birthright of North Carolinians.”
“Plaintiffs allege that in 2024, the General Assembly denied Plaintiffs the right to vote because of how they likely would cast it,” the document added. “The Assembly nullified their votes by deliberately grouping them with an insurmountable number of supporters of the Assembly’s own preferred candidates. The effect on the Plaintiffs was the same as if, because of their dissenting beliefs, they were denied access to the polls, or their vote set aside uncounted.”
“The Assembly has the prerogative to enact elections regulations, but not to contrive them so that the votes of their critics are ineffective,” Hudson and the UNC faculty members argued. “The North Carolina Constitution prohibits anyone in authority, including the legislature, from subverting the fundamental democratic power of the right to vote. These textual guarantees are collectively referred to and indelibly understood as the right to a fair election.”
Orr defended his suit, Bard v. North Carolina State Board of Elections, in a Feb. 21 brief to North Carolina’s second-highest court.
“This case is about election integrity,” lawyers led by Orr wrote. “It is not a case about partisan gerrymandering, challenging the aggregate maps and seeking court-imposed proportionality of seats. Here, Plaintiffs seek to preserve their fundamental constitutional right for elections to be free from governmental efforts to manipulate election results.”
“If a private citizen or a political organization attempted to manipulate election results by subverting election laws dealing with voting integrity, there could potentially be grounds for a criminal prosecution,” Orr and his colleagues wrote. “Here, it is the North Carolina Constitution that protects our citizens from an overreaching government and guarantees that elections are conducted fairly and impartially without governmental manipulation of the election.”
Republican legislative leaders entered the case to defend election maps against Orr’s claims. They filed a separate brief on Feb. 21 asking the Appeals Court to reverse the three-judge panel’s decision to block lawmakers from seeking attorneys’ fees.
Lawyers for top GOP lawmakers labeled Orr’s lawsuit a “frivolous, nonjusticiable claim.”
A unanimous Superior Court panel agreed in June 2024 that Orr’s complaint raised political questions that a court should not address.
Orr’s suit asked judges to declare the right to “fair elections,” then to determine that targeted congressional and legislative election districts ran afoul of that right.
Before reaching those conclusions, judges needed to address a separate question raised by state legislative leaders defending the districts: “[D]o the issues raised by Plaintiffs present non-justiciable political questions not appropriate for resolution by the courts?” according to the court order filed on June 28.
Judges Jeffery Foster, Angela Puckett, and Ashley Gore answered that question by turning to the state Supreme Court’s April 2023 decision in Harper v. Hall, sometimes labeled Harper III.
“In Harper, our Supreme Court went to great lengths to provide a history of the treatment of political questions by the courts, and to establish the constitutional basis for the non-justiciability of political questions when undertaking redistricting matters,” the panel wrote. “In its decision, the Harper Court reaffirmed the exclusive role of the Legislature as the body tasked with redistricting in North Carolina.”
“In the instant case, the issues raised by Plaintiffs are clearly of a political nature,” the judges decided. “There is not a judicially discoverable or manageable standard by which to decide them, and resolution by the Panel would require us to make policy determinations that are better suited for the policymaking branch of government, namely, the General Assembly.”
“Plaintiffs, in their arguments to the Panel, urge us to find that the holdings in Harper do not apply to the facts and issues present in this case, but rather to Article I, § 10, Free Elections Clause claims. We do not find these arguments persuasive,” the panel explained. “This case deals with the same underlying issue that was addressed in Harper: the redrawing of districts from which representatives to the Legislature will be elected.”
“[T]he Panel finds that the issues raised by Plaintiffs are non-justiciable political questions, and as such these claims are not appropriate for redress by this Court,” the order concluded.