Former state Supreme Court Justice Bob Orr raised eyebrows on New Year’s Day with a since-deleted tweet. It detailed his plans to file a redistricting lawsuit based on the concept of “fair” elections.
One wonders how Orr will contend with his former court’s assessment of “fair” elections just eight months ago.
The former justice’s public message, addressed to “Wendi,” offered thanks for a Christmas card. Orr followed up with a query.
“Crazy question: any interest or willingness in being a plaintiff in a redistricting lawsuit based on ‘fair’ elections that I’m going to file in a couple of weeks[?] It would be great to have an R. Bob”
Orr deleted the tweet, but independent journalist Annie Dance captured a screenshot.
By suggesting it “would be great to have an R,” Orr leaves us with the impression that his prospective plaintiffs have been limited to Democrats, unaffiliated voters, or members of third parties. Can he convince a Republican to join his fight?
Another, more consequential, question: How will Orr square a “fair” elections lawsuit with the state Supreme Court’s most recent pronouncement on that topic?
Orr left North Carolina’s highest court nearly 20 years ago after a decade of service.
One presumes that he follows state Supreme Court proceedings more closely than the average Tar Heel.
Thus he’s likely to have read the court’s April 2023 decision in Harper v. Hall.
That case’s majority opinion stated clearly that North Carolina courts would no longer address the fairness of election maps. Moreover, the state Supreme Court reminded readers that federal courts already had reached the same conclusion.
Chief Justice Paul Newby’s 146-page opinion referenced the US Supreme Court’s 2019 decision in Rucho v. Common Cause, a case stemming from an earlier North Carolina redistricting dispute.
“[P]artisan gerrymandering claims do not seek to redress a violation of any particular constitutional provisions; rather, such claims ‘ask the courts to make their own political judgment about how much representation particular political parties deserve — based on the votes of their supporters — and to rearrange the challenged districts to achieve that end,’” Newby wrote, citing Rucho. “Essentially, partisan gerrymandering claims ask courts to ‘apportion political power as a matter of fairness.’”
“This judgment call is a policy choice. It is not the kind of ‘clear, manageable, and politically neutral’ standard required for justiciable issues,” the chief justice added.
“The Court elaborated that settling on a clear, manageable, and politically neutral test for ‘fairness’ is extremely difficult because ‘it is not even clear what fairness looks like in this context,’” Newby explained.
Fairness might mean creating as many competitive districts as possible. Or it might mean guaranteeing “safe seats” for particular parties. “In conclusion, the Supreme Court held that partisan gerrymandering claims are nonjusticiable because there is ‘no plausible grant of authority in the Constitution and no legal standards to limit and direct [courts’] decisions,’” Newby wrote.
Four years later, North Carolina’s highest court faced a different task in Harper v. Hall. Justices assessed claims that partisan gerrymandering violated the state constitution. Yet “we find the reasoning of the Supreme Court in Rucho persuasive because the same arguments, concerns, and predictions have arisen here,” Newby wrote.
“[W]e hold that claims of partisan gerrymandering are nonjusticiable, political questions under the North Carolina Constitution,” the court majority concluded.
The April 2023 opinion reversed a 2022 decision from four Democratic justices. Those justices had based their ruling on no clear judicial standards, Newby argued.
“These vague and inconsistent standards are not derived from any express provision in the constitution,” the chief justice wrote. “Instead, these standards seem to be grounded in a desire for some form of proportionality and reflect a judicially created notion of how much representation is ‘fair’ without explaining what fairness is or how to manage it.”
“[V]ague notions of fairness do not answer how to measure whether groups of voters are treated ‘fairly’ or how to predict the results an election would produce,” Newby added. “Moreover, as forewarned by the Supreme Court in Rucho, these vague notions of fairness did not produce a discernable or workable standard.”
Newby reminded readers that nine current and former judges — including Orr in his role as a court “special master” — all failed to “properly understand and apply” the standard Democratic justices manufactured to guarantee electoral “fairness.”
“Constitutional compliance should not be so difficult,” the chief justice noted.
It’s difficult to imagine how a new lawsuit based on “fair” election claims can survive after the 2019 Rucho ruling and the 2023 Harper decision. Orr faces a tough task tackling that challenge.
Mitch Kokai is senior political analyst for the John Locke Foundation.