Former North Carolina Supreme Court justice Bob Orr has been on a mission to attack, weaken, embarrass and injure his former chosen North Carolina Republican Party for many years. However the former GOP justice has now arguably made a dangerous, frivolous, bad-faith legal argument in the North Carolina courts over redistricting. If he actually won the case, it would create havoc in North Carolina elections and would lead to wildly out-of-proportion election results constantly and consistently.
As Woodshed readers know, the North Carolina Supreme Court has recently ruled that partisan gerrymandering is a political question left to the legislature, not the courts. The US Supreme Court ruled similarly.
Bob Orr’s latest political stunt is to file another partisan redistricting claim dressed up in sheep’s clothing.
As reported by Carolina Journal, Orr contends:
“As our Supreme Court has made clear, ‘[t]he people are entitled to have their elections conducted honestly and in accordance with the requirements of the law. To require less would result in a mockery of the democratic processes for nominating and electing public officials,’” the complaint said, citing the 1964 case Ponder v. Joslin.
“In Article I of the North Carolina Constitution, the ‘Declaration of Rights,’ elections are specifically recognized as bestowing upon the citizens of the state certain enumerated rights: the right to ‘frequent’ elections is protected in Section 9 and the right to ‘free’ elections is protected in Section 10,” the lawsuit continued. “If the citizens of North Carolina are guaranteed by their State Constitution the right to ‘frequent’ and ‘free’ elections, then surely the Constitution guarantees them the right to ‘fair’ elections. After all, what good are ‘frequent’ elections if those elections are not ‘fair’? Likewise, what good are ‘free’ elections if those elections are not ‘fair’?”
First: Of course North Carolina voters have a right to fair elections, even if the exact word in not in the constitution. However fair elections have always been defined by federal and state law governing election procedures. Fair elections does not mean preferred outcome.
Second: Assuming for a minute Bob Orr actually WANTS to win this case (more later) and actually were to win, the consequences would be disastrous.
But it seems from his filing that Orr’s definitions conflate “fair” with “competitive.”
I contend that if Orr won, the court would establish a maximum-competitiveness standard.
Drawing as many 50/50 districts as possible would be mandated at the expense of all other redistricting criteria, except the one man, one vote requirement for all maps and the whole-county provision for legislative maps.
Dave’s Redistricting drew those exact maps, putting maximum competitiveness as the standard.
Here’s what the state Senate would look like:
And here is what the state House would look like:
Just to the naked eye, these districts are horrific and illogical gerrymanders, worst than the state has ever seen. Every single city, town, and community is sliced and diced in different ways.
The result would not be LESS gerrymandering but dramatically MORE gerrymandering.
Further, at the heart of all of the failed partisan redistricting cases, was an argument about proportional representation. Mostly because of political geography, and some because of map making, Democrats are frustrated that if they win 50% of the statewide votes, they don’t win roughly 50% of the seats. Courts have rightly rejected this European-style proportional representation standard because America uses a “first past the post” system.
However if you accept the premise that some sense of proportion is important, the new Orr standard would destroy that and lead to wildly out of proportion outcomes.
For example: Using Dave’s “max compete” maps above:
If North Carolina had an election just like 2016 (Trump +3.6), Republicans would capture:
- 13 of 14 congressional seats
- 100 of 120 NC House seats
- 46 of 50 state Senate seats
Two years later in 2018, an election that swung 5-7 points for the NC Democrats, Dems would capture:
- 12 of 14 congressional seats
- 92 of 120 state House seats
- 43 of 50 state Senate seats
The drastic sweeping changes would make North Carolina largely ungovernable, with wild swings in public policy on a constant basis.
It’s worth noting that Bob Orr was selected by the then-Democratic-controlled state Supreme Court as a “special master” to assist in the court-ordered redraw of the congressional map that was used in the 2022 elections. Orr’s own map would fail the test he is trying to establish.
While some may see the 7-7 outcome in the congressional races as a “fair result,” almost NONE of the Orr districts were competitive. Only two of the 14 NC congressional races were decided by 5% or less.
However Orr will not win the case. And perhaps that is the point.
Orr openly admits that this suit comes from an exchange during oral arguments on another case. As reported by WRAL in February of 2022:
Chief Justice Paul Newby pointed out that unlike many other state constitutions, North Carolina’s constitution does not explicitly require elections to be fair.
Attorneys for plaintiffs in the case were discussing a decision by the Pennsylvania Supreme Court to strike down voting maps in that state because the maps were alleged to have violated Pennsylvania’s constitutional requirement of “free and equal” elections.
Newby pointed out that the North Carolina Constitution doesn’t say that.
“We have ‘free.’ We don’t have ‘fair.’ They have ‘free and fair, correct?”
Newby was correct that the word “fair” is not in the North Carolina Constitution when it comes to elections. In no way does that mean that North Carolina does not have a right to evenly handed and correctly administered elections. Fair elections also have nothing to do with redistricting.
However, Orr may not actually want to win this case, and based on the on the court’s recent rulings, he won’t.
This could be an attempt at a political hit job on the GOP Supreme Court and North Carolina Republicans in general.
Perhaps it’s a bad faith argument intended to fail, so Republicans can be slandered with claims that “Republicans don’t believe in fair elections,” when nothing could be further from the truth.