Orr urges NC Appeals Court to revive his ‘fair elections’ lawsuit

Former state Supreme Court Justice Bob Orr is urging North Carolina’s second-highest court to revive his lawsuit challenging the state’s congressional and legislative election maps. Orr asks state courts to recognize a state constitutional right to “fair” elections.

A three-judge Superior Court panel dismissed the lawsuit last summer.

“This case is about election integrity,” lawyers led by Orr wrote in a brief filed Friday at the state Court of Appeals. “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.”

Orr represents nine Democrats and two unaffiliated voters in the case titled Bard v. North Carolina State Board of Elections.

“Plaintiffs, who are voters in the challenged districts or were voters in the previous election districts, have the right under the North Carolina Constitution to have the election process, including who gets to vote for a specific office, free from the government’s purposeful action to influence or pre-determine the outcome of those discrete elections,” Orr’s court filing explained.

“The allegations of the Complaint more than adequately allege that the North Carolina General Assembly, in aggregating voters in Congressional elections in districts denominated as Number 6, Number 13, and Number 14; and in State House District Number 105 and Senate District Number 7 (the ‘Challenged Districts’), purposefully and impermissibly aggregated voting blocks based upon voting patterns, history of election results, political registration, demographics, and other politically revealing data which virtually guaranteed the government’s preferred party would prevail in those elections,” Orr and his colleagues wrote.

“In fact, the 2024 election results in the Challenged Districts confirm the very allegations made in this Complaint,” the court filing continued.

Republican legislative leaders entered the case to defend election maps against Orr’s claims. They filed a separate brief Friday 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.”

“It is undisputed that Legislative Defendants were the prevailing party, as the superior court granted Legislative Defendants’ Motion to Dismiss in its entirety,” legislative leaders’ lawyers wrote. “It is likewise undisputed that the superior court held that Plaintiffs’ claims were nonjusticiable and indistinguishable from the claims brought in Harper,” an earlier redistricting case.

“[T]he superior court did not have the authority to adjudicate the issue of whether each party should pay their own attorneys’ fees because a motion for fees was not properly before it,” the court filing continued.

The unanimous panel of Superior Court judges 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.

The panel overseeing the “fair elections” lawsuit features Foster of Pitt County, Puckett of Stokes County, and Gore of Columbus County. All are registered Republicans.

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

The lawsuit targeted 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.”