Three-judge panel dismisses Orr’s ‘fair elections’ lawsuit

Carolina Journal photo by Mitch Kokai

Listen to this story (13 minutes)

  • A three-judge panel has dismissed former North Carolina Supreme Court Justice Bob Orr's "fair elections" lawsuit.
  • The decision arrived two weeks after Orr defended his suit in court against Republican legislative leaders' motion to throw the case out.
  • The unanimous panel agreed Orr's lawsuit raised "non-justiciable political questions" that are inappropriate for judges to resolve.

A unanimous three-judge panel has dismissed former North Carolina Supreme Court Justice Bob Orr’s lawsuit seeking a state constitutional right to “fair elections.” Judges agreed 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 Friday.

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 caims. 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 unanimous decision arrived two weeks after Orr and Republican redistricting lawyer Phil Strach offered competing arguments before the three judges. A hearing in Raleigh addressed GOP legislative leaders’ motion to dismiss Orr’s suit.

“We’re not asking the court to create a new right,” Orr argued. “We’re asking the court to affirm an existing right, one that is as old as the state of North Carolina.”

Orr filed suit on behalf of 11 plaintiffs — nine Democrats and two unaffiliated voters — who argued that targeted districts in the state’s current congressional and legislative election maps violate the concept of “fair” elections. The Republican-led General Assembly drew those maps last year in the redistricting process.

“To say that ‘fair’ doesn’t have anything to do with redistricting is inconceivable,” Orr argued. “Citizens have a right not to have the deck stacked by the government.”

Orr urged judges to allow the case to move forward. “To grant their motion is to say you don’t have a right to fair elections,” Orr said. After spending recent weeks recognizing Memorial Day and the 80th anniversary of D-Day, Orr labeled that prospect “troubling.”

“You are the safeguards of the rights of the people,” Orr told the judges.

Strach leads the legal team defending Republican legislators’ election maps against legal attacks. “What is fair is in the eye of the beholder,” Strach argued. “Plaintiffs want the court to be the beholder.”

The state Supreme Court “slammed that door shut” with its April 2023 ruling in the Harper v. Hall redistricting case, Strach argued. In that ruling, the court’s 5-2 Republican majority rejected partisan gerrymandering claims under the state constitution. The case rejected arguments about fairness in election maps.

If North Carolina’s courts declare a right to fair elections, judges will be “inundated” with lawsuits every time a losing candidate believes he is entitled to a “do-over,” Strach predicted.

Both Foster and Puckett asked Orr questions designed to pin down a definition of fairness.

“What is the definition of fair? What is the definition you want us to use?” Foster asked early in Orr’s argument.

Orr responded with a baseball analogy. The General Assembly couldn’t pass a law giving the University of North Carolina and North Carolina State University baseball teams five-run leads in their College World Series games. Both teams have to start with 0-0 scores.

Since the people’s rights are represented through the General Assembly, why shouldn’t the issue of fair elections be addressed as a constitutional amendment, Foster asked Orr later. “You’re asking us to create — or you’re asking us to recognize — a new right. Is that the proper way to do it?”

Puckett pointed to Orr’s emphasis on concepts of equality and impartiality. Yet his lawsuit doesn’t argue for equal political outcomes, and the state Supreme Court’s Harper decision already said lawmakers could use partisan information that is not impartial.

“I just don’t understand what you’re asking for,” Puckett said.

The suit asked for the equivalent of preventing government from stuffing a ballot box with an extra 500 votes, Orr responded.

Judges would have to set a legal standard that lawmakers and other judges could follow, Puckett reminded Orr. “What exactly are you saying the discoverable, manageable standard is?”

Orr’s lawsuit also implicated the limits of judicial power, Puckett warned.

“This case presents a major question of first impression for the courts of this State,” according to a memorandum Orr’s legal team filed in May. “Our state Constitution established a republican form of government under which the people are sovereign and through periodic elections they choose or remove their servants in the legislature, judiciary, and executive.”

“It is often said that our Constitution cannot contradict itself, and so it is absurd to suppose that the people surrendered their rights to control their government by empowering the legislature to enact discrete election regulations that are not ‘fair,’” Orr and colleagues wrote. “The essence of this Complaint is that an unfair election is unconstitutional, and that the judiciary has an obligation to right the wrong.“

“The Declaration of Rights in Article I of the North Carolina Constitution sets out these core principles: elections are to be frequent (§ 9), free (§ 10), and fair (an implicit unenumerated right),” according to the memo. “It is indisputable that the right to ‘fair’ elections is a precondition to the guarantees ‘of frequent’ and ‘free’ elections. After all, what good are ‘frequent’ or ‘free’ elections if those elections are not ‘fair’?”

“Plaintiffs, individually, and on behalf of all the citizens of North Carolina contend that they are guaranteed ‘fair’ elections — otherwise their other constitutional guarantees are of little or no value,” Orr’s legal team argued.

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

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 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.”

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.