- Top legislative leaders seek dismissal of a lawsuit in state court seeking to establish a North Carolina constitutional right to "fair" elections.
- Former state Supreme Court Justice Bob Orr filed the suit in January on behalf of nine Democrats and two unaffiliated voters.
- Lawyers for top lawmakers wrote in a motion Wednesday that Orr's suit makes a nonjusticiable claim. That type of claim cannot be decided by a court or legal principles.
North Carolina’s top legislative leaders are asking a three-judge panel to throw out a lawsuit aiming to establish a state constitutional right to “fair” elections. Former state Supreme Court Justice Bob Orr filed the suit in January.
Lawyers representing state Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed a motion Wednesday to dismiss the suit. “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.
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 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.”
“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 continued, 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’?”
“Plaintiffs, individually, and on behalf of all the citizens of North Carolina contend that they are guaranteed ‘fair’ elections or else the other constitutional guarantees are of little or no value and that the elections in specific districts as set forth below violate their constitutional right to fair elections,” plaintiffs’ lawyers wrote.
“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.”
“By intentionally manipulating the electoral odds and stacking the electorate to give an unfair electoral advantage to a particular political party and its candidates in selected districts, the General Assembly has attempted to preordain the outcome of elections in certain districts,” according to the lawsuit. “The Plaintiffs seek a declaration of their constitutional right to ‘fair’ elections in North Carolina and a determination that the legislative apportionment of citizens into districts for the election of Congress, the North Carolina Senate, and the North Carolina House as alleged below violate the citizens’ right to ‘fair’ elections.”
The lawsuit targets new Congressional Districts 6, 13, and 14, state Senate District 7, and state House District 105.
“It all comes down to this question: Do North Carolina voters have a right to fair elections under our state constitution?” Orr said in the news release. “If the answer to that question is ‘yes,’ then any time politicians of either party apportion voters to predetermine winners and losers, it’s a clear violation of North Carolinians’ state constitutional rights.”
“That’s exactly what the North Carolina General Assembly did when drawing these new congressional and legislative maps: they stuffed election districts with selected voters to virtually ensure a preordained election outcome, and in doing so, they violated the rights of North Carolina voters,” Orr added.
The case stems in part from oral arguments during the state Supreme Court’s last consideration of a partisan gerrymandering case, Orr said in a video news conference. Then-Justice Michael Morgan asked attorneys whether the state constitution guarantees a right to fair elections.
“There wasn’t a good answer. There still isn’t a good answer,” Orr said. “The focus and purpose behind this lawsuit is to hopefully get a positive answer that citizens do have a right to fair elections and stuffing districts with favorable voters to your side violates that right.”
A three-judge panel appointed by state Supreme Court Chief Justice Paul Newby will hear 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.
He 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.”
Orr is listed as one of three attorneys representing the plaintiffs. The suit is featured at the website ncforfairelections.com.
A Republican when he served for 10 years on the state’s highest court, Orr is now registered as an unaffiliated voter.
No Republicans signed onto the suit as plaintiffs. Orr attracted attention on New Year’s Day when he sent and quickly deleted a tweet asking a friend if she would be interested in participating as a plaintiff. “It would be great to have an R,” Orr wrote.
“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 is the fourth filed against North Carolina’s new statewide election maps. It is the only case filed to date in state court. The other three cases are moving through federal courts.