New court filing bashes Orr’s ‘fair elections’ lawsuit

Top legislative leaders took another shot Monday at former North Carolina Supreme Court Justice Bob Orr’s “fair elections” lawsuit. Lawmakers and Orr’s legal team submitted competing briefs to the state Court of Appeals.

A three-judge Superior Court panel dismissed Orr’s case in June 2024. Orr is asking the Appeals Court to allow his suit to proceed. Republican legislative leaders filed their own appeal. GOP lawmakers urge appellate judges to allow them to seek attorneys’ fees.

Orr sued in January 2024 on behalf of nine Democrats and two unaffiliated voters. They challenged three North Carolina congressional districts (6. 13, and 14), a state Senate district (7), and a state House district (105). In each case, the complaint alleged that the districts violated a state constitutional right to “fair” elections.

“Plaintiffs’ attempt to reframe this case as an ‘Election Integrity’ case belies both logic and the record before the Court,” legislative lawyers wrote in their latest filing. “Plaintiffs offer no evidence, or even an allegation in their Complaint, of any concrete issues pertaining to the 2024 elections. Nor could they. Plaintiffs filed their Complaint over a month before the 2024 primary.”

“Nor do Plaintiffs raise any issue with the actual conduct or integrity of the election,” the court filing continued. “There are no allegations that any of the Plaintiffs were denied access to the ballot box, that any ballot box was stuffed with illegal ballots, or that ballots were cast by non-registered or fraudulent voters implicating a potential issue under N.C. Const. Art. I, § 10.”

The lawsuit focuses on Article I, Section 36 of the North Carolina Constitution: “The enumeration of rights in this Article shall not be construed to impair or deny others retained by the people.”

“Plaintiffs’ efforts to re-cast their single Article I, § 36 claim is nothing more than a desperate attempt to evade the failings of their own Complaint,” legislative lawyers wrote. “There is no mention of denial of the right to vote, or any other election integrity issues,” the court filing continued. “Put plainly, Plaintiffs challenge the 2023 Plans under theories of partisan gerrymandering.”

Those claims are barred by the state Supreme Court’s April 2023 decision in Harper v. Hall, legislative lawyers argued. The court’s decision in that case ended lawsuits dealing with partisan gerrymandering claims.

“Plaintiffs here are careful to not self-identify their claim as a partisan gerrymandering challenge. But the root of Plaintiffs’ Complaint is that ‘members of the General Assembly controlling the apportionment process used technology and data in such a way as to reapportion voters so as to create an unfair advantage for their political party in the ensuing elections in those districts,’ and ‘it was the intent of [Legislative Defendants] to take a substantial number of voters likely to support their party’s candidates and move them into the above referenced districts; take certain voters likely to not support their party’s candidates out of their district,’” the court filing explained.

“This is simply a long-winded way to accuse the General Assembly of partisan gerrymandering,” legislative lawyers argued.

In dismissing the case last year, the Superior Court panel determined that all parties would cover their own attorneys’ fees. Legislative lawyers are asking the Appeals Court to reverse that decision. Orr’s legal team filed a separate document objecting to that request.

Orr’s suit asked judges to declare a state constitutional 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 June 2024 court order.

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, also called 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.

“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 in 2023 as part of 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.

“What is fair is in the eye of the beholder,” Strach responded. “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.

The panel overseeing the “fair elections” lawsuit featured 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.

No Republicans signed onto the suit as plaintiffs. “This is not a partisan lawsuit — not intended to be a partisan lawsuit,” Orr said in a video news conference shortly after he filed suit. “This is a good-government lawsuit, and one that I think is extraordinarily important to the long-term well-being of this state.”

The post New court filing bashes Orr’s ‘fair elections’ lawsuit first appeared on Carolina Journal.