Summary:
- Former Supreme Court Justice Bob Orr filed a lawsuit aimed at fairer legislative districts
- Legislative districts across NC vary on the number of voters in each known as: malapportionment
Gerrymandered legislative districts that shift like sand dunes in the Outer Banks.
New restrictions on voting with each passing election, supported by Orwellian language like “election integrity.”
Campaign finance laws that allow effectively unlimited spending from millionaires and billionaires.
It’s no secret North Carolina’s democracy is under attack from multiple angles – and that was before Jefferson Griffin’s taxpayer-funded temper tantrum sought to disqualify over 60,000 legal voters who broke no law.
That’s one of the reasons former North Carolina Supreme Court Justice Bob Orr is representing plaintiffs who sued the State Board of Elections over unfair legislative districts.
“Everyone in North Carolina has a constitutional right to fair elections – fair elections mean that the government cannot manipulate the election process to ‘rig’ the outcome in favor of a particular candidate or political party,” Orr told Carolina Forward. “Fair elections are the foundation of our constitutional democracy. If the government can ‘rig’ elections, then the entire basis for representative democracy is undermined and ultimately destroyed.”
There is a clear sense of urgency behind this case. The North Carolina Supreme Court and the United States Supreme Court have become so partisan in their interpretation of state and federal law that unfair districts could be here to stay thanks to cases like Rucho v. Common Cause, which held that partisan redistricting is a political question federal courts cannot adjudicate.
The Supreme Court’s ruling in Rucho was along ideological lines, despite the conservative majority noting in their opinion that “Excessive partisanship in districting leads to results that reasonably seem unjust.”
Not long after, the North Carolina Supreme Court heard Harper v. Hall, in which a Democratic majority of the court ruled “the only way that partisan gerrymandering can be addressed is through the courts,” rejecting the idea that the state legislature, without checks and balances, is the unitary arbiter of election law.
Writing for the majority, Justice Robin Hudson based her interpretation of the law squarely within the State Constitution:
“In North Carolina, we have long understood that our constitution’s promise that ‘[a]ll elections shall be free’ means that every vote must count equally. As early as 1875, this Court declared it ‘too plain for argument’ that the General Assembly’s malapportionment of election districts ‘is a plain violation of fundamental principles’ … Partisan gerrymandering creates the same harm as malapportionment, which has previously been held to violate the state constitution: some peoples’ votes have more power than others. But a legislative body can only reflect the will of the people if it is elected from districts that provide one person’s vote with substantially the same power as every other person’s vote.”
Unfortunately, when the composition of the court changed just months later, the new Republican majority did something unprecedented – literally. In April of 2023, they overrode decades of jurisprudence and republican values by overturning the previous decision on partisan gerrymandering, and ruled that the state Supreme Court would no longer hear gerrymandering cases.
Last year, a Superior Court panel used the new precedent to dismiss Orr’s lawsuit by dismissing it as a simple gerrymandering case. The three Republicans on 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.” No Democratic or Unaffiliated judges served on the panel.
Orr appealed to the State Court of Appeals, and Hudson, now retired from the court, filed a friend of the court brief in support of Orr’s lawsuit in February, with reasoning similar to her opinion in the pre-reversal Harper.
“The [General] Assembly has the prerogative to enact elections regulations, but not to contrive them so that the votes of their critics are ineffective,” reads the brief. “The North Carolina Constitution prohibits anyone in authority, including the legislature, from subverting the fundamental democratic power of the right to vote. These textual guarantees are collectively referred to and indelibly understood as the right to a fair election.”
This month, however, Republican legislative leaders filed a response to Orr’s appeal, relying on the final Harper decision as the key to their opposition: “The superior court properly dismissed Plaintiffs’ Complaint because it presents a non-justiciable political question. Harper III bars Plaintiffs’ claim. Full stop.” The legislative leaders, of course, support the state Supreme Court’s idea that all redistricting power is vested in the legislature because House and Senate Republicans have argued time and again that the North Carolina General Assembly is wholly unaccountable to any other branch of government.
However, even if you agree with the idea that checks and balances do not apply to North Carolina legislators, Orr’s lawsuit raises myriad questions that go beyond the question of gerrymandering. Hudson’s criticism, that the votes of North Carolina citizens have been rendered ineffective, speaks directly to the State Constitution’s guarantee of a right to “redress of grievances.” The First Amendment to the U.S. Constitution also guarantees that right, but it’s the North Carolina Constitution that explicitly prescribes that frequent, free elections are a mechanism for redress.
Orr’s contention that fair elections underpin our entire system of government also raises a question that the North Carolina Supreme Court has addressed for 150 years: malapportionment, or the creation of districts with vastly different numbers of voters. Currently, legislative leaders are not prohibited by statute from using malapportionment in the redistricting process, even though modern technology – the same that allows for gerrymandering with “surgical precision” – makes it much easier for legislators to draw districts with an equal number of voters.
Equal apportionment guarantees a key principle of fair elections – one person, one vote – while malapportionment across North Carolina’s 170 legislative districts often allows a Republican voter’s vote to count more than a Democratic or unaffiliated voter’s vote. While the U.S. Constitution requires Congressional districts within a state to have equal populations (+/- one voter), under North Carolina general statutes, State House and State Senate districts can vary 5% above or below the ideal population.
Effectively, that means State Senate districts – especially in urban and suburban areas – can be packed with up to 219,227 people, while rural voters can be given “stronger” votes in districts with as few as 198,348 people – over a 20,000 person difference between districts in the same chamber. Over the decade the districts are in effect, the original malapportionment allows the difference in population to become so great that the largest Senate districts often have tens of thousands more voters than the smallest districts.
These are just some examples of why a “fair elections” case is materially different from a gerrymandering case. Questions of “one person, one vote” are not partisan political questions, they are foundational to our democracy. Carolina Forward will continue to follow Orr’s lawsuit as it continues through the courts.
