Another challenge to partisan gerrymandering in a North Carolina court

The new NC congressional map creates 10 Republican districts, 3 Democratic districts and a district that is trending Republican (Source: NCGA)

Updated at 4:55 pm Wednesday with comments from Bob Orr.

A redistricting lawsuit claiming that gerrymandered districts deprive voters of fair elections is scheduled for a court hearing on Thursday.

A three-judge panel will consider Republican legislative leaders’ request to dismiss the case.

Bob Orr, a former state Supreme Court justice, filed the lawsuit against GOP leading legislators and the state Board of Election in January on behalf of voters. It says legislators stacking districts to determine political winners unconstitutionally deprives voters of fair elections.

“Plaintiffs, individually, and on behalf of all the citizens of North Carolina contend they are guaranteed ‘fair’ elections – otherwise their other constitutional guarantees are of little or no value,” lawyers for the plaintiffs wrote in the argument against dismissing the case. They argue that “fair” elections are an unenumerated right, one that’s not explicitly stated in the constitution, but is implied.

This is the only one of four lawsuits filed over the latest round of redistricting to be heard in state court.

Two federal lawsuits challenging election districts as racial gerrymanders have been combined and will be heard next year.

In another federal suit focused on northeastern North Carolina Senate districts, courts denied two Black voters’ request to have boundary lines redrawn in time for this year’s election.

Philip Strach, the lawyer representing House Speaker Tim Moore and Senate leader Phil Berger in the state case, wrote that the state Supreme Court has already decided that redistricting complaints don’t belong in court.

Strach called the lawsuit “meritless,” in his motion to dismiss the case. He cited last year’s Supreme Court decision that redistricting is a political issue controlled by legislators, not judges.

Last year’s opinion by the Republican Supreme Court majority “represents an encyclopedic and binding explanation of the General Assembly’s redistricting authority and the limited role of the judiciary in reviewing redistricting plans,” Strach wrote.

With that 5-2 opinion, the Republican majority reversed decisions of a Democratic majority that had decided the year before that extreme gerrymandering violated the state constitution. That 2022 Democratic court majority required congressional, state House, and state Senate plans that Republicans in the legislature approved and wanted used in 2002 be redrawn.

The congressional districts used in the 2022 elections were approved by a court and drawn by three special masters. Orr was one of the special masters. Former judge and UNC System President Tom Ross, one of the other special masters, is one of the 11 plaintiffs in the case being heard Thursday.

The court-drawn 2002 congressional plan resulted in seven Democrats and seven Republicans winning election to the US House from North Carolina.

With the Republican-majority Supreme Court decision, legislative Republicans were able to redraw the congressional map to guarantee that Republicans will win 10 seats and Democrats will win three . Incumbent US House member Don Davis, a Democrat, represents the only district considered a toss-up.

Speaking to reporters Wednesday afternoon, Orr said this new case is “very different” from the case that resulted in Republican justices invalidating the previous ruling on extreme partisan gerrymandering.

“It’s a different theory,” he said. “It’s our contention and argument that the unenumerated rights contain and have the right to fair elections as the foundational underpinnings of the whole system government.”

Chief Justice Paul Newby wrote the 2023 court opinion that overturned the Democrats’ opinion on redistricting. He wrote that judicial interpretations of the constitution should stick to its text and historical context.

By law, Newby appoints the panel of Superior Court judges who first consider cases  like this. To hear this case, Newby appointed Superior Court Judges Jeffrey B. Foster from Pitt County, Angela B. Puckett of Surry County, and C. Ashley Gore of Columbus County, all Republicans.

“I’m confident of a fair hearing,” Orr told reporters. Plaintiffs plan to appeal if they lose in trial court, he said.

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