Appeals Court rejects Orr’s ‘fair elections’ redistricting lawsuit

The North Carolina Court of Appeals has rejected a redistricting lawsuit from former state Supreme Court Justice Bob Orr. He had asked courts to declare a state constitutional right to “fair elections.”

Orr’s suit targeted multiple congressional and legislative election districts drawn in 2023. He argued that the districts failed to meet his “fair elections” standard.

A three-judge panel issued a unanimous unpublished opinion Wednesday upholding a trial court’s 2024 decision against Orr. As an unpublished opinion, it has limited value as a precedent for future court disputes.

Wednesday’s decision represents a victory for Republican state legislative leaders who defended state election maps against Orr’s lawsuit. Yet top lawmakers faced a partial setback. The appellate panel upheld the trial court’s decision to order each side in the dispute to pay its own lawyers’ fees.

The Appeals Court ruling focused on the state Supreme Court’s 2023 decision in Harper v. Hall, also known as Harper III. That case determined that North Carolina courts would no longer address cases involving partisan gerrymandering.

“[T]hough plaintiffs are not bringing a statewide challenge seeking proportional representation so that a particular party will win, their claim still fits squarely within the definition of partisan gerrymandering,” Judge Christopher Freeman wrote for the unanimous panel. “In their complaint, plaintiffs alleged that the General Assembly drew specific districts ‘intentionally to assure, to the extent possible, a political victory in the 2024 election for candidates of one political party, in this case, the Republican Party.’ Further, they alleged that the General Assembly reapportioned voters in the challenged districts ‘in such a way to turn the districts from competitive to favoring one political party’s candidates, in this case, the Republican Party.’”

“Although their challenge is limited to different districts and does not purport to seek the same remedy, it is still at its core an allegation that the General Assembly acted to change districts to give one party or group an advantage in the upcoming elections,” Freeman continued. “Accordingly, plaintiffs’ claim presents a nonjusticiable political question and is therefore beyond the reach of this Court.”

Orr’s suit relied on Article I, Section 36 of the North Carolina Constitution. It says, “The enumeration of rights in this Article shall not be construed to impair or deny others retained by the people.”

Yet the state constitution “expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text,” Freeman wrote. A violation of the limitations in the constitutional text “must be proved beyond a reasonable doubt.”

“Here, Plaintiffs rely on an unenumerated right to fair elections as the limitation on the General Assembly’s authority to gerrymander on a partisan basis,” Freeman explained. “However, we are constrained to reviewing whether the act of the General Assembly violated an express constitutional provision. Accordingly, we cannot conclude that the way the General Assembly drew the challenged districts violated those express limitations.”

“Plaintiffs alleged that the General Assembly acted unconstitutionally by drawing certain districts to favor one political party or group, which is tantamount to alleging partisan gerrymandering,” he added. “As our Supreme Court has held that partisan gerrymandering claims present nonjusticiable political questions, their claim is foreclosed by Harper III.”

“Furthermore, plaintiffs rely on an unenumerated right as the basis of their allegation that the General Assembly acted unconstitutionally,” Freeman wrote. “Because we review whether the General Assembly violated an express provision of our constitution, plaintiffs’ reliance on an unenumerated right cannot be the basis for an unconstitutional act of the General Assembly. Therefore, the trial court properly granted legislative defendants’ motion to dismiss plaintiffs’ claims as barred by Harper III.”

Judges Donna Stroud and Julee Flood joined Freeman’s opinion. All three are Republicans. They considered the case last August without an oral argument.

The former state Supreme Court justice 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 April 2025. “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.”

“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.”

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, trial court 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 rejecting Orr’s case.

Judges Jeffery Foster, Angela Puckett, and Ashley Gore answered that question by turning to the April 2023 decision in Harper v. Hall, or 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 claims. 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.”

“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 the April 2023 Harper v. Hall decision, 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.”

“Appeals Court rejects Orr’s ‘fair elections’ redistricting lawsuit” was originally published on www.carolinajournal.com.