Bob Orr pushes NC courts to answer an essential question: Do we have a right to fair elections? Read more at: https://www.newsobserver.com/opinion/article301199574.html#storylink=cpy

(Editor's note: This article first appeared in The News and Observer, March 5, 2025)

Bob Orr, a former state Supreme Court justice, knows his way around the state Constitution and he thinks he’s found in it a way to disarm the most potent of political weapons – gerrymandering.

Orr, a former Republican who is now unaffiliated, is doggedly bringing a lawsuit that goes beyond the usual objections to politicians picking their voters.

Instead of challenging gerrymandering as being unfair to racial minorities, or as a distortion of what should be the true partisan balance, Orr is attacking gerrymandering as illegal government interference.

Orr’s lawsuit, now before the state Court of Appeals, argues that a legislative redistricting process that overfills what should be a competitive district with members of one party is akin to stuffing the ballot box to ensure that one party wins.

“If you did as an individual what the legislature has done, you’d go to jail for breaking the election laws,” Orr told me. “So why should the government or any General Assembly or any governmental entity be able to get away with fixing elections? I mean, it’s just like Russia. It really is no different than seats for whatever they call the Russian parliament – the Politburo.”

Orr, 78, and semi-retired, has worked on this lawsuit for hundreds of hours with the volunteer help of three lawyers. He rounded up plaintiffs that include Thomas Ross, a former judge and president of the UNC System, and Allen Wellons, a former Democratic state senator, along with residents of the congressional and state districts his lawsuit challenges.

Defendants in the case are representatives of the State Board of Elections and leaders of the Republican-controlled General Assembly.

“This is clearly the first of its kind,” Orr said of his argument. “If they can’t stuff the ballot box, how can they stuff the voter pool?”

The lawsuit challenges how Republican state lawmakers drew the lines in congressional districts 6, 13 and 14, in state House District 105 and state Senate District 7.

While Orr’s argument is new, the result is familiar. Attempts to stop gerrymandering tend to bounce like rocks off a tank of political power.

A panel of three Superior Court judges, all Republicans, dismissed Orr’s lawsuit in the summer of 2024, saying it involved a political issue that is not subject to judicial review. In an appeal of the panel’s ruling filed on Feb. 21, the plaintiffs argued this issue was not purely political, but rather it is fundamentally constitutional and clearly a matter for the courts.

The plaintiffs ask that the appellate court send the lawsuit back to superior court for a trial. Former state Supreme Court Justice Robin Hudson has filed a friend-of-the-court brief in support of Orr’s appeal.

Eventually, Orr hopes his argument will reach the state Supreme Court, and if it fails there, the U.S. Supreme Court.

The plaintiffs say in their appellate brief that gerrymandering is prohibited under implied or “unenumerated” rights that flow from provisions of the North Carolina Constitution, particularly its requirement that elections be free. 

The brief says, “The Plaintiffs, as registered voters in the Challenged Districts, have the right under the North Carolina Constitution to exercise their right to vote and to elect officials, without government interference purposefully taken to influence and predetermine the outcome of those elections.”

Most challenges to gerrymandering focus on how it disfranchises Black voters, or how it distorts results in what should be a relatively equal political environment. Orr is taking a simpler aim: The government should not be allowed to draw an election district to achieve a desired result.

“We’re not talking about cartography and a map drawing situation,” he said. “We are talking about an election for a specific office, a discrete office. If the government can manipulate the voter pool so as to, in essence, put their thumb on the scale, or their foot on the scale, to determine who is getting elected, that seems to be a violation of our right to fair elections.”

Orr acknowledges that after court challenges to North Carolina’s gerrymandering have gone as far as the U.S Supreme Court and failed, some good government advocates feel it’s a lost cause.

But it’s not for Orr.

“People are beat down,” he said. “But people need to be talking about it and asking the question,” he said. “Do we have a right to fair elections? If nothing else we ought to get an answer to that.”