Expect disagreement about fairness of redistricting ruling

Whether you believe a three-member panel of Superior Court judges delivers a “fair” ruling in a lawsuit challenging North Carolina’s statewide election maps is likely to depend on the outcome.

That’s a problem. It’s a problem that stems from the lawsuit’s core argument.

Former state Supreme Court Justice Bob Orr filed the suit on behalf of 11 North Carolinians — nine Democrats and two unaffiliated voters. They challenge the process Republican lawmakers used to draw maps for congressional and legislative elections.

The process violated voters’ constitutional rights, according to the lawsuit. Orr wants courts to proclaim a right to “fair elections” for the first time in North Carolina’s history. If judges agree that the right exists, then they should strike down challenged election districts as unfair, he argues.

Legislative leaders are asking the three judges overseeing the case to dismiss Orr’s lawsuit. A June 13 hearing featured arguments from both sides of the dispute.

“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.”

The right to fair elections is one of many unenumerated rights “retained” by the people under Article I, Section 36 of the state constitution’s Declaration of Rights, in Orr’s view.

If judges accept his argument, they must answer a key question: What is a fair election? In the context of the current suit, they would decide what constitutes fairness in drawing electoral districts.

“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.”

Veteran Republican redistricting lawyer Phil Strach countered Orr’s arguments. He cautioned judges against wading into a debate about fairness and election maps.

“What is fair is in the eye of the beholder,” Strach said. “Plaintiffs want the court to be the beholder.”

The lawsuit followed the plaintiffs’ disagreement with the outcome of a fundamentally political process, Strach added.

The state Supreme Court “has slammed the door shut” on the three-judge panel serving as the “beholder” judging the fairness of election maps, he said. In its April 2023 ruling in Harper v. Hall, referred to as Harper III, the court rejected judges’ attempts to dictate fairness in redistricting.

Strach urged judges to dismiss Orr’s lawsuit “with prejudice.” That outcome would block Orr from refiling in the future. That decision also would give the former justice a chance to take his arguments to the “wise people on Morgan Street,” home of North Carolina’s appellate courts.

If judges endorse Orr’s arguments and his case moves forward, Strach offers a prediction in the form of a warning. “Everyone who loses” in future elections will put forward evidence of unfairness, he said. “The court is going to be inundated” with those who believe they are entitled to some type of “do-over.”

Skepticism of Orr’s arguments emerged on June 13  from more than just the GOP redistricting lawyer.

“What is the definition of fair? What is the definition you want us to use?” Judge Jeffery Foster asked early in Orr’s argument.

Since the people’s rights are represented in our system of government by the elected General Assembly, why shouldn’t the issue of fair elections be addressed through a constitutional amendment, Foster added. “You’re asking us to create — or you’re asking us to recognize — a new right. Is that the proper way to do it?”

Judge Angela Puckett also tried to pin down Orr’s definition of fairness.

The former justice mentioned equality but denied that his suit sought any form of equal or proportional representation in election maps. He mentioned impartiality, even though the Harper III ruling upheld the General Assembly’s right to factor political partisanship into election maps.

“I just don’t understand what you’re asking for,” Puckett said.

The court would need to establish a legal standard that lawmakers and other judges could follow, Puckett reminded Orr. “What exactly are you saying the discoverable, manageable standard is?”

Some observers are bound to consider the case’s ultimate decision unfair, whether the three-judge panel accepts or rejects Orr’s fairness arguments. People across the political spectrum are unlikely to agree on factors that would make a ruling fair.

That disagreement highlights a key problem with the case. Without a clear, manageable standard of fairness that makes sense to all participants, the future of “fair elections” litigation would depend on whichever judge — or set of judges — oversees a particular dispute.

No one ought to consider that outcome fair.

Mitch Kokai is senior political analyst for the John Locke Foundation.