New gerrymandering lawsuit unlikely to succeed
Published March 20, 2025
Joint Select Committee on Congressional Redistricting members review historical voting maps lining the walls during their morning meeting at the N.C. Legislature on Tuesday, February 16, 2016. Corey Lowenstein clowenst@newsobserver.com
In his most recent lawsuit on election gerrymandering, former North Carolina Supreme Court Justice Bob Orr contends that Article I, section 10 of our state constitution, which simply says in its entirety that “All elections shall be free,” includes an implied requirement that elections be “fair.” He does not define the term “fair,” so its meaning must also be implied. This is a bold invitation to rewrite the terms of our constitution according to one’s personal biases.
The complaint centers on alleged drawing of electoral districts to favor a particular political party. Both the United States Supreme Court and the N.C. Supreme Court have recently held that such gerrymandering claims present political issues not subject to review by courts. It is unlikely that the N.C. Supreme Court will grant Orr’s request to review the Court of Appeals’ unanimous holding against him.
Should the state Supreme Court grant review, however, and also conclude that our constitution requires that elections be “fair,” it would have to define what is meant by “fair” in this context. A dictionary definition would hardly suffice for that constitutional purpose. To the contrary, it seems clear that the framers established what they concluded was a fair system when they specified exactly how electoral districts should be drawn.
The state constitution, Article II, section 3 provides for the manner of creation of state Senate districts and section 5 provides for state House districts. The requirements established for each are identical. Each Senator or Representative must represent an equal number of inhabitants of the district that he or she represents, each district shall consist of contiguous territory and no county shall be divided in creating a district.
These requirements provide what the plaintiffs in Orr’s suit say are constitutionally required under the state constitution “to vote and to elect officials without government interference purposefully taken to influence and predetermine the outcome of those elections.” But the results the plaintiffs seek are totally based on partisan political considerations and that would determine the outcome of elections.
Gerrymandering for such predetermined results only became an issue when it was alleged that the state legislature had relied on political party considerations when creating districts. No such considerations are properly a part of our constitution’s fair system of drawing contiguous districts, each with equal numbers of “inhabitants.” Political parties are not mentioned or acknowledged in either our state or federal constitutions. That is not surprising since no political parties as we know them today existed at the time the framers wrote those constitutions.
In my memory, the remedy always sought by plaintiffs has been to apply contrary partisan politics into redrawing the districts. They have sought counter gerrymandering as the remedy for the legislature’s alleged gerrymandering. This simply cannot have been what the rational framers of the state and federal constitutions had in mind.
Drawing contiguous districts with equal numbers of inhabitants should present no difficulty as long as partisan political information is not injected. A simple system of ensuring contiguous districts with equal numbers of inhabitants could easily be set up, probably without even the need of a computer. No election”experts” would need to testify, and we certainly would not need to pay academics from California to tell us whether the districts are constitutional.
As I stated, neither the state or federal courts will likely abandon their recent holdings that challenges to alleged gerrymandering present political issues not to be decided by the judiciary. Should they reconsider those decisions, however, I suggest they take a fresh look at the entire issue of gerrymandering and forbid any partisan consideration when redistricting.
Burley Mitchell is the former Chief Justice of the North Carolina Supreme Court.
