By Mitch Kokai

North Carolina’s Constitution says nothing about “fair” elections. The document includes no reference to fairness in any provision describing the electoral process.

For one former state Supreme Court justice, that’s an omission. He hopes state courts will fill a constitutional hole by declaring North Carolinians’ right to fair elections.

To get his way, Bob Orr ultimately will have to convince the current Supreme Court to reverse its stance on the fairness issue. The court would have to repudiate a decision issued just 10 months ago.

Orr filed suit on Jan. 31. In addition to seeking the insertion of “fair elections” into the state’s constitutional law, the complaint aims to strike down today’s Republican-drawn statewide election maps as unfair.

Nine of Orr’s plaintiffs are registered Democrats, including a former state senator, and two are unaffiliated. No Republicans joined the litigation. (A since-deleted New Year’s Day tweet demonstrated that Orr tried to line up at least one “R” to boost his cause.)

The suit aims to avoid the state constitution’s silence on electoral fairness by turning to Section 36 of the Declaration of Rights. It says, “The enumeration of rights in this Article shall not be construed to impair or deny others retained by the people.”

The people have an “unenumerated” right to fair elections, Orr argues. Courts would document a right that already exists. Detractors could respond that Orr seeks judge-made law with no basis in constitutional text.

Regardless of that debate, declaration of a right to fair elections would require a judicial standard. Judges and mapmakers would need to know what distinguishes fair from unfair.

In the context of election maps, Orr’s lawsuit proposes a three-part standard. First, those filing suit must prove that a challenged “governmental action” was “intentionally taken.” Second, evidence would show that the action affected a “specific upcoming election.” Third, the action gives a “specific political party or candidate a determinative advantage.” The suit cites the example of apportioning voters into or out of an election district because they support or oppose a political party.

I’m no lawyer. But I read that standard as meaning that any use of partisanship when drawing election maps would trip the fairness alarm. Moreover, potential litigants could claim that any apportionment decision they dislike must be tied to partisanship. 

Removing partisan factors from electoral mapmaking sounds admirable. It’s a goal many advocates of redistricting reform have pursued for years.

Yet it’s not clear that Orr’s proposed judicial standard would improve the mapmaking process. Any shift of voters from one district to another carries partisan implications. Thus every change in an election district line could produce a legal challenge.

Orr’s scheme faces another major obstacle. The state Supreme Court rejected the idea of judicially dictated electoral fairness just last year.

Chief Justice Paul Newby’s 146-page opinion in Harper v. Hall specifically attacked the idea of judge-mandated fairness. “Essentially, partisan gerrymandering claims ask courts to ‘apportion political power as a matter of fairness,’” Newby wrote for a 5-2 majority.

“This judgment call is a policy choice. It is not the kind of ‘clear, manageable, and politically neutral’ standard required for justiciable issues,” the chief justice added.

Newby and the court’s Republican majority agreed that “claims of partisan gerrymandering are nonjusticiable, political questions under the North Carolina Constitution.” The majority criticized a 2022 ruling from a court then led by four Democrats. The 2022 decision had attempted to set a standard ensuring electoral fairness.

“These vague and inconsistent standards are not derived from any express provision in the constitution,” Newby wrote. “Instead, these standards seem to be grounded in a desire for some form of proportionality and reflect a judicially created notion of how much representation is ‘fair’ without explaining what fairness is or how to manage it.”

“[V]ague notions of fairness do not answer how to measure whether groups of voters are treated ‘fairly’ or how to predict the results an election would produce,” Newby added.

Newby reminded readers that nine current and former judges could not “properly understand and apply” the Democratic justices’ 2022 standards when the case returned to lower courts. Among those former judges was Orr himself. As a court-appointed special master, he helped draw maps without clear guidance from a “fairness” standard.

“Constitutional compliance should not be so difficult,” Newby noted.

The chief justice handed down the Harper v. Hall decision in April 2023. There’s no suggestion that he or his colleagues have altered their analysis of electoral fairness in the intervening 10 months.

Orr will need to craft a convincing argument to give his case a fair chance of success.

Mitch Kokai is senior political analyst for the John Locke Foundation. This first appeared in the Carolina Journal.