RALEIGH, N.C. (CN) — A three-judge panel was urged to find Thursday that North Carolina citizens have a constitutional right to “fair” elections following controversial redistricting that occurred in 2023.
The General Assembly passed new election maps in October of 2023, several months after the North Carolina Supreme Court ruled that it had no judicial authority to limit or correct election maps, overriding precedent. The maps were passed without any input from the public.
The plaintiffs, 11 voters living in redrawn districts, are represented in part by former Supreme Court Justice Robert "Bob" Orr. In their suit targeting the Board of Elections and General Assembly leaders, they say that they are the first in state history to challenge election districts over the right to fair elections.
“If the citizens of North Carolina are guaranteed by their state constitution the right to ‘frequent’ and ‘free’ elections, then surely the Constitution guarantees them the right to ‘fair’ elections,” the voters say in their complaint. “After all, what good are ‘frequent’ elections if those elections are not ‘fair?’ Likewise, what good are ‘free’ elections if those elections are not ‘fair?’”
At a court hearing Thursday, Phillip Strach, attorney for the legislative defendants — President Pro Tem Phil Berger and House Speaker Tim Moore — argued that the Legislature’s redistricting process is only restricted by the limitations outlined in the state constitution, and those requirements don’t extend to unenumerated rights.
The lawmakers shouldn’t have to abide by an abstract concept of political fairness in drafting their maps, because determining fairness is an impossible task. Drawing safe election districts can’t be done without packing and cracking existing districts, he said.
The court does not have the authority to create additional limitations on the General Assembly’s responsibilities, Strach said.
“When the constitution was adopted and amended, such language could have been added. Other states such as Ohio and Florida, have done that. North Carolina has not,” Strach said.
Orr, representing the plaintiffs, said that the case came down to three questions: If citizens have a right to fair elections, if the challenged districts violated that right, and if the state court can hear the case or if it would need to be moved to a higher court.
“We have an enumerated right to frequent elections. We have an enumerated right to free elections. But what good is a free election if it’s not a fair election?” Orr asked. “What good are frequent elections if the results are preordained and the value of the citizens participation as a voter in electing officials is a done deal before they ever get to the ballot box?”
He described the process of moving voters between districts as the government stacking the deck.
“The legislature cannot stuff an extra 500 ballots for their side in the election box. Our argument in its simplest form is that when you stack the district with your voters, it’s not appreciably different from stuffing 500 extra votes in the ballot box,” he said.
The panel of Republican judges hearing the case included Superior Court Judges Jeffery Foster, Angela Puckett and C. Ashley Gore. Their questions focused on how fairness could be defined, asking Orr how they would determine a manageable standard of fairness. Foster pointed out that Orr was asking for the court to recognize a right that has never been recognized before.
The legislative defendants filed a motion in March requesting the case be dismissed.
Orr said that if the judges decide to dismiss the case, the plaintiffs would appeal, but added that he doesn’t expect the issue to be adjudicated before the November election.
There are several lawsuits over the election maps working their way through the federal court system, including one that argues the new maps dilute Black votes and break up minority districts, and another that says congressional maps disregard traditional voting principles. Most focus on claims of racial gerrymandering.
The challenged maps will be used in every election through 2030 unless they are found to be unconstitutional.
The judges did not say when they planned to rule, and attorneys for the legislative defendants declined to comment on the proceedings. Representatives for the Board of Elections were present, but did not argue at the hearing.
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