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Does election district plan violate NC voters’ constitutional rights? Heavy hitters back lawsuit claiming it does

Buncombe County poll worker Terry Davis checks in Brandon Williams at the Shiloh Community Center in Asheville on Election Day, Nov. 3, 2020.
Colby Rabon
Carolina Public Press
Buncombe County poll worker Terry Davis checks in Brandon Williams at the Shiloh Community Center in Asheville on Election Day, Nov. 3, 2020.

A lawsuit filed Wednesday in Wake County Superior Court challenges five recently redrawn North Carolina congressional and legislative election districts for violating voters’ constitutional right to fair elections.

The lawsuit filed on behalf of North Carolina voters challenges the “fairness” of the redistricting of the following districts: US House Districts 6, 13 and 14; NC Senate District 7 and NC House District 105. The 11 plaintiffs include Tom Ross, a former president of the University of North Carolina system, and former NC Sen. Allen Wellons, D-Johnston.

Bob Orr, a former judge who spent a decade on the N.C. Supreme Court, is one of the attorneys for the plaintiffs. Orr, a longtime Republican who is not registered unaffiliated, hopes the case will move forward on an expedited schedule with a decision before the election, he said.

Experts whom Carolina Public Press interviewed are divided on whether this case will have a different outcome for redistricting in the state than previous challenges to the current election districts.

“This is not intended to be a partisan lawsuit, this is a good government lawsuit and one that I think is extraordinarily important to the long-term well-being of the state,” Orr said during a virtual press conference on Wednesday.

“I don’t see a difference between stuffing a ballot box and stuffing a district.”

The N.C. General Assembly redraws congressional and legislative election districts every 10 years after the decennial census, though legislators have also redrawn lines more frequently at times due to court rulings or partisan interests.

Steven Greene, a political science professor at North Carolina State University in Raleigh, said he doesn’t think this case is unique from other lawsuits challenging the redrawing of election districts in the state and is unlikely to have a different outcome.

“The current North Carolina Supreme Court has already shown itself as not particularly amenable to these types of claims, so I don’t know why there's any reason to think it would be different this time,” Greene said.

But, according to Orr, the lawsuit is unique from previous cases, such as Rucho v. Common Cause and Moore v. Harper, because it is the first one challenging the legitimacy of legislatively created election districts for violating voters’ constitutional right to fair elections.

Orr is “confident and optimistic” that the judges and justices who hear this case will be give it a fair hearing because it is “a simple, straightforward case,” he said.

The complaint cites Article I of the North Carolina Constitution, which gives citizens certain “enumerated rights,” such as the right to “frequent” elections and “free” elections.

“What good are free elections if they are not fair? What good are frequent elections if they are not fair,” Orr said. “I can’t imagine a more unenumerated right than the process of conducting elections.”

Irving Joyner, a professor of law at N.C. Central University in Durham, said the new lawsuit “changes the argument and the legal focus” on redrawing election districts in the state.

“It takes the members of the Supreme Court away from the kind of stock response that they have had thus far to dealing with these issues under the Voting Rights Act, so I think it has a shot,” Joyner said. The lawsuit has a strong constitutional basis, according to him.

“The focus here is on the North Carolina Constitution and these issues have not yet been raised in the context of gerrymandering, or developing legislative districts,” Joyner said. Because the lawsuit isn’t brought under the federal Voting Rights Act, “it will not consume as much time as it would when you are dealing with federal court.”

Joyner said he is optimistic about the lawsuit. “People ought to get behind this challenge,” he said. “It is one that is innovative, legalistically founded and certainly has a strong constitutional basis.”

In December 2023, N.C. voting rights groups, including Common Cause and NAACP, also filed a redistricting lawsuit, saying the new election districts are racially gerrymandered and violate the federal Voting Rights Act and the U.S. constitutional amendments that prohibit racial discrimination.

“This lawsuit also highlights the need for a better process for fairer maps,” said Bob Phillips, a lobbyist and the executive director of Common Cause of North Carolina. The state constitutional approach to redistricting is positive and “it’s possible and I am hopeful that this litigation is successful,” he said.

Precedent exists in the state for finding gerrymandering to be in violation of the state Constitution, Phillips said. Common Cause had successful litigation where the N.C. Supreme Court ruled that partisan gerrymandering is in violation of the state Constitution, Phillips noted.

However, that precedent came prior to elections that substantially shifted the partisan makeup of the state high court in favor of Republicans. The election districts currently being challenged were also created by Republicans, though previous maps drawn by Democrat-controlled General Assemblies have also faced court challenges over the years.

“It is interesting that this is coming from a former justice of the N.C. Supreme Court,” Phillips said. “He is bringing a case to the body he once served and he has had these cases come before him. … That he’s found fault with these maps adds great credibility to the case.”

Without fair elections, no constraint exists on the government, and in this case on the General Assembly, according to Orr.

“If these maps were created by an independent redistricting process then I don’t think we would have a constitutional challenge, but here the government decided these,” he said.

Orr said he hopes for a remedy to create election districts as politically neutral as possible.

Ten states already use independent redistricting commissions for congressional lines and 15 states use them to draw legislative district lines, according to a policy brief by the Committee for Economic Development, a New York-based nonprofit organization.

Michigan also established an independent commission after 2018, resulting in a map that is “the most politically balanced in the country,” according to the policy brief.

“Gerrymandering undermines democracy and faith in the democratic process,” Greene said. An independent body tasked with drawing political maps may not be a perfect solution, but it is better and many states have moved to this model, according to Greene.

This article first appeared on Carolina Public Press and is republished here under a Creative Commons license.

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