Voters have no right to fair elections, NC lawmakers say as they seek to dismiss gerrymandering suit
North Carolina's political maps are expected to give Republicans majorities in the state legislature, and the U.S. House of Representatives delegation, even if Democrats win a majority of the statewide vote.
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Voters have no right to fair elections, NC lawmakers say as they seek to dismiss gerrymandering suit
North Carolina's political maps are expected to give Republicans majorities in the state legislature, and the U.S. House of Representatives delegation, even if Democrats win a majority of the statewide vote.Posted 11:25 a.m. Jun 13 - Updated 3:12 p.m. Jun 13
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NC 'fair elections' case returns to court
By Will Doran , WRAL state government reporter
Lawyers representing state legislative leaders were in court Thursday in Raleigh, arguing to throw out an anti-gerrymandering lawsuit that targets the state's new political districts.
The lawsuit argues that the state constitution guarantees the right to fair elections, and it says the new districts violate that promise. The Republican-led legislature argues that no such right exists, since it's impossible to define what "fair" means.
Republican lawmakers drew the maps and approved them in October. Political reviews conducted by outside analysts, as well as by the legislature itself, show that the new maps are expected to give Republicans large majorities in the state legislature and the state's delegation to the U.S. House of Representatives — even if Democratic candidates win a majority of the statewide vote.
The maps will be used in this year's elections, and every election through 2030, unless struck down as unconstitutional before then. The lawsuit under debate Thursday was brought by a group represented by former Republican Supreme Court justice Bob Orr. It's one of several lawsuits targeting the new maps in state or federal court.
When the group filed the lawsuit, it cited a past North Carolina Supreme Court decision that said: "The people are entitled to have their elections conducted honestly and in accordance with the requirements of the law. To require less would result in mockery of the democratic processes for nominating and electing public officials."
Republican lawmakers, however, have long said the legislature has nearly unlimited power to draw maps however its leaders see fit. They repeated those claims in court again Thursday. Their lawyer, Phil Strach, argued that the North Carolina Supreme Court recently ruled that politically motivated gerrymandering is OK.
Strach criticized the theory that voters have a right to fair elections as "legal gobbledygook" and added that even if the maps are gerrymandered, there's nothing state courts can do about it. "The state Supreme Court has slammed the door shut," Strach said.
Previous GOP-drawn maps with similarly skewed lines were struck down as unconstitutional by the state Supreme Court ahead of the 2022 elections, when the court had a Democratic majority. But a new Republican majority took control of the high court in 2023 and quickly moved to undo that precedent and greenlit partisan gerrymandering. Strach said that should be the end of the conversation.
Orr, the former high court justice, was involved in writing one of the state's most important legal opinions on redistricting when he served on the Supreme Court in the 1990s and early 2000s. He has since remained involved in elections law in private practice. "All the citizens of the state of North Carolina have a right to fair elections," Orr said Thursday.
"The whole point of the districts is to give an unfair advantage to one side," said Orr, who left the Republican Party and in recent years has become a critic of the GOP. "... What's the point of having frequent elections, if the results are pre-ordained?"
The judges didn't immediately rule Thursday on the legislature's request to throw out the lawsuit. If they allow it to go forward, a trial would be set for both sides to put on evidence and more detailed arguments.
Diving into the arguments
Jeff Foster, a Pitt County Superior Court judge who's one of the three judges overseeing the case, told Strach the legislature is supposed to reflect the will of the people and pressed him on how gerrymandering conflicts with that goal."If the legislature is allowed to construct itself in such a manner that prevents people from having access to that, you’re really kind of stacking the deck," Foster said.
Strach responded that when Republicans took power at the legislature in the 2010 elections, they did so under maps that had been drawn by Democrats. If Democrats could just do a better job at connecting with voters, he said, they would probably be able to do the same under Republican-drawn maps.
"People think you can use so-called computer software to keep yourself in power forever," Strach said. "That’s a ridiculous notion."
The legislature's own analysis shows that even under one of the worst performances by a Republican candidate in recent years — the 2020 race for governor — those same results in the future wouldn't threaten GOP majorities in the legislative or congressional delegations. Even if Republicans candidates won just 47% of the statewide vote and Democrat won 52%, that particular analysis shows, Republicans would likely win 10 of the 14 Congressional districts as well as legislative majorities, too, because of the way the maps are drawn.
Foster, one of two Republicans on the three-judge panel, didn't only have questions for Strach. He also pressed Orr on his claims, since Orr's argument hinges on what's called an unenumerated constitutional right — something that's not explicitly spelled out in the constitution but that supporters say is inherently implied.
"You're asking us to create a new right," Foster said.
Orr responded that that's not unheard of.
The 9th Amendment to the U.S. Constitution allows courts to recognize unenumerated rights, Orr pointed out. He added that in North Carolina specifically, courts have recognized many unenumerated but fundamental rights — citing past cases dating back more than 150 years.
"If we don't have fair elections, then I would submit to this court that we don't have much on which we can base our government," Orr said.
