Led by former Republican state supreme court justice Bob Orr, several North Carolina voters sued state leaders last week in state court to establish a right to fair elections under the state constitution.
The lawsuit, filed in Wake County on Jan. 31, aims to establish that voters retain an unnamed right to have fair elections. While the state constitution explicitly guarantees a right to free and frequent elections, it never mentions fairness in elections.
The new lawsuit comes less than a year after the latest partisan gerrymandering case in North Carolina, Harper v. Hall, was reheard and overturned by the new Republican majority on the state supreme court. In that case, Republican Chief Justice Paul Newby wrote that partisan gerrymandering is not an issue that can be decided on by state courts.
Newby said that process should be left entirely to the state legislature. The U.S. Supreme Court already said that federal courts could not rule on partisan gerrymandering claims in 2019.
The decision in Harper v. Hall allowed the state legislature to redraw the congressional and state legislative maps with no judicial oversight on partisan gerrymandering claims. The redrawn maps, passed in October, gave Republicans advantages in both houses of the General Assembly and a likely 10-4 or 11-3 advantage in the state's congressional delegation.
Orr, an ex-Republican who left the GOP because it embraced former President Donald Trump, said the idea for the lawsuit originated during the oral arguments for the Harper v. Hall rehearing in March 2023.
Then-Justice Michael Morgan — who is now running in the Democratic primary for governor — asked a lawyer for the legislature if he thought there is a right to fair elections, despite the state constitution not explicitly mentioning fair elections.
The lawyer responded by saying the elections in North Carolina were fair and well-run, and the redistricting process does not impact questions of fairness.
"Counsel for the defendants waffled and danced through the courtroom and never really gave an answer," Orr, who served on the state supreme court from 1995 until 2004, said. "And that got me thinking, especially after the decision came down — do the citizens have a right to fair elections? And if so, how would you articulate that under the state constitution?"