WNC Resident Can Appeal Fair Election Lawsuit to North Carolina Supreme Court

A western North Carolina resident and former Republican justice of the North Carolina Supreme Court may soon attempt to bring a political redistricting case to his former workplace.

Last month, Yancey County resident Bob Orr had his “fair elections” lawsuit dismissed, challenging the drawing of political districts in favor of one party during elections, a practice called “political redistricting.” Orr said he plans to appeal the Wake County Superior Court decision.

On July 9, he told the Citizen Times that he might consider bypassing the North Carolina Court of Appeals and going directly to the state Supreme Court.

“Maybe a bypass petition to the Supreme Court, which they may or may not allow,” said Orr, who served on the Supreme Court from 1995 to 2004 and left the Republican Party after the Jan. 6, 2021, storming of the Capitol.

The Citizen Times contacted the defendants — the North Carolina Board of Elections and the two leaders of the Republican-controlled General Assembly in Raleigh, Senate President pro tempore Phil Berger and House Speaker Tim Moore — on July 10.

What is it about?

While there are many angles at play, at its core the trial is about whether the General Assembly should be allowed to draw political districts to favor one party.

State lawmakers are supposed to redraw political lines after each census to ensure that the population is evenly distributed across districts, including their own and those in the U.S. House of Representatives. But in North Carolina, this decade-long practice has become a boon for court battles and regular redistricting. During one phase, Asheville found itself, for the first time, split between two congressional districts, a situation that reduced Democrats’ voting power.

In the last round, the state Supreme Court in 2022 invalidated the GOP-drawn maps, saying they were created to give that party an advantage and that it was illegal.

But that year’s elections replaced the court’s Democratic majority with a Republican majority, and in an unusual move, the new court quickly overturned that decision. The Republican justices said in their 2023 decision that partisan redistricting was a political issue and should not be decided by the courts. (They left untouched the idea that racial redistricting was illegal.)

The most recent case

In the new case, Bard v. NC Board of Elections, Orr and other attorneys represent Democratic and unaffiliated voters, including Buncombe County Attorney James Rowe, an unaffiliated voter.

In Wake County, they argued that the right to fair elections is an “unnumbered” right, meaning it is not specifically mentioned in the North Carolina Constitution but is implied, like the right to travel and the right to privacy. The latest maps violate that right because even if Democrats won a clear majority of the statewide vote, Republicans would likely win 10 of 14 congressional districts as well as majorities in the North Carolina House of Representatives and Senate, they said.

But the defendants said it was impossible to define fair elections and that the Supreme Court had already ruled that politically biased districts were outside its jurisdiction.

“There is no basis in the text of the North Carolina Constitution to recognize the plaintiffs’ reformulated ‘fairness’ standard that has already been condemned by the North Carolina Supreme Court. Plaintiffs’ complaint should be dismissed summarily for lack of subject matter jurisdiction,” they said in a May 10 filing.

Although the three-judge Superior Court panel agreed, Orr said the case should be revisited with a focus on whether voters have a right to elections free from political bias.

“It’s critically important – it’s the only way to challenge election fraud,” he said.

More: Redistricting Recap: How New Maps and Redistricting Will Affect Asheville and Buncombe

Buncombe, all-blue Asheville could welcome a Republican member of the North Carolina House of Representatives for the first time in a decade

Joel Burgess has been in WNC for more than 20 years, covering politics, government and other news. He has written award-winning stories on topics ranging from redistricting to police use of force. Got a tip? Contact Burgess at [email protected], 828-713-1095 or on Twitter @AVLreporter. Please support this type of journalism by subscribing to the Citizen Times.