North Carolina judges grapple with defining 'fair' elections in redistricting suit

North Carolina judges deciding whether a redistricting lawsuit claiming a state constitutional right to "fair" elections can go to trial questioned Thursday their ability to scrutinize district boundaries that way or to define what "fair" means.

A panel of three trial judges listened to arguments on a motion by Republican legislative leaders to have the lawsuit filed against them by several voters dismissed. The judges did not immediately rule from the bench, but two of them peppered the voters' lead lawyer with questions about what his clients were specifically seeking.

The legislators' attorney said the lawsuit was already short-circuited by a 2023 state Supreme Court ruling that found judges lacked authority to declare redistricting maps are illegal partisan gerrymanders.

It's one of at least four lawsuits filed in North Carolina to challenge boundaries drawn by the GOP-dominated General Assembly last fall for use in elections through 2030 that favor Republicans electorally. Three have been filed in federal court and claim illegal racial gerrymandering. Two of those lawsuits are scheduled for trial next year. A federal appeals court in March sided for now with Republicans in a third lawsuit involving two state Senate districts.

Bob Orr, a former Supreme Court justice representing the voters, said this lawsuit takes a different tack than those filed by Democrats and their allies that ultimately led to the high court's declaration that redistricting was a political matter the judiciary must stay out of, save for challenges on specific limitations. The justices also affirmed that lawmakers can consider partisanship in mapmaking.

The lawsuit says there is an implicit unwritten right within the state constitution to fair elections, citing specific language in the constitution that "elections shall be often held" and that "all elections shall be free." The state lawsuit wants several congressional and General Assembly districts redrawn, saying they are representative of legislators' efforts to shift lines in otherwise competitive districts to preordain electoral outcomes that will favor one side — which now are Republicans.

"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 even get to the ballot box?"

Phil Strach, a lawyer for the Republican legislative leaders, told the judges that the April 2023 ruling by the state Supreme Court halts lawsuits like those considered Thursday, which he called "legal gobbledygook." Elections in the state already are fair, Strach added.

"The state Supreme Court has slammed the door shut on this court being the eye of the beholder on what is fair or not fair in a redistricting map," Strach said in urging its dismissal. "They have slammed that door shut, and it should stay permanently closed."

Superior Court Judge Jeffery Foster of Pitt County asked Orr for a definition of fair. Orr responded that fair means equitable, impartial and something that doesn't favor one side or the other. Foster asked whether it made more sense to simply seek a statewide referendum to amend the state constitution to make plain that elections must be fair. However, referendums can't happen without legislative approval.

Superior Court Judge Angela Puckett of Surry County questioned how fairness would be quantified, since Orr said it did not mean that all candidates in every legislative and congressional district had the same chance to win.

"I just don't understand what you are asking for," Puckett asked. Orr, a former Republican candidate for governor who is now an unaffiliated voter, said that redistricting is a complicated process that would require collecting evidence in a trial.

"Give us a chance to make our case," Orr said.

Superior Court Judge Ashley Gore of Columbus County the other panelist along with Foster and Puckett, are all registered Republicans. Chief Justice Paul Newby, a Republican who wrote the prevailing opinion in the 2023 redistricting ruling, chooses three-judge panels to hear such constitutional challenges like these. Last year's ruling by the GOP majority on the Supreme Court reversed a 2022 decision by the state's highest court when it had a Democratic majority.