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Former NC state Supreme Court justice files a long-shot redistricting lawsuit

A North Carolina lawmaker studies a district map during a joint select committee meeting on redistricting, July 26, 2017, in Raleigh, N.C.
Gerry Broome
A North Carolina lawmaker studies a district map during a joint select committee meeting on redistricting, July 26, 2017, in Raleigh, N.C.

Last year, the North Carolina Supreme Court's conservative majority made it clear it would not be taking up partisan gerrymandering claims anytime soon. The court reversed a year-old decision by the court's previous liberal majority that found Republican legislators had drawn Congressional and state legislative district maps with unconstitutionally excessive partisanship.

In its reversal of that case, the court's Republican majority said the issue was non-justiciable — that there was no clear judicial standard for judges to apply in trying to measure partisanship in redistricting and that such matters are best left to the political branch of government, the legislature.

Tellingly, until Wednesday, the lawsuits challenging a new set of GOP-drawn maps in North Carolina have been filed in federal court on racial grounds, claiming that districts violate federal voting rights protections for minorities.

But one of the attorneys behind a lawsuit filed in Wake County Superior Court on Wednesday, said the legal challenge is one of "first impression" and is unlike the previous partisan gerrymandering cases.

"Those cases dealt with the maps in their totality, in the aggregate, and were based really on a proportionality argument as to whether one party or the other should get a specific number of seats," said Bob Orr, who filed the lawsuit on behalf of 11 North Carolina voters, nine registered Democrats and two Unaffiliated.

"Our case is not about the political parties," Orr added. "It's about individual voters — Democrats, Republicans, Unaffiliated, Green Party, Libertarian, you name it."

Former state Supreme Court Justice Bob Orr seated in a rocking chair on a porch.
Rusty Jacobs
Former state Supreme Court Justice Bob Orr officially switched his political affiliation from Republican to Unaffiliated after the NCGOP censured Republican U.S. Senator Richard Burr for his vote to convict Donald Trump at the ex-president's impeachment trial on a charge of inciting insurrection.

Orr served as an associate justice on the North Carolina Supreme Court from 1995 to 2004. He was a registered Republican until switching to Unaffiliated over the GOP's embrace of Donald Trump. He also was one of three special masters appointed by the state Supreme Court in 2022 to help redraw replacement maps for GOP redistricting plans thrown out as being unconstitutionally gerrymandered on the basis of excessive partisanship.

In a video call with reporters, Orr said the new legal challenge aims to protect an unenumerated right to free and fair elections guaranteed by the North Carolina Constitution.

In particular, the lawsuit alleges Republican lawmakers filled three new Congressional districts and two state legislative districts with right-leaning voters to ensure favorable political outcomes this year.

"Stuffing districts with favorable voters to your side violates that right," Orr said during the video call.

In the 2022 mid-term elections, the court-ordered replacement maps left Republicans one seat shy of an outright, numerical super-majority in the North Carolina General Assembly (that changed after State Rep. Tricia Cotham, who ran and won as a Democrat, switched parties) and evenly split the state's 14 Congressional seats evenly between Republicans and Democrats.

If the 2024 elections proceed under the current maps, Republicans are likely to win 10 or even 11 of the state's 14 Congressional seats and could solidify their veto-proof super-majority in the General Assembly.

The lawsuit alleges, in particular, Republicans packed three Congressional districts — 6, 13, and 14, currently represented by Democrats — with right-leaning voters and did the same in State Senate District 7 and State House District 105.

Orr told reporters he believes a more neutral, independent redistricting process could achieve the goals of this lawsuit. But with the ideological alignment between the GOP-run legislature and conservative-leaning state Supreme Court, Orr's aims are quixotic at best.

Rusty Jacobs is WUNC's Voting and Election Integrity Reporter.
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