Former Supreme Court justice sues NC over gerrymandering, saying voters deserve more competitive races

A former state Supreme Court justice is suing North Carolina on behalf of a group of voters, saying elections for Congress and the state legislature are so non-competitive in this swing state that they're a violation of voters' constitutional rights.

North Carolina is incredibly competitive in statewide races. High-profile races often come down to just a few thousand votes or less out of the millions of ballots cast. In recent presidential elections North Carolina has repeatedly been one of the closest states in the country.

Yet in the state legislature, only about a dozen of the 170 seats are expected to be competitive this year and in future elections, under new maps that Republican legislative leaders approved late last year. Similarly, only one of 14 races for the U.S. House of Representatives is expected to be competitive.

That's a violation of the state constitution's guarantee of fair elections, says Bob Orr, a former Republican state Supreme Court justice and expert on redistricting. He's representing a number of voters who are now suing the state, trying to get several specific districts thrown out in court.

"It all comes down to this question: Do North Carolina voters have a right to fair elections under our state constitution?" Orr said in announcing the lawsuit Wednesday. "If the answer to that question is 'yes,' then any time politicians of either party apportion voters to predetermine winners and losers, it’s a clear violation of North Carolinians' state constitutional rights.”

After GOP leaders redrew the election maps in 2021, the districts were ruled unconstitutionally gerrymandered by the state Supreme Court. Orr was one of three redistricting experts hired by the court to re-draw more fair maps. Their work led to a map that in the 2022 midterms created an even split in the congressional delegation, with Democrats and Republicans each winning seven seats.

Lauren Horsch, a spokeswoman for Senate leader Phil Berger, pointed out that the maps used in 2022 that Orr helped create also only had one competitive district, just like the new maps.

State law requires that any court-ordered maps can only be used once, and when Republican lawmakers redrew the maps again last year they went back to maps that were highly similar to the ones ruled unconstitutional in 2021. However, control of the state Supreme Court flipped in the meantime, and the court's new GOP majority allowed Republican lawmakers to move forward with the newest maps.

The lawsuit, filed Wednesday in Wake County Superior Court, is likely to eventually go to the Supreme Court and ask justices to take a closer look at the maps.

Orr said it's a novel legal argument, to rely on the fair-elections claim, but one he believes is correct: The legislature "stuffed election districts with selected voters to virtually ensure a preordained election outcome, and in doing so, they violated the rights of North Carolina voters," he said in a statement.

Analyses of the new maps show that Republicans are expected to retain large majorities in the state legislature — possibly veto-proof supermajorities — even if most voters statewide cast their ballots for Democratic candidates. That's because the new districts cram massive numbers of Democratic voters into a small number of districts. A similar pattern is seen in the new congressional map. To move the map from a 7-7 split to one that's likely to give Republicans a 10-4 or 11-3 advantage under the exact same circumstances, Republicans created a handful of heavily Democratic districts in Charlotte and the Triangle.

Durham-area U.S. Rep. Valerie Foushee comfortably won the 2022 with about 67% of the vote, but the new maps shifted her district even further to the left: She likely would've received 74% of the vote in 2022 had that election been held under the new maps. It's a similar story for Charlotte-area U.S. Rep. Alma Adams, who saw her district shift double digits from 63% to 73% Democratic, according to data from the state legislature.

Those changes made it so that other, more competitive districts in the suburbs around Wake and Mecklenburg counties — which Democratic U.S. Reps. Wiley Nickel and Jeff Jackson had won in 2022 — could be redrawn to become heavily Republican-leaning for 2024 and beyond.

The new versions of those suburban districts are among the ones the lawsuit is challenging, in addition to the 6th Congressional District currently held by Democratic U.S. Rep. Kathy Manning, but which was redrawn to become a safe Republican seat. The lawsuit also challenges a number of state legislative districts.

Republican leaders have defended their choices when redrawing the maps, saying they're allowed to engage in politically motivated gerrymandering. And the state's political geography, they say, is also stacked against Democrats: More liberal voters tend to concentrate in urban areas, while more conservative voters tend to be more spread out.

Mathematical evidence from previous gerrymandering lawsuits has found that while the political geography factor does indeed benefit Republicans, it alone can't explain how heavily slanted toward the GOP recent maps have been.