RALEIGH, N.C. (CN) - A panel of North Carolina Court of Appeals judges on Wednesday upheld the dismissal of an elections case in which the plaintiffs claimed residents have a right to "fair" and "free" elections.
A group of North Carolina voters sued the state board of elections and Republican leadership in the General Assembly in 2024, following the state's 2023 redistricting process. They claimed the state constitution guarantees them the right to frequent, fair and free elections - a right, they said, that was violated by Republicans giving themselves an "an unfair electoral advantage" in certain districts.
A lower court found the voters' claims concerned nonjusticiable political questions, and granted the motion by Republican defendants Senate President Pro Tempore Phil Berger and then-Speaker of the House Tim Moore to dismiss the case.
The plaintiffs appealed to the state Court of Appeals, which affirmed the dismissal in an unpublished opinion Wednesday, finding the case raises political questions that the court cannot address.
"Though plaintiffs are not bringing a statewide challenge seeking proportional representation so that a particular party will win, their claim still fits squarely within the definition of partisan gerrymandering," wrote Judge Christopher Freeman. Judges Donna Stroud and Julee Flood concurred on the entirely Republican panel.
The plaintiffs' case "is still at its core an allegation that the General Assembly acted to change districts to give one party or group an advantage in the upcoming elections," Freeman wrote. "Accordingly, plaintiffs' claim presents a nonjusticiable political question and is therefore beyond the reach of this court."
The General Assembly's redistricting power is restricted only by "explicit limitations" in the constitution, Freeman said, and those limitations don't address partisan gerrymandering.
"Plaintiffs rely on an unenumerated right as the basis of their allegation that the General Assembly acted unconstitutionally," he wrote. "Because we review whether the General Assembly violated an express provision of our constitution, plaintiffs' reliance on an unenumerated right cannot be the basis for an unconstitutional act of the General Assembly."
Former North Carolina Supreme Court Justice Robert "Bob" Orr, who represented the plaintiffs, said the case doesn't concern a political question, but a constitutional one.
"The only reason this case was brought is we thought it was an incredibly important issue and question for the people of North Carolina," he said, calling the decision "disappointing."
Orr said his clients are still determining their plan to move forward. The case could be appealed to the state Supreme Court, which has a 5-2 Republican majority.
Representatives for the defendants did not reply to a request for comment.
The 11 plaintiffs, which include former North Carolina senator Allen Wellons and Tom Ross, the former president of the University of North Carolina, claimed the 2023 congressional, state House and Senate maps factored in party registration, race, ethnicity and voting tendencies to give Republicans an unfair advantage in elections in certain districts. The state has since redrawn its congressional map in an attempt to secure an additional Republican seat in the U.S. House.
Counsel for the legislative defendants argued the General Assembly's redistricting efforts are only limited by the explicit restrictions outlined in the state constitution, which they said don't extend to unenumerated, or inferred, rights.
Phillip Strach, attorney for legislative defendants Berger and Moore, told a Raleigh panel of judges in 2024 that lawmakers shouldn't have to abide by an abstract concept of political fairness when redrawing maps, because determining fairness is an impossible task. The court lacks the authority to limit the legislature's responsibilities, he said.
In briefing before the appeals court, the defendants told the court the case was doomed by precedent: the state Supreme Court has held that partisan gerrymandering claims are nonjusticiable, in part because the constitution does not expressly prohibit partisan gerrymandering.
The case doesn't concern a political question, the plaintiffs argued in their brief, and instead weighs whether residents have an unenumerated constitutional right to vote in "fair" elections.
"This case is about election integrity," the plaintiffs said in their brief. "It is not a case about partisan gerrymandering, challenging the aggregate maps and seeking court-imposed proportionality of seats. Here, plaintiffs seek to preserve their fundamental constitutional right for elections to be free from governmental efforts to manipulate election results."
The plaintiffs have 30 days to appeal the decision.
Source: Courthouse News Service
