Do we have the right to fair elections?
Published February 8, 2024
By Tom Campbell
What would happen if, just before the tip-off to a basketball game, the referees announced that they were awarding one of the teams a 15-point lead at the beginning of the game? Former Supreme Court Justice Bob Orr posed that question recently. Obviously, the players, coaches and fans of the other team would shout “foul,” boo the refs and perhaps even storm the court to protest, screaming it wasn’t fair. Rigging the game. Violating the rules. Obviously choosing the team they prefer to win the game.
Orr says a similar scenario is happening here in North Carolina. It happens in every election. Our government, through the overt gerrymandering of our legislature, has stuffed election districts with voters selected to virtually ensure a preordained election outcome, making elections unfair. Their methods are called stacking, packing and cracking. Stacking is deliberately stacking certain voters (often poor minorities) in a district while also then deliberately creating a majority of voters who can outvote them. Packing combines as many voters as possible (again, often minorities) into a district so as to prevent them from affecting outcomes in other districts. Cracking disperses a group over several districts so they numerically cannot impact election outcomes.
The great irony is that our lawmakers don’t deny doing it. In fact, they have boasted about putting their fingers on the scales to determine which candidate or political party will win. They don’t care whether or not this is good government. They just want to win.
But Justice Orr poses the critical question: “Do North Carolina voters have a right to fair elections under our state constitution?” 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.”
Article I of the North Carolina Constitution deals with the topic of elections. While there is no specific language declaring that elections must be fair, section 9 says that “elections shall be often held,” and section 10 states “all elections shall be free.” Later, in section 36, the heading of which is “Other rights of the people,” the Constitution (going back to our 1868 Constitution) proclaims, “The enumeration of rights in this article shall not be interpreted to impair or deny others retained by the people.” This wording was modeled on the Ninth Amendment of the U.S. Bill of Rights, that says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This is not just legal mumbo jumbo. It is saying that they couldn’t possibly “enumerate” or list every possible right of U.S. citizens, however there are “unenumerated” or unspecified rights of citizens. The lawsuit contends that among those unenumerated rights is the right to fair elections. Orr and the two other attorneys who have filed this lawsuit on behalf of 11 individual plaintiffs say that if the right to fair elections is denied then other guarantees in our governing constitution are of little to no value.
In the 2023 redistricting of Congressional and legislative district maps our government, through the General Assembly, violated the right to fair elections in Congressional Districts 6, 13 and 14, as well as Senate 7 and House 105. Orr says, “they 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.”
Previous lawsuits challenging gerrymandered districts have asserted racial or partisan gerrymandering. This suit is different. It raises the even larger issue, testing our state Supreme Court. It begs the court to answer, once and for all, the fundamental question as to whether voters have the right to fair elections.
“Without ‘fair’ elections,” the lawsuit summarizes, “the framework of our government would rest not on principle and the will of the people, but instead on partisan politics, exercised not by political parties or particular entities, but by the heavy hand of government itself.”
This is a put up or shut up proposition. The court, indeed, our legislature, must publicly face the issue and tell us what kind of government we are to have.
Tom Campbell is a Hall of Fame North Carolina broadcaster and columnist who has covered North Carolina public policy issues since 1965. Contact him at email@example.com