Case: Bard v. North Carolina State Board of Elections

Plaintiffs are eleven North Carolina voters. The Defendants are the North Carolina State Board of Elections and its members in their official capacities (the "BOE Defendants"), the President Pro Tempore of the North Carolina Senate, and the Speaker of the North Carolina House of Representatives, also in their official capacities (the "Legislative Defendants").  The action was filed in the General Court of Justice, Superior Court Division, Wake County, which requires a three-judge panel for cases challenging the constitutional validity of reapportionment acts.

October 25, 2023, the General Assembly ratified Senate Bill 757, Senate Bill 758, and House Bill 898 — three laws redrawing North Carolina's congressional, state Senate, and state House districts. Plaintiffs alleged that the House Redistricting Committee never adopted any criteria in 2023, and that in August 2023 the Redistricting Chair instructed a taxpayer-funded expert to aggregate voters in a secret proceeding using undisclosed "guidelines," with no one seeing these guidelines or the resulting map until after it was introduced and passed in October 2023.  The resulting maps were released on October 18, 2023; after three limited public hearings and minor technical amendments, 95 percent of the census blocks remained as originally drawn. 

The Complaint, filed on January 31, 2024, alleged only one claim for declaratory and permanent injunctive relief: "Violation of the Right to Fair Elections" under Article I, Section 36 of the North Carolina Constitution.  Article I, Section 36 provides that the enumeration of rights "shall not be construed to impair or deny others retained by the people," and Plaintiffs contended that the right to fair elections is one such unenumerated right, which the General Assembly violated by intentionally manipulating electoral districts to give an unfair advantage to the Republican Party. 

Plaintiffs first argued that Article I, Section 36 encompasses an unenumerated fundamental right to participate in elections free from governmental interference and manipulation.  Second, they argued that even if not grounded in Section 36 alone, this fundamental right could be enforced through the Law of the Land clause in Article I, Section 19, consistent with how the North Carolina Supreme Court has recognized other unenumerated fundamental rights such as just compensation and the right to travel.  Third, they argued the right could be enforced through the Free Elections Clause in Article I, Section 10, which provides that "All elections ought to be free." 

Plaintiffs, as voters in the challenged districts, alleged that the General Assembly, in aggregating voters in Congressional Districts 6, 13, and 14, State House District 105, and Senate District 7, purposefully and impermissibly aggregated voting blocks based upon voting patterns, history of election results, political registration, demographics, and other politically revealing data, which virtually guaranteed the government's preferred party would prevail in those elections. 

Plaintiffs proposed a three-part test for a "fair elections" violation: (1) the governmental action was intentionally taken; (2) evidence shows the specific upcoming election was affected by the General Assembly's apportionment legislation; and (3) the governmental action gives a specific political party or candidate a determinative advantage by intentionally apportioning favorable voters into the specific district or apportioning unfavorable voters out of it. 

Plaintiffs sought: (1) a declaration that North Carolina citizens have an unenumerated constitutional right to fair elections under Article I, Section 36; (2) declarations that SB 757, SB 758, and HB 898 violated that right in the five Challenged Districts; (3) preliminary and permanent injunctive relief barring enforcement of the challenged districts; and (4) an order requiring adoption of constitutionally compliant redistricting plans for 2024 and subsequent elections. 

The BOE Defendants took a neutral posture throughout the trial court proceedings.

On March 6, 2024, Legislative Defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing the complaint should be dismissed with prejudice for lack of subject matter jurisdiction and failure to state a claim on the ground that Plaintiffs' claim is non-justiciable.  Legislative Defendants argued that Plaintiffs' claim presented a non-justiciable political question as previously ruled on in Harper v. Hall, 384 N.C. 292, 886 S.E.2d 393 (2023) (the "Harper Case"). 

Legislative Defendants presented three core substantive arguments. First, they argued that Plaintiffs' claims in this case are substantively identical to those in the Harper Case, where plaintiffs alleged that "the General Assembly violated the state constitution by drawing legislative districts that unfairly benefited one party at the expense of another," with no material difference between the "advantage" alleged here and the "unfair benefit" alleged in Harper.  Second, Article I, Section 36 "cannot reasonably be read to create an unenumerated vested right or a judicially manageable standard that could limit the General Assembly's exclusive redistricting authority as set forth in Article II."  Third, the political question doctrine requires that a court refrain from adjudicating a claim when: (1) there is a textually demonstrable commitment of the matter to another branch; (2) a lack of judicially discoverable and manageable standards; or (3) the impossibility of deciding the case without making a policy determination suited for nonjudicial discretion. 

On May 10, 2024, Plaintiffs filed their Memorandum in Opposition to the Motion to Dismiss.  Plaintiffs argued this case presents a major question of first impression: whether citizens have a constitutional right to elections free from governmental efforts to purposefully "fix" or "preordain" results, contending that the right to fair elections is a precondition to the guarantees of frequent and free elections.  On the justiciability question, Plaintiffs argued that the Harper Case does not control because it addressed a different constitutional standard — proportional representation across aggregate statewide maps — whereas this case challenges specific discrete districts on the basis of an individual unenumerated right.  Plaintiffs emphasized they made no claim for proportionality; rather, they sought protection of a fundamental constitutional right against government action attempting to preordain election results.

On June 28, 2024, the superior court entered an order granting Legislative Defendants' Motion to Dismiss, holding that Plaintiffs' claim presented a non-justiciable political question as previously foreclosed in the Harper Case. 

The Panel applied the Harper Case’s three-part political question analysis. The Panel reaffirmed Harper's holding that "redistricting is explicitly and exclusively committed to the General Assembly by the text of the Constitution" and that "our constitution and the General Statutes expressly insulate the redistricting power from intrusion by the executive and judicial branches."  The Panel found that the issues raised by Plaintiffs are clearly of a political nature, that there is not a judicially discoverable or manageable standard by which to decide them, and that resolution would require the Panel to make policy determinations better suited for the General Assembly.  The Panel rejected Plaintiffs' argument that Harper was limited to Article I, § 10 Free Elections Clause claims, finding that this case deals with the same underlying issue addressed in Harper: the redrawing of districts from which legislative representatives will be elected. 

The Panel concluded that the issues raised by Plaintiffs are non-justiciable political questions not appropriate for redress by the Court, and accordingly did not reach the two substantive issues Plaintiffs posed.  The Panel granted the Legislative Defendants' Motion to Dismiss with prejudice as to all claims, denied Plaintiffs' request for permanent injunctive relief, taxed costs against Plaintiffs, and ordered each party to bear its own attorney's fees. 

On July 22, 2024, the Panel issued a supplemental order addressing the remaining BOE Defendants, finding that the issues raised by Plaintiffs are non-justiciable political questions and as such not appropriate for redress by the Court as to all remaining Defendants.  Plaintiffs' Complaint was dismissed with prejudice as to the remaining Defendants. 

Plaintiffs filed a Notice of Appeal to the North Carolina Court of Appeals from the final judgment of the three-judge panel entered June 28, 2024.  Plaintiffs subsequently filed an Amended Notice of Appeal on August 12, 2024, appealing from the final judgment entered July 22, 2024, which dismissed Plaintiffs' action as to all Defendants. 

Legislative Defendants filed a Notice of Cross-Appeal on August 20, 2024, appealing the portion of the orders that directed each party to pay their own attorney's fees.  The issue on cross-appeal was whether the superior court erred when it acted sua sponte to foreclose Legislative Defendants' ability to file a motion for attorney's fees as the prevailing party pursuant. 

Plaintiffs-Appellants argued that the Harper Case was categorically inapplicable because this case challenged specific discrete districts and sought no proportional representation remedy. Plaintiffs argued on appeal that the Harper Case did not control because this case was fundamentally different from the partisan gerrymandering challenge in the Harper Case.  On appeal, Plaintiffs contend that Legislative Defendants' Motion to Dismiss should have been denied, and asked the Court of Appeals to reverse and remand the case for discovery and trial on the merits. 

Legislative Defendants-Appellees maintained that the superior court correctly dismissed. They argued the Harper Case barred Plaintiffs' claim in its entirety, and that even if the Harper Case did not apply, Plaintiffs' single claim under Article I, Section 36 presented a non-justiciable political question of its own right.  They further argued that Plaintiffs' Law of the Land Clause and Free Elections Clause arguments were not raised below and were not properly before the appellate court, and failed on their own merits in any event. They also argued on the attorneys' fees issue that had they been given the opportunity to file and argue a motion under N.C. Gen. Stat. § 6-21.5 as prevailing parties, they likely would have been awarded reasonable attorneys' fees because Plaintiffs' claims were squarely foreclosed by the Harper Case. 

On April 7, 2025, Plaintiffs moved to dismiss the Legislative Defendants' cross-appeal pursuant to Rule 10(a)(1), arguing that the issue of attorneys' fees was raised for the very first time in the notice of cross-appeal and was never preserved below.  Legislative Defendants opposed the motion, contending that N.C. Gen. Stat. § 6-21.5 allows a fee motion only "upon motion of the prevailing party" after prevailing party status is established, and that at the time of the hearing and briefing, they had not yet prevailed and thus could not have prematurely moved for fees.  On April 17, 2025, the Court of Appeals issued an order referring the motion to dismiss the cross-appeal to the panel assigned to hear the appeal. 

The assigned three-judge panel unanimously determined on July 3, 2025 that oral argument would not be of assistance to the Court.  On July 24, 2025, Plaintiffs moved the Court pursuant to Rule 37 to allow oral argument, asserting that the nuanced legal and constitutional questions raised in the briefs warranted full argument.  Legislative Defendants opposed the motion as procedurally improper and untimely, noting that the panel had already unanimously decided oral argument would not be helpful.  On July 30, 2025, the Court of Appeals denied Plaintiffs' Motion for Oral Argument by order of the three-judge panel. 

The case is presently pending before the North Carolina Court of Appeals as Case No. COA 24-1109, Tenth District. All briefing — including opening briefs, cross-appellants' briefs, appellee/cross-appellee briefs, reply briefs, the amicus brief, Legislative Defendants' reply to the amicus brief, and Plaintiffs' memorandum of additional authority — has been fully submitted. The Court has decided the case will be resolved on the briefs and record without oral argument. The pending motion to dismiss the cross-appeal has been referred to the merits panel. No decision on the merits has been issued as of the date of the most recent filing in the record (July 30, 2025).