Nothing 'wild eyed' about judge's ruling on legislature's legitimacy

by Bob Orr, former Supreme Court Justice and NC SPIN panelist, reprinted by permission of author from News and Observer, February 27, 2019.

The ruling by Wake County Superior Court Judge Bryan Collins on the invalidity of two recently passed amendments to the North Carolina Constitution has generated a firestorm of criticism and condemnation. In essence , the judge concluded that the determination by the federal courts that over two-thirds of the N.C legislative districts were drawn in violation of the U.S. Constitution, meant that those elected to represent those districts did not have the authority to propose amendments to the state Constitution. Granted that decision is sweeping in its implications but is it the brainchild of a wild-eyed, crazy liberal judge as lamented by critics? I would submit it is not.

I’ve known Collins for a number of years. He’s about as far from a crazy liberal judge as you can get. My experience shows that he’s an experienced, by-the-book kind of judge highly unlikely to go diving off an activist cliff, simply for the thrill of it. And while the hot commentary flying around after the ruling has made it seem like he was simply sitting around the courthouse, cooking up ways to bust the legislature’s chops, that’s simply not the way it happens.

Two groups, one of which is the state NAACP, filed a lawsuit challenging the constitutionality of the passage of the two amendments in question (including the controversial photo-ID requirement for voting). The lawyers for state Senate leader Phil Berger and House Speaker Tim Moore defended the suit and all parties briefed and argued the merits of the case before Collins. Attorneys for the plaintiffs grounded their arguments on a specific state constitutional theory. But that constitutional theory was generated by the lawyers, not by Collins.

The first thing the public needs to understand is that Collins noted in his order that this was a question of first impression for the court — thus there really wasn’t any precedent to answer the constitutional issues raised. Having acknowledged that, the judge noted at some length that the federal courts had conclusively determined that the legislative districts drawn and challenged were unconstitutional. That wasn’t a ruling by Collins. That was a ruling by the federal courts which have ultimate authority in the matter.

What the federal courts have not answered — here or anywhere else — is, what is the impact of such a ruling on the legislative members holding office by election in districts that were unconstitutionally drawn? Certainly, those districts will at some point have to be redrawn and new elections held. But what happens in the interim when that legislative body acts by passing laws or proposed constitutional amendments? That’s the question Collins had to answer.

The constitutional theory obviously pressed by the plaintiffs, rests on a specific provision in the N.C. Constitution’s Declaration of Rights that states in part that “the people” have the right to alter their Constitution. N.C. Supreme Court cases have for years stated that all power is vested in the people and exercised through their elected representatives in the General Assembly. But what if that legislative body is composed of members elected in unconstitutionally drawn districts? Are there any consequences for that legal conclusion beyond a requirement to redraw districts and have new elections? Can those elected members continue to pass laws and propose constitutional amendments without any limitation? One can argue that there is no middle ground between holding that the legislature can’t act until proper districts are redrawn and holding that the legislature can act as usual until then, despite the unconstitutionality of the districts.

Collins, appears, however, to have tried to find a middle ground by limiting the holding to the legislation proposing amendments to the N.C. Constitution. Was he right? We’ll find out as the case and the issues work their way through the court system. But the judge did exactly what we expect our trial judges do: Read the briefs. Listen to the arguments. And make a tough decision based upon the law as best as he could determine.