A courageous judge taps the brakes on a rogue General Assembly

A courageous judge taps the brakes on a rogue General Assembly

- in Top Story, Weekly Briefing
(Photo by Kate Rice)

In case you missed it, there was an enormously important ruling issued last Friday afternoon by a Wake County Superior Court judge that ought to rekindle the public’s belief in (and support for) democratic, constitutional government.

The case – NAACP and Clean Air North Carolina v. Moore and Berger – was originally filed last summer and it challenged the constitutionality of four of the constitutional amendments approved by the General Assembly during the final days of the regular 2018 legislative session. Two of those four amendments – the ones that sought to strip power from the Governor – were ultimately rewritten in response to a separate court ruling and then defeated by voters in November. The other two, however, which sought to mandate a new voter ID requirement for North Carolina elections and to lower the cap on the state income tax, were ultimately approved by voters.

The argument behind the plaintiffs’ challenge was simple and straightforward – namely that it should be unconstitutional for state lawmakers to pass constitutional amendments when they have been elected under electoral maps that have themselves been declared unconstitutional (as has been the case in North Carolina for some time).

In his ruling on Friday, Judge Bryan Collins agreed and struck down both the voter ID and tax cap schemes. He put it this way in his eminently reasonable ruling:

…the constitutional amendments placed on the ballot on November 6, 2018 were approved by a General Assembly that did not represent the people of North Carolina….An illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s constitution.”

The parties respond

Judge Bryan Collins

Needless to say, Republicans who drew the unconstitutional maps and championed the amendments were borderline apoplectic at the news. North Carolina Republican Party Chairman Robin Hayes decried the ruling as “unprecedented and absurd” and as the work of “a liberal judge” and “the very definition of judicial activism.”

Senate President Pro Tem Phil Berger claimed that the ruling would be “invalidating 18 months of laws” – something that he said would lead to “the definition of chaos and confusion.”

Rev. T. Anthony Spearman, President of the North Carolina NAACP, on the other hand, was as pleased with the ruling as Hayes and Berger were upset.

“We are delighted that the acts of the previous majority, which came to power through the use of racially discriminatory maps, have been checked,” Spearman observed.

A surprising, but courageous and logical ruling

There’s no denying that Collins’ ruling came as a surprise to many – including some who were inclined to welcome it. In his ruling, Collins himself acknowledged that the issue before him was one of “a question of first impression for North Carolina courts.” Even Robin Hayes was right that it was unprecedented.

But, of course, just because a constitutional argument hasn’t come before the courts before doesn’t make it wrong or invalid. Sometimes, new and egregious facts demand new and creative judicial action.

That was certainly the case here. As Collins explained in his limited ruling, North Carolina’s General Assembly was blatantly and unconstitutionally gerrymandered at the time the amendments were sent to the ballot. Surely, there must be some way for the courts to place checks on such far reaching acts of an illegal body.

If courts do not possess the power to take such action, then what’s to stop a legislature from completely rewriting the constitution – even, perhaps, to the point of changing provisions that make it unconstitutional? By the logic employed by the legislative defendants, there was no limit at all as to how far the General Assembly could have gone. Surely that can’t be a legitimate outcome. What if the legislative majority had taken office via, say, blatant vote theft or bribery? Could such a body also rewrite the constitution?

Berger’s argument that Collins’ ruling invites “chaos” by calling into question all other acts of the illegally elected General Assembly is equally unpersuasive. First of all, no one is making such an argument; that claim wasn’t part of this case. Secondly, Collins’ ruling was a very limited, careful and practical one of the kind that courts clearly retain the right to fashion.

Just as, for instance, the courts that found legislative maps to be unconstitutional were within their authority to allow elections to proceed given the impossibility of implementing new maps in time for the 2018 election, so must judges retain the power to make practical distinctions between day-to-day legislative acts like passing an appropriation and permanently altering the state constitution.

Collins put it succinctly:

It will not cause chaos and confusion to declare that Session Laws 2018-119 and 2018-128, and their corresponding amendments to the constitution are void ab initio.”

He’s right, of course – just as he was in striking the amendments down.

The bottom line: Let’s hope that the appellate courts agree and sustain Judge Collins’ ruling. Even if they don’t, however, the ruling strikes another powerful blow against gerrymandering and for democratic government.