A decision by Wake County Superior Court Judge Bryan Collins to invalidate two constitutional amendments isn’t necessarily tarnished by partisanship or judicial activism, former Supreme Court Justice Bob Orr says.
In some ways, Orr told Carolina Journal, Collins’ ruling poses critical questions about the enforcement of a truly constitutional government.
In November, North Carolinians voted to add voter ID and an income tax cap to the N.C. constitution. Both measures were placed on the ballot by a three-fifths majority vote of the General Assembly. Both were challenged in court by the NAACP and Clean Air Carolina.
On Feb. 22, Collins ruled in favor of the NAACP, voiding the amendments and stating the legislature is ineligible to pass such ballot measures due to illegally gerrymandered legislative districts. Collins said CAC lacked standing to sue.
“The requirements for amending the state Constitution are unique and distinct from the requirements to enact other legislation,” Collins wrote in his opinion. “The General Assembly has the authority to submit proposed amendments to the Constitution only insofar as it has been bestowed with the popular sovereignty.”
Some praised Collins. Others criticized him. Still others, like Orr, took a step back to consider the context of the situation.
“We’re in sticky territory,” Orr told CJ.
In 2018, a panel of federal judges ruled North Carolina’s districts unconstitutional. That decision begs questions about whether lawmakers elected in those districts should be able to push ballot measures to amend the constitution, Orr said.
“It’s been a question hanging out there that the federal courts have not given any guidance on. And that is, if a body is declared by the federal courts as ‘unconstitutionally constituted,’ what are the ramifications?”
Republican lawmakers, led by Senate leader Phil Berger, R-Rockingham, have filed a motion to stay Collins’ decision while they seek an appeal.
Some prominent Democratic lawmakers also have expressed concern over the decision.
Sen. Jeff Jackson, D-Mecklenburg, tweeted Feb. 25: “I would certainly agree that we are a deeply gerrymandered state and that this affects the moral credibility of our state legislature … but I’ve got two issues with this ruling: 1. It’s not the appropriate judicial remedy… 2. The ruling itself is unworkable.”
“If a legislature can’t be allowed to pass constitutional amendments, then it shouldn’t be allowed to pass statutes either. Which means the precedent here really supports rolling back a decade’s worth of laws. As much as some people might appreciate that, it’s not a viable option,” Jackson wrote.
Collins’ decision so far hasn’t “attracted much support in terms of legal doctrine,” said John Dinan, a professor of politics and international affairs at Wake Forest University.*
“One can never make firm predictions about what will happen when a lower-court ruling is appealed, but in this particular instance there are a number of reasons why appellate judges are likely to scrutinize and express doubts about the lower-court judge’s reasoning,” he told CJ.
Collins’ legal rationale is highly unusual, Dinan said, though it isn’t unprecedented for state or federal judges to invalidate a constitutional amendment after it has been ratified.
Montana is one example, he said, pointing to a case in which that state’s Supreme Court invalidated a voter-approved Marsy’s Law amendment on technical grounds.
“Such rulings are rare but not unprecedented,” Dinan said. “But I do not know of any other case around the country where a state court has relied on the reasoning employed by Judge Collins to invalidate a state constitutional amendment — that is, for a court to rule that the legislature is essentially barred from governing once legislative districts are found by a court to be improperly drawn.”
Collins isn’t an activist judge, and he had to play with the cards in his hand, Orr said.
“He was dealt two propositions. Either there is an impact by virtue of the federal court’s ruling, or there’s no impact. He tried to thread the needle, I think, by saying “in the context of this specific case, there is an impact.”
“[Collins] listened to the arguments. He read the briefs. He couldn’t say, ‘You know, this really is a sticky mess. I hope you get somebody to resolve it.’ He did what his job was, and made a ruling. Was he right? I don’t know.”
*Editor’s note: This story was updated to clarify John Dinan’s affiliation at Wake Forest University.