Why a Judge Ruled That the Entire North Carolina Legislature Is Illegitimate

In a decision that stunned both parties, Judge G. Bryan Collins ruled last Friday that the state's lawmakers don't have the power to pass constitutional amendments. His reasoning traces back to racial gerrymandering.
by | February 27, 2019 AT 3:58 AM
The Superior Court building in Wake County, N.C. (North Carolina Courts)

SPEED READ:

  • Because lawmakers in the state were elected using maps deemed racially discriminatory, a North Carolina Superior Court judge ruled that they lack the power to pass amendments to the state constitution.
  • The ruling is the latest volley in an ongoing battle between North Carolina's judicial and legislative branches.
  • Legislators plan to appeal the decision.
 

In recent years, a number of legislators around the country have attacked the independence of the judiciary, arguing that judges have overstepped their authority. In North Carolina last week, one judge returned the fire, ruling that the legislature itself is illegitimate.

On Friday, Wake County Superior Court Judge G. Bryan Collins struck down two constitutional amendments that had been approved by voters in November. One regarded voter ID requirements and the other a cap on state income taxes. The amendments had been placed on the ballot by the Republican-controlled legislature.

Collins ruled that the lawmakers had no standing to approve constitutional amendments because they were elected using maps that federal courts, up to the U.S. Supreme Court, found to be unconstitutional racial gerrymanders.

"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," he wrote.

The case was brought by the North Carolina NAACP and Clean Air Carolina.

"We are delighted that the acts of the previous majority, which came to power through the use of racially discriminatory maps, have been checked," said T. Anthony Spearman, president of the NAACP state chapter.

Legislators vowed to appeal the decision they described as "outrageous" and an "abomination."

"We are duty-bound to appeal this absurd decision," said Phil Berger, president pro tempore of the state Senate. "It appears the idea of judicial restraint has completely left the state of North Carolina."

North Carolina legislators have lost a number of court cases challenging laws they passed in recent years, including earlier versions of the constitutional amendments in question. Nevertheless, the ruling that the legislature itself lacks authority came as a surprise even to some of its critics, including University of North Carolina political scientist Andrew Reynolds. In a 2016 op-ed, Reynolds wrote that "our state government can no longer be classified as a full democracy," a change he largely blamed on "the abuse of legislative power."

In an interview, Reynolds says Collins' ruling goes even further.

"If anything, the language is a little bit more extreme than my language," Reynolds says. "I just state that North Carolina isn't a fully functioning democracy. The very explicit legal decision that the governance of the state of North Carolina is illegal because it's based on a misrepresentation of popular will -- that to me is pretty unique and pretty extreme, even though I agree with it."

 

North Carolina Legislature vs. the Courts

North Carolina legislators have had highly active legal dockets in recent years, facing lawsuits -- and losing many of them -- over separation of powers, partisan labeling on ballots, and gerrymandering, among other issues.

"As the court made clear, the North Carolina constitution states that political power derives from being chosen by voters in fair elections, and that includes fair district maps," says Billy Corriher, a senior researcher with the Institute for Southern Studies, a progressive research center in Durham. "Until now, our legislators haven't felt any real repercussions for the egregious gerrymandering that has kept them in power."

Legislative elections were held in November using newly drawn maps. But the legislature that approved the constitutional amendments on that ballot was elected using the maps that were found unconstitutional. (Separately, the U.S. Supreme Court has agreed to hear a case next month regarding the question of whether North Carolina's congressional map represents an illegal partisan gerrymander.)

Following years of pushback from the courts, the GOP-dominated legislature passed a law in 2017, over Democratic Gov. Roy Cooper's veto, to shrink the size of the state court of appeals from 15 justices to 12. The state Senate is now considering legislation to reverse that maneuver.

Last year, the legislature lost a case brought by Cooper challenging its original slate of constitutional amendments, including one that would have stripped the governor of the ability to fill judicial vacancies. The case led Dallas Woodhouse, the executive director of the North Carolina Republican Party, to threaten impeachment if the state supreme court ruled against legislators.

Undeterred by those threats, the court ruled that the proposed amendments were misleading to voters. Legislators met in special session and approved a new set of constitutional amendments. Two were approved by voters. Those are the ones that Collins found invalid.

"I think this sets up a real battle between the legislature and the judiciary, considering that the courts have trended more Democratic, especially at the state supreme court," says J. Michael Bitzer, a political scientist at Catawba College.

If Collins' ruling stands, it raises additional questions about the validity of other laws.

"What other actions of the General Assembly would be void ab initio, should the ruling stand.... Epic can of worms," tweeted Barbara Jackson, a former state supreme court justice.

 

What Happens Next?

There are good reasons to make sure lawmakers have been legitimately elected. In an article published last year, Corriher, the progressive researcher, noted that during the 19th century, North Carolina courts twice found that local lawmakers were illegal "usurpers" who sought to suppress the political power of African-Americans. In an 1890 case, the state supreme court ruled that an election "unauthorized by law is wholly without legal force."

More recently, the North Carolina board of elections refused to certify the results of a congressional election last November due to fraud, including the destruction of absentee ballots. Last Thursday, the board offered a new election. On Wednesday, L. McCrae Dowless Jr., who worked for the GOP congressional candidate in the fall, was arrested on election fraud charges.

Some critics of the legislature have embraced Collins' ruling as validation of a point they've been making -- that in North Carolina politics, the gap between people's preferences and political representation has grown too wide. Even with the new maps, last year's elections saw more voters support Democratic state House candidates, but Republicans still held on to a solid majority.

"My claim, and others', that North Carolina democracy has atrophied has been confirmed," says Reynolds, the UNC professor.

Most legal experts are skeptical, however, that Collins' ruling will hold up on appeal. Invalidating the standing of an entire legislature may be a political bridge too far for the courts to cross.

Bitzer, the Catawba professor, predicts that the ruling will only exacerbate partisan polarization in the state.

"Coupled with the various battles between all three branches of state government, it only adds to the partisan intensity," he says.

There are bound to be conflicts when the court of appeals hears arguments in this case -- conflicts of interest, that is. One justice, Phil Berger Jr., is the son of the Senate leader who is the lead defendant in the case. Another, Allegra Collins, is married to the Wake County judge who issued the ruling.

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