Column: Should one local judge have power to strike down constitutional amendments?
Published 9:16 am Saturday, March 9, 2019
by Colin Campbell
RALEIGH – An obscure Wake County judge who was elected with 28,000 votes recently invalidated the votes of about two million people across the state.
Yep, you read that right. Superior Court Judge Bryan Collins sent shockwaves through the political world when he struck down two constitutional amendments – one instituting voter ID, one capping the state’s income tax rate.
His reasoning? Some of the legislators who voted to put those questions on the ballot were serving in districts that were unconstitutionally gerrymandered. Collins wrote that last year’s legislature was “illegally constituted” and “therefore not empowered to pass legislation that would amend the state’s Constitution.”
Yes, some of the districts had been ruled to be racial gerrymanders, and new lines were drawn for last year’s election. But when asked to order a 2017 special election to remedy the bad districts, judges much higher up the judicial food chain from Collins decided that the legislators could finish up their terms.
Most of us political observers figured the ruling rejecting a special election had settled the issue. But several liberal groups saw an opening for a long-shot lawsuit to stop two constitutional amendments. They failed to convince a majority of voters that voter ID and the tax cap were bad ideas, so they tried to get them thrown out on a technicality.
Collins, a Democrat, was happy to oblige and didn’t even pretend his ruling was simply addressing gerrymandering. The 14-page ruling includes a lengthy diatribe against the two amendments, calling the tax cap “a tax cut only for the wealthy.” Collins wrote that voter ID “would have an irreparable impact on the right to vote of African-Americans in North Carolina.”
The ruling was outrageous enough to garner criticism both from Republican Senate leader Phil Berger and Sen. Jeff Jackson, a rising star in the Democratic Party. Berger noted that throwing out actions of the 2017-2018 legislature would mean “invalidating 18 months of laws,” creating “chaos and confusion.” Jackson said the ruling would set “a bad legal precedent.”
If Collins’ ruling stands, an opponent of the current state budget could easily sue to strike down the spending document that operates our state. Teachers and state employees could lose their raises if that happens.
The ruling will likely get overturned on appeal, keeping the two constitutional amendments. But the incident highlights a flaw in our judicial system: Why do judges elected to serve only Wake County get to decide constitutional questions?
We’re in an era where lots of state laws prompt lawsuits, so starting cases in front of a single judge in the capital county makes no sense. We’d speed up the process and get better results by sending these cases directly to the N.C. Court of Appeals, where the judges are elected by the entire state.
No matter which side wins the early courtroom battle, most lawsuits claiming that laws are unconstitutional make their way up to the N.C. Supreme Court. That’s a process that can drag on for a year or more before matters get settled.
And while Republicans have described Judge Collins’ ruling on the amendments as an “activist North Carolina judiciary operating outside the Constitution to achieve political goals,” GOP lawmakers are partly to blame for politicizing the courts.
They’ve acted in recent years to make all judicial races partisan. Collins’ ruling is less surprising when you realize he’s up for re-election in 2020, and his decision will endear him to the liberal activists he’ll need in his campaign.
A more partisan judiciary will also hurt Republicans now that their party only has one judge on the N.C. Supreme Court. Legislators would be wise to consider whether a return to nonpartisan judicial elections could reduce the political rhetoric infecting some court decisions.