On Friday, Superior Court Judge Bryan Collins struck down two of the four constitutional amendments North Carolina voters had passed in November. His ruling, spiking voter ID and an income-tax cap, was remarkable in its own right. But you don’t have to squint very hard to see that, if it’s upheld by the state Supreme Court and taken to its logical conclusion, Collins’s decision could have much broader ramifications for the state—wiping out not just controversial constitutional amendments but many Republican legislative victories over a year and a half.
Here’s why: Collins didn’t void those amendments on the merits of the arguments made by the state NAACP, which sued to stop them, so much as he ruled that the General Assembly was an illegitimate body, and as an illegitimate body, it had no right to ask voters to alter the state’s constitution.
His thinking is pretty straightforward. In June 2017, the U.S. Supreme Court ruled that North Carolina’s legislative districts were unconstitutional racial gerrymanders. From that point until the new General Assembly was sworn-in in January—after a federal court brought in a special master to redraw more than two-thirds of the state’s districts ahead of the 2018 midterms—the legislature had forfeited its “popular sovereignty,” Collins argues.
“Thus,” he writes, “the unconstitutional racial gerrymander tainted the three-fifths majorities required by the state Constitution before an amendment proposal can be submitted to the people for a vote, breaking the requisite chain of popular sovereignty between North Carolina citizens and their representatives.”
This ruling applies only to those two amendments, but its underlying principle would doom the victims’-rights and hunting-rights amendments, too, as soon as someone files a lawsuit.
Predictably, Republicans were incensed. The chairman of the state GOP called the ruling “unprecedented and absurd.” “It appears that judicial restraint has completely left the state of North Carolina,” added Senate leader Phil Berger.
“The people have spoken and this outrageous attempt to invalidate their decisions will be appealed,” Speaker Tim Moore said in a statement.
They have a point: The people voted, and, like it or not—and I don’t—they backed these amendments (and not two other power grabs the General Assembly tried to engineer). Collins, a lone judge, is overturning the will of the popular majority.
But Collins has a point, too. The Republicans cheated. They drew maps that intentionally disenfranchised African Americans in their pursuit of political power. Why should they profit from that? Without gerrymandering, they wouldn’t have had the supermajorities they needed to put the amendments on the ballot.
Actually, don’t stop there: Without gerrymandering, they also wouldn’t have had the supermajority to overturn Governor Cooper’s vetoes, which they did twenty times after the Supreme Court’s ruling: on the budgets in 2017 and 2018; the Farm Bill in 2018; a bill that altered how Superior Court districts are drawn; another that eroded environmental protections along the coast; another that mandated a new primary for the do-over election in the Ninth Congressional District, and so on.
By any rationale, these votes have less legitimacy than the amendments. After all, they were never endorsed by a popular vote, just the unconstitutional legislature. But Collins doesn’t want to go there, citing House Speaker Tim Moore and Senate leader Phil Berger’s argument that, even after the Supreme Court’s decision, “the General Assembly maintained authority to enact legislation so as to avoid ‘chaos and confusion.’” Invalidating the $23 billion budget would wreak chaos and confusion, Collins seems to say, but invalidating the amendments wouldn’t.
Perhaps. But again: Why should they profit from cheating, just because fixing their mess would create a headache?
Besides, would it really cause chaos to overturn the Farm Bill, which protected Big Pork from nuisance lawsuits? Or the law that eliminated the short caption that used to appear under constitutional amendment proposals on the ballot because the legislature didn’t want a bipartisan body explaining them to voters? Of course not.
In their lust for power, Republicans made this bed. They should lie in it—especially when the alternative is allowing them to rig the state’s government without consequence.
Perhaps watching their ill-gotten gains of the last eighteen months slip away, lawsuit by lawsuit, will provide a come-to-Jesus moment on redistricting reform. But if not—if instead, they whine incessantly about activist judges and black-robed tyrants—it will at least be satisfying to watch them reap the whirlwind they’ve sowed.