Commentary

Former GOP Supreme Court justice defends decision striking down constitutional amendments

Former Supreme Court Justice Bob Orr

As was explained in yesterday’s edition of the Weekly Briefing, last week’s ruling by Wake County Superior Court Judge Bryan Collins striking down two constitutional amendments because they were placed on the ballot by an illegally constituted General Assembly, made quite a bit of sense. Now, that assessment of the ruling has been echoed by Republican former Supreme Court justice, Bob Orr. In an essay in today’s edition of Raleigh’s News & Observer, Orr defends the ruling, calling Collins “an experienced, by-the-book kind of judge highly unlikely to go diving off an activist cliff, simply for the thrill of it.”

Here’s the conclusion to ” Nothing ‘wild eyed’ about judge’s ruling on the legislature’s legitimacy”:

The first thing the public needs to understand is that Collins noted in his order that this was a question of first impression for the court — thus there really wasn’t any precedent to answer the constitutional issues raised. Having acknowledged that, the judge noted at some length that the federal courts had conclusively determined that the legislative districts drawn and challenged were unconstitutional. That wasn’t a ruling by Collins. That was a ruling by the federal courts which have ultimate authority in the matter.

What the federal courts have not answered — here or anywhere else — is, what is the impact of such a ruling on the legislative members holding office by election in districts that were unconstitutionally drawn? Certainly, those districts will at some point have to be redrawn and new elections held. But what happens in the interim when that legislative body acts by passing laws or proposed constitutional amendments? That’s the question Collins had to answer.

The constitutional theory obviously pressed by the plaintiffs, rests on a specific provision in the N.C. Constitution’s Declaration of Rights that states in part that “the people” have the right to alter their Constitution. N.C. Supreme Court cases have for years stated that all power is vested in the people and exercised through their elected representatives in the General Assembly. But what if that legislative body is comprised of members elected in unconstitutionally drawn districts? Are there any consequences for that legal conclusion beyond a requirement to redraw districts and have new elections? Can those elected members continue to pass laws and propose constitutional amendments without any limitation? One can argue that there is no middle ground between holding that the legislature can’t act until proper districts are redrawn and holding that the legislature can act as usual until then, despite the unconstitutionality of the districts.

Collins, appears, however, to have tried to find a middle ground by limiting the holding to the legislation proposing amendments to the N.C. Constitution. Was he right? We’ll find out as the case and the issues work their way through the court system. But the judge did exactly what we expect our trial judges do. Read the briefs. Listen to the arguments. And make a tough decision based upon the law as best as he could determine.

Click here to read the rest of the op-ed.

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