Bench Memos

Law & the Courts

Fishy Panel Assignments in North Carolina Election Cases?

A couple of years ago, I highlighted irregularities in Ninth Circuit panel assignments. I’ve now discovered the anomaly that Fourth Circuit judge James A. Wynn Jr. has been assigned to four of five recent cases involving challenges to North Carolina election laws.* Indeed, three of those five cases (including two to which Wynn has been assigned) have been three-judge district court panels, constituted under 28 U.S.C. § 2284, that have had only one Fourth Circuit judge on them.

That might seem amazing good fortune for Wynn, an African American from North Carolina who, according to this account, had “a long history of partisan political activity in North Carolina.” That history includes “a close working relationship” with Rev. William Barber, president of the North Carolina NAACP, which was a plaintiff in one of the cases.

But maybe luck has little or nothing to do with it. By its terms, section 2284 provides only that the “chief judge of the circuit … shall designate” the circuit judge (or circuit judges) to sit on the three-judge district court panel.

William B. Traxler Jr. was the Fourth Circuit’s chief judge from 2009 until July of this year, and Roger L. Gregory has been chief judge since that time. So my open question for former chief judge Traxler and current chief judge Gregory is:

In exercising your authority under section 2284 to designate a circuit judge to sit on a three-judge district court panel, what method do you use to select the judge you will designate?

Be assured that I will happily post in full any responses you provide me, just as I did when Seventh Circuit chief judge Diane Wood and former chief judge Frank Easterbrook responded to my questions about motions panels.

* Those cases are Covington v. North Carolina (M.D.N.C. 2016); North Carolina State Conference of NAACP v. McCrory (CA4 2016); Raleigh Wake Citizens Ass’n v. Wake County Board of Elections (CA4 2016); Common Cause v. Rucho (pending in M.D.N.C., as is League of Women Voters v. Rucho—both cases have the same panel and are so closely related that I am counting them only as one); and Harris v. McCrory (M.D.N.C. 2016).