COMMON CAUSE v. LEWIS

Nos 19-1091, 19-1094.

956 F.3d 246 (2020)

COMMON CAUSE; North Carolina Democratic Party; Paula Ann Chapman; Howard Dubose; George David Gauck; James Mackin Nesbit; Dwight Jordan; Joseph Thomas Gates; Mark S. Peters; Pamela Morton; Virginia Walters Brien; John Mark Turner; Leon Charles Schaller; Rebecca Harper; Lesley Brook Wischmann; David Dwight Brown; Amy Clare Oseroff; Kristin Parker Jackson; John Balla; Rebecca Johnson; Aaron Wolff; Karen Sue Holbrook; Kathleen Barnes; Ann McCracken; Jackson Thomas Dunn, Jr.; Alyce Machak; William Service; Donald Rumph; Stephen Douglas McGrigor; Nancy Bradley; Vinod Thomas; Derrick Miller; Electa E. Person; Deborah Anderson Smith; Rosalyn Sloan; Julie Ann Frey; Lily Nicole Quick; Joshua Brown; Carlton E. Campbell, Sr., Plaintiffs-Appellees, and Mary Ann Peden-Coviello, Plaintiff, v. Representative David R. LEWIS, in his official capacity as Senior Chairman of the House Select Committee on Redistricting; Senator Ralph E, Hise, Jr., in his official capacity as Chairman of the Senate Committee on Redistricting; Speaker of the House Timothy K. Moore; President Pro Tempore of the North Carolina Senate Philip E. Berger; the State of North Carolina, Defendants-Appellants, and Andy Penry, Chairman of the North Carolina State Board of Elections and Ethics Enforcement; Joshua Malcolm, Vice-Chair of the North Carolina State Board of Elections and Ethics Enforcement; Ken Raymond, Secretary of the North Carolina Board of Elections and Ethics Enforcement; Stella Anderson, Member of the North Carolina State Board of Elections and Ethics Enforcement; The North Carolina State Board of Elections and Ethics Enforcement; Damon Circosta, Member of the North Carolina State Board of Elections and Ethics Enforcement; Stacy "Four" Eggers, IV, Member of the North Carolina State Board of Elections and Ethics Enforcement; Jay Hemphill, Member of the North Carolina State Board of Elections and Ethics Enforcement; Valerie Johnson, Member of the North Carolina State Board of Elections and Ethics Enforcement; John Lewis, Member of the North Carolina State Board of Elections and Ethics Enforcement; Robert Cordle, Member of the North Carolina State Board of Elections and Ethics Enforcement, Defendants. Reginald Reid, Amicus Supporting Appellant. Common Cause; North Carolina Democratic Party; Paula Ann Chapman; Howard Dubose; George David Gauck; James Mackin Nesbit; Dwight Jordan; Joseph Thomas Gates; Mark S. Peters; Pamela Morton; Virginia Walters Brien; John Mark Turner; Leon Charles Schaller; Rebecca Harper; Lesley Brook Wischmann; David Dwight Brown; Amy Clare Oseroff; Kristin Parker Jackson; John Balla; Rebecca Johnson; Aaron Wolff; Karen Sue Holbrook; Kathleen Barnes; Ann McCracken; Jackson Thomas Dunn, Jr.; Alyce Machak; William Service; Donald Rumph; Nancy Bradley; Vinod Thomas; Derrick Miller; Electa E. Person; Deborah Anderson Smith; Rosalyn Sloan; Julie Ann Frey; Lily Nicole Quick; Joshua Brown; Carlton E. Campbell, Sr.; Stephen Douglas McGrigor, Plaintiffs-Appellants, and Mary Ann Peden-Coviello, Plaintiff, v. Representative David R. Lewis, in his official capacity as Senior Chairman of the House Select Committee on Redistricting; Senator Ralph E, Hise, Jr., in his official capacity as Chairman of the Senate Committee on Redistricting; Speaker of the House Timothy K. Moore; President Pro Tempore of the North Carolina Senate Philip E. Berger; the State of North Carolina, Defendants-Appellees, and Andy Penry, Chairman of the North Carolina State Board of Elections and Ethics Enforcement; Joshua Malcolm, Vice-Chair of the North Carolina State Board of Elections and Ethics Enforcement; Ken Raymond, Secretary of the North Carolina Board of Elections and Ethics Enforcement; Stella Anderson, Member of the North Carolina State Board of Elections and Ethics Enforcement; The North Carolina State Board of Elections and Ethics Enforcement; Damon Circosta, Member of the North Carolina State Board of Elections and Ethics Enforcement; Stacy "Four" Eggers, IV, Member of the North Carolina State Board of Elections and Ethics Enforcement; Jay Hemphill, Member of the North Carolina State Board of Elections and Ethics Enforcement; Valerie Johnson, Member of the North Carolina State Board of Elections and Ethics Enforcement; John Lewis, Member of the North Carolina State Board of Elections and Ethics Enforcement; Robert Cordle, Member of the North Carolina State Board of Elections and Ethics Enforcement, Defendants. Reginald Reid, Amicus Supporting Appellees.

United States Court of Appeals, Fourth Circuit.

Decided: April 16, 2020.


Attorney(s) appearing for the Case

ARGUED: Richard Bryan Raile , BAKER & HOSTETLER, LLP, Washington, D.C., for Appellants/Cross-Appellees. Elisabeth S. Theodore , ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellees/Cross-Appellants. Paul Mason Cox , NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Phillip J. Strach , Michael McKnight , OGLETREE, DEAKINS, NASH, SMOAK, & STEWART, P.C., Raleigh, North Carolina; E. Mark Braden , Trevor M. Stanley , BAKER & HOSTETLER LLP, Washington, D.C., for Appellants/Cross-Appellees. Edwin M. Speas, Jr. , Caroline P. Mackie , POYNER SPRUILL LLP, Raleigh, North Carolina; R. Stanton Jones , David P. Gersch , Daniel F. Jacobson , William C. Perdue , Sara Murphy D'Amico , ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C.; Marc E. Elias , Aria C. Branch , Washington, D.C., Abha Khanna , PERKINSCOIELLP, Seattle, Washington, for Appellees/Cross-Appellants. Jason B. Torchinsky , Dennis W. Polio , HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC, Warrenton, Virginia, for Amicus Reginald Reid.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Motz and Judge Richardson joined.


The core of the two appeals before us concerns whether a partisan gerrymandering action, with claims brought exclusively under the North Carolina Constitution against certain state legislators, belongs in federal court and therefore was properly removed under the Refusal Clause of 28 U.S.C. § 1443(2). To support their...

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