PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-4615
_____________
DEMOCRATIC NATIONAL COMMITTEE;
NEW JERSEY DEMOCRATIC STATE COMMITTEE;
VIRGINIA L. FEGGINS; LYNETTE MONROE
v.
REPUBLICAN NATIONAL COMMITTEE;
NEW JERSEY REPUBLICAN STATE COMMITTEE;
ALEX HURTADO; RONALD C. KAUFMAN; JOHN
KELLY
Republican National Committee,
Appellant
______________
APPEAL FROM THE JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF
NEW JERSEY
(D.C. Civ. Action No. 2-81-cv-03876)
District Judge: Honorable Dickinson R. Debevoise
______________
Argued on December 13, 2010
______________
1
Before: SLOVITER, GREENAWAY, JR., and
STAPLETON, Circuit Judges.
(Opinion Filed: March 8, 2012)
______________
John W. Bartlett
Angelo J. Genova (argued)
Rajiv D. Parikh
Genova Burns
494 Broad Street
6th Floor
Newark, NJ 07102
Counsel for Appellee, Democratic National
Committee
Bobby R. Burchfield (argued)
Jason A. Levine
Vinson & Elkins
2200 Pennsylvania Avenue, N.W.
Suite 500 West
Washington, DC 20037
Counsel for Appellant, Republican National
Committee
James R. Troupis
7609 Elmwood Avenue
Middleton, WI 53562
Counsel for Amicus Appellant, Republican Party of
Wisconsin
2
Karl S. Bowers, Jr.
Hall & Bowers
1329 Blanding Street
Columbia, SC 29201
Counsel for Amici Appellants, Karl S. Bowers, Jr.,
Asheegh Agarwal, Esq., Roger Clegg, Esq.,
Robert N. Driscoll, Eric Eversole and
Hans A. Von Spakovsky
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
In 1982, the Republican National Committee (“RNC”)
and the Democratic National Committee (“DNC”) entered
into a consent decree (the “Decree” or “Consent Decree”),
which is national in scope, limiting the RNC’s ability to
engage or assist in voter fraud prevention unless the RNC
obtains the court’s approval in advance. The RNC appeals
from a judgment of the United States District Court for the
District of New Jersey denying, in part, the RNC’s Motion to
Vacate or Modify the Consent Decree. 1 Although the District
Court declined to vacate the Decree, it did make
modifications to the Decree. The RNC argues that the
District Court abused its discretion by modifying the Decree
1
Judge Dickinson R. Debevoise, a United States District
Judge, has presided over all district court proceedings
regarding the Consent Decree at issue in this case, beginning
with the 1981 lawsuit through the Motion to Vacate in 2009.
3
as it did and by declining to vacate the Decree. For the
following reasons, we will affirm the District Court’s
judgment.
I. BACKGROUND
A. 1981 Lawsuit and Consent Decree
During the 1981 New Jersey gubernatorial election,
the DNC, the New Jersey Democratic State Committee
(“DSC”), Virginia L. Peggins, and Lynette Monroe brought
an action against the RNC, the New Jersey Republican State
Committee (“RSC”), John A. Kelly, Ronald Kaufman, and
Alex Hurtado, alleging that the RNC and RSC targeted
minority voters in an effort to intimidate them in violation of
the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. §§ 1971,
1973, and the Fourteenth and Fifteenth Amendments to the
Constitution of the United States. The RNC allegedly created
a voter challenge list by mailing sample ballots to individuals
in precincts with a high percentage of racial or ethnic
minority registered voters and, then, including individuals
whose postcards were returned as undeliverable on a list of
voters to challenge at the polls. The RNC also allegedly
enlisted the help of off-duty sheriffs and police officers to
intimidate voters by standing at polling places in minority
precincts during voting with “National Ballot Security Task
Force” armbands. Some of the officers allegedly wore
firearms in a visible manner.
To settle the lawsuit, the RNC and RSC entered into
the Consent Decree at issue here. The RNC and RSC agreed
that they would:
4
[I]n the future, in all states and
territories of the United States:
(a) comply with all applicable
state and federal laws protecting
the rights of duly qualified
citizens to vote for the
candidate(s) of their choice;
(b) in the event that they produce
or place any signs which are part
of ballot security activities, cause
said signs to disclose that they are
authorized or sponsored by the
party committees and any other
committees participating with the
party committees;
(c) refrain from giving any
directions to or permitting their
agents or employees to remove or
deface any lawfully printed and
placed campaign materials or
signs;
(d) refrain from giving any
directions to or permitting their
employees to campaign within
restricted polling areas or to
interrogate prospective voters as
to their qualifications to vote prior
to their entry to a polling place;
5
(e) refrain from undertaking any
ballot security activities in polling
places or election districts where
the racial or ethnic composition of
such districts is a factor in the
decision to conduct, or the actual
conduct of, such activities there
and where a purpose or significant
effect of such activities is to deter
qualified voters from voting; and
the conduct of such activities
disproportionately in or directed
toward districts that have a
substantial proportion of racial or
ethnic populations shall be
considered relevant evidence of
the existence of such a factor and
purpose;
(f) refrain from having private
personnel deputized as law
enforcement personnel in
connection with ballot security
activities.
(App. at 401–02.) 2 The RNC also agreed to, “as a first resort,
use established statutory procedures for challenging
unqualified voters.” (Id.)
2
The RNC agreed that the RNC, its agents, servants, and
employees would be bound by the Decree, “whether acting
directly or indirectly through other party committees.” (Id. at
402.)
6
B. 1987 Enforcement Action and Consent Decree
Modifications
In Louisiana during the 1986 Congressional elections,
the RNC allegedly created a voter challenge list by mailing
letters to African-American voters and, then, including
individuals whose letters were returned as undeliverable on a
list of voters to challenge. A number of voters on the
challenge list brought a suit against the RNC in Louisiana
state court. In response to a discovery request made in that
suit, the RNC produced a memorandum in which its Midwest
Political Director stated to its Southern Political Director that
“this program will eliminate at least 60,000–80,000 folks
from the rolls . . . If it’s a close race . . . which I’m assuming
it is, this could keep the black vote down considerably.”
Democratic Nat’l Comm. v. Republican Nat’l Comm., 671 F.
Supp. 2d 575, 580 (D.N.J. 2009) (citing Thomas Edsall,
Ballot Security Effects Calculated: GOP Aide Said Louisiana
Effort “Could Keep the Black Vote Down,” WASH. POST,
OCT. 24, 1986 at A1. Although the DNC was not a party to
the action in Louisiana state court, it brought an action against
the RNC for alleged violations of the Consent Decree after
this memorandum was produced.
The RNC and the DNC settled the lawsuit, this time by
modifying the Consent Decree, which remained “in full force
and effect.” (App. at 404.) In the 1982 Decree, the RNC had
agreed to specific restrictions regarding its ability to engage
in “ballot security activities,” but that Decree did not define
the term “ballot security activities.” (App. at 401.) As
modified in 1987, the Decree defined “ballot security
activities” to mean “ballot integrity, ballot security or other
efforts to prevent or remedy vote fraud.” Democratic Nat’l
Comm., 671 F. Supp. 2d at 581. The modifications clarified
7
that the RNC “may deploy persons on election day to perform
normal poll watch[ing] functions so long as such persons do
not use or implement the results of any other ballot security
effort, unless the other ballot security effort complies with the
provisions of the Consent Order and applicable law and has
been so determined by this Court.” (App. at 405.) The
modifications also added a preclearance provision that
prohibits the RNC from assisting or engaging in ballot
security activities unless the RNC submits the program to the
Court and to the DNC with 20 days’ notice and the Court
determines that the program complies with the Consent
Decree and applicable law. 3
C. 1990 Enforcement Action
3
The modifications state that
the RNC shall not engage in, and
shall not assist or participate in,
any ballot security program unless
the program (including the
method and timing of any
challenges resulting from the
program) has been determined by
this Court to comply with the
provisions of the Consent Order
and applicable law. Applications
by the RNC for determination of
ballot security programs by the
Court shall be made following 20
days[sic] notice to the DNC . . .
(App. at 405.)
8
In 1990, the DNC brought a lawsuit alleging that the
RNC violated the Consent Decree by participating in a North
Carolina Republican Party (“NCRP”) program. The DNC
alleged that the RNC had violated the Decree in North
Carolina by engaging in a program of the North Carolina
Republican Party (“NCRP”) in which 150,000 postcards were
sent to residents of predominantly African-American
precincts. This program allegedly attempted to intimidate
voters by warning that it is a “federal crime . . . to knowingly
give false information about your name, residence or period
of residence to an election official.” Democratic Nat’l
Comm., 671 F. Supp. 2d at 581. The postcards falsely stated
that there was a 30-day minimum residency requirement prior
to the election during which voters must have lived in the
precinct in which they cast their ballot.
The District Court found that the DNC failed to
establish that the RNC conducted, participated in, or assisted
in the postcard program. However, the Court also found that
the RNC violated the Consent Decree by failing to give the
state parties guidance on unlawful practices under the
Consent Decree or copies of the Decree when the RNC gave
them ballot security instructional and informational materials.
The Court held that the RNC must provide a copy of the
Consent Decree, or information regarding unlawful practices
under the Consent Decree, along with any such instructional
or informational materials that the RNC distributes in the
future to any state party.
D. 2004 Enforcement Action (the “Malone enforcement
action”)
In 2004, the week before the general election for
President, Ebony Malone (“Malone”), an African-American
9
resident of Ohio, brought an enforcement action against the
RNC, alleging that the RNC had violated the Consent Decree
by participating in the compilation of a predominantly-
minority voter challenge list of 35,000 individuals from Ohio.
Malone’s name was on the list. To compile the list, the RNC
had sent a letter to registered voters in high minority
concentration areas of Cleveland and the Ohio Republican
Party sent a second mailing approximately a month later.
Registered voters whose letters were returned as
undeliverable were added to the challenge list.
Seeking solace pursuant to the Decree, Malone sought
before the District Court a preliminary injunction barring the
RNC and any state organizations with which it was
cooperating from using the list in ballot security efforts.
On November 1, 2004, the DNC appeared before the
District Court at an evidentiary hearing in support of Malone.
The RNC argued that Malone’s suit was non-justiciable due
to irregularities in her registration which would result in her
being challenged by the Ohio Board of Election regardless of
any separate challenge brought by the RNC. The RNC also
claimed that it had complied with the Decree and that the
potential challenge to Malone voting was a “normal poll
watch function[]” allowed by the Decree. (App. at 405.)
Finally, the RNC asserted that the Ohio Republican Party,
which was not subject to the Decree, would carry out any
challenge to Malone’s eligibility to vote.
Following an evidentiary hearing, the District Court
issued an Order barring the RNC from using the list to
challenge voters and directing the RNC to instruct its agents
in Ohio not to use the list for ballot security efforts. The
District Court rejected the RNC’s argument that Malone’s
10
claims were non-justiciable because she would suffer
irreparable harm if she had to endure multiple challenges to
her eligibility to vote. The District Court found that the RNC
had violated the procedural and substantive provisions of the
Consent Decree by participating with the Ohio Republican
Party in devising and implementing the ballot security
program and failing to obtain preclearance for the program.
The RNC requested that our Court stay the Order. The
panel denied the request for a stay and affirmed the District
Court’s Order, noting that emails between the RNC and the
Ohio Republican Party showed collaboration between the two
organizations sufficient to support the District Court’s factual
findings.
The RNC petitioned for rehearing en banc. We
granted the petition for rehearing en banc the next day,
Election Day, November 2, 2004. This Court vacated the
panel’s ruling and stayed the District Court’s Order. Before
the entire Court could hear the matter en banc, Malone cast
her ballot without being challenged. After Malone voted
without challenge, Justice Souter, in his capacity as Circuit
Justice for the Third Circuit, denied Malone’s application to
the Supreme Court seeking reinstatement of the injunction.
We dismissed the appeal as moot, without addressing the
merits.
E. 2008 Enforcement Action
On November 3, 2008, the DNC alleged in a lawsuit
that the RNC violated the Consent Decree by hiring private
investigators to examine the backgrounds of some New
Mexico voters in preparation for challenging those
individuals’ voting eligibility. The DNC requested a
11
preliminary injunction to prevent the RNC from using the
information gathered by private investigators in any ballot
security efforts. The District Court denied the DNC’s Motion
for a Preliminary Injunction, concluding that the RNC did not
direct or participate in any ballot security measures, and held
that the RNC had not violated the Consent Decree.
F. Motion to Vacate or Modify the Consent Decree
On November 3, 2008, shortly after the District Court
denied the DNC’s Motion for a Preliminary Injunction, the
RNC submitted the Motion to Vacate or Modify the Consent
Decree that is currently at issue. The RNC submitted several
arguments in support of its motion: (1) since the 1987
modification, the enactment of (a) the National Voter
Registration Act of 1993 (the “NVRA” or “Motor Voter
Law”), 42 U.S.C. §§ 1973gg et seq., (b) the Bipartisan
Campaign Reform Act of 2002 (“BCRA”), 2 U.S.C. §§ 431 et
seq., and (c) the Help America Vote Act of 2002 (“HAVA”),
42 U.S.C. §§ 15301 et seq. increased the risk of voter fraud
and decreased the risk of voter intimidation; (2) the Consent
Decree extends to types of conduct that were not included in
the initial 1981 Complaint; (3) the Decree was interpreted too
broadly and inconsistently with the parties’ expectations at
the time they entered the 1982 and 1987 settlements; and (4)
the Decree violates the First Amendment by restricting
communications between the RNC and state parties.
The District Court held an evidentiary hearing on the
motion during May 5 and 6, 2009 and also received post-
hearing submissions from the parties. On December 1, 2009,
the District Court issued an opinion, denying the motion to
vacate the Decree. First, the District Court rejected the
RNC’s argument that the Consent Decree was void because it
12
“‘improperly extend[s] to ... private conduct’ and grants
prospective relief beyond what the DNC could have achieved
if the original 1981 action had been litigated.” Democratic
Nat’l Comm, 671 F. Supp 2d at 595. The Court, instead, held
the Decree was not void because parties can settle lawsuits by
agreeing to broader relief than a court could have awarded
otherwise. Furthermore, the Court held that the RNC was
barred from asserting this argument because the RNC
willingly entered the Decree as a means of settling the initial
1981 lawsuit and the RNC again consented to the Decree, as
modified, in 1987. The District Court also held that the
Decree did not violate the First Amendment because, under
the Decree, the RNC is free to communicate with state parties
about subjects other than ballot security. Additionally, the
Court noted that the First Amendment applies only to state
actions and does not prevent private parties from agreeing to
refrain from certain types of speech.
Next, the District Court considered the RNC’s
arguments that the Decree should be vacated or modified due
to changes in law, changes in fact, and the public interest in
the RNC combating voter fraud. The Court found that neither
the purported changes nor the public interest justified
vacating or modifying the Decree. While the Court found
that the Decree was not sufficiently unworkable to warrant
vacating the Decree, the Court did find that four workability
considerations justified modifying the Decree. Those
considerations are that: (1) the potential inequity of the RNC
being subject to suits brought by entities who were not party
to the Decree when, under the BCRA, the RNC has to defend
13
lawsuits using “hard money,” 4 while the DNC would not have
to spend any money on such suits because it would not be a
party5; (2) the twenty-day notice requirement for preclearance
prevents the RNC from combating mail-in voter registration
fraud in a number of states with later mail-in voter
registration deadlines; (3) the Decree lacked a clear definition
of normal poll watching activities and the parties have not
provided a definition, which has led the RNC to refrain from
normal poll watching activities that the Decree was never
intended to prohibit; and (4) the Decree lacked a termination
date.
Thus, although the District Court denied the request to
vacate the Decree, the Court granted the motion to modify the
Decree. The District Court’s modifications can be
summarized as follows:
4
“‘[C]ontributions subject to [the Federal Election Campaign
Act’s (FECA), 2 U.S.C. §§ 431–55] source, amount, and
disclosure requirements’ came to be known as ‘hard
money,’ while ‘[p]olitical donations made in such a way as to
avoid federal regulations or limits’ came to be known as ‘soft
money.’” Shays v. FEC, 528 F.3d 914, 917 (D.C. Cir. 2008)
(quoting Shays v. FEC, 414 F.3d 76, 80 (D.C. Cir. 2005)
(“Shays II”); THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE 1652 (4th Ed. 2006)).
5
The RNC would have to spend “hard money” on any
lawsuits because the “BCRA made a number of dramatic
changes to campaign finance law . . . , including barring
national political parties from soliciting soft money.”
Shays, 528 F.3d at 918 (citing 2 U.S.C. § 441i(a)).
14
1. Only parties to the Consent Decree, RNC and
DNC, may bring an enforcement suit regarding
a violation of the Decree.
2. The preclearance period is shortened from 20
days to 10 days.
3. “Ballot security” is defined to include “any
program aimed at combating voter fraud by
preventing potential voters from registering to
vote or casting a ballot.” Democratic Nat’l
Comm., 671 F. Supp. 2d at 622. The
modification also includes a non-exhaustive list
of ballot security programs.
4. “Normal poll-watch function” is defined as
“stationing individuals at polling stations to
observe the voting process and report
irregularities unrelated to voter fraud to duly-
appointed state officials.” Id. The modification
includes a non-exhaustive list of activities that
do and do not fit into the Decree definition of
normal poll-watch function.
5. The Decree does not apply to any RNC program
that does not have as at least one of its purposes
the prevention of fraudulent voting or
fraudulent voter registration.
6. The Consent Decree expires on December 1,
2017 (eight years after the date of the
modification). If, before that date, the DNC
proves by a preponderance of the evidence that
the RNC violated the Decree, the Decree will
15
extend for eight years from the date of the
violation.
The RNC filed a timely appeal.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction over
the litigation pursuant to 28 U.S.C. § 1331. We have
jurisdiction over the appeal from the Consent Order, which
contained an explicit reservation of appellate jurisdiction over
the enforcement of the settlement terms, pursuant to 28
U.S.C. § 1291. See Keefe v. Prudential Prop. & Cas. Co.,
203 F.3d 218, 223 (3d Cir. 2000); see also Halderman v.
Pennhurst State Sch. & Hosp., 901 F.2d 311, 317 (3d Cir.
1990) (holding that courts have jurisdiction to enforce
settlement agreements incorporated into orders).
We review the District Court’s decision modifying and
refusing to vacate the Consent Order for abuse of discretion.
Delaware Valley Citizens’ Counsel for Clean Air v.
Pennsylvania, 755 F.2d 38, 41 (3d Cir. 1985). To
demonstrate that a district court abused its discretion, an
appellant must show that the court’s decision was “arbitrary,
fanciful or clearly unreasonable.” Moyer v. United Dominion
Indus., Inc., 473 F.3d 532, 542 (3d Cir. 2007) (quoting Stecyk
v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir.
2002).
III. ANALYSIS
A. Legal Standard
This Court has emphasized that, by signing a consent
decree, signatories make a “free, calculated and deliberate
16
choice to submit to an agreed upon decree rather than seek a
more favorable litigated judgment.” United States Steel
Corp. v. Fraternal Assoc. of Steel Haulers, 601 F.2d 1269,
1274 (3d Cir. 1979). Federal Rule of Civil Procedure 60(b)
provides that a court may relieve a party from an order when
“the judgment is void,” “applying it prospectively is no
longer equitable,” or for “any other reason that justifies
relief.” FED. R. CIV. P. 60(b) (4), (5), (6). Rule 60(b) does
not provide, however, that an order may be rescinded or
modified merely because it is no longer convenient for a party
to comply with the consent order. Rufo v. Inmates of the
Suffolk County Jail, et al., 502 U.S. 367, 383 (1992); see
Bldg. & Constr. Trades Council of Phila. & Vicinity, AFL-
CIO v. NLRB (“BCTC”), 64 F.3d 880, 887 (3d Cir. 1995)
(holding that Rufo’s interpretation of Rule 60(b)(5) is a rule
of general applicability and not limited to institutional reform
litigation).
The Supreme Court interpreted Rule 60(b)(5) in Rufo,
clarifying that “a party seeking modification of a consent
decree bears the burden of establishing that a significant
change in circumstances warrants revision of the decree.”
Rufo, 502 U.S. at 383. Such a party must establish at least
one of the following four factors by a preponderance of the
evidence to obtain modification or vacatur: (1) a significant
change in factual conditions; (2) a significant change in law;
(3) that “a decree proves to be unworkable because of
unforeseen obstacles”; or (4) that “enforcement of the decree
without modification would be detrimental to the public
interest.” Id. at 384.
The Court elaborated on the change in law factor,
holding that a decree must be modified if “one or more of the
obligations placed upon the parties has become
17
impermissible” and that a decree may be modified if “law has
changed to make legal what the decree was designed to
prevent.” Id. at 388. Typically, courts should not grant
modification or vacatur “where a party relies upon events that
actually were anticipated at the time it entered into a decree.”
Id. at 385. If a party agreed to the decree notwithstanding the
anticipated change in conditions, “that party would have to
satisfy a heavy burden to convince a court that it agreed to the
decree in good faith, made a reasonable effort to comply with
the decree, and should be relieved of the undertaking under
Rule 60(b).” Id.
Although Rufo provides a general interpretation of
Rule 60(b)(5), it does not provide a “universal formula” for
deciding when applying a decree prospectively is no longer
equitable. BCTC, 64 F.3d at 888. In addition to the Rufo
standard, a court determining whether to vacate or modify a
decree should respond to the specific set of circumstances
before it by considering factors unique to the conditions of
the case. Id. (noting that “equity demands a flexible response
to the unique conditions of each case”); The additional factors
a court should typically consider before modifying or
vacating a decree under Rule 60(b)(5) include:
the circumstances leading to entry
of the injunction and the nature of
the conduct sought to be
prevented; the length of time
since entry of the injunction;
whether the party subject to its
terms has complied or attempted
to comply in good faith with the
injunction; and the likelihood that
the conduct or conditions sought
18
to be prevented will recur absent
the injunction.
Id.
In weighing these factors, “the court must balance the
hardship to the party subject to the injunction against the
benefits to be obtained from maintaining the injunction” and
the court should also “determine whether the objective of the
decree has been achieved.” BCTC, 64 F.3d at 888. While the
decree and changed fact or law need not be completely
inconsistent with each other, for such a change to justify
vacatur, it must be significant, meaning that it renders the
prospective application of the decree inequitable. See BCTC,
64 F.3d at 888.
After a moving party has established a change warranting
modification of a consent order, “the district court should
determine whether the proposed modification is suitably
tailored to the changed circumstance.” Rufo, 502 U.S. at 391.
The modification “must not create or perpetuate a
constitutional violation”; it “should not strive to rewrite a
consent order so that it conforms to the constitutional floor”;
and a court should not try to modify a consent order except to
make those revisions that equity requires, given the change in
circumstances. Id.
B. Discussion
The RNC asks that our Court vacate a decree that has
as its central purpose preventing the intimidation and
suppression of minority voters. When, as here, a party
voluntarily enters into a consent decree not once, but twice,
and then waits over a quarter of a century before filing a
19
motion to vacate or modify6 the decree, such action gives us
pause. Further, the RNC, with the advice of counsel, twice
chose to limit indefinitely its ability to engage in certain
activities enumerated in the Decree by entering into a decree
with no expiration date.
At present, Appellant seeks review of the District
Court's order denying vacatur because it prefers not to comply
with the Consent Decree at a critical political juncture — the
upcoming election cycle. See Rufo, 502 U.S. at 383.
However, we cannot disturb the District Court’s opinion
unless it abused its discretion, meaning that its decision was
“arbitrary, fanciful, or clearly unreasonable,” Moyer, 473
F.3d at 542, when it found that the RNC failed to demonstrate
that prospective application of the Decree, with the Court’s
modifications, would not be equitable.
In reviewing the District Court’s opinion and its
modifications to the Decree, we do not take lightly Judge
Debevoise’s nearly three decades of experience presiding
over all matters related to this Decree. See Reconstruction
Fin. Corp. v. Denver & R. G. W. R. Co., 328 U.S. 495, 533
(1946) (according special weight to a district judge’s finding
that a reorganization plan provided adequately for the
equitable treatment of dissenters “[i]n view of the District
Judge's familiarity with the reorganization”); Jenkins by
Jenkins v. Missouri, 122 F.3d 588, 604 (8th Cir. 1997)
(noting that a district judge had gained extensive knowledge
6
Although the RNC’s motion requested that the Court vacate
or modify the Decree, the RNC has not referenced any
modifications, short of vacatur, that would make applying the
Decree equitable in the RNC’s view.
20
of the conditions relevant to a specific lawsuit because the
judge had presided over the litigation for twenty years, from
the time of its inception).
We shall review whether the District Court abused its
discretion by first holding that the Decree need not be vacated
due to any First Amendment violation. 7
Next, we shall review whether the District Court
abused its discretion regarding Rule 60(b)(5). First, we shall
analyze whether the District Court abused its discretion
regarding the broad changed circumstances factors outlined in
Rufo. Second, we shall analyze whether the District Court
abused its discretion regarding the BCTC factors specific to
the parties and Consent Decree at issue. 8 Third, we will
inquire into whether the Court abused its discretion by
7
It is not clear from Appellant’s brief whether the RNC raises
this First Amendment argument under Rule 60(b)(5) or Rule
60(b)(6); however, we would reach the same conclusion
under either rule because we do not find a First Amendment
violation.
We need not determine whether the District Court abused its
discretion by holding that the Decree was not void due to its
extension to private conduct and granting relief beyond that
which the Court could order absent the Consent Decree
because the RNC has not raised that issue on this appeal.
8
Although the District Court opinion did not specifically
reference any BCTC factors as such, the opinion did consider
factors relevant to the specific circumstances of this Consent
Decree, including the BCTC considerations that the parties
raised.
21
holding that its prescribed modifications to the Decree were
“suitably tailored to the changed circumstance[s].” 9 Rufo,
502 U.S. at 393.
The RNC has not demonstrated, by a preponderance of
the evidence, the circumstances necessary for vacatur or for
modifications, other than those ordered by the District Court.
For the reasons set forth herein, we find that the District
Court did not abuse its discretion in declining to vacate the
Decree or in making the modifications to the Decree that it
ordered.
1. First Amendment
The RNC argues that the Consent Decree should be
vacated because the Decree violates the First Amendment in
two ways. The RNC claims that the 2004 modifications to
the Decree, which bar the RNC from engaging in ballot
security activities absent District Court preclearance, serve as
a prior restraint on the RNC’s right to engage in political
speech. Additionally, the RNC alleges that the District
Court’s 1990 Order unconstitutionally forces speech by
requiring the RNC to provide a copy of the Decree, or
information regarding unlawful practices under the Decree,
along with any ballot security instructional or informational
materials that the RNC distributes to any state party.
9
The District Court did not expressly state that the
modifications it ordered were suitably tailored to the changes
in circumstances, but the Court discussed in some detail how
the modifications would address the specific workability
concerns.
22
As the District Court correctly noted, in this context,
the First Amendment applies only to state action. Cent.
Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972). Under
Shelley v. Kramer, 334 U.S. 1 (1948), court enforcement of
certain private agreements constitutes state action. Id. at 19–
20 (holding that a state court injunction to enforce a racially
restrictive covenant against parties who did not wish to
discriminate is state action); Switlik v. Hardwicke Co., Inc.,
651 F.2d 852, 860 (3d Cir. 1981) (“the state court’s
enforcement of an agreement between two private individuals
can, in certain instances, constitute state action” (citing
Shelley, 334 U.S. 1)).
Although a court’s enforcement of a consent decree
can constitute state action under Shelley, Shelley’s holding
may not have sufficient reach to encompass the enforcement
of this Decree. The Supreme Court has declined to find state
action where the court action in question is a far cry from the
court enforcement in Shelley. See Blum v. Yaretsky, 457
U.S. 991, 1004–05 (1982) (recognizing that state approval of
or acquiescence to a private choice does not convert that
choice into state action); Lavoie v. Bigwood, 457 F.2d 7,
11 (1st Cir. 1972) (noting the theory that, under Shelley, court
enforcement of a private agreement may only be state action
if, “in resorting to a state sanction, a private party must
necessarily make the state privy to his discriminatory
purpose”).
Even if court enforcement of this Consent Decree
constitutes state action, “speech rights are not absolute.”
Tennessee Secondary Sch. Athletic Ass’n v. Brentwood
Acad., 551 U.S. 291, 295 (2007). “[C]onstitutional rights . . .
may be contractually waived where the facts and
circumstances surrounding the waiver make it clear that the
23
party foregoing its rights has done so of its own volition, with
full understanding of the consequences of its waiver.” Erie
Telecomm., Inc. v. City of Erie, Pa., 853 F.2d 1084, 1096 (3d
Cir. 1988). Court enforcement of a private agreement to limit
a party’s ability to speak or associate does not necessarily
violate the First Amendment. Ry. Emps. Dep’t. v. Hanson,
351 U.S. 225 (1956) (holding that court enforcement of a
union shop agreement, which would require all railroad
employees to become union members does not violate the
First Amendment right to association). 10
The Supreme Court has long recognized that a party
may waive constitutional rights if there is “clear” and
“compelling” evidence of waiver and that waiver is voluntary,
knowing, and intelligent. 11 “Such volition and understanding
10
Furthermore, court orders can include limits on the ability
of a party to speak, as occurs in confidentiality provisions
regarding settlement agreements, and a party could bring an
action for a court to enforce a private confidentiality
agreement. See Pansy v. Borough of Stroudsburg, 23 F.3d
772, 787-89 (3d Cir. 1994).
11
See Edwards v. Arizona, 451 U.S. 477, 482 (1981) (waiver
of right to counsel must be voluntary, knowing, and
intelligent); Faretta v. California, 422 U.S. 806, 835
(1975) (same); D.H. Overmyer Co. of Ohio v. Frick Co.,405
U.S. 174, 185–86, (1972) (waiver of due process rights must
be voluntary, knowing, and intelligent); Curtis Publ’g Co. v.
Butts, 388 U.S. 130, 145 (1967) (waiver of First Amendment
rights must be shown by clear and compelling evidence);
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (waiver requires
“an intentional relinquishment or abandonment of a known
right or privilege”).
24
are deemed to be, and indeed have been held to be, present,
where the parties to the contract have bargaining equality and
have negotiated the terms of the contract, and where the
waiving party is advised by competent counsel and has
engaged in other contract negotiations.” Erie Telecomm., 853
F.2d at 1096.
“The question of waiver of a federally guaranteed
constitutional right is, of course, a federal question controlled
by federal law.” Brookhart v. Janis, 384 U.S. 1, 4 (1966).
The Supreme Court has held that courts must “‘indulge every
reasonable presumption against waiver’ of fundamental
constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464
(1938) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389,
393 (1931)). Determining whether waiver was voluntary,
knowing, and intelligent in any particular case rests “upon the
particular facts and circumstances surrounding that case,
including the background, experience and conduct” of the
waiving party. Id.
Here, in 1982, the RNC, with the assistance of counsel,
voluntarily entered into the Decree. In consideration of the
DNC and other plaintiffs amicably resolving all matters that
were or could have been raised in the 1982 lawsuit, the RNC
signed a settlement agreement in which they committed,
among other provisions,
to refrain from undertaking any
ballot security activities in polling
places or election districts where
the racial or ethnic composition of
such districts is a factor in the
decision to conduct, or the actual
conduct of, such activities there
25
and where a purpose or significant
effect of such activities is to deter
qualified voters from voting . . .
(App. at 401–02.) The RNC agreed that the terms of the
Decree would bind the RNC, its agents, servants, and
employees, “whether acting directly or indirectly through
other party committees.” (Id. at 402.)
In 1987, the RNC once again entered into a settlement
stipulation, with the assistance of counsel, agreeing to modify
the 1982 Decree. The Decree, as modified, clarified that
“ballot security” efforts meant “ballot integrity, ballot
security or other efforts to prevent or remedy voter fraud.”
Democratic Nat’l Comm., 671 F. Supp. 2d at 581. The
modifications allow the RNC to engage in normal poll watch
functions on Election Day so long as the people it deploys do
not use or implement the results of any ballot security effort
without a determination by the District Court that the ballot
security effort complies with the provisions of the Decree and
applicable law. In order to secure such a determination, the
RNC must submit a description of the program to the District
Court following twenty days’ notice to the DNC. Only with
the District Court’s approval secured in this fashion can the
RNC engage, assist, or participate in any ballot security
program.
A court can enforce an agreement preventing
disclosure of specific information without violating the
restricted party’s First Amendment rights if the party received
consideration in exchange for the restriction. See Alfred A.
Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975)
(noting that executing a secrecy agreement can “effectively
relinquish[] . . . First Amendment rights”).
26
That the Decree and its 1987 modification resolved all
issues that could have been raised by the DNC and other
plaintiffs in that litigation was sufficient consideration to
evidence a waiver. See D.H. Overmyer Co. of Ohio v. Frick
Co., 405 U.S. 174, 186-87 (1971) (holding that the presence
of consideration constitutes some evidence of a waiver).
The Supreme Court has held that there is a valid
waiver of constitutional rights where the party that waived
“was a corporation with widespread activities and a
complicated corporate structure; [the parties] had equal
bargaining power; and [where the waiving party] did not
contend that it or its counsel was unaware of the significance
of the [instrument in which it waived notice].” Erie
Telecomm., 853 F.2d at 1095 (citing D.H. Overmyer, 405
U.S. at 186). Here, the RNC has widespread activities, had
equal bargaining power with the plaintiffs, and has not
contended that it was unaware of the significance of the
Decree, which it was free to decide not to enter into. The
RNC also received consideration— the plaintiffs in the 1982
and 1987 lawsuits relinquished all claims that could have
arisen from those actions. The RNC “may not now seek to
withdraw from performing its obligations and from
discharging its burdens, while it still continues to retain all of
the benefits it received . . . as a result of the agreement[].”
Erie Telecomm., 853 F.2d at 1097. The 1982 and 1987
settlement agreements, signed by counsel for the RNC, are
clear and compelling evidence that the RNC voluntarily,
knowingly, and intelligently waived certain First Amendment
rights.
The RNC alleges that the District Court Orders from
1990 and 2004 violate its First Amendment rights. However,
neither order imposes limitations on the RNC’s First
27
Amendment rights beyond those that the RNC voluntarily
waived in 1982 and 1987. In 1990, the Court held that the
RNC must provide a copy of the Consent Decree, or
information regarding unlawful practices under the Consent
Decree, along with any ballot security materials that the RNC
distributes to any state party. Despite the RNC’s arguments
before our Court, any restrictions on the RNC’s ability to
communicate and associate with state and local parties are
self-imposed and waived by the RNC entering into the Decree
in 1982 and 1987.
In 2004, the District Court issued an Order barring the
RNC from using a voter challenge list targeting precincts with
large African-American populations that the RNC had
compiled in coordination with the Ohio Republican Party.
The District Court found that the RNC had violated the
Decree both procedurally and substantively by participating
with the Ohio Republican Party in devising and implementing
the ballot security program and failing to obtain preclearance
for the program. The 2004 Order does not impose any
additional limitation on the speech rights of the RNC beyond
those present in the 1982 and 1987 Decree and modifications,
in which the RNC consented and agreed to certain restrictions
of its rights. Hence, neither the 1990 nor 2004 Orders present
a basis for a First Amendment challenge.
In 1982 and 1987, the RNC voluntarily agreed to
create and abide by the very provisions that it now challenges
as unconstitutional. The District Court’s enforcement of the
Decree against the RNC does not result in a First Amendment
violation. The District Court did not abuse its discretion in
denying the request to vacate the Decree on this basis.
2. Rufo Factors
28
We now address the three Rufo factors in turn.
a. Changed Factual Circumstances
The Decree and its 1987 modification aim primarily to
prevent the RNC from “using, [or] appearing to use, racial or
ethnic criteria in connection with ballot integrity, ballot
security or other efforts to prevent or remedy suspected vote
fraud” and to neither “hinder[] [nor] discourag[e] qualified
voters from exercising the right to vote.” (App. at 404–05.)
Given these purposes of the Decree, only a change that
decreases minority voter intimidation and vote suppression ex
ante can be a “significant change [that] warrants revision of
the decree.” Rufo, 502 U.S. at 383.
The RNC argues that the following factual changes
warranted vacatur or modification of the Decree: first, the
President and Attorney General of the United States and the
President of the RNC (former) are African American; 12
second, that minority voter registration and turnout have
12
The only witness called by the RNC at the evidentiary
hearing before the District Court was Thomas Josefiak, an
election law expert who was appointed by President Ronald
Reagan to serve as the Commissioner of the Federal Election
Commission from 1985 until 1992. Josefiak testified that,
since 1982, there has been a 41.6 percent increase in the
number of registered voters classified as black and a 201
percent increase in the number of registered voters classified
as Hispanic. The District Court discounted this increase
based on the concomitant increase in the overall population of
blacks and Hispanics. Democratic Nat’l Comm., 671 F.Supp.
2d at 598-99.
29
increased; and third, that increased availability of alternative
voting mechanisms such as early voting or permanent
absentee voting are more widely available. The RNC also
presented testimony at the evidentiary hearing before the
District Court that the appointment of African-Americans as
the RNC Chairman and Chief Administrative Officer
decreased the likelihood that the RNC would engage in ballot
security programs resulting in minority vote suppression.
Testimony presented by the RNC further claimed that “with
an African–American President, and an African–American
Attorney General, [] the laws that are already on the books
regarding voter fraud, voter intimidation, and voter
suppression are going to be actively pursued by this Justice
Department.” (Hr’g Tr. 65:22–66:2.)
The RNC argues that increases in minority voter
registration and voter turnout are changes in factual
circumstances rendering the Decree unnecessary because this
data “demonstrat[es] that minority voters are not being
suppressed.” (Appellant’s Br. 33.) Furthermore, the RNC
asserts that the availability of alternative voting methods,
such as early voting or permanent absentee voting, allows
voters who are worried about intimidation at precincts on
Election Day to avoid such intimidation by voting from home
or voting early. It contends that records of voters using these
alternative voting mechanisms undermine allegations of
disenfranchisement and that “the availability of provisional
ballots squelches any effort to disenfranchise a voter who
appears at the polls.” (Id. at 38.)
The RNC’s argument that the fact that President
Obama, Attorney General Eric Holder, RNC Chairman
30
Michael Steele, 13 and another RNC leader are minorities
justifies vacatur or modification of the Decree hardly requires
a serious response. The RNC posits that a minority President
and Attorney General of the United States increase the
likelihood of prosecution for violations of the Voting Rights
Act (“VRA”), such as intimidation of minority voters. Are
we to conclude that all issues that affect African-Americans
will now get greater funding, greater attention, and more
focus because of President Obama? Our jurisprudence cannot
depend on such assumptions.
Even assuming that VRA violations will be more
vigorously litigated by the current administration, that
litigation would likely be brought after the VRA has been
violated, so it will not prevent minority voter intimidation or
vote suppression ex ante. Similarly, a handful of minorities
temporarily 14 occupying leadership positions in the RNC does
not mean that minority voter intimidation or suppression will
decrease.
Contrary to the RNC’s assertions, the increase in
minority voter registration and voter turnout since 1982 does
not demonstrate that “minority voters are not being
suppressed.” (Appellant’s Br. 33.) The RNC has submitted
no evidence to support its supposition. Voter registration and
turnout data is not statistically relevant regarding the
13
Michael Steele served as the first African-American
chairman of the RNC from January 2009 until January 2011.
14
Even if the racial background of the nation’s or RNC’s
leaders makes voter intimidation and suppression less likely,
it is illogical to vacate the Decree due to the racial makeup of
the administration of the United States or the RNC.
31
argument that revision of the Decree is warranted. Moreover,
the increase in minority voter registration and voter turnout
could be evidence that the Decree is necessary and effective.
The RNC’s data on minority voter registration and turnout
demonstrates that, since the RNC consented to the Decree in
1982, minority voter registration and turnout have increased
significantly. The Decree’s purpose is to help ensure that
potential minority voters are not dissuaded from going to the
polling station to vote, as they might be if the RNC were
unfettered by the Decree.
Despite the RNC’s bald assertion to the contrary, the
availability of alternative voting mechanisms is not a factual
change that prevents polling place voter suppression and
intimidation. The RNC has presented no evidence
demonstrating how alternative voting mechanisms, such as
allowing voters to vote prior to Election Day or to mail in
their votes, would prevent the RNC from “using, [or]
appearing to use, racial or ethnic criteria in connection with
ballot integrity, ballot security or other efforts to prevent or
remedy suspected vote fraud” at polling stations. (App. at
404–05.) Furthermore, as the District Court notes, voters
should not have to avoid voting at polling stations on Election
Day in order to avoid voter intimidation.
None of these alleged factual changes renders the
continuation of the Decree inequitable. The District Court
did not abuse its discretion by declining to vacate or modify
the Decree based on the RNC’s asserted factual changes.
32
b. Changes in Law 15
The RNC’s arguments regarding changes in law
brought about by the enactments of the Motor Voter Law or
NVRA, BCRA, 16 and HAVA are only relevant to our review
if they render prospective application of the Decree
inequitable. To do that, they must have some bearing on the
purpose of the Decree — decreasing the RNC’s engagement
in minority voter intimidation and suppression. The RNC
asserts that the Motor Voter Law, BCRA, and HAVA
increase the risk of voter fraud and increase the ease with
which eligible voters can register to vote, vote, and file a
provisional ballot if they are challenged at polling stations.
Even if the RNC’s assertions are true, which has not been
established, the RNC has failed to carry its burden of
establishing that a significant change in circumstances
warrants revision of the Decree. Additionally, none of the
changes in law that the RNC puts forth make “one or more of
the obligations placed upon the parties [] impermissible under
federal law” or “make legal what the decree was designed to
prevent.” Rufo, 502 U.S. at 388.
15
We need not determine whether the alleged changes in First
Amendment law raised by the RNC render prospective
application of the Decree inequitable because we find that the
RNC waived any relevant First Amendment rights by
consenting to the 1982 and 1987 Decrees.
16
Because the RNC’s arguments regarding the BCRA center
on the Decree’s workability, the majority of our review of the
District Court’s opinion regarding the BCRA is included in
the workability discussion infra.
33
“One of the NVRA’s central purposes was to
dramatically expand opportunities for voter registration and to
ensure that, once registered, voters could not be removed
from the registration rolls by a failure to vote or because they
had changed addresses.” Welker v. Clarke, 239 F.3d 596,
598–99 (3d Cir. 2001) (citing 42 U.S.C. § 1973gg(b)). 17 The
NVRA authorizes election officials to use mailings to update
voter registration rolls. Additionally, the NVRA imposes
criminal penalties on individuals who submit false voter
registration forms, knowingly cast a forged ballot, or
17
In Welker v. Clarke, 239 F.3d 596 (3d Cir. 2001), we noted
that
To achieve this purpose,
the NVRA strictly limited
removal of voters based on
change of address and instead
required that, for federal elections,
states maintain accurate
registration rolls by using reliable
information from government
agencies such as the Postal
Service's change of address
records. The NVRA went even
further by also requiring the
implementation of “fail-safe”
voting procedures to ensure voters
would not be removed from
registration rolls due to clerical
errors or the voter's own failure to
re-register at a new address.
Id. at 599 (citing 42 U.S.C. § 1973gg-6(b)(1)).
34
manipulate the tabulation of votes, and it specifies criminal
penalties for intimidating, threatening, or coercing any person
who is registering to vote or voting. 42 U.S.C. §1973gg-
10(1)(A), 10(2).
The RNC argues that the NVRA renders the Decree
antiquated because it has led to significant increases in
minority voter registration and turnout. The RNC also asserts
that the NVRA creates an increased risk of voter fraud. This
argument, that the enactment of a law that expands voter
registration opportunities renders inequitable a Decree that
aims to prevent voter intimidation and suppression, is
unpersuasive. The District Court correctly notes that any
increase in minority voter registration or voter turnout caused
by the Motor Voter Law is irrelevant to the Decree because
“the Consent Decree was not designed to encourage minority
voter registration, but rather to prevent voter suppression.”
Democratic Nat’l Comm., 671 F. Supp. 2d at 614.
Additionally, the District Court cites evidence that the Motor
Voter Law reduces the threat of voter registration fraud, but
does not attempt to prevent voter suppression. Id.
Nor does the NVRA “make legal what the decree was
designed to prevent.” Rufo, 502 U.S. at 388. The NVRA
authorizes election officials, not the RNC, to use mailings to
update voter registration lists. 42 U.S.C. § 1973gg-6(c)-(d).
The NVRA does not authorize targeting such mailings at
predominantly minority precincts nor does the NVRA
authorize the presence of voter fraud security teams targeted
at predominantly minority precincts on Election Day, both
actions that the Decree is designed to prevent.
The NVRA provision that makes voter intimidation
subject to a criminal penalty is not relevant to the purpose of
35
the Decree because it would not prevent minority voter
intimidation or suppression. The provision allows for
criminal penalties to be imposed ex post, only after voters had
been intimidated and had lost their opportunity to cast their
ballots. This provision does not render inequitable the
application of the Decree, in which the RNC agreed not to
“us[e], [or] appear[] to use, racial or ethnic criteria in
connection with ballot integrity, ballot security or other
efforts to prevent or remedy suspected vote fraud.” (App. at
404–05.)
The “central provisions” of the BCRA were “designed
to address Congress’ concerns about the increasing use of soft
money and issue advertising to influence federal elections.”
McConnell v. FEC, 540 U.S. 93, 132 (2003). The
“BCRA made a number of dramatic changes to campaign
finance law to achieve these goals, including barring national
political parties from soliciting soft money.” Shays v. Federal
Election Comm'n, 528 F.3d 914, 918 (D.C. Cir. 2008) (citing
2 U.S.C. § 441i(a)). The BCRA also “barred state parties
from spending soft money on ‘federal election activity,’
including ‘get-out-the-vote activity’ and ‘voter registration
activity.’” Id. (quoting 2 U.S.C. § 441i(b)(1)).
The RNC argues that the BCRA’s prohibition on the
spending of soft money by state parties for voter registration
and get-out-the-vote activity has heightened the risk of voter
fraud because it is difficult to track the voter registration
efforts of the increased number of groups registering voters.
As the District Court mentions, the Decree does not prevent
the RNC from collaborating with non-party organizations to
register voters and the RNC has not demonstrated that any
ineligible voter registered by a non-party organization has
ever actually cast a vote. The RNC has not demonstrated that
36
this provision of the BCRA is a significant change in the law
that warrants revision of the Decree.
“HAVA is concerned with updating election
technologies and other election-day issues at polling places.”
Gonzalez v. Arizona, 624 F.3d 1162, 1184 (9th Cir. 2010).
One purpose of HAVA was “to prevent on-the-spot denials of
provisional ballots to voters deemed ineligible to vote by poll
workers.” Sandusky County Democratic Party v. Blackwell,
387 F.3d 565, 574 (6th Cir. 2004). 18 HAVA also established
complaint procedures to challenge alleged voting violations.
42 U.S.C. § 15512. The RNC argues that HAVA increases
the risk of voter fraud and reduces the risk of vote
suppression by allowing voters to cast provisional ballots.
The provisional ballot portion of HAVA is not aimed
at preventing voter suppression or intimidation and does not
render the prospective application of the Decree inequitable.
Despite the RNC’s assertions, the fact that HAVA affords
every voter the opportunity to cast a provisional ballot is only
effective if those voters are not intimidated by voter fraud
efforts, such as those targeted by the Decree. As the District
Court notes, voter intimidation could prevent voters from
entering the polls to obtain a provisional ballot. Democratic
Nat’l Comm., 671 F. Supp. 2d at 612–13, 616 (“Some voters .
18
“HAVA requires that any individual affirming that he or
she ‘is a registered voter in the jurisdiction in which the
individual desires to vote and that the individual is eligible to
vote in an election for Federal office . . . shall be permitted to
cast a provisional ballot.”” Sandusky County Democratic
Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (citing
42 U.S.C. § 15482(a)).
37
. . may choose to refrain from voting rather than wait for the
qualifications of those ahead of them to be verified . . . Others
may be prevented from waiting by responsibilities . . .” (citing
DNC Hr’g Ex. 18 at 6; RNC Hr’g Ex. 26 at 56; League of
Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th
Cir. 2008)). The opportunity to cast a provisional ballot is not
relevant to the purpose of the Decree because it does not
decrease minority voter intimidation or suppression.
The availability of complaint procedures for alleged
voting violations under HAVA does not “make legal what the
decree was designed to prevent.” Rufo, 502 U.S. at 388.
Moreover, the HAVA complaint procedures, unlike the
Decree, do not aim to prevent the RNC from targeting its
voter fraud efforts at precincts with higher populations of
minorities.
The District Court did not abuse its discretion when it
found that the Motor Voter Law, BCRA, and HAVA have
“not altered [the] calculus” of in-person voter fraud or voter
intimidation to an extent that justifies vacating or modifying
the Decree due to a change in law. Democratic Nat’l Comm.,
671 F. Supp. 2d at 613.
c. Public Interest
The RNC argues that vacating the Decree would
benefit the public interest by allowing the RNC to engage in
programs attempting to prevent voter fraud, which the RNC
alleges are hampered by the Decree. Additionally, the RNC
contends that there is little need to prevent the intimidation
and suppression of minority voters. Specifically, the RNC
asserts that voter fraud is a danger and that “political parties,
candidates, the Government, and the public all have an
38
undisputed interest in protecting the integrity of the election
process.” (Appellant’s Br. at 50.) Thus, the RNC argues that
it should be permitted to address voter fraud free from the
constraints of the Decree.
If the RNC establishes that “a durable remedy has been
implemented, continued enforcement of the order is not only
unnecessary, but improper.” Horne v. Flores, --- U.S. ----, ---
-, 129 S. Ct. 2579, 2595 (2009) (holding that the United
States Court of Appeals for the Ninth Circuit employed a
heightened standard for its Rule 60(b)(5) inquiry instead of
the required flexible approach). However, the RNC has
pointed to no remedy other than the Decree that prevents the
RNC from “using, [or] appearing to use, racial or ethnic
criteria in connection with ballot integrity, ballot security or
other efforts to prevent or remedy suspected vote fraud.”
(App. at 404–05.)
The District Court declined to determine whether laws
passed by Congress sufficiently address the dangers of voter
fraud, recognizing that such is not the task of the federal
court. Bartlett v. Strickland, 556 U.S. 1, ----, 129 S. Ct. 1231,
1245 (2009) (“Though courts are capable of making refined
and exacting factual inquiries, they ‘are inherently ill-
equipped’ to ‘make decisions based on highly political
judgments’ . . .”) (quoting Holder v. Hall, 512 U.S. 874, 894
(1994) (Thomas, J., concurring in judgment)). Instead, the
Court noted that Congress is better equipped to make this
determination by weighing the dangers of voter fraud against
the dangers of voter intimidation.
The District Court rejected the RNC’s argument that
the Decree must be vacated or modified because the risk of
voter fraud outweighs the risk of voter suppression and
39
intimidation. As the District Court correctly points out, the
Decree only requires preclearance for programs involving the
prevention of in-person voter fraud. Furthermore, the District
Court has never prevented the RNC from implementing a
voter fraud prevention program that the RNC has submitted
for preclearance, at least in part, because the RNC has never
submitted any voter fraud prevention program for
preclearance.
Although the RNC pointed to charges that were noted
in the Carter-Baker Commission Report against eighty-nine
individuals and fifty-two convicted individuals to
demonstrate the pervasiveness of voter fraud, those purported
instances of voter fraud ranged “from vote-buying to
submitting false voter registration information and voting-
related offenses by non-citizens.” (RNC Hr’g Ex. 26 at 45.)
Thus, only a fraction of that alleged fraudulent activity was
related to in-person voter fraud, which is the type of fraud
addressed in the Decree.
The FBI report that the RNC submitted regarding
irregularities in Wisconsin during the 2004 election did not
specify whether the voting irregularities under investigation
involved votes cast in person or votes cast through absentee
voting or some other alternative process. In support of the
notion that most alleged incidents of voter fraud are not
related to in-person voting and are, thus, irrelevant to the
Decree, the DNC submitted evidence of voting irregularities
in Florida during the 2004 election, which was also cited by
the RNC, that showed that “the majority of those accused of
wrongdoing were elected officials and political operatives.”
Democratic Nat’l Comm., 671 F. Supp. 2d at 607.
40
The Supreme Court has also noted the rarity of in-
person voter fraud. Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181, 194 (2008) (noting that there was “no evidence
of any [in-person voter] fraud actually occurring in Indiana at
any time in its history); see also id. at 226 (Souter, J.,
dissenting) (“[T]he State has not come across a single
instance of in-person voter impersonation fraud in all of
Indiana’s history.”); Democratic Nat’l Comm., 671 F. Supp.
2d at 609 (“Justice Stevens acknowledged that, of the
‘occasional examples’ of in-person fraud on which his ruling
was based, all but one had been shown to have been
‘overstated because much of the fraud was actually absentee
ballot fraud or voter registration fraud.’” (quoting Crawford,
553 U.S. at 196 n.12)). Thus, the RNC has not established
that in-person voter fraud is sufficiently prevalent such that
applying the Decree prospectively is no longer equitable.
Even if the public has an unmet need for the prevention of in-
person fraud, the Decree does not prevent the RNC from
combating in-person voter fraud if it obtains preclearance. If
the risk of voter fraud is as great and consequential as the
RNC alleges and an RNC voter security program is a
significant part of efforts needed to prevent that voter fraud, it
would seem that the RNC would have attempted to obtain
preclearance for a voter security program at least once since
1987.
The RNC argues that “minority voters are not being
suppressed,” and, thus, the Decree does not serve public
interest. (Appellant’s Br. 33.) The District Court noted as an
example, however, that the voter-challenge list in Malone
included 35,000 registered voters who were predominantly
minorities. Without the enforcement of the Decree
provisions, these voter-challenge lists that are racially-
41
targeted, in intent or in effect, could result in the intimidation
and deterrence of a number of voters.
When confronted with such targeted voter-challenge
lists, some eligible voters may choose to refrain from voting
instead of waiting for the verification of their own eligibility
or that of others ahead of them in line. (See, e.g., DNC Hr’g
Ex. 18 at 6 (quoting a former Political Director of the
Republican Party of Texas, who stated that photo
identification requirements “could cause enough of a dropoff
in legitimate Democratic voting to add three percent to the
Republican vote.”); RNC Hr’g Ex. 26 at 56 (portion of the
Carter-Baker Commission Report on “Polling Station
Operations,” in which the Report noted voter fraud security
in some minority communities may be “intimidating” and
that, during the 2004 election, “[p]roblems with polling
station operations, such as long lines, were more pronounced
in some places than others. This gave rise to suspicions that
the problems were due to discrimination . . .”).)
The District Court did not abuse its discretion by
finding that public interest concerns, including the prevention
of voter fraud and the prevention of voter suppression and
intimidation, do not justify vacatur or modification of the
Decree.
d. Workability
The RNC argued before the District Court that there
were workability issues that required modification of the
Decree, as a practical matter. The District Court held that
there were four workability issues that weighed in favor of
modification: (1) the potential inequity of the RNC being
subject to suits brought by entities who were not party to the
42
Decree when, under the BCRA, the RNC has to defend
lawsuits using “hard money,” while the DNC does not have to
spend any money on such suits because it would not be party
to them 19; (2) the twenty-day notice requirement for
preclearance prevents the RNC from combating mail-in voter
registration fraud in a number of states with later mail-in
voter registration deadlines; (3) the Decree lacks a clear
definition of normal poll watching activities and the parties
have not provided a definition, leading the RNC to refrain
from normal poll watching activities, which the Decree was
never intended to prohibit; and (4) the Decree lacked a
termination date.
The District Court, accordingly, modified the Decree
in the following ways: (1) allowed only parties to the Decree,
the DNC and NJDSC, to bring an enforcement action under
the Decree; (2) decreased the preclearance notice requirement
from twenty days to ten days; (3) provided clearer definitions
and examples of “ballot security” 20 and “normal poll
watching” 21 activities; and (4) added an eight-year expiration
19
The RNC would have to spend “hard money” on any
lawsuits because the “BCRA made a number of dramatic
changes to campaign finance law . . . , including barring
national political parties from soliciting soft money.”
Shays, 528 F.3d at 918 (citing 2 U.S.C. § 441i(a)).
20
“Ballot security” is defined to include “any program aimed
at combating voter fraud by preventing potential voters from
registering to vote or casting a ballot.” Democratic Nat’l
Comm., 671 F. Supp. 2d at 622. The modification also
includes a non-exhaustive list of ballot security programs.
21
“Normal poll-watch function” is defined as “stationing
individuals at polling stations to observe the voting process
43
date, December 1, 2017, to the Decree, allowing for an
extension of the Decree for another eight years if the DNC
proves by a preponderance of the evidence that the RNC has
violated the Decree.
In addition to determining whether the District Court
abused its discretion by declining to make more extensive
modifications to the Decree than it did based on workability
concerns, we analyze, also under the abuse of discretion
standard, whether the District Court’s “proposed modification
is suitably tailored to the changed circumstance.” Rufo, 502
U.S. at 391. As noted above, the modification “must not
create or perpetuate a constitutional violation”; it “should not
strive to rewrite a consent order so that it conforms to the
constitutional floor”; and a court should not try to modify a
consent order other than making those revisions that equity
requires because of the change in circumstances. Id.
The District Court held that the Decree should be
modified because the BCRA creates a potential inequity
between the RNC and the DNC if third parties are allowed to
bring suits to enforce the Decree against the RNC. Without
modification, the RNC would have to defend such third-party
suits with limited “hard money” because it cannot solicit “soft
money” under the BCRA while the DNC, not a party to such
suits, would not have to expend resources on these third-party
suits. Accordingly, the District Court modified the Decree so
and report irregularities unrelated to voter fraud to duly-
appointed state officials.” Democratic Nat’l Comm., 671 F.
Supp. 2d at 622. The modification includes a non-exhaustive
list of activities that do and do not fit into the Decree
definition of normal poll-watch function.
44
that only the DNC and NJDSC can bring an enforcement
action under the Decree so that both parties would have to
spend “hard money” on the enforcement action. This
modification eliminates any potential BCRA-caused inequity
in the prospective application of the Decree.
In this respect, the Court revised the Decree only to the
extent required because of the change in circumstances
brought about by the BCRA. Limiting the ability to bring
Decree enforcement actions to parties to the Decree is a
modification suitably tailored to the equitable concerns
brought about by the “hard money” restrictions in the BCRA.
The RNC argues that this modification does not
address the workability issues caused by the costly and
distracting enforcement actions filed shortly before Election
Days because the money the RNC would have to spend
defending those suits takes money away from the RNC’s
political efforts, regardless of whether the DNC also has to
spend money to bring those suits. The nature and timing of
election cycles may cause the need to defend against Decree
enforcement suits to arise at inconvenient times, but resolving
those issues before Election Day is crucial to enforcing the
Decree by ensuring access to the polls and preventing
suppression of minority votes.
In effect, the RNC contends that the Decree should be
vacated because it is unworkable for the RNC to spend any
money defending itself in enforcement actions. This
argument is not persuasive. When the RNC twice consented
to the Decree and gained its benefits, it should have
anticipated that it would likely need to spend money
defending itself in future enforcement actions. Neither
modification nor vacatur are justified “where a party relies
45
upon events that actually were anticipated at the time it
entered into a decree.” Rufo, 502 U.S. at 385.
The District Court noted that a number of states now
have voter registration deadlines less than twenty days before
the election and that the RNC has a valid interest in
preventing fraudulent voter registration. The District Court
modified the Decree by decreasing the notice requirement for
preclearance from twenty days to ten days.
The RNC argues that the ten-day preclearance period
should be eliminated because it forces the party to reveal its
Election Day strategy to the DNC in order to combat voter
fraud and is, therefore, unworkable. The RNC has requested
zero days for preclearance or, at least, some decrease in the
time period for the preclearance notice requirement. 22 The
RNC asserts that “any preclearance requirement is tantamount
to a prohibition on Election Day activities by the RNC”
because it means that the RNC must foresee Election Day
issues twenty to thirty-five days in advance of an election;
“forc[es] the RNC to disclose its tactical thinking and
Election Day strategy far enough in advance for the DNC and
others to craft counter-strategies”; and it “requires the RNC to
place equivalent numbers of poll watchers in all precincts,
regardless of political or practical considerations.”
(Appellant’s Br. at 52–54.)
The RNC’s argument is wholly speculative. The
RNC’s supposed knowledge and experience of unworkability
is mere conjecture because, since the preclearance provision
22
The RNC suggested two to three days for preclearance at
oral argument, but could not articulate a basis for such a
modification other than it would be better than ten days.
46
was added to the Decree in 1987, the RNC has never
attempted to obtain preclearance. Contrary to the RNC’s
argument, the preclearance provision does not require the
RNC to disclose its tactical thinking and Election Day
strategy except with regard to ballot security activities. The
RNC points to no statement of the District Court and no
provision of the Decree that requires the RNC “to place
equivalent numbers of poll watchers in all precincts.”
(Appellant’s Br. at 52–54.)
On the contrary, the Decree does not require any
preclearance for normal poll watching functions, so the
Decree would in no way prohibit the RNC from placing
different numbers of poll watchers in precincts. Further, there
is no basis for any RNC argument that the preclearance
provision requires the RNC to place the same number of voter
fraud security team members at each precinct. The RNC does
not know what level of program detail the District Court
would require before granting preclearance. 23 The
preclearance provision does not prevent the RNC from
achieving its objective of normal poll-watching, carrying out
approved ballot security programs, or implementing any other
Election Day strategies that do not “us[e], [or] appear[] to
use, racial or ethnic criteria in connection with ballot
integrity, ballot security or other efforts to prevent or remedy
suspected vote fraud.” (App. at 404–05.)
23
For example, perhaps the RNC could obtain preclearance
for a voter fraud security program that instructs its normal
poll watchers that, if they see a person who they believe is
voting more than once, they can report that potential fraud to
poll workers.
47
With no preclearance provision, the RNC could
implement any ballot security program and would only be
subject to enforcement of the Decree after potential minority
voter intimidation and suppression had already occurred.
Thus, the elimination of the provision would thwart the
Decree’s purpose of preventing minority voter intimidation
and suppression ex ante. The District Court shortened the
preclearance time to allow the RNC to combat more of the
potential voter registration fraud that might occur closer to
Election Day, a modification suitably tailored to address the
inequity the District Court identified.
Although the Decree was never intended to prohibit
normal poll watching activities, the RNC claims that is has
refrained from engaging in normal poll watching activities
because the Decree’s definitions of such activities are unclear
and it fears it would unintentionally violate the Decree. To
address this workability concern, the District Court modified
the Decree to provide clearer definitions and examples of
“ballot security” and “normal poll watching” activities. With
the District Court’s modifications, “[b]allot security” is
defined to include “any program aimed at combating voter
fraud by preventing potential voters from registering to vote
or casting a ballot,” 24 and “[n]ormal poll-watch function” is
24
The modification includes a non-exhaustive list of ballot
security programs:
the compilation of voter challenge
lists by use of mailings or
reviewing databases maintained
by state agencies such as motor
vehicle records, social security
records, change of address forms,
48
defined as “stationing individuals at polling stations to
observe the voting process and report irregularities unrelated
to voter fraud to duly-appointed state officials.” Democratic
Nat’l Comm., 671 F. Supp. 2d at 622.
The District Court’s modifications more clearly define
ballot security and normal poll-watch function under the
Decree and provide lists of examples of both. 25 The RNC
and voter lists assembled pursuant
to the HAVA; the use of
challengers to confront potential
voters and verify their eligibility
at the polls on either Election Day
or a day on which they may take
advantage of state early voting
procedures; the recording by
photographic or other means of
voter likenesses or vehicles at any
poling place; and the distribution
of literature informing individuals
at or near a polling place that
voter fraud is a crime or detailing
the penalties under any state or
federal statute for impermissibly
casting a ballot.
Democratic Nat’l Comm., 671 F. Supp. 2d at 622.
25
The modification also includes a non-exhaustive list of
activities that do and do not fit into the Decree definition of
normal poll-watch function:
[O]bservers may report any
disturbance that they reasonably
49
contends that it cannot engage in normal poll-watch functions
because the definitions of the terms remain unclear. Contrary
to the RNC’s argument that the District Court’s definitions
and non-exhaustive lists of examples “worsen the problem,”
(Appellant’s Br. at 55), the modifications of adding specific
definitions and examples of ballot security and normal poll-
watch functions give both the RNC and the DNC more clarity
regarding what types of activities require preclearance, which
do not require preclearance, and which are prohibited by the
Decree.
Given these modifications, any hardship to the RNC is
not a product of the terms of the Decree. Clarity allows the
RNC to engage in normal poll watching activities while still
believe might deter eligible voters
from casting their ballots,
including malfunctioning voting
machines, long lines, or
understaffing at polling places.
Such observers may not question
voters about their credentials;
impede or delay voters by asking
for identification, videotape,
photograph, or otherwise make
visual records of voters or their
vehicles; or issue literature
outlining the fact that voter fraud
is a crime or detailing the
penalties under any state or
federal statute for impermissibly
casting a ballot.
Democratic Nat’l Comm., 671 F. Supp. 2d at 622–23.
50
maintaining adherence to fulfillment of the Decree’s purpose.
The District Court’s modification is suitably tailored to
resolve the prior ambiguity and does not strive to conform to
the constitutional floor by allowing the RNC to engage in all
activities without preclearance. See Rufo, 502 U.S. at 391.
The modification clarifies the previous ambiguity.
The District Court agreed with the RNC that the lack
of an expiration date in the Decree was “inherently
inequitable.” Democratic Nat’l Comm., 671 F. Supp. 2d at
621. The District Court modified the Decree by adding an
eight-year expiration date, December 1, 2017, and allowing
for an extension of the Decree for another eight years if the
DNC proves by a preponderance of the evidence that the
RNC has violated the Decree. The RNC argues that the
District Court’s December 1, 2017 expiration date is an abuse
of discretion and that the appropriate Decree termination date
is either eight years after the parties entered into the Decree in
1982, eight years after the Decree’s modification in 1987, or,
at worst, eight years after the Malone litigation.
Although a considerable number of years have passed
since the RNC and DNC agreed to the Decree in 1982 and
1987, the parties entered the Decree voluntarily and for over a
quarter of a century neither party objected to the duration of
the Decree. The District Court did not abuse its discretion by
declining to vacate the Decree due to the length of time since
its entry. See BCTC, 64 F.3d at 889 (declining to hold that
“the mere passage of time” is itself “sufficient to constitute
the type of changed circumstances that warrant lifting of an
injunction”). Thus, it does not follow that the original
decision not to include an expiration date requires vacatur
now that the Decree has an expiration date.
51
The District Court noted that it was imposing a
termination date of eight years from its ruling because the
Civil Rights Division of the Department of Justice, which is
charged with enforcing the Voting Rights Act, also imposes
consent decrees with time limits of eight years, which can be
extended for good cause. The RNC has not shown that the
District Court’s decision to set a termination date of eight
years from the date of its order modifying the Decree with
provisions allowing for an extension of that termination date
for good cause is “arbitrary, fanciful or clearly unreasonable.”
Moyer, 473 F.3d at 542.
By adding an eight-year expiration date, December 1,
2017, to the Decree, the District Court modified the Decree to
remedy the inequity that it perceived to be caused by the lack
of expiration date. 26 Accepting arguendo that the Decree
26
Neither party argued before this Court that the District
Court abused its discretion by imposing a formerly non-
existent time limitation on the RNC’s obligations under the
Decree, thereby relieving the RNC of its burden to show a
significant change of fact or law to secure release from those
obligations. Thus, this issue is not before this Court and we,
accordingly, do not decide it. The District Court decided to
impose that time limitation based on a hypothetical situation
that it speculated might well occur in the future. The District
Court held as follows with respect to this matter:
The final consideration weighing
in favor of modification involves
the fact that the Consent Decree
does not include a date on which
the obligations it imposes on the
52
RNC will terminate. In failing to
include such an expiration date,
the parties have created a situation
in which the RNC is, at least
nominally, bound by those
obligations in perpetuity,
regardless of whether it continues
to engage in voter suppression
efforts or has any incentive to do
so. That situation is inherently
inequitable. For example, if at
any point in the future the RNC
succeeds in attracting minority
voters in such numbers that its
candidates receive the majority of
votes cast by those populations, it
will have no incentive to engage
in anti-fraud measures that have
the effect of deterring those voters
from casting their ballots. Under
the Consent Decree as currently
written, though, the RNC would
be required to pre-clear any such
measures with this Court, while
the DNC would be free to
implement ballot security
programs without doing so. In an
effort to avoid similar situations,
the Civil Rights Division of the
DOJ—the government entity
charged with enforcing the
VRA—imposes a time limit of
53
without a time limit is “inherently inequitable,” the provision
allowing for an extension of the Decree for another eight
years if the DNC proves by a preponderance of the evidence
the RNC has violated the Decree preserves the purpose of the
eight years on its consent decrees,
which may be extended for good
cause. . . . The Court believes that
such a provision is justified in this
case.
Democratic Nat’l Comm., 671 F. Supp. 2d at 621-22.
This Court draws attention to this issue only to make
clear that we have not resolved it by implication or otherwise.
It is at least doubtful that a district court could decide to
impose a time limitation within the bounds of its appropriate
discretion while simultaneously concluding that the RNC
retained an incentive to violate the Consent Decree and had
shown no other existing and relevant change of circumstance.
Passage of time alone is not normally regarded as a
significant change of fact. Building and Const. Trades v.
NLRB, 64 F.3d 880, 889 (3d Cir. 1995) (“[W]e are unwilling
to hold, and BCTC cites no persuasive authority to the
contrary, that the mere passage of time and temporary
compliance are themselves sufficient to constitute the type of
changed circumstances that warrant lifting an injunction.”).
Moreover, given that the obligations of a consent decree are
necessarily subject to the limitations of Rule 60(b)(5) and
terminable whenever prospective application would no longer
be equitable, the District Court’s characterization of the
RNC’s situation as “inherently inequitable” also seems
questionable.
54
Decree so that the modification does not rewrite the consent
order more than equity requires. Moreover, we do not adopt
the RNC’s argument that the District Court abused its
discretion by not starting the eight year period from the date
of the entry of the Decree or from its 1987 modification,
“thus requiring . . . immediate vacatur.” (Appellant’s Br. 42.)
The District Court concluded, with ample record support, that
the purpose of the Decree had not yet been fulfilled and
vacatur would not have been suitably tailored to its findings.
The RNC has not established by a preponderance of
the evidence that any workability issues remaining after the
District Court’s modification are so acute that prospective
application of the Decree is inequitable. The District Court
did not abuse its discretion by declining to vacate due to
workability.
The RNC has not established that any of the District
Court’s decisions were “arbitrary, fanciful or clearly
unreasonable.” Moyer, 473 F.3d at 542. Thus, the District
Court did not abuse its discretion by holding that the RNC did
not establish by a preponderance of the evidence that any of
the following four Rufo factors necessitated vacatur or
modifications beyond those ordered by the District Court: (1)
a significant change in factual conditions; (2) a significant
change in law; (3) that “a decree proves to be unworkable
because of unforeseen obstacles”; or (4) that “enforcement of
the decree without modification would be detrimental to the
public interest.” Rufo, 502 U.S. at 384. Furthermore, the
District Court’s modifications were suitably tailored to the
changed workability circumstances.
3. BCTC Factors
55
We noted in BCTC that a court determining whether
to vacate or modify a decree should respond to the specific set
of circumstances before it by considering factors unique to
the conditions of the case. BCTC, 64 F.3d at 888. The
factors raised in the District Court that are unique to the
circumstances of this case are whether the RNC has complied
or attempted to comply in good faith with the terms of the
Decree and the likelihood that the conduct sought to be
prevented will recur absent the Decree. For any change to
justify vacatur, it must be a significant change, rendering the
prospective application of the Decree inequitable. See
BCTC, 64 F.3d at 886.
The RNC claims that it has complied with the Decree
since 1987 and that it is highly unlikely that the RNC will
attempt to intimidate or suppress minority voters in the future
if the Decree is vacated. The District Court did not abuse its
discretion or err by considering the Malone finding that, in
2004, the RNC engaged in substantive and procedural
violations of the Decree. Although the panel’s decision was
vacated as moot by this Court sitting en banc, that vacatur did
not disturb the panel’s factual determination that the RNC had
violated the Decree. Furthermore, the District Court did not
rely on Malone’s preliminary injunction as precedent, but,
instead, merely considered its finding of fact regarding the
Decree violation as instructive regarding the RNC’s level of
compliance with the Decree. 27
27
Because the District Court is not using the Malone
judgment to “spawn[] any legal consequences” and the
Court’s consideration of the findings of fact has no impact on
“relitigation of the issues between the parties,” United States
v. Munsingwear, Inc., 340 U.S. 36 (1950), is inapposite. Id.
56
at 39–41 (holding that the practice for dealing with a
judgment that “has become moot while on its way [to the
Supreme Court] or pending [the Supreme Court’s] decision
on the merits is to reverse or vacate the judgment below and
remand with a direction to dismiss”).
The RNC insists that the District Court’s 2004
decision in the Malone proceeding has no “precedential
effect.” Here, however, the District Court did not give
“precedential effect” to the judgment in another case. The
issue of whether the RNC had violated the consent decree in
Malone’s situation was litigated before the District Court in
this case and all of the evidence submitted by the parties with
respect to that issue remains part of the record in this case.
The Court referred to its factual finding of a consent decree
violation in the Malone proceeding in response to the RNC’s
attempt to carry its burden by relying on the results in the
enforcement litigation that had occurred since 1982.
According to the RNC, the “slim record of enforcement
success against the RNC demonstrates that it has strictly
complied with the Consent Decree since 1987, and there is no
evidence to suggest that its behavior will change if the Decree
is vacated.” RNC Proposed Conclusions of Law, App. at
1264. In this context, the Court did not err in referring to and
relying upon its factual finding of a 2004 violation in the
Malone proceeding. Contrary to the RNC’s suggestion, it
was clearly not surprised by the District Court’s response to
its argument. Evidence from the Malone proceeding was
discussed by the witnesses at the evidentiary hearing and in
the ensuing briefing of the parties. See, e.g., App. at 1081-82,
1234-35.
57
Furthermore, the RNC’s position regarding Malone is
contradictory. For purposes of determining RNC’s
compliance with the Decree, the RNC argues that the Court
should not consider Malone in any way. However, for
purposes of determining from which point the eight-year
Decree expiration date should begin to run, the RNC has
mentioned that the 2004 Malone decision could be an
appropriate starting point. Even if the RNC had not violated
the Decree since 1987, that fact alone is not necessarily
sufficient to justify vacating the Decree because compliance
is the purpose of the Decree. See BCTC, 64 F.3d at 889
(declining to hold that “temporary compliance” is itself
“sufficient to constitute the type of changed circumstances
that warrant lifting of an injunction”). As the District Court
noted, any past compliance might have been “because the
Decree itself has deterred such behavior.” Democratic Nat’l
Comm., 671 F. Supp. 2d at 601.
Additionally, the District Court did not abuse its
discretion by finding that the RNC had not produced evidence
demonstrating a lack of incentive for the RNC to engage in
voter suppression and intimidation. The racial and ethnic
background of this nation’s political leadership, the RNC’s
leadership, and the electorate do not decrease the likelihood
that the RNC will suppress minority voters such that
prospective application of the Decree is inequitable. If the
RNC does not hope to engage in conduct that would violate
the Decree, it is puzzling that the RNC is pursuing vacatur so
vigorously notwithstanding the District Court’s significant
modifications to the Decree.
The RNC’s decision not to engage in normal poll-
watch functions or obtain preclearance for voter fraud
security programs does not allow us to assume past or future
58
compliance. On the contrary, the RNC’s refusal to engage in
normal poll-watch functions or to obtain preclearance may be
because the RNC, as it has argued, is not sure of the
difference between normal poll-watch functions and voter
fraud security programs. That the RNC has not engaged in a
normal poll-watch function and has not presented a request
for preclearance of a voter fraud security program that does
not disproportionately target minority voters leaves open the
possibility that the RNC, absent enforcement of the Decree,
would not comply with the Decree terms in the future. See
BCTC, 64 F.3d at 890 (noting that a party deciding “not to
picket at all” does not “show that [the party] has in fact
learned how to picket without treading on the prohibitions
against secondary boycott contained both in the law and the
various negotiated consent decrees”).
In light of the District Court’s modifications, the RNC
does not point to any significant change that renders
prospective application of the Decree inequitable. The
District Court did not abuse its discretion by declining to
vacate or modify the Decree because of BCTC factors.
IV. CONCLUSION
For the reasons set forth above, we will affirm the
judgment of the District Court.
59