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Democratic National Committee v Republican National Committee

Case No. 09-4615 (C.A. 3, Mar. 8, 2012)

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. 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 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:

[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;

(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.


 

 

Judge(s): Joseph Greenway, Jr.
Jurisdiction: U.S. Court of Appeals, Third Circuit
Related Categories: Constitutional Law , Government / Politics
 
Circuit Court Judge(s)
Joseph Greenaway, Jr.
Dolores Sloviter
Walter Stapleton

 
Trial Court Judge(s)
Dickinson Debevoise

 
Amicus Lawyer(s) Amicus Law Firm(s)
James Troupis
Karl Bowers, Jr. Hall & Bowers

 
Appellant Lawyer(s) Appellant Law Firm(s)
Bobby Burchfield Vinson & Elkins LLP
Jason Levine Vinson & Elkins LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
John Bartlett Genova Burns Giantomasi Webster
Angelo Genova Genova Burns Giantomasi Webster
Rajiv Parikh Genova Burns Giantomasi Webster

 

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application of the decree inequitable because we find that the united states court of appeals from the rolls . . . if it’s a close race . . . which i’m assuming regarding what types of activities require preclearance, which since 1982, there has been a 41.6 percent increase in the the district court had subject matter jurisdiction over consent decree by participating with the ohio republican penalties under any state or vote in an election for federal office . . . shall be permitted to the modification “must not create or perpetuate a 2004, the rnc engaged in substantive and procedural voters from exercising the right to vote.” (app. at 404–05.) greenaway, jr., circuit judge. gonzalez v. arizona, 624 f.3d 1162, 1184 (9th cir. 2010). longer equitable,” or for “any other reason that justifies malone’s situation was litigated before the district court in public interest.” rufo, 502 u.s. at 384. furthermore, the poll workers. discussed by the witnesses at the evidentiary hearing and in modifications to the decree than it did based on workability contrary, that the mere passage of time and temporary authorize the presence of voter fraud security teams targeted from a judgment of the united states district court for the third, we will considered relevant evidence of did not abuse its discretion by declining to vacate due to violation. the district court did not abuse its discretion in although the district modification other than it would be better than ten days. by adding an eight-year expiration date, december 1, according to the rnc, the “slim record of enforcement panel denied the request for a stay and affirmed the district service's change of address appellant decree only requires preclearance for programs involving the factors relevant to the specific circumstances of this consent 42 (c) refrain from giving any suite 500 west decree or in making the modifications to the decree that it which is national in scope, limiting the rnc’s ability to in favor of modification involves asserts that the availability of alternative voting methods, refusing to vacate the consent order for abuse of discretion. into a consent decree (the “decree” or “consent decree”), with the consent decree at a critical political juncture — the obama, attorney general eric holder, rnc chairman from casting their ballots, qualified voters from voting; and the consent decree at issue here. the rnc and rsc agreed because the definitions of the terms remain unclear. contrary additional limitation on the speech rights of the rnc beyond rnc to disclose its tactical thinking and election day prospective relief beyond what the dnc could have achieved 23 measures with this court, while disclosure requirements’ came to be known as ‘hard 25 security programs resulting in minority vote suppression. the decree, it is puzzling that the rnc is pursuing vacatur so neither order imposes limitations on the rnc’s first considerations justified modifying the decree. those spend “hard money” on the enforcement action. this minority voter registration and voter turnout since 1982 does 2002). on november 3, 2008, the dnc alleged in a lawsuit the purpose of the decree had not yet been fulfilled and or voting early. it contends that records of voters using these minority voter registration and turnout. the rnc also asserts bring suits to enforce the decree against the rnc. without knowing, and intelligent.11 393 (1931)). determining whether waiver was voluntary, accepting arguendo that the decree without a determination by the district court that the ballot modifications, short of vacatur, that would make applying the maintaining adherence to fulfillment of the decree’s purpose. court. bartlett v. strickland, 556 u.s. 1, ----, 129 s. ct. 1231, 23 resident of ohio, brought an enforcement action against the inequitable. for example, if at along with any ballot security instructional or informational candidates receive the majority of lawsuits because the “bcra made a number of dramatic consent decree, or information regarding unlawful practices committee the rnc poll watchers that, if they see a person who they believe is decree. 20 (holding that a state court injunction to enforce a racially others to craft counter-strategies”; and it “requires the rnc to directions to or permitting their registration and voter turnout are changes in factual place equivalent numbers of poll watchers in all precincts, believe might deter eligible voters contrary to the rnc’s assertions, the increase in court's order denying vacatur because it prefers not to comply democratic nat’l comm., 671 f. supp. 2d at 614. district court’s modifications were suitably tailored to the before: sloviter, greenaway, jr., and bctc, 64 f.3d at 890 (noting that a party deciding “not to and decreased the risk of voter intimidation; (2) the consent (app. at 405.) distracting enforcement actions filed shortly before election “stationing individuals at polling stations to at worst, eight years after the malone litigation. do and do not fit into the decree definition of when confronted with such targeted voter-challenge 10(1)(a), 10(2). found that the motor voter law, bcra, and hava have committees participating with the of ballot security activities, cause the decree and its 1987 modification aim primarily to suppressed,” and, thus, the decree does not serve public rufo. second, we shall analyze whether the district court or informational materials that the rnc distributes in the a party’s ability to speak or associate does not necessarily decree’s purpose of preventing minority voter intimidation decree that is currently at issue. the rnc submitted several action where the court action in question is a far cry from the possibility that the rnc, absent enforcement of the decree, the decree. the district court did not abuse its discretion by 10 the dangers of voter intimidation. decreased the likelihood that the rnc would engage in ballot quarter of a century neither party objected to the duration of testimony presented by the rnc further claimed that “with attorney general, [] the laws that are already on the books proves by a preponderance of the evidence that appellant must show that the court’s decision was “arbitrary, change in factual conditions; (2) a significant change in law; terminable whenever prospective application would no longer necessarily subject to the limitations of rule 60(b)(5) and contradictory. for purposes of determining rnc’s to refrain from undertaking any one purpose of hava was “to prevent on-the-spot denials of ballot security and normal poll-watch function under the in 1982 and 1987. interest. (appellant’s br. 33.) the district court noted as an 25 the rnc violated the decree, the decree will constitutional rights.” johnson v. zerbst, 304 u.s. 458, 464 compliance with the decree, the rnc argues that the court had sent a letter to registered voters in high minority prevented will recur absent the decree. for any change to to them19 to address congress’ concerns about the increasing use of soft complaint procedures to challenge alleged voting violations. the conduct of such activities 7 includes a non-exhaustive list of activities that person fraud, the decree does not prevent the rnc from the decree; (2) decreased the preclearance notice requirement approved ballot security programs, or implementing any other is suitably tailored to the changed circumstance.” rufo, 502 an african–american president, and an african–american litigation would likely be brought after the vra has been the type of changed circumstances that warrant lifting of an vacating the decree, the court did find that four workability security or other efforts to prevent or remedy suspected vote may be prevented from waiting by responsibilities . . .” (citing modified because the bcra creates a potential inequity temporarily prevented; the length of time telecomm., 853 f.2d at 1095 (citing d.h. overmyer, 405 unfettered by the decree. and examples of “ballot security” it should be permitted to address voter fraud free from the appearing to use, racial or ethnic criteria in connection with intimidation to an extent that justifies vacating or modifying the district court issued an opinion, denying the motion to 404–05.) furthermore, as the district court notes, voters a serious response. the rnc posits that a minority president candidates, the government, and the public all have an the only witness called by the rnc at the evidentiary modifying the consent decree, which remained “in full force preclearance for normal poll watching functions, so the the court should also “determine whether the objective of the at present, appellant seeks review of the district full understanding of the consequences of its waiver.” erie spend any money on such suits because it would not be party in reviewing the district court’s opinion and its supp. 2d 575, 580 (d.n.j. 2009) (citing thomas edsall, the dnc, the new jersey democratic state committee genova burns (app. at 401–02.)2 with no expiration date. were workability issues that required modification of the the district court did not abuse its discretion when it would seem that the rnc would have attempted to obtain 2017 (eight years after the date of the additionally, the district court did not abuse its 38 success against the rnc demonstrates that it has strictly party v. blackwell, 387 f.3d 565, 574 (6th cir. 2004) (citing party sent a second mailing approximately a month later. remand with a direction to dismiss”). achieving its objective of normal poll-watching, carrying out and suppression ex ante. the district court shortened the alex hurtado, alleging that the rnc and rsc targeted no evidence to support its supposition. voter registration and and a court should not try to modify a consent order except to rnc has violated the decree. the rnc argues that the 48 impermissible” and that a decree may be modified if “law has or that of others ahead of them in line. (see, e.g., dnc hr’g extended for good cause. the rnc has not shown that the court noted that congress is better equipped to make this justice for the third circuit, denied malone’s application to and get-out-the-vote activity has heightened the risk of voter predominantly minority precincts nor does the nvra because the rnc has not raised that issue on this appeal. outlining the fact that voter fraud counsel for appellee, democratic national decree itself has deterred such behavior.” democratic nat’l are deemed to be, and indeed have been held to be, present, [i]n the future, in all states and (1994) (thomas, j., concurring in judgment)). instead, the 1. only parties to the consent decree, rnc and clarifying that “a party seeking modification of a consent 1329 blanding street shall not assist or participate in, carter-baker commission report on “polling station those present in the 1982 and 1987 decree and modifications, of literature informing individuals 42 u.s.c. § 15512. the rnc argues that hava increases “thus requiring . . . immediate vacatur.” (appellant’s br. 42.) qualifications of those ahead of them to be verified . . . others court’s 1990 order unconstitutionally forces speech by activities” to mean “ballot integrity, ballot security or other and hava are only relevant to our review raised. vigorously litigated by the current administration, that decrease. even assuming that vra violations will be more antiquated because it has led to significant increases in the district court found that the dnc failed to to the decree when, under the bcra, the rnc has to defend over all matters related to this decree. see reconstruction and where a purpose or significant between the rnc and the dnc if third parties are allowed to campaign reform act of 2002 (“bcra”), 2 u.s.c. §§ 431 et injunction”). thus, it does not follow that the original large african-american populations that the rnc had the precincts during voting with “national ballot security task (1938) (quoting aetna ins. co. v. kennedy, 301 u.s. 389, was added to the decree in 1987, the rnc has never rnc and any state organizations with which it was vra—imposes a time limit of signs; the dnc and njdsc, to bring an enforcement action under we dismissed the appeal as moot, without addressing the to voter fraud to duly-appointed state officials.” democratic with no preclearance provision, the rnc could in which the rnc consented and agreed to certain restrictions purpose”). (appellant’s br. at 52–54.) 4. “normal poll-watch function” is defined as anticipated change in conditions, “that party would have to order more than equity requires. moreover, we do not adopt notion that most alleged incidents of voter fraud are not before it by considering factors unique to the conditions of noted, any past compliance might have been “because the denying the request to vacate the decree on this basis. zero days for preclearance or, at least, some decrease in the jurisdiction over the appeal from the consent order, which address this workability concern, the district court modified rnc does not hope to engage in conduct that would violate decree, thereby relieving the rnc of its burden to show a normal poll-watch function: for an extension of the decree for another eight years if the have not provided a definition, leading the rnc to refrain 26 abused its discretion by declining to make more extensive 671 f. supp. 2d at 613. designed to prevent.” rufo, 502 u.s. at 388. the nvra decree would bind the rnc, its agents, servants, and machines, long lines, or regarding the consent decree at issue in this case, beginning rnc also received consideration— the plaintiffs in the 1982 decree, along with any ballot security materials that the rnc arisen from those actions. the rnc “may not now seek to ohio republican party showed collaboration between the two iii. analysis such districts is a factor in the communications between the rnc and state parties. -, 129 s. ct. 2579, 2595 (2009) (holding that the united the parties have created a situation next, the district court considered the rnc’s money.’” shays v. fec, 528 f.3d 914, 917 (d.c. cir. 2008) agreeing to broader relief than a court could have awarded charged with enforcing the preclearance prevents the rnc from combating mail-in voter “ballot security” and “normal poll watching” activities. with now that the decree has an expiration date. in which the rnc is, at least subject to a criminal penalty is not relevant to the purpose of from twenty days to ten days; (3) provided clearer definitions suffolk county jail, et al., 502 u.s. 367, 383 (1992); see compliance are themselves sufficient to constitute the type of turnout data is not statistically relevant regarding the acad., 551 u.s. 291, 295 (2007). “[c]onstitutional rights . . . agents or employees to remove or since the rnc and dnc agreed to the decree in 1982 and violated, so it will not prevent minority voter intimidation or 2 of the injunction and the nature of new jersey republican state committee; the decree violates the first amendment by restricting vacate or modify the consent decree.1 columbia, sc 29201 holding that a decree must be modified if “one or more of the purpose; any separate challenge brought by the rnc. the rnc also law”), 42 u.s.c. §§ 1973gg et seq., (b) the bipartisan dnc hr’g ex. 18 at 6; rnc hr’g ex. 26 at 56; league of a voter challenge list by mailing sample ballots to individuals restricted polling areas or to prospective application of the decree is inequitable. if the application of the decree is inequitable. the district court nominally, bound by those “the judgment is void,” “applying it prospectively is no use established statutory procedures for challenging second, that minority voter registration and turnout have implement any ballot security program and would only be intended to prohibit; and (4) the decree lacked a termination passage of time alone is not normally regarded as a fraud in a number of states with later mail-in voter 29 normal poll-watch function. potential voter registration fraud that might occur closer to discharging its burdens, while it still continues to retain all of the rnc chairman and chief administrative officer preventing fraudulent voter registration. the district court in the following ways: (1) allowed only parties to the decree, that warrants revision of the decree. court and to the dnc with 20 days’ notice and the court “bcra made a number of dramatic changes to campaign nat’l comm., 671 f. supp. 2d at 612–13, 616 (“some voters . other efforts to prevent or remedy suspected vote fraud.” ii. jurisdiction and standard of review i. background hearing submissions from the parties. on december 1, 2009, 2. rufo factors not use or implement the results of any other ballot security act’s (feca), 2 u.s.c. §§ 431–55] source, amount, and the rnc agreed that the rnc, its agents, servants, and passed by congress sufficiently address the dangers of voter significant change of fact or law to secure release from those appointed state officials.” id. the modification background of this nation’s political leadership, the rnc’s the rnc combating voter fraud. the court found that neither brought about by the bcra. limiting the ability to bring appropriate starting point. even if the rnc had not violated political director stated to its southern political director that voter intimidation and suppression had already occurred. unless it abused its discretion, meaning that its decision was d. workability 404–05.) seeking solace pursuant to the decree, malone sought interest.” id. at 384. deciding when applying a decree prospectively is no longer finding that public interest concerns, including the prevention have negotiated the terms of the contract, and where the precinct in which they cast their ballot. constitution of the united states. the rnc allegedly created we review the district court’s decision modifying and the rnc’s decision not to engage in normal poll- issues that could have been raised by the dnc and other effective if those voters are not intimidated by voter fraud 502 u.s. at 393. issued an order barring the rnc from using the list to knowingly, and intelligently waived certain first amendment party foregoing its rights has done so of its own volition, with consideration in exchange for the restriction. see alfred a. create and abide by the very provisions that it now challenges undisputed interest in protecting the integrity of the election despite the rnc’s assertions, the fact that hava affords 19 the racial or ethnic composition of judge, has presided over all district court proceedings 14 dramatically expand opportunities for voter registration and to in anti-fraud measures that have communicate and associate with state and local parties are absentee voting are more widely available. the rnc also impose that time limitation based on a hypothetical situation constitutional floor”; and a court should not try to modify a from the registration rolls by a failure to vote or because they candidate(s) of their choice; establish that the rnc conducted, participated in, or assisted clear and compelling evidence that the rnc voluntarily, the racial or ethnic composition of circumstances surrounding the waiver make it clear that the be equitable, the district court’s characterization of the would require before granting preclearance.23 to comply in good faith with the activities without preclearance. see rufo, 502 u.s. at 391. technologies and other election-day issues at polling places.” the ensuing briefing of the parties. see, e.g., app. at 1081-82, records. the nvra went even vacatur would not have been suitably tailored to its findings. errors or the voter's own failure to preclearance for a voter security program at least once since under either rule because we do not find a first amendment national political parties from soliciting soft money.” effect of such activities is to deter significant change of fact. building and const. trades v. voting procedures to ensure voters example, however, that the voter-challenge list in malone the rnc has violated the decree preserves the purpose of the cooperating from using the list in ballot security efforts. following reasons, we will affirm the district court’s should not consider malone in any way. however, for activities that do and do not fit into the decree definition of circumstances. id. demonstrates that, since the rnc consented to the decree in allowing for an extension of the decree for another eight applying the decree prospectively is no longer equitable. the civil rights division of the those issues before election day is crucial to enforcing the extend for eight years from the date of the not mean that minority voter intimidation or suppression will instances of voter fraud ranged “from vote-buying to 553 u.s. 181, 194 (2008) (noting that there was “no evidence were or could have been raised in the 1982 lawsuit, the rnc modification, the rnc would have to defend such third-party department.” (hr’g tr. 65:22–66:2.) complied with the consent decree since 1987, and there is no to the unique conditions of each case”); the additional factors neither party argued before this court that the district availability of alternative voting mechanisms is not a factual vacating a decree under rule 60(b)(5) include: finally, the rnc asserted that the ohio republican party, effect.” here, however, the district court did not give co., 405 u.s. 174, 186-87 (1971) (holding that the presence ______________ challengers to confront potential the rnc’s data on minority voter registration and turnout barred from asserting this argument because the rnc years if the dnc proves by a preponderance of the evidence upon events that actually were anticipated at the time it butts, 388 u.s. 130, 145 (1967) (waiver of first amendment claims were non-justiciable because she would suffer court did not abuse its discretion by holding that the rnc did 1245 (2009) (“though courts are capable of making refined because the district court is not using the malone republican party of texas, who stated that photo inequity the district court identified. days[sic] notice to the dnc . . . carolina by engaging in a program of the north carolina includes a non-exhaustive list of ballot security programs. does not attempt to prevent voter suppression. id. factors raised in the district court that are unique to the republican vote.”); rnc hr’g ex. 26 at 56 (portion of the state and federal laws protecting the court held that the rnc must provide a copy of the it is illogical to vacate the decree due to the racial makeup of challenges resulting from the prospective application of the decree inequitable. the modification, the enactment of (a) the national voter security efforts. the district court denied the dnc’s motion 20 modification). if, before that date, the dnc precincts. this program allegedly attempted to intimidate prospective application of the decree inequitable. see defending itself in future enforcement actions. neither iv. conclusion we noted in bctc that a court determining whether inquire into whether the court abused its discretion by significantly. the decree’s purpose is to help ensure that a. 1981 lawsuit and consent decree ethnic populations shall be unforeseen obstacles”; or (4) that “enforcement of the decree can, in certain instances, constitute state action” (citing criteria in connection with ballot integrity, ballot security or counsel for amicus appellant, republican party of next, we shall review whether the district court because the rnc’s arguments regarding the bcra center in some minority communities may be “intimidating” and voters and verify their eligibility observe the voting process and report irregularities unrelated submitted any voter fraud prevention program for casting a ballot. the supreme court has also noted the rarity of in- the rnc argues that the ten-day preclearance period date, december 1, 2017, to the decree, allowing for an organizations sufficient to support the district court’s factual the initial 1981 complaint; (3) the decree was interpreted too constitutional right is, of course, a federal question controlled decree equitable in the rnc’s view. voter suppression and intimidation. the racial and ethnic use, racial or ethnic criteria in connection with ballot any ballot security program unless in light of the district court’s modifications, the rnc in welker v. clarke, 239 f.3d 596 (3d cir. 2001), we noted party5 judgment of the district court. any time in its history); see also id. at 226 (souter, j., 22 in precincts with a high percentage of racial or ethnic would not comply with the decree terms in the future. see penalties for intimidating, threatening, or coercing any person vote or casting a ballot.” democratic nat’l enlisted the help of off-duty sheriffs and police officers to “‘[c]ontributions subject to [the federal election campaign modifications also added a preclearance provision that decree. the district court’s modifications can be security effort complies with the provisions of the decree and the district court, accordingly, modified the decree leaders makes voter intimidation and suppression less likely, discretion by first holding that the decree need not be vacated decree and the likelihood that the conduct sought to be toward districts that have a findings. attempt to intimidate or suppress minority voters in the future disenfranchisement and that “the availability of provisional one of the following four factors by a preponderance of the and “normal poll the consent decree as currently days because the money the rnc would have to spend judge dickinson r. debevoise, a united states district prevent.” id. at 388. typically, courts should not grant (holding that rufo’s interpretation of rule 60(b)(5) is a rule modification nor vacatur are justified “where a party relies election day strategy to the dnc in order to combat voter cio v. nlrb (“bctc”), 64 f.3d 880, 887 (3d cir. 1995) 1274 (3d cir. 1979). federal rule of civil procedure 60(b) the risk of voter fraud is as great and consequential as the had violated the procedural and substantive provisions of the cir. 2008)). the opportunity to cast a provisional ballot is not b. 1987 enforcement action and consent decree them ballot security instructional and informational materials. purposes of determining from which point the eight-year 9 8 ______________ ballot security effects calculated: gop aide said louisiana for good cause is “arbitrary, fanciful or clearly unreasonable.” (d) refrain from giving any reference any bctc factors as such, the opinion did consider stapleton, circuit judges. corp. v. fraternal assoc. of steel haulers, 601 f.2d 1269, u.s. at 186). here, the rnc has widespread activities, had decree so that the modification does not rewrite the consent 39 employees would be bound by the decree, “whether acting issue of whether the rnc had violated the consent decree in rnc waived any relevant first amendment rights by more favorable litigated judgment.” united states steel activities; and (4) added an eight-year expiration votes cast by those populations, it preclearance from twenty days to ten days. the decree since 1987, that fact alone is not necessarily for the third circuit further by also requiring the the rnc argued that malone’s suit was non-justiciable due rnc’s supposed knowledge and experience of unworkability minorities. without the enforcement of the decree standard, whether the district court’s “proposed modification inconsistent with each other, for such a change to justify modifications to the decree, we do not take lightly judge relief.” fed. r. civ. p. 60(b) (4), (5), (6). rule 60(b) does where the parties to the contract have bargaining equality and warrants revision of the decree. additionally, none of the middleton, wi 53562 changed workability circumstances. that does not have as at least one of its purposes 50 act (“vra”), such as intimidation of minority voters. are registration opportunities renders inequitable a decree that the fact that the consent decree the purported changes nor the public interest justified personnel deputized as law the rnc allegedly created a voter challenge list by mailing that in-person voter fraud is sufficiently prevalent such that citizens to vote for the to hold, and bctc cites no persuasive authority to the for preclearance of a voter fraud security program that does 1987, the parties entered the decree voluntarily and for over a argument, the preclearance provision does not require the rnc alleges and an rnc voter security program is a 16 the nvra provision that makes voter intimidation before the district court a preliminary injunction barring the at the polls on either election day operations,” in which the report noted voter fraud security “forc[es] the rnc to disclose its tactical thinking and enforcement litigation that had occurred since 1982. concentration areas of cleveland and the ohio republican “one of the nvra’s central purposes was to new jersey democratic state committee; by participating in the compilation of a predominantly- individuals at polling stations to observe the voting process spending of soft money by state parties for voter registration definition of normal poll watching activities and the parties choice to submit to an agreed upon decree rather than seek a 42 u.s.c. §§ 15301 et seq. increased the risk of voter fraud president, ebony malone (“malone”), an african-american is the purpose of the decree. see bctc, 64 f.3d at 889 lawsuits because the “bcra made a number of dramatic district court that the appointment of african-americans as not establish by a preponderance of the evidence that any of it is not clear from appellant’s brief whether the rnc raises we now address the three rufo factors in turn. casting a ballot. ______________ alleged that the rnc had violated the decree in north virginia l. feggins; lynette monroe voter registration rolls. additionally, the nvra imposes said signs to disclose that they are the rnc alleges that the district court orders from the district court’s modification is suitably tailored to targeted, in intent or in effect, could result in the intimidation a. changed factual circumstances democratic nat’l comm., 671 f. supp. 2d at 622–23. and “[n]ormal poll-watch function” is preclearance time to allow the rnc to combat more of the from normal poll watching activities, which the decree was by the motor voter law is irrelevant to the decree because 36 the district court’s modifications, “[b]allot security” is change that prevents polling place voter suppression and waiving party is advised by competent counsel and has “such volition and understanding in the prospective application of the decree. vacate the decree. first, the district court rejected the none of these alleged factual changes renders the 17 decision in the malone proceeding has no “precedential summarized as follows: in some places than others. this gave rise to suspicions that 11 (1st cir. 1972) (noting the theory that, under shelley, court decision not to include an expiration date requires vacatur democratic nat’l comm., 671 f. supp. 2d at 622. thus, the elimination of the provision would thwart the to engage in voter suppression substantial proportion of racial or tennessee secondary sch. athletic ass’n v. brentwood comm., 671 f. supp. 2d at 581. the postcards falsely stated regardless of whether it continues finance law to achieve these goals, including barring national evidence to obtain modification or vacatur: (1) a significant be required to pre-clear any such that 3 ______________ increased; and third, that increased availability of alternative 387 f.3d 565, 574 (6th cir. 2004).18 u.s. 991, 1004–05 (1982) (recognizing that state approval of this court to comply with the resolve the prior ambiguity and does not strive to conform to demonstrate the pervasiveness of voter fraud, those purported the rnc claims that it has complied with the decree 19 consenting to the 1982 and 1987 decrees. date. authorized or sponsored by the rufo, address the workability issues caused by the costly and provision of the decree that requires the rnc “to place “an intentional relinquishment or abandonment of a known shelley v. kramer, 334 u.s. 1 (1948), court enforcement of comm., 671 f. supp. 2d at 581. the modifications clarified that there was a 30-day minimum residency requirement prior 1. granted the petition for rehearing en banc the next day, intelligent); faretta v. california, 422 u.s. 806, 835 court noted that the first amendment applies only to state although the district court opinion did not specifically election day, a modification suitably tailored to address the the district court’s modifications more clearly define suits. accordingly, the district court modified the decree so preclearance. the rnc argues that increases in minority voter ensure that, once registered, voters could not be removed vacate or modify the decree because of bctc factors. 27 fraud security programs. that the rnc has not engaged in a violated the decree. furthermore, the district court did not u.s.c. § 1291. see keefe v. prudential prop. & cas. co., was based, all but one had been shown to have been telecomm., inc. v. city of erie, pa., 853 f.2d 1084, 1096 (3d for the reasons set forth above, we will affirm the years from the date of its order modifying the decree with or attempted to comply in good faith with the terms of the alleges are hampered by the decree. additionally, the rnc engaged in other contract negotiations.” erie telecomm., 853 the case. id. (noting that “equity demands a flexible response voluntarily entered into the decree. in consideration of the the rnc also agreed to, “as a first resort, decree, which it was free to decide not to enter into. the shown no other existing and relevant change of circumstance. employees to campaign within on the decree’s workability, the majority of our review of the 1264. in this context, the court did not err in referring to and which was not subject to the decree, would carry out any 24 24 and report irregularities unrelated to voter fraud to duly- of residence to an election official.” democratic nat’l allowing voters to vote prior to election day or to mail in is vacated.” rnc proposed conclusions of law, app. at vinson & elkins furthermore, court orders can include limits on the ability may not have sufficient reach to encompass the enforcement 20 succeeds in attracting minority violation in the malone proceeding in response to the rnc’s attempted to obtain preclearance. contrary to the rnc’s 5 to be prevented will recur absent 14 58 voter fraud outweighs the risk of voter suppression and thus, only a fraction of that alleged fraudulent activity was rnc will terminate. in failing to contends that it cannot engage in normal poll-watch functions data “demonstrat[es] that minority voters are not being 3. bctc factors cir. 1988). court enforcement of a private agreement to limit in this respect, the court revised the decree only to the bctc, 64 f.3d at 886. does not include a date on which in weighing these factors, “the court must balance the picket at all” does not “show that [the party] has in fact 621. the district court modified the decree by adding an “suitably tailored to the changed circumstance[s].”9 that they would: for example, perhaps the rnc could obtain preclearance kelly benefit the public interest by allowing the rnc to engage in of normal poll watching activities and the parties have not spend money to bring those suits. the nature and timing of “us[e], [or] appear[] to use, racial or ethnic criteria in proves by a preponderance of the evidence that the rnc has involved votes cast in person or votes cast through absentee could be evidence that the decree is necessary and effective. not disturb the panel’s factual determination that the rnc had karl s. bowers, jr. program aimed at combating voter fraud by opinion the supreme court seeking reinstatement of the injunction. contended that it was unaware of the significance of the and where a purpose or significant the rnc asks that our court vacate a decree that has a. legal standard 30 english language 1652 (4th ed. 2006)). the rnc argues that the consent decree should be moyer, 473 f.3d at 542. evidence a waiver. see d.h. overmyer co. of ohio v. frick connection with ballot integrity, ballot security or other suppression of minority votes. strategy except with regard to ballot security activities. the ordered. a court can enforce an agreement preventing suit, the rnc produced a memorandum in which its midwest the rnc argued before the district court that there the obligations placed upon the parties [] impermissible under reagan to serve as the commissioner of the federal election actions and does not prevent private parties from agreeing to justifies vacatur or modification of the decree hardly requires the rnc’s arguments regarding changes in law hearing before the district court was thomas josefiak, an provisional ballot if they are challenged at polling stations. on the contrary, the decree does not require any washington, dc 20037 federal statute for impermissibly prospective application of the decree inequitable. see bctc, 21 1 concerns. fraud security team members at each precinct. the rnc does the supreme court has long recognized that a party appeal from the judgment of the united activities. because the rnc, as it has argued, is not sure of the ballot fraud or voter registration fraud.’” (quoting crawford, amendment rights beyond those that the rnc voluntarily 1990) (holding that courts have jurisdiction to enforce 42 u.s.c. § 15482(a)). dnc proves by a preponderance of the evidence that the the rnc petitioned for rehearing en banc. we their votes, would prevent the rnc from “using, [or] relying upon its factual finding of a 2004 violation in the ballot integrity, ballot security or other efforts to prevent or appears at the polls.” (id. at 38.) the supreme court has held that there is a valid challenge to malone’s eligibility to vote. combating in-person voter fraud if it obtains preclearance. if lists, some eligible voters may choose to refrain from voting an action against the rnc, the new jersey republican state if, “in resorting to a state sanction, a private party must such districts is a factor in the the rnc violated the consent decree by failing to give the benefits to be obtained from maintaining the injunction” and ______________ direct or participate in any ballot security measures, and held money” under the bcra while the dnc, not a party to such as the district court correctly noted, in this context, decree, do not aim to prevent the rnc from targeting its discretion by finding that the rnc had not produced evidence unpersuasive. the district court correctly notes that any occupying leadership positions in the rnc does normal poll-watch functions or to obtain preclearance may be the program (including the pointed to no remedy other than the decree that prevents the party committees; effort “could keep the black vote down,” wash. post, first amendment right to association).10 enforcement personnel in determination by weighing the dangers of voter fraud against settlement agreements, signed by counsel for the rnc, are refrained from engaging in normal poll watching activities at 39–41 (holding that the practice for dealing with a the problems were due to discrimination . . .”).) 46 ‘occasional examples’ of in-person fraud on which his ruling court held as follows with respect to this matter: effort, unless the other ballot security effort complies with the see edwards v. arizona, 451 u.s. 477, 482 (1981) (waiver committee holding that its prescribed modifications to the decree were the compilation of voter challenge attempt to carry its burden by relying on the results in the u.s. 174, 185–86, (1972) (waiver of due process rights must voting violations under hava does not “make legal what the democratic nat’l comm., 671 f. supp. 2d at 621-22. otherwise. furthermore, the court held that the rnc was for a preliminary injunction, concluding that the rnc did not of the [instrument in which it waived notice].” erie continuation of the decree inequitable. the district court of right to counsel must be voluntary, knowing, and 31 the supreme court has held that courts must “‘indulge every republican national committee; percent increase in the number of registered voters classified standard, a court determining whether to vacate or modify a court following twenty days’ notice to the dnc. only with 32 prevent the rnc from “using, [or] appearing to use, racial or unreasonable.” moyer, 473 f.3d at 542. thus, the district rnc violated the consent decree by participating in a north was clearly not surprised by the district court’s response to manipulate the tabulation of votes, and it specifies criminal as hispanic. the district court discounted this increase 1990 and 2004 violate its first amendment rights. however, irreparable harm if she had to endure multiple challenges to modification or vacatur “where a party relies upon events that decree enforcement actions to parties to the decree is a lawsuits using “hard money,”4 that a reorganization plan provided adequately for the including the background, experience and conduct” of the there were four workability issues that weighed in favor of 27 contend that it or its counsel was unaware of the significance supp. 2d at 622. the modification includes a non-exhaustive constitutes state action, “speech rights are not absolute.” (f) refrain from having private in legitimate democratic voting to add three percent to the irregularities unrelated to voter fraud to duly- motion during may 5 and 6, 2009 and also received post- efforts of the increased number of groups registering voters. f.2d at 1096. the modification includes a non-exhaustive list of ballot provisions of the consent order james r. troupis not a product of the terms of the decree. clarity allows the consent order so that it conforms to the constitutional floor”; 47 “this program will eliminate at least 60,000–80,000 folks here, in 1982, the rnc, with the assistance of counsel, from spending soft money on ‘federal election activity,’ (appellant’s br. at 55), the modifications of adding specific the required flexible approach). however, the rnc has nat’l comm., 671 f. supp. 2d at 622. president of the rnc (former) are african american; 12 agreed to specific restrictions regarding its ability to engage 43 related to in-person voter fraud, which is the type of fraud voters who are worried about intimidation at precincts on ever actually cast a vote. the rnc has not demonstrated that 14 decree, the dnc submitted evidence of voting irregularities registration fraud in a number of states with later mail-in to settle the lawsuit, the rnc and rsc entered into will have no incentive to engage and deterrence of a number of voters. minority voter challenge list of 35,000 individuals from ohio. constraints of the decree. rnc, alleging that the rnc had violated the consent decree constitutional violation”; it “should not strive to rewrite a the “central provisions” of the bcra were “designed v. munsingwear, inc., 340 u.s. 36 (1950), is inapposite. id. regarding settlement agreements, and a party could bring an given these purposes of the decree, only a change that the circumstances leading to entry not use or implement the results of any ballot security effort watch function[]” allowed by the decree. (app. at 405.) evidence to suggest that its behavior will change if the decree decision to conduct, or the actual ballot security activities in polling the rnc, that showed that “the majority of those accused of wrongdoing were elected officials and political operatives.” 6th floor employees, “whether acting directly or indirectly through this court has emphasized that, by signing a consent rnc to engage in normal poll watching activities while still merits. being challenged by the ohio board of election regardless of the modification also includes a non-exhaustive list of distributes to any state party. despite the rnc’s arguments voting more than once, they can report that potential fraud to 2d at 609 (“justice stevens acknowledged that, of the workers.” sandusky county democratic party v. blackwell, withdraw from performing its obligations and from johnson v. zerbst, 304 u.s. 458, 464 (1938) (waiver requires the workability discussion infra. relevant to the purpose of the decree because it does not 6 does not point to any significant change that renders ethnic criteria in connection with ballot integrity, ballot dissenting) (“[t]he state has not come across a single bargaining power; and [where the waiving party] did not hardware co. v. nlrb, 407 u.s. 539, 547 (1972). under compiled in coordination with the ohio republican party. instead of waiting for the verification of their own eligibility is either eight years after the parties entered into the decree in information regarding unlawful practices under the decree, 35 decree, as a practical matter. the district court held that voter fraud is a crime or detailing particular facts and circumstances surrounding that case, rnc must provide a copy of the consent decree, or potential minority voters are not dissuaded from going to the fraud by preventing potential voters from registering to vote demonstrate that a district court abused its discretion, an violated the decree. the modification clarifies the previous ambiguity. while the dnc would not have existent time limitation on the rnc’s obligations under the fanciful or clearly unreasonable.” moyer v. united dominion security programs: election comm'n, 528 f.3d 914, 918 (d.c. cir. 2008) (citing among other provisions, the district court noted that it was imposing a increase the risk of voter fraud and increase the ease with to their entry to a polling place; “the consent decree was not designed to encourage minority give false information about your name, residence or period applicable law. in order to secure such a determination, the and non-exhaustive lists of examples “worsen the problem,” 8 asserts that the motor voter law, bcra, and hava decree and applicable law.3 definitions and examples of ballot security and normal poll- difference between normal poll-watch functions and voter it is, this could keep the black vote down considerably.” functions on election day so long as the people it deploys do party committees and any other judge had presided over the litigation for twenty years, from since 1987 and that it is highly unlikely that the rnc will equitable. bctc, 64 f.3d at 888. in addition to the rufo individuals whose letters were returned as undeliverable on a arguments that the decree should be vacated or modified due other party committees.” (id. at 402.) changes to campaign finance law . . . , including barring watch functions give both the rnc and the dnc more clarity 52 may waive constitutional rights if there is “clear” and on the merits is to reverse or vacate the judgment below and ballots squelches any effort to disenfranchise a voter who to the hava; the use of by state agencies such as motor (3) that “a decree proves to be unworkable because of the evidence, the circumstances necessary for vacatur or for district judge: honorable dickinson r. debevoise 40 challenge voters and directing the rnc to instruct its agents efforts or has any incentive to do the final consideration weighing election day to avoid such intimidation by voting from home we need not determine whether the alleged changes in first intimidation. as the district court correctly points out, the first amendment subject to suits brought by entities who were not party to the with the 1981 lawsuit through the motion to vacate in 2009. decree violation as instructive regarding the rnc’s level of voter fraud efforts at precincts with higher populations of 11 after a moving party has established a change warranting political parties from soliciting soft money.” shays v. federal had changed addresses.” welker v. clarke, 239 f.3d 596, agreement. see pansy v. borough of stroudsburg, 23 f.3d knopf, inc. v. colby, 509 f.2d 1362, 1370 (4th cir. 1975) program and failing to obtain preclearance for the program. 26 “hava requires that any individual affirming that he or of ballot security programs. mcconnell v. fec, 540 u.s. 93, 132 (2003). the asheegh agarwal, esq., roger clegg, esq., republican national committee, eight-year expiration date, december 1, 2017, and allowing learned how to picket without treading on the prohibitions judge's familiarity with the reorganization”); jenkins by extent required because of the change in circumstances 13 president and attorney general of the united states and the that the decree was not sufficiently unworkable to warrant the rnc’s argument is wholly speculative. the such observers may not question of the entry of the decree or from its 1987 modification, the court referred to its factual finding of a consent decree normal poll watching activities, the rnc claims that is has fraud and is, therefore, unworkable. the rnc has requested authorizes election officials, not the rnc, to use mailings to voters about their credentials; programs without doing so. in an change in circumstances warrants revision of the decree.” the voting rights act of 1965 (“vra”), 42 u.s.c. §§ 1971, hans a. von spakovsky information regarding unlawful practices under the consent modifications, other than those ordered by the district court. that it speculated might well occur in the future. the district the increase in minority voter registration and voter turnout the rnc and the dnc settled the lawsuit, this time by the rnc argues that the following factual changes district court’s opinion regarding the bcra is included in b. discussion comm., 671 f. supp. 2d at 622. the fraud because it is difficult to track the voter registration jason a. levine (quoting shays v. fec, 414 f.3d 76, 80 (d.c. cir. 2005) seq., and (c) the help america vote act of 2002 (“hava”), modifications it ordered were suitably tailored to the changes procedures; the recording by 772, 787-89 (3d cir. 1994). democratic national committee; mentioned that the 2004 malone decision could be an materials that the rnc distributes to any state party. minority voters in an effort to intimidate them in violation of 9 rule 60(b)(5), it does not provide a “universal formula” for the modifications would address the specific workability in the postcard program. however, the court also found that vacated because it is unworkable for the rnc to spend any (a) comply with all applicable vacate the decree, the court granted the motion to modify the district court at an evidentiary hearing in support of malone. court enforcement in shelley. see blum v. yaretsky, 457 delaware valley citizens’ counsel for clean air v. activity.’” id. (quoting 2 u.s.c. § 441i(b)(1)). so. that situation is inherently id. at 599 (citing 42 u.s.c. § 1973gg-6(b)(1)). the decree, and should be relieved of the undertaking under to the election during which voters must have lived in the of an expiration date in the decree was “inherently contained an explicit reservation of appellate jurisdiction over decree. the conduct or conditions sought new jersey party in devising and implementing the ballot security registration deadlines; (3) the decree lacked a clear definition defined to include “any program aimed at combating voter speech. additionally, the rnc alleges that the district civil rights division of the department of justice, which is the availability of complaint procedures for alleged in 1982, the republican national committee (“rnc”) argument that revision of the decree is warranted. moreover, regarding voter fraud, voter intimidation, and voter places or election districts where pennhurst state sch. & hosp., 901 f.2d 311, 317 (3d cir. changed circumstances that warrant lifting an injunction.”). security activities absent district court preclearance, serve as suppression of minority voters. when, as here, a party circumstances rendering the decree unnecessary because this federal statute for impermissibly photographic or other means of the decree without modification would be detrimental to the 60(b)(6); however, we would reach the same conclusion before our court, any restrictions on the rnc’s ability to _____________ the rnc for alleged violations of the consent decree after included 35,000 registered voters who were predominantly fraud” and to neither “hinder[] [nor] discourag[e] qualified and the democratic national committee (“dnc”) entered time period for the preclearance notice requirement.22 the rights of duly qualified 16 clear that we have not resolved it by implication or otherwise. effect of such activities is to deter 18 for a voter fraud security program that instructs its normal registering to vote or casting a ballot.” democratic nat’l id. at 385. if a party agreed to the decree notwithstanding the the district court rejected the rnc’s argument that the decree must be vacated or modified because the risk of the decree, the rnc is free to communicate with state parties inequitable. to do that, they must have some bearing on the 18 integrity, ballot security or other efforts to prevent or remedy vacatur, it must be significant, meaning that it renders the intimidation. the rnc has presented no evidence the decree, such action gives us of discretion and that the appropriate decree termination date malone proceeding. contrary to the rnc’s suggestion, it prevent.” rufo, 502 u.s. at 388. angelo j. genova (argued) 351 u.s. 225 (1956) (holding that court enforcement of a create or perpetuate a constitutional violation”; it “should not rnc points to no statement of the district court and no implement ballot security of any [in-person voter] fraud actually occurring in indiana at voter fraud prevention program that the rnc has submitted decree should respond to the specific set of circumstances in 1987, the rnc once again entered into a settlement may be contractually waived where the facts and thus, although the district court denied the request to increase in minority voter registration or voter turnout caused voters to challenge at the polls. the rnc also allegedly conduct of, such activities there the prevention of fraudulent voting or the effect of deterring those voters intimidate voters by standing at polling places in minority precedential disproportionately in or directed violate the first amendment. ry. emps. dep’t. v. hanson, the district court agreed with the rnc that the lack day in order to avoid voter intimidation. the litigation pursuant to 28 u.s.c. § 1331. we have render the prospective application of the decree inequitable. 34 make those revisions that equity requires, given the change in the rnc has not established that any of the district lawsuits using “hard money,” while the dnc does not have to criminal penalties to be imposed ex post, only after voters had the supreme court interpreted rule 60(b)(5) in rufo, furthermore, the rnc’s position regarding malone is even if court enforcement of this consent decree individuals and fifty-two convicted individuals to photograph, or otherwise make e. 2008 enforcement action knowing, and intelligent in any particular case rests “upon the provisional ballots to voters deemed ineligible to vote by poll voter registration deadlines; (3) the decree lacks a clear case. the rnc argues that vacating the decree would regarding the broad changed circumstances factors outlined in state parties guidance on unlawful practices under the 57 undeliverable were added to the challenge list. 2200 pennsylvania avenue, n.w. the rnc filed a timely appeal. “the mere passage of time” is itself “sufficient to constitute because the decree’s definitions of such activities are unclear implemented, continued enforcement of the order is not only to irregularities in her registration which would result in her court’s consideration of the findings of fact has no impact on 49 2 u.s.c. § 441i(a)). the bcra also “barred state parties person voter fraud. crawford v. marion cnty. election bd., election law expert who was appointed by president ronald the district court held an evidentiary hearing on the the time of its inception). cause. . . . the court believes that of this decree. the supreme court has declined to find state normal poll watching activities that the decree was never intimidation or suppression. the provision allows for concerns, we analyze, also under the abuse of discretion considerations are that: (1) the potential inequity of the rnc the constitutional floor by allowing the rnc to engage in all following an evidentiary hearing, the district court vote suppression ex ante. similarly, a handful of minorities we need not determine whether the district court abused its judgment to “spawn[] any legal consequences” and the update voter registration lists. 42 u.s.c. § 1973gg-6(c)-(d). states maintain accurate the term “ballot security activities.” (app. at 401.) as significant part of efforts needed to prevent that voter fraud, it c. 1990 enforcement action oct. 24, 1986 at a1. although the dnc was not a party to preclearance provision does not prevent the rnc from discriminate is state action); switlik v. hardwicke co., inc., decision to conduct, or the actual “relitigation of the issues between the parties,” united states action”) engage or assist in voter fraud prevention unless the rnc 12 to changes in law, changes in fact, and the public interest in argument, that the enactment of a law that expands voter vacated as moot by this court sitting en banc, that vacatur did modification also includes a non-exhaustive list to comply with the consent order. rufo v. inmates of the 28 security activities unless the rnc submits the program to the 41 vacating or modifying the decree. while the court found shays, 528 f.3d at 918 (citing 2 u.s.c. § 441i(a)). 6 ______________ this first amendment argument under rule 60(b)(5) or rule f. motion to vacate or modify the consent decree 21 to achieve this purpose, places or election districts where the first amendment applies only to state action. cent. 56 in 2004, the district court issued an order barring the although a considerable number of years have passed suppressed.” (appellant’s br. 33.) furthermore, the rnc 10 (noting that a district judge had gained extensive knowledge judgment. 2. the preclearance period is shortened from 20 such a provision is justified in this determines that the program complies with the consent action under the decree so that both parties would have to challenge list brought a suit against the rnc in louisiana “the question of waiver of a federally guaranteed reviewing databases maintained pause. further, the rnc, with the advice of counsel, twice the risk of voter fraud and reduces the risk of vote in effect, the rnc contends that the decree should be the district court did not abuse its discretion by 203 f.3d 218, 223 (3d cir. 2000); see also halderman v. in “ballot security activities,” but that decree did not define decree extends to types of conduct that were not included in 1981 lawsuit and the rnc again consented to the decree, as suits, would not have to expend resources on these third-party established, the rnc has failed to carry its burden of we shall review whether the district court abused its the district court’s approval secured in this fashion can the (app. at 401–02.) the rnc agreed that the terms of the cast a provisional ballot.”” sandusky county democratic in ohio not to use the list for ballot security efforts. the because of unforeseen obstacles”; or (4) that “enforcement of rely on malone’s preliminary injunction as precedent, but, oral argument, but could not articulate a basis for such a have voter registration deadlines less than twenty days before due to any first amendment violation. 7 with the ohio republican party in devising and implementing her eligibility to vote. the district court found that the rnc including ‘get-out-the-vote activity’ and ‘voter registration political efforts, regardless of whether the dnc also has to 64 f.3d at 888. hardship to the party subject to the injunction against the can constitute state action under shelley, shelley’s holding 53 workability. erie telecomm., 853 f.2d at 1097. the 1982 and 1987 the district court held that the decree should be chose to limit indefinitely its ability to engage in certain district court’s modification are so acute that prospective (opinion filed: march 8, 2012) defending those suits takes money away from the rnc’s 1973, and the fourteenth and fifteenth amendments to the decree by ensuring access to the polls and preventing determine whether the proposed modification is suitably brought about by the enactments of the motor voter law or registration forms, knowingly cast a forged ballot, or voters by warning that it is a “federal crime . . . to knowingly eight years on its consent decrees, without modification would be detrimental to the public moreover, given that the obligations of a consent decree are decree, signatories make a “free, calculated and deliberate v. bell helicopter textron, inc., 295 f.3d 408, 412 (3d cir. 51 obtains the court’s approval in advance. the rnc appeals decree and provide lists of examples of both. 25 the decree to provide clearer definitions and examples of by federal law.” brookhart v. janis, 384 u.s. 1, 4 (1966). which eligible voters can register to vote, vote, and file a disturbance that they reasonably as its central purpose preventing the intimidation and the rnc would have to spend “hard money” on any decree, including the bctc considerations that the parties b. changes in law15 as the district court mentions, the decree does not prevent program) has been determined by district court’s decision to set a termination date of eight to the decree and gained its benefits, it should have subject to enforcement of the decree after potential minority the rnc insists that the district court’s 2004 abused its discretion regarding rule 60(b)(5). first, we shall charged with enforcing the voting rights act, also imposes [o]bservers may report any broadly and inconsistently with the parties’ expectations at aims to prevent voter intimidation and suppression, is circumstances of this case are whether the rnc has complied the rnc requested that our court stay the order. the court’s decisions were “arbitrary, fanciful or clearly violation. justify vacatur, it must be a significant change, rendering the 494 broad street register voters and the rnc has not demonstrated that any changes to campaign finance law . . . , including barring election day strategies that do not “us[e], [or] appear[] to 59 court abused its discretion by imposing a formerly non- the enforcement of the settlement terms, pursuant to 28 (“dsc”), virginia l. peggins, and lynette monroe brought state court. in response to a discovery request made in that or modify the decree, the rnc has not referenced any “‘improperly extend[s] to ... private conduct’ and grants of its rights. hence, neither the 1990 nor 2004 orders present voluntarily enters into a consent decree not once, but twice, shays, 528 f.3d at 918 (citing 2 u.s.c. § 441i(a)). the rnc would have to spend “hard money” on any in minority voter intimidation and suppression. the rnc tailored to the changed circumstance.” rufo, 502 u.s. at 391. id. election day strategy far enough in advance for the dnc and that the rnc will suppress minority voters such that discretion by holding that the decree was not void due to its malone’s name was on the list. to compile the list, the rnc two ways. the rnc claims that the 2004 modifications to alex hurtado; ronald c. kaufman; john counsel for appellant, republican national the conduct sought to be nvra, bcra,16 during the 1981 new jersey gubernatorial election, actually were anticipated at the time it entered into a decree.” that the decree and its 1987 modification resolved all money and issue advertising to influence federal elections.” who is registering to vote or voting. 42 u.s.c. §1973gg- if the rnc establishes that “a durable remedy has been court notes, voter intimidation could prevent voters from ineligible voter registered by a non-party organization has the decree due to a change in law. democratic nat’l comm., 1234-35. moreover, the hava complaint procedures, unlike the criminal penalties on individuals who submit false voter 7 rajiv d. parikh instance of in-person voter impersonation fraud in all of court declined to vacate the decree, it did make the decree.” rufo, 502 u.s. at 383. c. public interest carolina republican party (“ncrp”) program. the dnc been so determined by this court.” (app. at 405.) the 3 “sufficient to constitute the type of changed circumstances since entry of the injunction; contends that there is little need to prevent the intimidation termination date of eight years from its ruling because the ballot security programs by the or place any signs which are part investigators to examine the backgrounds of some new provisions allowing for an extension of that termination date (d.c. civ. action no. 2-81-cv-03876) and effect.” (app. at 404.) in the 1982 decree, the rnc had or a day on which they may take consent decrees with time limits of eight years, which can be will now get greater funding, greater attention, and more intimidation, do not justify vacatur or modification of the provisions, these voter-challenge lists that are racially- states district court for the district of right or privilege”). station operations, such as long lines, were more pronounced ballot security activities in polling at preventing voter suppression or intimidation and does not women voters of ohio v. brunner, 548 f.3d 463, 478 (6th “hava is concerned with updating election decree has been achieved.” bctc, 64 f.3d at 888. while the retained an incentive to violate the consent decree and had provision requires the rnc to place the same number of voter process.” (appellant’s br. at 50.) thus, the rnc argues that enforcement of an agreement between two private individuals individual desires to vote and that the individual is eligible to district court did not abuse its discretion by declining to changes in law that the rnc puts forth make “one or more of modified in 1987, the decree defined “ballot security is mere conjecture because, since the preclearance provision her ballot without being challenged. after malone voted at predominantly minority precincts on election day, both not know what level of program detail the district court on november 1, 2004, the dnc appeared before the minority registered voters and, then, including individuals advantage of state early voting even if the rnc’s assertions are true, which has not been “arbitrary, fanciful, or clearly unreasonable,” moyer, 473 voters in such numbers that its if the decree is vacated. the district court did not abuse its in 1982 and 1987, the rnc voluntarily agreed to depend on such assumptions. and then waits over a quarter of a century before filing a in addition to determining whether the district court in florida during the 2004 election, which was also cited by that only the dnc and njdsc can bring an enforcement (e) refrain from undertaking any rnc’s situation as “inherently inequitable” also seems questionable. 55 (1975) (same); d.h. overmyer co. of ohio v. frick co.,405 “not altered [the] calculus” of in-person voter fraud or voter potential challenge to malone voting was a “normal poll ante can be a “significant change [that] warrants revision of required that, for federal elections, 1982, minority voter registration and turnout have increased the nvra does not authorize targeting such mailings at employees to become union members does not violate the 17 election day, november 2, 2004. this court vacated the newark, nj 07102 purpose of the decree — decreasing the rnc’s engagement democratic nat’l comm. v. republican nat’l comm., 671 f. the rnc has not demonstrated, by a preponderance of 2d at 598-99. suppression are going to be actively pursued by this justice although a court’s enforcement of a consent decree the rnc argues that the bcra’s prohibition on the registration rolls by using reliable modifications beyond those ordered by the district court: (1) enforcement suits to arise at inconvenient times, but resolving ballots. this provision does not render inequitable the normal poll-watch function and has not presented a request voting or some other alternative process. in support of the based on the concomitant increase in the overall population of being subject to suits brought by entities who were not party waived in 1982 and 1987. in 1990, the court held that the entered into a decree.” rufo, 502 u.s. at 385. 553 u.s. at 196 n.12)). thus, the rnc has not established discretion while simultaneously concluding that the rnc rnc engage, assist, or participate in any ballot security of expiration date.26 directions to or permitting their union shop agreement, which would require all railroad fraud, recognizing that such is not the task of the federal on november 3, 2008, shortly after the district court litigation). democratic nat’l comm., 671 f. supp. 2d at 581. the or acquiescence to a private choice does not convert that warranted vacatur or modification of the decree: first, the deface any lawfully printed and the dnc would be free to territories of the united states: restrictive covenant against parties who did not wish to given these modifications, any hardship to the rnc is the district court declined to determine whether laws ex. 18 at 6 (quoting a former political director of the focus because of president obama? our jurisprudence cannot method and timing of any vigorously notwithstanding the district court’s significant its argument. evidence from the malone proceeding was voter law reduces the threat of voter registration fraud, but that the rnc “may deploy persons on election day to perform the parties and consent decree at issue.8 money,’ while ‘[p]olitical donations made in such a way as to the conditions of the case. bctc, 64 f.3d at 888. the whether the party subject to its extension of the decree for another eight years if the dnc the evidence that any workability issues remaining after the _____________ (noting that executing a secrecy agreement can “effectively as it did and by declining to vacate the decree. for the robert n. driscoll, eric eversole and discretion by not starting the eight year period from the date 54 days to 10 days. nor does the nvra “make legal what the decree was would not be removed from the district court did not expressly state that the “ballot security” is defined to include “any program aimed security or other efforts to prevent or remedy voter fraud.” without a time limit is “inherently inequitable,” the provision the ballot security program and failing to obtain preclearance denied the dnc’s motion for a preliminary injunction, the rights. 5. the decree does not apply to any rnc program amendment law raised by the rnc render prospective consent order other than making those revisions that equity disclosure of specific information without violating the f.3d at 542, when it found that the rnc failed to demonstrate heightened standard for its rule 60(b)(5) inquiry instead of did not abuse its discretion by declining to vacate or modify certain private agreements constitutes state action. id. at 19– that warrant lifting of an injunction”). as the district court lists by use of mailings or rufo, 502 u.s. at 383. such a party must establish at least panel’s ruling and stayed the district court’s order. before the injunction. modification of a consent order, “the district court should the rnc argues that “minority voters are not being anticipated that it would likely need to spend money the district court concluded, with ample record support, that never intended to prohibit; and (4) the decree lacked a the decree because it would not prevent minority voter the existence of such a factor and abused its discretion regarding the bctc factors specific to nlrb, 64 f.3d 880, 889 (3d cir. 1995) (“[w]e are unwilling and exacting factual inquiries, they ‘are inherently ill- registered voters whose letters were returned as indiana’s history.”); democratic nat’l comm., 671 f. supp. of general applicability and not limited to institutional reform violation. hall & bowers 5 plaintiffs in that litigation was sufficient consideration to and attorney general of the united states increase the it is at least doubtful that a district court could decide to national political parties from soliciting soft money.” modifications identification requirements “could cause enough of a dropoff the rnc argues that this modification does not prevention of in-person voter fraud. furthermore, the district the rnc’s argument that the fact that president list of voters to challenge. a number of voters on the decree was designed to prevent.” rufo, 502 u.s. at 388. to the rnc’s argument that the district court’s definitions because it means that the rnc must foresee election day from casting their ballots. under analyze whether the district court abused its discretion federal law” or “make legal what the decree was designed to the rnc suggested two to three days for preclearance at that the rnc violated the consent decree by hiring private respect to that issue remains part of the record in this case. of a party to speak, as occurs in confidentiality provisions discretion or err by considering the malone finding that, in 3. “ballot security” is defined to include “any the time they entered the 1982 and 1987 settlements; and (4) against secondary boycott contained both in the law and the action for a court to enforce a private confidentiality ; (2) the twenty-day notice requirement for although the rnc pointed to charges that were noted violations of the decree. although the panel’s decision was she ‘is a registered voter in the jurisdiction in which the change in law; (3) that “a decree proves to be unworkable rnc must submit a description of the program to the district to spend any money on such suits because it would not be a stipulation, with the assistance of counsel, agreeing to modify the rnc has not established by a preponderance of rule 60(b).” id. 6. the consent decree expires on december 1, modified, in 1987. the district court also held that the irregularities in wisconsin during the 2004 election did not counsel for amici appellants, karl s. bowers, jr., rnc asserts that “any preclearance requirement is tantamount sent to residents of predominantly african-american requiring the rnc to provide a copy of the decree, or obligations. thus, this issue is not before this court and we, 15 upcoming election cycle. see rufo, 502 u.s. at 383. do not require preclearance, and which are prohibited by the placed campaign materials or be voluntary, knowing, and intelligent); curtis publ’g co. v. voter likenesses or vehicles at any pennsylvania, 755 f.2d 38, 41 (3d cir. 1985). to refrain from certain types of speech. the election and that the rnc has a valid interest in submitting false voter registration information and voting- injunction; and the likelihood that consent decree or copies of the decree when the rnc gave vacated because the decree violates the first amendment in letters to african-american voters and, then, including extension to private conduct and granting relief beyond that “was a corporation with widespread activities and a conduct of, such activities there u.s. at 391. as noted above, the modification “must not demonstrating how alternative voting mechanisms, such as impede or delay voters by asking written, though, the rnc would 33 not disproportionately target minority voters leaves open the ; (2) the twenty-day notice requirement for preclearance settlement agreements incorporated into orders). establishing that a significant change in circumstances michael steele,13 agencies such as the postal requires because of the change in circumstances. id. 4 firearms in a visible manner. 11 visual records of voters or their definition of normal poll-watch function. of circumstances before it by considering factors unique to if the original 1981 action had been litigated.” democratic debevoise’s nearly three decades of experience presiding modifications allow the rnc to engage in normal poll watch modification suitably tailored to the equitable concerns and suppression of minority voters. specifically, the rnc that prospective application of the decree, with the court’s about subjects other than ballot security. additionally, the programs attempting to prevent voter fraud, which the rnc argument is not persuasive. when the rnc twice consented even if the racial background of the nation’s or rnc’s the benefits it received . . . as a result of the agreement[].” election cycles may cause the need to defend against decree alternative voting mechanisms undermine allegations of removal of voters based on including malfunctioning voting (1946) (according special weight to a district judge’s finding defined as “stationing individuals at polling stations to a court should typically consider before modifying or list of activities that do and do not fit into the decree district court’s december 1, 2017 expiration date is an abuse should not have to avoid voting at polling stations on election court has never prevented the rnc from implementing a judgment that “has become moot while on its way [to the michael steele served as the first african-american actions that the decree is designed to prevent. republican party (“ncrp”) in which 150,000 postcards were claimed that it had complied with the decree and that the the decree, which bar the rnc from engaging in ballot re-register at a new address. sufficient to justify vacating the decree because compliance preventing potential voters from registering to terms has complied or attempted the decree based on the rnc’s asserted factual changes. demonstrating a lack of incentive for the rnc to engage in modifications to the decree. no. 09-4615 waiving party. id. 15 this court draws attention to this issue only to make v. remedy the inequity that it perceived to be caused by the lack 45 regardless of political or practical considerations.” preliminary injunction to prevent the rnc from using the this provision of the bcra is a significant change in the law change of address and instead of consideration constitutes some evidence of a waiver). provides that a court may relieve a party from an order when suppression by allowing voters to cast provisional ballots. connection with ballot security in louisiana during the 1986 congressional elections, john w. bartlett to their qualifications to vote prior which the court could order absent the consent decree 651 f.2d 852, 860 (3d cir. 1981) (“the state court’s observe the voting process and report “ballot security” efforts meant “ballot integrity, ballot been intimidated and had lost their opportunity to cast their and applicable law. applications satisfy a heavy burden to convince a court that it agreed to the should be eliminated because it forces the party to reveal its court shall be made following 20 the rnc from collaborating with non-party organizations to if they render prospective application of the decree a significant change in factual conditions; (2) a significant bobby r. burchfield (argued) ‘overstated because much of the fraud was actually absentee signed a settlement agreement in which they committed, despite the rnc’s bald assertion to the contrary, the modifications, would not be equitable. unqualified voters.” (id.) termination date. future to any state party. provided a definition, which has led the rnc to refrain from hava also established court did not abuse its discretion in declining to vacate the poling place; and the distribution a prior restraint on the rnc’s right to engage in political the entire court could hear the matter en banc, malone cast every voter the opportunity to cast a provisional ballot is only argued on december 13, 2010 minorities. polling station to vote, as they might be if the rnc were watching”21 although the decree was never intended to prohibit for preclearance, at least in part, because the rnc has never prohibits the rnc from assisting or engaging in ballot in 2004, the week before the general election for decree when, under the bcra, the rnc has to defend include such an expiration date, the nvra strictly limited dnc, may bring an enforcement suit regarding waiver of constitutional rights where the party that waived efforts to prevent or remedy suspected vote fraud.” (app. at brought about by the “hard money” restrictions in the bcra. district court rejected the rnc’s argument that malone’s necessarily make the state privy to his discriminatory shelley, 334 u.s. 1)). jenkins v. missouri, 122 f.3d 588, 604 (8th cir. 1997) that, during the 2004 election, “[p]roblems with polling compliance with the decree.27 modified the decree by decreasing the notice requirement for compliance. on the contrary, the rnc’s refusal to engage in even if the public has an unmet need for the prevention of in- changed to make legal what the decree was designed to not provide, however, that an order may be rescinded or rnc submitted the motion to vacate or modify the consent prevents the rnc from combating mail-in voter registration for the reasons set forth herein, we find that the district program. directly or indirectly through other party committees.” (id. at that the rnc had not violated the consent decree. comm., 671 f. supp. 2d at 622. the modification also the district court noted that a number of states now entering the polls to obtain a provisional ballot. democratic democratic nat’l comm., 671 f. supp. 2d at 607. inequitable.” democratic nat’l comm., 671 f. supp. 2d at the modifications state that 12 presented testimony at the evidentiary hearing before the self-imposed and waived by the rnc entering into the decree 2017, to the decree, the district court modified the decree to enforcement of a private agreement may only be state action decree in good faith, made a reasonable effort to comply with 4 “compelling” evidence of waiver and that waiver is voluntary, suits with limited “hard money” because it cannot solicit “soft additionally, the district court cites evidence that the motor rnc’s argument that the consent decree was void because it for the program. the 2004 order does not impose any 37 rights must be shown by clear and compelling evidence); such as early voting or permanent absentee voting, allows modification eliminates any potential bcra-caused inequity we to conclude that all issues that affect african-americans (b) in the event that they produce the penalties under any state or in the carter-baker commission report against eighty-nine to vacate or modify a decree should respond to the specific set without challenge, justice souter, in his capacity as circuit efforts, such as those targeted by the decree. as the district watch functions or obtain preclearance for voter fraud decreases minority voter intimidation and vote suppression ex whose postcards were returned as undeliverable on a list of the following four rufo factors necessitated vacatur or and another rnc leader are minorities willingly entered the decree as a means of settling the initial choice into state action); lavoie v. bigwood, 457 f.2d 7, that the nvra creates an increased risk of voter fraud. this chairman of the rnc from january 2009 until january 2011. provisions of the consent order and applicable law and has individuals’ voting eligibility. the dnc requested a comm., 671 f. supp. 2d at 601. (declining to hold that “temporary compliance” is itself rnc from using a voter challenge list targeting precincts with 598–99 (3d cir. 2001) (citing 42 u.s.c. § 1973gg(b)).17 the decree was not void because parties can settle lawsuits by although rufo provides a general interpretation of effort to avoid similar situations, 20 any point in the future the rnc leadership, and the electorate do not decrease the likelihood instead, merely considered its finding of fact regarding the complicated corporate structure; [the parties] had equal is a crime or detailing the to a prohibition on election day activities by the rnc” its entry. see bctc, 64 f.3d at 889 (declining to hold that addressed in the decree. committee (“rsc”), john a. kelly, ronald kaufman, and at or near a polling place that . . may choose to refrain from voting rather than wait for the registration rolls due to clerical although the rnc’s motion requested that the court vacate doj—the government entity decree would in no way prohibit the rnc from placing the district court found that the rnc had violated the declining to vacate the decree due to the length of time since the provisional ballot portion of hava is not aimed modified merely because it is no longer convenient for a party reasonable presumption against waiver’ of fundamental different numbers of poll watchers in precincts. further, there in 1990, the dnc brought a lawsuit alleging that the equipped’ to ‘make decisions based on highly political normal poll watch[ing] functions so long as such persons do at combating voter fraud by preventing potential voters from mexico voters in preparation for challenging those application of the decree, in which the rnc agreed not to dnc and other plaintiffs amicably resolving all matters that equitable treatment of dissenters “[i]n view of the district the rnc shall not engage in, and for identification, videotape, decree both procedurally and substantively by participating accordingly, do not decide it. the district court decided to modifications to the decree. the rnc argues that the suppressed.” (appellant’s br. 33.) the rnc has submitted arguments in support of its motion: (1) since the 1987 strive to rewrite a consent order so that it conforms to the 1 district court abused its discretion by modifying the decree qualified voters from voting . . . likelihood of prosecution for violations of the voting rights security programs does not allow us to assume past or future 44 vehicle records, social security district of new jersey denying, in part, the rnc’s motion to information gathered by private investigators in any ballot nat’l comm, 671 f. supp 2d at 595. the court, instead, held as unconstitutional. the district court’s enforcement of the issues twenty to thirty-five days in advance of an election; under the consent decree, along with any such instructional of voter fraud and the prevention of voter suppression and 1987. 22 blacks and hispanics. democratic nat’l comm., 671 f.supp. decree against the rnc does not result in a first amendment activities enumerated in the decree by entering into a decree and it fears it would unintentionally violate the decree. to commission from 1985 until 1992. josefiak testified that, 13 and voter lists assembled pursuant registration act of 1993 (the “nvra” or “motor voter records, change of address forms, which may be extended for good modification: (1) the potential inequity of the rnc being indus., inc., 473 f.3d 532, 542 (3d cir. 2007) (quoting stecyk number of registered voters classified as black and a 201 d. 2004 enforcement action (the “malone enforcement fin. corp. v. denver & r. g. w. r. co., 328 u.s. 495, 533 voting mechanisms such as early voting or permanent of the conditions relevant to a specific lawsuit because the (app. at 404–05.) judgments’ . . .”) (quoting holder v. hall, 512 u.s. 874, 894 asserts that voter fraud is a danger and that “political parties, nvra authorizes election officials to use mailings to update decrease minority voter intimidation or suppression. remedy suspected vote fraud” at polling stations. (app. at in circumstances, but the court discussed in some detail how force” armbands. some of the officers allegedly wore “normal poll-watch function” is defined as “stationing 2 money defending itself in enforcement actions. this avoid federal regulations or limits’ came to be known as ‘soft (“shays ii”); the american heritage dictionary of the wisconsin unnecessary, but improper.” horne v. flores, --- u.s. ----, --- “precedential effect” to the judgment in another case. the the this case and all of the evidence submitted by the parties with decree and changed fact or law need not be completely related to in-person voting and are, thus, irrelevant to the obligations in perpetuity, and 1987 lawsuits relinquished all claims that could have implementation of “fail-safe” restricted party’s first amendment rights if the party received the rnc argues that the nvra renders the decree impose a time limitation within the bounds of its appropriate decree expiration date should begin to run, the rnc has is no basis for any rnc argument that the preclearance rnc from “using, [or] appearing to use, racial or ethnic or casting a ballot,”24 related offenses by non-citizens.” (rnc hr’g ex. 26 at 45.) 402.) 7609 elmwood avenue efforts to prevent or remedy vote fraud.” democratic nat’l decree did not violate the first amendment because, under voter registration, but rather to prevent voter suppression.” equivalent numbers of poll watchers in all precincts.” obligations placed upon the parties has become decree bears the burden of establishing that a significant not demonstrate that “minority voters are not being vehicles; or issue literature appointed state officials.” democratic nat’l comm., 671 f. the fraudulent voter registration. a violation of the decree. the fbi report that the rnc submitted regarding specify whether the voting irregularities under investigation the action in louisiana state court, it brought an action against interrogate prospective voters as understaffing at polling places. this memorandum was produced. a basis for a first amendment challenge. 1982, eight years after the decree’s modification in 1987, or, states court of appeals for the ninth circuit employed a equal bargaining power with the plaintiffs, and has not (appellant’s br. at 52–54.) bldg. & constr. trades council of phila. & vicinity, afl- court’s order, noting that emails between the rnc and the by the rnc for determination of various negotiated consent decrees”). suspected vote fraud.” (app. at 404–05.) information from government the obligations it imposes on the relinquish[] . . . first amendment rights”). motion to vacate or modify6 the rnc’s argument that the district court abused its however, we cannot disturb the district court’s opinion the court elaborated on the change in law factor, the 1982 decree. the decree, as modified, clarified that the administration of the united states or the rnc. supreme court] or pending [the supreme court’s] decision


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