Democratic National Committee v. Republican National Committee

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-4615

_____________

DEMOCRATIC NATIONAL COMMITTEE;

NEW JERSEY DEMOCRATIC STATE COMMITTEE;

VIRGINIA L. FEGGINS; LYNETTE MONROE

v.

REPUBLICAN NATIONAL COMMITTEE;

NEW JERSEY REPUBLICAN STATE COMMITTEE;

ALEX HURTADO; RONALD C. KAUFMAN; JOHN

KELLY

Republican National Committee,

Appellant

______________

APPEAL FROM THE JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF

NEW JERSEY

(D.C. Civ. Action No. 2-81-cv-03876)

District Judge: Honorable Dickinson R. Debevoise

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Argued on December 13, 2010

______________

1

Before: SLOVITER, GREENAWAY, JR., and

STAPLETON, Circuit Judges.

(Opinion Filed: March 8, 2012)

______________

John W. Bartlett

Angelo J. Genova (argued)

Rajiv D. Parikh

Genova Burns

494 Broad Street

6th Floor

Newark, NJ 07102

Counsel for Appellee, Democratic National

Committee

Bobby R. Burchfield (argued)

Jason A. Levine

Vinson & Elkins

2200 Pennsylvania Avenue, N.W.

Suite 500 West

Washington, DC 20037

Counsel for Appellant, Republican National

Committee

James R. Troupis

7609 Elmwood Avenue

Middleton, WI 53562

Counsel for Amicus Appellant, Republican Party of

Wisconsin

2

Karl S. Bowers, Jr.

Hall & Bowers

1329 Blanding Street

Columbia, SC 29201

Counsel for Amici Appellants, Karl S. Bowers, Jr.,

Asheegh Agarwal, Esq., Roger Clegg, Esq.,

Robert N. Driscoll, Eric Eversole and

Hans A. Von Spakovsky

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

In 1982, the Republican National Committee (“RNC”)

and the Democratic National Committee (“DNC”) entered

into a consent decree (the “Decree” or “Consent Decree”),

which is national in scope, limiting the RNC’s ability to

engage or assist in voter fraud prevention unless the RNC

obtains the court’s approval in advance. The RNC appeals

from a judgment of the United States District Court for the

District of New Jersey denying, in part, the RNC’s Motion to

Vacate or Modify the Consent Decree. 1 Although the District

Court declined to vacate the Decree, it did make

modifications to the Decree. The RNC argues that the

District Court abused its discretion by modifying the Decree

1

Judge Dickinson R. Debevoise, a United States District

Judge, has presided over all district court proceedings

regarding the Consent Decree at issue in this case, beginning

with the 1981 lawsuit through the Motion to Vacate in 2009.

3

as it did and by declining to vacate the Decree. For the

following reasons, we will affirm the District Court’s

judgment.

I. BACKGROUND

A. 1981 Lawsuit and Consent Decree

During the 1981 New Jersey gubernatorial election,

the DNC, the New Jersey Democratic State Committee

(“DSC”), Virginia L. Peggins, and Lynette Monroe brought

an action against the RNC, the New Jersey Republican State

Committee (“RSC”), John A. Kelly, Ronald Kaufman, and

Alex Hurtado, alleging that the RNC and RSC targeted

minority voters in an effort to intimidate them in violation of

the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. §§ 1971,

1973, and the Fourteenth and Fifteenth Amendments to the

Constitution of the United States. The RNC allegedly created

a voter challenge list by mailing sample ballots to individuals

in precincts with a high percentage of racial or ethnic

minority registered voters and, then, including individuals

whose postcards were returned as undeliverable on a list of

voters to challenge at the polls. The RNC also allegedly

enlisted the help of off-duty sheriffs and police officers to

intimidate voters by standing at polling places in minority

precincts during voting with “National Ballot Security Task

Force” armbands. Some of the officers allegedly wore

firearms in a visible manner.

To settle the lawsuit, the RNC and RSC entered into

the Consent Decree at issue here. The RNC and RSC agreed

that they would:

4

[I]n the future, in all states and

territories of the United States:

(a) comply with all applicable

state and federal laws protecting

the rights of duly qualified

citizens to vote for the

candidate(s) of their choice;

(b) in the event that they produce

or place any signs which are part

of ballot security activities, cause

said signs to disclose that they are

authorized or sponsored by the

party committees and any other

committees participating with the

party committees;

(c) refrain from giving any

directions to or permitting their

agents or employees to remove or

deface any lawfully printed and

placed campaign materials or

signs;

(d) refrain from giving any

directions to or permitting their

employees to campaign within

restricted polling areas or to

interrogate prospective voters as

to their qualifications to vote prior

to their entry to a polling place;

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(e) refrain from undertaking any

ballot security activities in polling

places or election districts where

the racial or ethnic composition of

such districts is a factor in the

decision to conduct, or the actual

conduct of, such activities there

and where a purpose or significant

effect of such activities is to deter

qualified voters from voting; and

the conduct of such activities

disproportionately in or directed

toward districts that have a

substantial proportion of racial or

ethnic populations shall be

considered relevant evidence of

the existence of such a factor and

purpose;

(f) refrain from having private

personnel deputized as law

enforcement personnel in

connection with ballot security

activities.

(App. at 401–02.) 2 The RNC also agreed to, “as a first resort,

use established statutory procedures for challenging

unqualified voters.” (Id.)

2

The RNC agreed that the RNC, its agents, servants, and

employees would be bound by the Decree, “whether acting

directly or indirectly through other party committees.” (Id. at

402.)

6

B. 1987 Enforcement Action and Consent Decree

Modifications

In Louisiana during the 1986 Congressional elections,

the RNC allegedly created a voter challenge list by mailing

letters to African-American voters and, then, including

individuals whose letters were returned as undeliverable on a

list of voters to challenge. A number of voters on the

challenge list brought a suit against the RNC in Louisiana

state court. In response to a discovery request made in that

suit, the RNC produced a memorandum in which its Midwest

Political Director stated to its Southern Political Director that

“this program will eliminate at least 60,000–80,000 folks

from the rolls . . . If it’s a close race . . . which I’m assuming

it is, this could keep the black vote down considerably.”

Democratic Nat’l Comm. v. Republican Nat’l Comm., 671 F.

Supp. 2d 575, 580 (D.N.J. 2009) (citing Thomas Edsall,

Ballot Security Effects Calculated: GOP Aide Said Louisiana

Effort “Could Keep the Black Vote Down,” WASH. POST,

OCT. 24, 1986 at A1. Although the DNC was not a party to

the action in Louisiana state court, it brought an action against

the RNC for alleged violations of the Consent Decree after

this memorandum was produced.

The RNC and the DNC settled the lawsuit, this time by

modifying the Consent Decree, which remained “in full force

and effect.” (App. at 404.) In the 1982 Decree, the RNC had

agreed to specific restrictions regarding its ability to engage

in “ballot security activities,” but that Decree did not define

the term “ballot security activities.” (App. at 401.) As

modified in 1987, the Decree defined “ballot security

activities” to mean “ballot integrity, ballot security or other

efforts to prevent or remedy vote fraud.” Democratic Nat’l

Comm., 671 F. Supp. 2d at 581. The modifications clarified

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that the RNC “may deploy persons on election day to perform

normal poll watch[ing] functions so long as such persons do

not use or implement the results of any other ballot security

effort, unless the other ballot security effort complies with the

provisions of the Consent Order and applicable law and has

been so determined by this Court.” (App. at 405.) The

modifications also added a preclearance provision that

prohibits the RNC from assisting or engaging in ballot

security activities unless the RNC submits the program to the

Court and to the DNC with 20 days’ notice and the Court

determines that the program complies with the Consent

Decree and applicable law. 3

C. 1990 Enforcement Action

3

The modifications state that

the RNC shall not engage in, and

shall not assist or participate in,

any ballot security program unless

the program (including the

method and timing of any

challenges resulting from the

program) has been determined by

this Court to comply with the

provisions of the Consent Order

and applicable law. Applications

by the RNC for determination of

ballot security programs by the

Court shall be made following 20

days[sic] notice to the DNC . . .

(App. at 405.)

8

In 1990, the DNC brought a lawsuit alleging that the

RNC violated the Consent Decree by participating in a North

Carolina Republican Party (“NCRP”) program. The DNC

alleged that the RNC had violated the Decree in North

Carolina by engaging in a program of the North Carolina

Republican Party (“NCRP”) in which 150,000 postcards were

sent to residents of predominantly African-American

precincts. This program allegedly attempted to intimidate

voters by warning that it is a “federal crime . . . to knowingly

give false information about your name, residence or period

of residence to an election official.” Democratic Nat’l

Comm., 671 F. Supp. 2d at 581. The postcards falsely stated

that there was a 30-day minimum residency requirement prior

to the election during which voters must have lived in the

precinct in which they cast their ballot.

The District Court found that the DNC failed to

establish that the RNC conducted, participated in, or assisted

in the postcard program. However, the Court also found that

the RNC violated the Consent Decree by failing to give the

state parties guidance on unlawful practices under the

Consent Decree or copies of the Decree when the RNC gave

them ballot security instructional and informational materials.

The Court held that the RNC must provide a copy of the

Consent Decree, or information regarding unlawful practices

under the Consent Decree, along with any such instructional

or informational materials that the RNC distributes in the

future to any state party.

D. 2004 Enforcement Action (the “Malone enforcement

action”)

In 2004, the week before the general election for

President, Ebony Malone (“Malone”), an African-American

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resident of Ohio, brought an enforcement action against the

RNC, alleging that the RNC had violated the Consent Decree

by participating in the compilation of a predominantly-

minority voter challenge list of 35,000 individuals from Ohio.

Malone’s name was on the list. To compile the list, the RNC

had sent a letter to registered voters in high minority

concentration areas of Cleveland and the Ohio Republican

Party sent a second mailing approximately a month later.

Registered voters whose letters were returned as

undeliverable were added to the challenge list.

Seeking solace pursuant to the Decree, Malone sought

before the District Court a preliminary injunction barring the

RNC and any state organizations with which it was

cooperating from using the list in ballot security efforts.

On November 1, 2004, the DNC appeared before the

District Court at an evidentiary hearing in support of Malone.

The RNC argued that Malone’s suit was non-justiciable due

to irregularities in her registration which would result in her

being challenged by the Ohio Board of Election regardless of

any separate challenge brought by the RNC. The RNC also

claimed that it had complied with the Decree and that the

potential challenge to Malone voting was a “normal poll

watch function[]” allowed by the Decree. (App. at 405.)

Finally, the RNC asserted that the Ohio Republican Party,

which was not subject to the Decree, would carry out any

challenge to Malone’s eligibility to vote.

Following an evidentiary hearing, the District Court

issued an Order barring the RNC from using the list to

challenge voters and directing the RNC to instruct its agents

in Ohio not to use the list for ballot security efforts. The

District Court rejected the RNC’s argument that Malone’s

10

claims were non-justiciable because she would suffer

irreparable harm if she had to endure multiple challenges to

her eligibility to vote. The District Court found that the RNC

had violated the procedural and substantive provisions of the

Consent Decree by participating with the Ohio Republican

Party in devising and implementing the ballot security

program and failing to obtain preclearance for the program.

The RNC requested that our Court stay the Order. The

panel denied the request for a stay and affirmed the District

Court’s Order, noting that emails between the RNC and the

Ohio Republican Party showed collaboration between the two

organizations sufficient to support the District Court’s factual

findings.

The RNC petitioned for rehearing en banc. We

granted the petition for rehearing en banc the next day,

Election Day, November 2, 2004. This Court vacated the

panel’s ruling and stayed the District Court’s Order. Before

the entire Court could hear the matter en banc, Malone cast

her ballot without being challenged. After Malone voted

without challenge, Justice Souter, in his capacity as Circuit

Justice for the Third Circuit, denied Malone’s application to

the Supreme Court seeking reinstatement of the injunction.

We dismissed the appeal as moot, without addressing the

merits.

E. 2008 Enforcement Action

On November 3, 2008, the DNC alleged in a lawsuit

that the RNC violated the Consent Decree by hiring private

investigators to examine the backgrounds of some New

Mexico voters in preparation for challenging those

individuals’ voting eligibility. The DNC requested a

11

preliminary injunction to prevent the RNC from using the

information gathered by private investigators in any ballot

security efforts. The District Court denied the DNC’s Motion

for a Preliminary Injunction, concluding that the RNC did not

direct or participate in any ballot security measures, and held

that the RNC had not violated the Consent Decree.

F. Motion to Vacate or Modify the Consent Decree

On November 3, 2008, shortly after the District Court

denied the DNC’s Motion for a Preliminary Injunction, the

RNC submitted the Motion to Vacate or Modify the Consent

Decree that is currently at issue. The RNC submitted several

arguments in support of its motion: (1) since the 1987

modification, the enactment of (a) the National Voter

Registration Act of 1993 (the “NVRA” or “Motor Voter

Law”), 42 U.S.C. §§ 1973gg et seq., (b) the Bipartisan

Campaign Reform Act of 2002 (“BCRA”), 2 U.S.C. §§ 431 et

seq., and (c) the Help America Vote Act of 2002 (“HAVA”),

42 U.S.C. §§ 15301 et seq. increased the risk of voter fraud

and decreased the risk of voter intimidation; (2) the Consent

Decree extends to types of conduct that were not included in

the initial 1981 Complaint; (3) the Decree was interpreted too

broadly and inconsistently with the parties’ expectations at

the time they entered the 1982 and 1987 settlements; and (4)

the Decree violates the First Amendment by restricting

communications between the RNC and state parties.

The District Court held an evidentiary hearing on the

motion during May 5 and 6, 2009 and also received post-

hearing submissions from the parties. On December 1, 2009,

the District Court issued an opinion, denying the motion to

vacate the Decree. First, the District Court rejected the

RNC’s argument that the Consent Decree was void because it

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“‘improperly extend[s] to ... private conduct’ and grants

prospective relief beyond what the DNC could have achieved

if the original 1981 action had been litigated.” Democratic

Nat’l Comm, 671 F. Supp 2d at 595. The Court, instead, held

the Decree was not void because parties can settle lawsuits by

agreeing to broader relief than a court could have awarded

otherwise. Furthermore, the Court held that the RNC was

barred from asserting this argument because the RNC

willingly entered the Decree as a means of settling the initial

1981 lawsuit and the RNC again consented to the Decree, as

modified, in 1987. The District Court also held that the

Decree did not violate the First Amendment because, under

the Decree, the RNC is free to communicate with state parties

about subjects other than ballot security. Additionally, the

Court noted that the First Amendment applies only to state

actions and does not prevent private parties from agreeing to

refrain from certain types of speech.

Next, the District Court considered the RNC’s

arguments that the Decree should be vacated or modified due

to changes in law, changes in fact, and the public interest in

the RNC combating voter fraud. The Court found that neither

the purported changes nor the public interest justified

vacating or modifying the Decree. While the Court found

that the Decree was not sufficiently unworkable to warrant

vacating the Decree, the Court did find that four workability

considerations justified modifying the Decree. Those

considerations are that: (1) the potential inequity of the RNC

being subject to suits brought by entities who were not party

to the Decree when, under the BCRA, the RNC has to defend

13

lawsuits using “hard money,” 4 while the DNC would not have

to spend any money on such suits because it would not be a

party5; (2) the twenty-day notice requirement for preclearance

prevents the RNC from combating mail-in voter registration

fraud in a number of states with later mail-in voter

registration deadlines; (3) the Decree lacked a clear definition

of normal poll watching activities and the parties have not

provided a definition, which has led the RNC to refrain from

normal poll watching activities that the Decree was never

intended to prohibit; and (4) the Decree lacked a termination

date.

Thus, although the District Court denied the request to

vacate the Decree, the Court granted the motion to modify the

Decree. The District Court’s modifications can be

summarized as follows:

4

“‘[C]ontributions subject to [the Federal Election Campaign

Act’s (FECA), 2 U.S.C. §§ 431–55] source, amount, and

disclosure requirements’ came to be known as ‘hard

money,’ while ‘[p]olitical donations made in such a way as to

avoid federal regulations or limits’ came to be known as ‘soft

money.’” Shays v. FEC, 528 F.3d 914, 917 (D.C. Cir. 2008)

(quoting Shays v. FEC, 414 F.3d 76, 80 (D.C. Cir. 2005)

(“Shays II”); THE AMERICAN HERITAGE DICTIONARY OF THE

ENGLISH LANGUAGE 1652 (4th Ed. 2006)).

5

The RNC would have to spend “hard money” on any

lawsuits because the “BCRA made a number of dramatic

changes to campaign finance law . . . , including barring

national political parties from soliciting soft money.”

Shays, 528 F.3d at 918 (citing 2 U.S.C. § 441i(a)).

14

1. Only parties to the Consent Decree, RNC and

DNC, may bring an enforcement suit regarding

a violation of the Decree.

2. The preclearance period is shortened from 20

days to 10 days.

3. “Ballot security” is defined to include “any

program aimed at combating voter fraud by

preventing potential voters from registering to

vote or casting a ballot.” Democratic Nat’l

Comm., 671 F. Supp. 2d at 622. The

modification also includes a non-exhaustive list

of ballot security programs.

4. “Normal poll-watch function” is defined as

“stationing individuals at polling stations to

observe the voting process and report

irregularities unrelated to voter fraud to duly-

appointed state officials.” Id. The modification

includes a non-exhaustive list of activities that

do and do not fit into the Decree definition of

normal poll-watch function.

5. The Decree does not apply to any RNC program

that does not have as at least one of its purposes

the prevention of fraudulent voting or

fraudulent voter registration.

6. The Consent Decree expires on December 1,

2017 (eight years after the date of the

modification). If, before that date, the DNC

proves by a preponderance of the evidence that

the RNC violated the Decree, the Decree will

15

extend for eight years from the date of the

violation.

The RNC filed a timely appeal.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction over

the litigation pursuant to 28 U.S.C. § 1331. We have

jurisdiction over the appeal from the Consent Order, which

contained an explicit reservation of appellate jurisdiction over

the enforcement of the settlement terms, pursuant to 28

U.S.C. § 1291. See Keefe v. Prudential Prop. & Cas. Co.,

203 F.3d 218, 223 (3d Cir. 2000); see also Halderman v.

Pennhurst State Sch. & Hosp., 901 F.2d 311, 317 (3d Cir.

1990) (holding that courts have jurisdiction to enforce

settlement agreements incorporated into orders).

We review the District Court’s decision modifying and

refusing to vacate the Consent Order for abuse of discretion.

Delaware Valley Citizens’ Counsel for Clean Air v.

Pennsylvania, 755 F.2d 38, 41 (3d Cir. 1985). To

demonstrate that a district court abused its discretion, an

appellant must show that the court’s decision was “arbitrary,

fanciful or clearly unreasonable.” Moyer v. United Dominion

Indus., Inc., 473 F.3d 532, 542 (3d Cir. 2007) (quoting Stecyk

v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir.

2002).

III. ANALYSIS

A. Legal Standard

This Court has emphasized that, by signing a consent

decree, signatories make a “free, calculated and deliberate

16

choice to submit to an agreed upon decree rather than seek a

more favorable litigated judgment.” United States Steel

Corp. v. Fraternal Assoc. of Steel Haulers, 601 F.2d 1269,

1274 (3d Cir. 1979). Federal Rule of Civil Procedure 60(b)

provides that a court may relieve a party from an order when

“the judgment is void,” “applying it prospectively is no

longer equitable,” or for “any other reason that justifies

relief.” FED. R. CIV. P. 60(b) (4), (5), (6). Rule 60(b) does

not provide, however, that an order may be rescinded or

modified merely because it is no longer convenient for a party

to comply with the consent order. Rufo v. Inmates of the

Suffolk County Jail, et al., 502 U.S. 367, 383 (1992); see

Bldg. & Constr. Trades Council of Phila. & Vicinity, AFL-

CIO v. NLRB (“BCTC”), 64 F.3d 880, 887 (3d Cir. 1995)

(holding that Rufo’s interpretation of Rule 60(b)(5) is a rule

of general applicability and not limited to institutional reform

litigation).

The Supreme Court interpreted Rule 60(b)(5) in Rufo,

clarifying that “a party seeking modification of a consent

decree bears the burden of establishing that a significant

change in circumstances warrants revision of the decree.”

Rufo, 502 U.S. at 383. Such a party must establish at least

one of the following four factors by a preponderance of the

evidence to obtain modification or vacatur: (1) a significant

change in factual conditions; (2) a significant change in law;

(3) that “a decree proves to be unworkable because of

unforeseen obstacles”; or (4) that “enforcement of the decree

without modification would be detrimental to the public

interest.” Id. at 384.

The Court elaborated on the change in law factor,

holding that a decree must be modified if “one or more of the

obligations placed upon the parties has become

17

impermissible” and that a decree may be modified if “law has

changed to make legal what the decree was designed to

prevent.” Id. at 388. Typically, courts should not grant

modification or vacatur “where a party relies upon events that

actually were anticipated at the time it entered into a decree.”

Id. at 385. If a party agreed to the decree notwithstanding the

anticipated change in conditions, “that party would have to

satisfy a heavy burden to convince a court that it agreed to the

decree in good faith, made a reasonable effort to comply with

the decree, and should be relieved of the undertaking under

Rule 60(b).” Id.

Although Rufo provides a general interpretation of

Rule 60(b)(5), it does not provide a “universal formula” for

deciding when applying a decree prospectively is no longer

equitable. BCTC, 64 F.3d at 888. In addition to the Rufo

standard, a court determining whether to vacate or modify a

decree should respond to the specific set of circumstances

before it by considering factors unique to the conditions of

the case. Id. (noting that “equity demands a flexible response

to the unique conditions of each case”); The additional factors

a court should typically consider before modifying or

vacating a decree under Rule 60(b)(5) include:

the circumstances leading to entry

of the injunction and the nature of

the conduct sought to be

prevented; the length of time

since entry of the injunction;

whether the party subject to its

terms has complied or attempted

to comply in good faith with the

injunction; and the likelihood that

the conduct or conditions sought

18

to be prevented will recur absent

the injunction.

Id.

In weighing these factors, “the court must balance the

hardship to the party subject to the injunction against the

benefits to be obtained from maintaining the injunction” and

the court should also “determine whether the objective of the

decree has been achieved.” BCTC, 64 F.3d at 888. While the

decree and changed fact or law need not be completely

inconsistent with each other, for such a change to justify

vacatur, it must be significant, meaning that it renders the

prospective application of the decree inequitable. See BCTC,

64 F.3d at 888.

After a moving party has established a change warranting

modification of a consent order, “the district court should

determine whether the proposed modification is suitably

tailored to the changed circumstance.” Rufo, 502 U.S. at 391.

The modification “must not create or perpetuate a

constitutional violation”; it “should not strive to rewrite a

consent order so that it conforms to the constitutional floor”;

and a court should not try to modify a consent order except to

make those revisions that equity requires, given the change in

circumstances. Id.

B. Discussion

The RNC asks that our Court vacate a decree that has

as its central purpose preventing the intimidation and

suppression of minority voters. When, as here, a party

voluntarily enters into a consent decree not once, but twice,

and then waits over a quarter of a century before filing a

19

motion to vacate or modify6 the decree, such action gives us

pause. Further, the RNC, with the advice of counsel, twice

chose to limit indefinitely its ability to engage in certain

activities enumerated in the Decree by entering into a decree

with no expiration date.

At present, Appellant seeks review of the District

Court's order denying vacatur because it prefers not to comply

with the Consent Decree at a critical political juncture — the

upcoming election cycle. See Rufo, 502 U.S. at 383.

However, we cannot disturb the District Court’s opinion

unless it abused its discretion, meaning that its decision was

“arbitrary, fanciful, or clearly unreasonable,” Moyer, 473

F.3d at 542, when it found that the RNC failed to demonstrate

that prospective application of the Decree, with the Court’s

modifications, would not be equitable.

In reviewing the District Court’s opinion and its

modifications to the Decree, we do not take lightly Judge

Debevoise’s nearly three decades of experience presiding

over all matters related to this Decree. See Reconstruction

Fin. Corp. v. Denver & R. G. W. R. Co., 328 U.S. 495, 533

(1946) (according special weight to a district judge’s finding

that a reorganization plan provided adequately for the

equitable treatment of dissenters “[i]n view of the District

Judge's familiarity with the reorganization”); Jenkins by

Jenkins v. Missouri, 122 F.3d 588, 604 (8th Cir. 1997)

(noting that a district judge had gained extensive knowledge

6

Although the RNC’s motion requested that the Court vacate

or modify the Decree, the RNC has not referenced any

modifications, short of vacatur, that would make applying the

Decree equitable in the RNC’s view.

20

of the conditions relevant to a specific lawsuit because the

judge had presided over the litigation for twenty years, from

the time of its inception).

We shall review whether the District Court abused its

discretion by first holding that the Decree need not be vacated

due to any First Amendment violation. 7

Next, we shall review whether the District Court

abused its discretion regarding Rule 60(b)(5). First, we shall

analyze whether the District Court abused its discretion

regarding the broad changed circumstances factors outlined in

Rufo. Second, we shall analyze whether the District Court

abused its discretion regarding the BCTC factors specific to

the parties and Consent Decree at issue. 8 Third, we will

inquire into whether the Court abused its discretion by

7

It is not clear from Appellant’s brief whether the RNC raises

this First Amendment argument under Rule 60(b)(5) or Rule

60(b)(6); however, we would reach the same conclusion

under either rule because we do not find a First Amendment

violation.

We need not determine whether the District Court abused its

discretion by holding that the Decree was not void due to its

extension to private conduct and granting relief beyond that

which the Court could order absent the Consent Decree

because the RNC has not raised that issue on this appeal.

8

Although the District Court opinion did not specifically

reference any BCTC factors as such, the opinion did consider

factors relevant to the specific circumstances of this Consent

Decree, including the BCTC considerations that the parties

raised.

21

holding that its prescribed modifications to the Decree were

“suitably tailored to the changed circumstance[s].” 9 Rufo,

502 U.S. at 393.

The RNC has not demonstrated, by a preponderance of

the evidence, the circumstances necessary for vacatur or for

modifications, other than those ordered by the District Court.

For the reasons set forth herein, we find that the District

Court did not abuse its discretion in declining to vacate the

Decree or in making the modifications to the Decree that it

ordered.

1. First Amendment

The RNC argues that the Consent Decree should be

vacated because the Decree violates the First Amendment in

two ways. The RNC claims that the 2004 modifications to

the Decree, which bar the RNC from engaging in ballot

security activities absent District Court preclearance, serve as

a prior restraint on the RNC’s right to engage in political

speech. Additionally, the RNC alleges that the District

Court’s 1990 Order unconstitutionally forces speech by

requiring the RNC to provide a copy of the Decree, or

information regarding unlawful practices under the Decree,

along with any ballot security instructional or informational

materials that the RNC distributes to any state party.

9

The District Court did not expressly state that the

modifications it ordered were suitably tailored to the changes

in circumstances, but the Court discussed in some detail how

the modifications would address the specific workability

concerns.

22

As the District Court correctly noted, in this context,

the First Amendment applies only to state action. Cent.

Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972). Under

Shelley v. Kramer, 334 U.S. 1 (1948), court enforcement of

certain private agreements constitutes state action. Id. at 19–

20 (holding that a state court injunction to enforce a racially

restrictive covenant against parties who did not wish to

discriminate is state action); Switlik v. Hardwicke Co., Inc.,

651 F.2d 852, 860 (3d Cir. 1981) (“the state court’s

enforcement of an agreement between two private individuals

can, in certain instances, constitute state action” (citing

Shelley, 334 U.S. 1)).

Although a court’s enforcement of a consent decree

can constitute state action under Shelley, Shelley’s holding

may not have sufficient reach to encompass the enforcement

of this Decree. The Supreme Court has declined to find state

action where the court action in question is a far cry from the

court enforcement in Shelley. See Blum v. Yaretsky, 457

U.S. 991, 1004–05 (1982) (recognizing that state approval of

or acquiescence to a private choice does not convert that

choice into state action); Lavoie v. Bigwood, 457 F.2d 7,

11 (1st Cir. 1972) (noting the theory that, under Shelley, court

enforcement of a private agreement may only be state action

if, “in resorting to a state sanction, a private party must

necessarily make the state privy to his discriminatory

purpose”).

Even if court enforcement of this Consent Decree

constitutes state action, “speech rights are not absolute.”

Tennessee Secondary Sch. Athletic Ass’n v. Brentwood

Acad., 551 U.S. 291, 295 (2007). “[C]onstitutional rights . . .

may be contractually waived where the facts and

circumstances surrounding the waiver make it clear that the

23

party foregoing its rights has done so of its own volition, with

full understanding of the consequences of its waiver.” Erie

Telecomm., Inc. v. City of Erie, Pa., 853 F.2d 1084, 1096 (3d

Cir. 1988). Court enforcement of a private agreement to limit

a party’s ability to speak or associate does not necessarily

violate the First Amendment. Ry. Emps. Dep’t. v. Hanson,

351 U.S. 225 (1956) (holding that court enforcement of a

union shop agreement, which would require all railroad

employees to become union members does not violate the

First Amendment right to association). 10

The Supreme Court has long recognized that a party

may waive constitutional rights if there is “clear” and

“compelling” evidence of waiver and that waiver is voluntary,

knowing, and intelligent. 11 “Such volition and understanding

10

Furthermore, court orders can include limits on the ability

of a party to speak, as occurs in confidentiality provisions

regarding settlement agreements, and a party could bring an

action for a court to enforce a private confidentiality

agreement. See Pansy v. Borough of Stroudsburg, 23 F.3d

772, 787-89 (3d Cir. 1994).

11

See Edwards v. Arizona, 451 U.S. 477, 482 (1981) (waiver

of right to counsel must be voluntary, knowing, and

intelligent); Faretta v. California, 422 U.S. 806, 835

(1975) (same); D.H. Overmyer Co. of Ohio v. Frick Co.,405

U.S. 174, 185–86, (1972) (waiver of due process rights must

be voluntary, knowing, and intelligent); Curtis Publ’g Co. v.

Butts, 388 U.S. 130, 145 (1967) (waiver of First Amendment

rights must be shown by clear and compelling evidence);

Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (waiver requires

“an intentional relinquishment or abandonment of a known

right or privilege”).

24

are deemed to be, and indeed have been held to be, present,

where the parties to the contract have bargaining equality and

have negotiated the terms of the contract, and where the

waiving party is advised by competent counsel and has

engaged in other contract negotiations.” Erie Telecomm., 853

F.2d at 1096.

“The question of waiver of a federally guaranteed

constitutional right is, of course, a federal question controlled

by federal law.” Brookhart v. Janis, 384 U.S. 1, 4 (1966).

The Supreme Court has held that courts must “‘indulge every

reasonable presumption against waiver’ of fundamental

constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464

(1938) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389,

393 (1931)). Determining whether waiver was voluntary,

knowing, and intelligent in any particular case rests “upon the

particular facts and circumstances surrounding that case,

including the background, experience and conduct” of the

waiving party. Id.

Here, in 1982, the RNC, with the assistance of counsel,

voluntarily entered into the Decree. In consideration of the

DNC and other plaintiffs amicably resolving all matters that

were or could have been raised in the 1982 lawsuit, the RNC

signed a settlement agreement in which they committed,

among other provisions,

to refrain from undertaking any

ballot security activities in polling

places or election districts where

the racial or ethnic composition of

such districts is a factor in the

decision to conduct, or the actual

conduct of, such activities there

25

and where a purpose or significant

effect of such activities is to deter

qualified voters from voting . . .

(App. at 401–02.) The RNC agreed that the terms of the

Decree would bind the RNC, its agents, servants, and

employees, “whether acting directly or indirectly through

other party committees.” (Id. at 402.)

In 1987, the RNC once again entered into a settlement

stipulation, with the assistance of counsel, agreeing to modify

the 1982 Decree. The Decree, as modified, clarified that

“ballot security” efforts meant “ballot integrity, ballot

security or other efforts to prevent or remedy voter fraud.”

Democratic Nat’l Comm., 671 F. Supp. 2d at 581. The

modifications allow the RNC to engage in normal poll watch

functions on Election Day so long as the people it deploys do

not use or implement the results of any ballot security effort

without a determination by the District Court that the ballot

security effort complies with the provisions of the Decree and

applicable law. In order to secure such a determination, the

RNC must submit a description of the program to the District

Court following twenty days’ notice to the DNC. Only with

the District Court’s approval secured in this fashion can the

RNC engage, assist, or participate in any ballot security

program.

A court can enforce an agreement preventing

disclosure of specific information without violating the

restricted party’s First Amendment rights if the party received

consideration in exchange for the restriction. See Alfred A.

Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975)

(noting that executing a secrecy agreement can “effectively

relinquish[] . . . First Amendment rights”).

26

That the Decree and its 1987 modification resolved all

issues that could have been raised by the DNC and other

plaintiffs in that litigation was sufficient consideration to

evidence a waiver. See D.H. Overmyer Co. of Ohio v. Frick

Co., 405 U.S. 174, 186-87 (1971) (holding that the presence

of consideration constitutes some evidence of a waiver).

The Supreme Court has held that there is a valid

waiver of constitutional rights where the party that waived

“was a corporation with widespread activities and a

complicated corporate structure; [the parties] had equal

bargaining power; and [where the waiving party] did not

contend that it or its counsel was unaware of the significance

of the [instrument in which it waived notice].” Erie

Telecomm., 853 F.2d at 1095 (citing D.H. Overmyer, 405

U.S. at 186). Here, the RNC has widespread activities, had

equal bargaining power with the plaintiffs, and has not

contended that it was unaware of the significance of the

Decree, which it was free to decide not to enter into. The

RNC also received consideration— the plaintiffs in the 1982

and 1987 lawsuits relinquished all claims that could have

arisen from those actions. The RNC “may not now seek to

withdraw from performing its obligations and from

discharging its burdens, while it still continues to retain all of

the benefits it received . . . as a result of the agreement[].”

Erie Telecomm., 853 F.2d at 1097. The 1982 and 1987

settlement agreements, signed by counsel for the RNC, are

clear and compelling evidence that the RNC voluntarily,

knowingly, and intelligently waived certain First Amendment

rights.

The RNC alleges that the District Court Orders from

1990 and 2004 violate its First Amendment rights. However,

neither order imposes limitations on the RNC’s First

27

Amendment rights beyond those that the RNC voluntarily

waived in 1982 and 1987. In 1990, the Court held that the

RNC must provide a copy of the Consent Decree, or

information regarding unlawful practices under the Consent

Decree, along with any ballot security materials that the RNC

distributes to any state party. Despite the RNC’s arguments

before our Court, any restrictions on the RNC’s ability to

communicate and associate with state and local parties are

self-imposed and waived by the RNC entering into the Decree

in 1982 and 1987.

In 2004, the District Court issued an Order barring the

RNC from using a voter challenge list targeting precincts with

large African-American populations that the RNC had

compiled in coordination with the Ohio Republican Party.

The District Court found that the RNC had violated the

Decree both procedurally and substantively by participating

with the Ohio Republican Party in devising and implementing

the ballot security program and failing to obtain preclearance

for the program. The 2004 Order does not impose any

additional limitation on the speech rights of the RNC beyond

those present in the 1982 and 1987 Decree and modifications,

in which the RNC consented and agreed to certain restrictions

of its rights. Hence, neither the 1990 nor 2004 Orders present

a basis for a First Amendment challenge.

In 1982 and 1987, the RNC voluntarily agreed to

create and abide by the very provisions that it now challenges

as unconstitutional. The District Court’s enforcement of the

Decree against the RNC does not result in a First Amendment

violation. The District Court did not abuse its discretion in

denying the request to vacate the Decree on this basis.

2. Rufo Factors

28

We now address the three Rufo factors in turn.

a. Changed Factual Circumstances

The Decree and its 1987 modification aim primarily to

prevent the RNC from “using, [or] appearing to use, racial or

ethnic criteria in connection with ballot integrity, ballot

security or other efforts to prevent or remedy suspected vote

fraud” and to neither “hinder[] [nor] discourag[e] qualified

voters from exercising the right to vote.” (App. at 404–05.)

Given these purposes of the Decree, only a change that

decreases minority voter intimidation and vote suppression ex

ante can be a “significant change [that] warrants revision of

the decree.” Rufo, 502 U.S. at 383.

The RNC argues that the following factual changes

warranted vacatur or modification of the Decree: first, the

President and Attorney General of the United States and the

President of the RNC (former) are African American; 12

second, that minority voter registration and turnout have

12

The only witness called by the RNC at the evidentiary

hearing before the District Court was Thomas Josefiak, an

election law expert who was appointed by President Ronald

Reagan to serve as the Commissioner of the Federal Election

Commission from 1985 until 1992. Josefiak testified that,

since 1982, there has been a 41.6 percent increase in the

number of registered voters classified as black and a 201

percent increase in the number of registered voters classified

as Hispanic. The District Court discounted this increase

based on the concomitant increase in the overall population of

blacks and Hispanics. Democratic Nat’l Comm., 671 F.Supp.

2d at 598-99.

29

increased; and third, that increased availability of alternative

voting mechanisms such as early voting or permanent

absentee voting are more widely available. The RNC also

presented testimony at the evidentiary hearing before the

District Court that the appointment of African-Americans as

the RNC Chairman and Chief Administrative Officer

decreased the likelihood that the RNC would engage in ballot

security programs resulting in minority vote suppression.

Testimony presented by the RNC further claimed that “with

an African–American President, and an African–American

Attorney General, [] the laws that are already on the books

regarding voter fraud, voter intimidation, and voter

suppression are going to be actively pursued by this Justice

Department.” (Hr’g Tr. 65:22–66:2.)

The RNC argues that increases in minority voter

registration and voter turnout are changes in factual

circumstances rendering the Decree unnecessary because this

data “demonstrat[es] that minority voters are not being

suppressed.” (Appellant’s Br. 33.) Furthermore, the RNC

asserts that the availability of alternative voting methods,

such as early voting or permanent absentee voting, allows

voters who are worried about intimidation at precincts on

Election Day to avoid such intimidation by voting from home

or voting early. It contends that records of voters using these

alternative voting mechanisms undermine allegations of

disenfranchisement and that “the availability of provisional

ballots squelches any effort to disenfranchise a voter who

appears at the polls.” (Id. at 38.)

The RNC’s argument that the fact that President

Obama, Attorney General Eric Holder, RNC Chairman

30

Michael Steele, 13 and another RNC leader are minorities

justifies vacatur or modification of the Decree hardly requires

a serious response. The RNC posits that a minority President

and Attorney General of the United States increase the

likelihood of prosecution for violations of the Voting Rights

Act (“VRA”), such as intimidation of minority voters. Are

we to conclude that all issues that affect African-Americans

will now get greater funding, greater attention, and more

focus because of President Obama? Our jurisprudence cannot

depend on such assumptions.

Even assuming that VRA violations will be more

vigorously litigated by the current administration, that

litigation would likely be brought after the VRA has been

violated, so it will not prevent minority voter intimidation or

vote suppression ex ante. Similarly, a handful of minorities

temporarily 14 occupying leadership positions in the RNC does

not mean that minority voter intimidation or suppression will

decrease.

Contrary to the RNC’s assertions, the increase in

minority voter registration and voter turnout since 1982 does

not demonstrate that “minority voters are not being

suppressed.” (Appellant’s Br. 33.) The RNC has submitted

no evidence to support its supposition. Voter registration and

turnout data is not statistically relevant regarding the

13

Michael Steele served as the first African-American

chairman of the RNC from January 2009 until January 2011.

14

Even if the racial background of the nation’s or RNC’s

leaders makes voter intimidation and suppression less likely,

it is illogical to vacate the Decree due to the racial makeup of

the administration of the United States or the RNC.

31

argument that revision of the Decree is warranted. Moreover,

the increase in minority voter registration and voter turnout

could be evidence that the Decree is necessary and effective.

The RNC’s data on minority voter registration and turnout

demonstrates that, since the RNC consented to the Decree in

1982, minority voter registration and turnout have increased

significantly. The Decree’s purpose is to help ensure that

potential minority voters are not dissuaded from going to the

polling station to vote, as they might be if the RNC were

unfettered by the Decree.

Despite the RNC’s bald assertion to the contrary, the

availability of alternative voting mechanisms is not a factual

change that prevents polling place voter suppression and

intimidation. The RNC has presented no evidence

demonstrating how alternative voting mechanisms, such as

allowing voters to vote prior to Election Day or to mail in

their votes, would prevent the RNC from “using, [or]

appearing to use, racial or ethnic criteria in connection with

ballot integrity, ballot security or other efforts to prevent or

remedy suspected vote fraud” at polling stations. (App. at

404–05.) Furthermore, as the District Court notes, voters

should not have to avoid voting at polling stations on Election

Day in order to avoid voter intimidation.

None of these alleged factual changes renders the

continuation of the Decree inequitable. The District Court

did not abuse its discretion by declining to vacate or modify

the Decree based on the RNC’s asserted factual changes.

32

b. Changes in Law 15

The RNC’s arguments regarding changes in law

brought about by the enactments of the Motor Voter Law or

NVRA, BCRA, 16 and HAVA are only relevant to our review

if they render prospective application of the Decree

inequitable. To do that, they must have some bearing on the

purpose of the Decree — decreasing the RNC’s engagement

in minority voter intimidation and suppression. The RNC

asserts that the Motor Voter Law, BCRA, and HAVA

increase the risk of voter fraud and increase the ease with

which eligible voters can register to vote, vote, and file a

provisional ballot if they are challenged at polling stations.

Even if the RNC’s assertions are true, which has not been

established, the RNC has failed to carry its burden of

establishing that a significant change in circumstances

warrants revision of the Decree. Additionally, none of the

changes in law that the RNC puts forth make “one or more of

the obligations placed upon the parties [] impermissible under

federal law” or “make legal what the decree was designed to

prevent.” Rufo, 502 U.S. at 388.

15

We need not determine whether the alleged changes in First

Amendment law raised by the RNC render prospective

application of the Decree inequitable because we find that the

RNC waived any relevant First Amendment rights by

consenting to the 1982 and 1987 Decrees.

16

Because the RNC’s arguments regarding the BCRA center

on the Decree’s workability, the majority of our review of the

District Court’s opinion regarding the BCRA is included in

the workability discussion infra.

33

“One of the NVRA’s central purposes was to

dramatically expand opportunities for voter registration and to

ensure that, once registered, voters could not be removed

from the registration rolls by a failure to vote or because they

had changed addresses.” Welker v. Clarke, 239 F.3d 596,

598–99 (3d Cir. 2001) (citing 42 U.S.C. § 1973gg(b)). 17 The

NVRA authorizes election officials to use mailings to update

voter registration rolls. Additionally, the NVRA imposes

criminal penalties on individuals who submit false voter

registration forms, knowingly cast a forged ballot, or

17

In Welker v. Clarke, 239 F.3d 596 (3d Cir. 2001), we noted

that

To achieve this purpose,

the NVRA strictly limited

removal of voters based on

change of address and instead

required that, for federal elections,

states maintain accurate

registration rolls by using reliable

information from government

agencies such as the Postal

Service's change of address

records. The NVRA went even

further by also requiring the

implementation of “fail-safe”

voting procedures to ensure voters

would not be removed from

registration rolls due to clerical

errors or the voter's own failure to

re-register at a new address.

Id. at 599 (citing 42 U.S.C. § 1973gg-6(b)(1)).

34

manipulate the tabulation of votes, and it specifies criminal

penalties for intimidating, threatening, or coercing any person

who is registering to vote or voting. 42 U.S.C. §1973gg-

10(1)(A), 10(2).

The RNC argues that the NVRA renders the Decree

antiquated because it has led to significant increases in

minority voter registration and turnout. The RNC also asserts

that the NVRA creates an increased risk of voter fraud. This

argument, that the enactment of a law that expands voter

registration opportunities renders inequitable a Decree that

aims to prevent voter intimidation and suppression, is

unpersuasive. The District Court correctly notes that any

increase in minority voter registration or voter turnout caused

by the Motor Voter Law is irrelevant to the Decree because

“the Consent Decree was not designed to encourage minority

voter registration, but rather to prevent voter suppression.”

Democratic Nat’l Comm., 671 F. Supp. 2d at 614.

Additionally, the District Court cites evidence that the Motor

Voter Law reduces the threat of voter registration fraud, but

does not attempt to prevent voter suppression. Id.

Nor does the NVRA “make legal what the decree was

designed to prevent.” Rufo, 502 U.S. at 388. The NVRA

authorizes election officials, not the RNC, to use mailings to

update voter registration lists. 42 U.S.C. § 1973gg-6(c)-(d).

The NVRA does not authorize targeting such mailings at

predominantly minority precincts nor does the NVRA

authorize the presence of voter fraud security teams targeted

at predominantly minority precincts on Election Day, both

actions that the Decree is designed to prevent.

The NVRA provision that makes voter intimidation

subject to a criminal penalty is not relevant to the purpose of

35

the Decree because it would not prevent minority voter

intimidation or suppression. The provision allows for

criminal penalties to be imposed ex post, only after voters had

been intimidated and had lost their opportunity to cast their

ballots. This provision does not render inequitable the

application of the Decree, in which the RNC agreed not to

“us[e], [or] appear[] to use, racial or ethnic criteria in

connection with ballot integrity, ballot security or other

efforts to prevent or remedy suspected vote fraud.” (App. at

404–05.)

The “central provisions” of the BCRA were “designed

to address Congress’ concerns about the increasing use of soft

money and issue advertising to influence federal elections.”

McConnell v. FEC, 540 U.S. 93, 132 (2003). The

“BCRA made a number of dramatic changes to campaign

finance law to achieve these goals, including barring national

political parties from soliciting soft money.” Shays v. Federal

Election Comm'n, 528 F.3d 914, 918 (D.C. Cir. 2008) (citing

2 U.S.C. § 441i(a)). The BCRA also “barred state parties

from spending soft money on ‘federal election activity,’

including ‘get-out-the-vote activity’ and ‘voter registration

activity.’” Id. (quoting 2 U.S.C. § 441i(b)(1)).

The RNC argues that the BCRA’s prohibition on the

spending of soft money by state parties for voter registration

and get-out-the-vote activity has heightened the risk of voter

fraud because it is difficult to track the voter registration

efforts of the increased number of groups registering voters.

As the District Court mentions, the Decree does not prevent

the RNC from collaborating with non-party organizations to

register voters and the RNC has not demonstrated that any

ineligible voter registered by a non-party organization has

ever actually cast a vote. The RNC has not demonstrated that

36

this provision of the BCRA is a significant change in the law

that warrants revision of the Decree.

“HAVA is concerned with updating election

technologies and other election-day issues at polling places.”

Gonzalez v. Arizona, 624 F.3d 1162, 1184 (9th Cir. 2010).

One purpose of HAVA was “to prevent on-the-spot denials of

provisional ballots to voters deemed ineligible to vote by poll

workers.” Sandusky County Democratic Party v. Blackwell,

387 F.3d 565, 574 (6th Cir. 2004). 18 HAVA also established

complaint procedures to challenge alleged voting violations.

42 U.S.C. § 15512. The RNC argues that HAVA increases

the risk of voter fraud and reduces the risk of vote

suppression by allowing voters to cast provisional ballots.

The provisional ballot portion of HAVA is not aimed

at preventing voter suppression or intimidation and does not

render the prospective application of the Decree inequitable.

Despite the RNC’s assertions, the fact that HAVA affords

every voter the opportunity to cast a provisional ballot is only

effective if those voters are not intimidated by voter fraud

efforts, such as those targeted by the Decree. As the District

Court notes, voter intimidation could prevent voters from

entering the polls to obtain a provisional ballot. Democratic

Nat’l Comm., 671 F. Supp. 2d at 612–13, 616 (“Some voters .

18

“HAVA requires that any individual affirming that he or

she ‘is a registered voter in the jurisdiction in which the

individual desires to vote and that the individual is eligible to

vote in an election for Federal office . . . shall be permitted to

cast a provisional ballot.”” Sandusky County Democratic

Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (citing

42 U.S.C. § 15482(a)).

37

. . may choose to refrain from voting rather than wait for the

qualifications of those ahead of them to be verified . . . Others

may be prevented from waiting by responsibilities . . .” (citing

DNC Hr’g Ex. 18 at 6; RNC Hr’g Ex. 26 at 56; League of

Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th

Cir. 2008)). The opportunity to cast a provisional ballot is not

relevant to the purpose of the Decree because it does not

decrease minority voter intimidation or suppression.

The availability of complaint procedures for alleged

voting violations under HAVA does not “make legal what the

decree was designed to prevent.” Rufo, 502 U.S. at 388.

Moreover, the HAVA complaint procedures, unlike the

Decree, do not aim to prevent the RNC from targeting its

voter fraud efforts at precincts with higher populations of

minorities.

The District Court did not abuse its discretion when it

found that the Motor Voter Law, BCRA, and HAVA have

“not altered [the] calculus” of in-person voter fraud or voter

intimidation to an extent that justifies vacating or modifying

the Decree due to a change in law. Democratic Nat’l Comm.,

671 F. Supp. 2d at 613.

c. Public Interest

The RNC argues that vacating the Decree would

benefit the public interest by allowing the RNC to engage in

programs attempting to prevent voter fraud, which the RNC

alleges are hampered by the Decree. Additionally, the RNC

contends that there is little need to prevent the intimidation

and suppression of minority voters. Specifically, the RNC

asserts that voter fraud is a danger and that “political parties,

candidates, the Government, and the public all have an

38

undisputed interest in protecting the integrity of the election

process.” (Appellant’s Br. at 50.) Thus, the RNC argues that

it should be permitted to address voter fraud free from the

constraints of the Decree.

If the RNC establishes that “a durable remedy has been

implemented, continued enforcement of the order is not only

unnecessary, but improper.” Horne v. Flores, --- U.S. ----, ---

-, 129 S. Ct. 2579, 2595 (2009) (holding that the United

States Court of Appeals for the Ninth Circuit employed a

heightened standard for its Rule 60(b)(5) inquiry instead of

the required flexible approach). However, the RNC has

pointed to no remedy other than the Decree that prevents the

RNC from “using, [or] appearing to use, racial or ethnic

criteria in connection with ballot integrity, ballot security or

other efforts to prevent or remedy suspected vote fraud.”

(App. at 404–05.)

The District Court declined to determine whether laws

passed by Congress sufficiently address the dangers of voter

fraud, recognizing that such is not the task of the federal

court. Bartlett v. Strickland, 556 U.S. 1, ----, 129 S. Ct. 1231,

1245 (2009) (“Though courts are capable of making refined

and exacting factual inquiries, they ‘are inherently ill-

equipped’ to ‘make decisions based on highly political

judgments’ . . .”) (quoting Holder v. Hall, 512 U.S. 874, 894

(1994) (Thomas, J., concurring in judgment)). Instead, the

Court noted that Congress is better equipped to make this

determination by weighing the dangers of voter fraud against

the dangers of voter intimidation.

The District Court rejected the RNC’s argument that

the Decree must be vacated or modified because the risk of

voter fraud outweighs the risk of voter suppression and

39

intimidation. As the District Court correctly points out, the

Decree only requires preclearance for programs involving the

prevention of in-person voter fraud. Furthermore, the District

Court has never prevented the RNC from implementing a

voter fraud prevention program that the RNC has submitted

for preclearance, at least in part, because the RNC has never

submitted any voter fraud prevention program for

preclearance.

Although the RNC pointed to charges that were noted

in the Carter-Baker Commission Report against eighty-nine

individuals and fifty-two convicted individuals to

demonstrate the pervasiveness of voter fraud, those purported

instances of voter fraud ranged “from vote-buying to

submitting false voter registration information and voting-

related offenses by non-citizens.” (RNC Hr’g Ex. 26 at 45.)

Thus, only a fraction of that alleged fraudulent activity was

related to in-person voter fraud, which is the type of fraud

addressed in the Decree.

The FBI report that the RNC submitted regarding

irregularities in Wisconsin during the 2004 election did not

specify whether the voting irregularities under investigation

involved votes cast in person or votes cast through absentee

voting or some other alternative process. In support of the

notion that most alleged incidents of voter fraud are not

related to in-person voting and are, thus, irrelevant to the

Decree, the DNC submitted evidence of voting irregularities

in Florida during the 2004 election, which was also cited by

the RNC, that showed that “the majority of those accused of

wrongdoing were elected officials and political operatives.”

Democratic Nat’l Comm., 671 F. Supp. 2d at 607.

40

The Supreme Court has also noted the rarity of in-

person voter fraud. Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181, 194 (2008) (noting that there was “no evidence

of any [in-person voter] fraud actually occurring in Indiana at

any time in its history); see also id. at 226 (Souter, J.,

dissenting) (“[T]he State has not come across a single

instance of in-person voter impersonation fraud in all of

Indiana’s history.”); Democratic Nat’l Comm., 671 F. Supp.

2d at 609 (“Justice Stevens acknowledged that, of the

‘occasional examples’ of in-person fraud on which his ruling

was based, all but one had been shown to have been

‘overstated because much of the fraud was actually absentee

ballot fraud or voter registration fraud.’” (quoting Crawford,

553 U.S. at 196 n.12)). Thus, the RNC has not established

that in-person voter fraud is sufficiently prevalent such that

applying the Decree prospectively is no longer equitable.

Even if the public has an unmet need for the prevention of in-

person fraud, the Decree does not prevent the RNC from

combating in-person voter fraud if it obtains preclearance. If

the risk of voter fraud is as great and consequential as the

RNC alleges and an RNC voter security program is a

significant part of efforts needed to prevent that voter fraud, it

would seem that the RNC would have attempted to obtain

preclearance for a voter security program at least once since

1987.

The RNC argues that “minority voters are not being

suppressed,” and, thus, the Decree does not serve public

interest. (Appellant’s Br. 33.) The District Court noted as an

example, however, that the voter-challenge list in Malone

included 35,000 registered voters who were predominantly

minorities. Without the enforcement of the Decree

provisions, these voter-challenge lists that are racially-

41

targeted, in intent or in effect, could result in the intimidation

and deterrence of a number of voters.

When confronted with such targeted voter-challenge

lists, some eligible voters may choose to refrain from voting

instead of waiting for the verification of their own eligibility

or that of others ahead of them in line. (See, e.g., DNC Hr’g

Ex. 18 at 6 (quoting a former Political Director of the

Republican Party of Texas, who stated that photo

identification requirements “could cause enough of a dropoff

in legitimate Democratic voting to add three percent to the

Republican vote.”); RNC Hr’g Ex. 26 at 56 (portion of the

Carter-Baker Commission Report on “Polling Station

Operations,” in which the Report noted voter fraud security

in some minority communities may be “intimidating” and

that, during the 2004 election, “[p]roblems with polling

station operations, such as long lines, were more pronounced

in some places than others. This gave rise to suspicions that

the problems were due to discrimination . . .”).)

The District Court did not abuse its discretion by

finding that public interest concerns, including the prevention

of voter fraud and the prevention of voter suppression and

intimidation, do not justify vacatur or modification of the

Decree.

d. Workability

The RNC argued before the District Court that there

were workability issues that required modification of the

Decree, as a practical matter. The District Court held that

there were four workability issues that weighed in favor of

modification: (1) the potential inequity of the RNC being

subject to suits brought by entities who were not party to the

42

Decree when, under the BCRA, the RNC has to defend

lawsuits using “hard money,” while the DNC does not have to

spend any money on such suits because it would not be party

to them 19; (2) the twenty-day notice requirement for

preclearance prevents the RNC from combating mail-in voter

registration fraud in a number of states with later mail-in

voter registration deadlines; (3) the Decree lacks a clear

definition of normal poll watching activities and the parties

have not provided a definition, leading the RNC to refrain

from normal poll watching activities, which the Decree was

never intended to prohibit; and (4) the Decree lacked a

termination date.

The District Court, accordingly, modified the Decree

in the following ways: (1) allowed only parties to the Decree,

the DNC and NJDSC, to bring an enforcement action under

the Decree; (2) decreased the preclearance notice requirement

from twenty days to ten days; (3) provided clearer definitions

and examples of “ballot security” 20 and “normal poll

watching” 21 activities; and (4) added an eight-year expiration

19

The RNC would have to spend “hard money” on any

lawsuits because the “BCRA made a number of dramatic

changes to campaign finance law . . . , including barring

national political parties from soliciting soft money.”

Shays, 528 F.3d at 918 (citing 2 U.S.C. § 441i(a)).

20

“Ballot security” is defined to include “any program aimed

at combating voter fraud by preventing potential voters from

registering to vote or casting a ballot.” Democratic Nat’l

Comm., 671 F. Supp. 2d at 622. The modification also

includes a non-exhaustive list of ballot security programs.

21

“Normal poll-watch function” is defined as “stationing

individuals at polling stations to observe the voting process

43

date, December 1, 2017, to the Decree, allowing for an

extension of the Decree for another eight years if the DNC

proves by a preponderance of the evidence that the RNC has

violated the Decree.

In addition to determining whether the District Court

abused its discretion by declining to make more extensive

modifications to the Decree than it did based on workability

concerns, we analyze, also under the abuse of discretion

standard, whether the District Court’s “proposed modification

is suitably tailored to the changed circumstance.” Rufo, 502

U.S. at 391. As noted above, the modification “must not

create or perpetuate a constitutional violation”; it “should not

strive to rewrite a consent order so that it conforms to the

constitutional floor”; and a court should not try to modify a

consent order other than making those revisions that equity

requires because of the change in circumstances. Id.

The District Court held that the Decree should be

modified because the BCRA creates a potential inequity

between the RNC and the DNC if third parties are allowed to

bring suits to enforce the Decree against the RNC. Without

modification, the RNC would have to defend such third-party

suits with limited “hard money” because it cannot solicit “soft

money” under the BCRA while the DNC, not a party to such

suits, would not have to expend resources on these third-party

suits. Accordingly, the District Court modified the Decree so

and report irregularities unrelated to voter fraud to duly-

appointed state officials.” Democratic Nat’l Comm., 671 F.

Supp. 2d at 622. The modification includes a non-exhaustive

list of activities that do and do not fit into the Decree

definition of normal poll-watch function.

44

that only the DNC and NJDSC can bring an enforcement

action under the Decree so that both parties would have to

spend “hard money” on the enforcement action. This

modification eliminates any potential BCRA-caused inequity

in the prospective application of the Decree.

In this respect, the Court revised the Decree only to the

extent required because of the change in circumstances

brought about by the BCRA. Limiting the ability to bring

Decree enforcement actions to parties to the Decree is a

modification suitably tailored to the equitable concerns

brought about by the “hard money” restrictions in the BCRA.

The RNC argues that this modification does not

address the workability issues caused by the costly and

distracting enforcement actions filed shortly before Election

Days because the money the RNC would have to spend

defending those suits takes money away from the RNC’s

political efforts, regardless of whether the DNC also has to

spend money to bring those suits. The nature and timing of

election cycles may cause the need to defend against Decree

enforcement suits to arise at inconvenient times, but resolving

those issues before Election Day is crucial to enforcing the

Decree by ensuring access to the polls and preventing

suppression of minority votes.

In effect, the RNC contends that the Decree should be

vacated because it is unworkable for the RNC to spend any

money defending itself in enforcement actions. This

argument is not persuasive. When the RNC twice consented

to the Decree and gained its benefits, it should have

anticipated that it would likely need to spend money

defending itself in future enforcement actions. Neither

modification nor vacatur are justified “where a party relies

45

upon events that actually were anticipated at the time it

entered into a decree.” Rufo, 502 U.S. at 385.

The District Court noted that a number of states now

have voter registration deadlines less than twenty days before

the election and that the RNC has a valid interest in

preventing fraudulent voter registration. The District Court

modified the Decree by decreasing the notice requirement for

preclearance from twenty days to ten days.

The RNC argues that the ten-day preclearance period

should be eliminated because it forces the party to reveal its

Election Day strategy to the DNC in order to combat voter

fraud and is, therefore, unworkable. The RNC has requested

zero days for preclearance or, at least, some decrease in the

time period for the preclearance notice requirement. 22 The

RNC asserts that “any preclearance requirement is tantamount

to a prohibition on Election Day activities by the RNC”

because it means that the RNC must foresee Election Day

issues twenty to thirty-five days in advance of an election;

“forc[es] the RNC to disclose its tactical thinking and

Election Day strategy far enough in advance for the DNC and

others to craft counter-strategies”; and it “requires the RNC to

place equivalent numbers of poll watchers in all precincts,

regardless of political or practical considerations.”

(Appellant’s Br. at 52–54.)

The RNC’s argument is wholly speculative. The

RNC’s supposed knowledge and experience of unworkability

is mere conjecture because, since the preclearance provision

22

The RNC suggested two to three days for preclearance at

oral argument, but could not articulate a basis for such a

modification other than it would be better than ten days.

46

was added to the Decree in 1987, the RNC has never

attempted to obtain preclearance. Contrary to the RNC’s

argument, the preclearance provision does not require the

RNC to disclose its tactical thinking and Election Day

strategy except with regard to ballot security activities. The

RNC points to no statement of the District Court and no

provision of the Decree that requires the RNC “to place

equivalent numbers of poll watchers in all precincts.”

(Appellant’s Br. at 52–54.)

On the contrary, the Decree does not require any

preclearance for normal poll watching functions, so the

Decree would in no way prohibit the RNC from placing

different numbers of poll watchers in precincts. Further, there

is no basis for any RNC argument that the preclearance

provision requires the RNC to place the same number of voter

fraud security team members at each precinct. The RNC does

not know what level of program detail the District Court

would require before granting preclearance. 23 The

preclearance provision does not prevent the RNC from

achieving its objective of normal poll-watching, carrying out

approved ballot security programs, or implementing any other

Election Day strategies that do not “us[e], [or] appear[] to

use, racial or ethnic criteria in connection with ballot

integrity, ballot security or other efforts to prevent or remedy

suspected vote fraud.” (App. at 404–05.)

23

For example, perhaps the RNC could obtain preclearance

for a voter fraud security program that instructs its normal

poll watchers that, if they see a person who they believe is

voting more than once, they can report that potential fraud to

poll workers.

47

With no preclearance provision, the RNC could

implement any ballot security program and would only be

subject to enforcement of the Decree after potential minority

voter intimidation and suppression had already occurred.

Thus, the elimination of the provision would thwart the

Decree’s purpose of preventing minority voter intimidation

and suppression ex ante. The District Court shortened the

preclearance time to allow the RNC to combat more of the

potential voter registration fraud that might occur closer to

Election Day, a modification suitably tailored to address the

inequity the District Court identified.

Although the Decree was never intended to prohibit

normal poll watching activities, the RNC claims that is has

refrained from engaging in normal poll watching activities

because the Decree’s definitions of such activities are unclear

and it fears it would unintentionally violate the Decree. To

address this workability concern, the District Court modified

the Decree to provide clearer definitions and examples of

“ballot security” and “normal poll watching” activities. With

the District Court’s modifications, “[b]allot security” is

defined to include “any program aimed at combating voter

fraud by preventing potential voters from registering to vote

or casting a ballot,” 24 and “[n]ormal poll-watch function” is

24

The modification includes a non-exhaustive list of ballot

security programs:

the compilation of voter challenge

lists by use of mailings or

reviewing databases maintained

by state agencies such as motor

vehicle records, social security

records, change of address forms,

48

defined as “stationing individuals at polling stations to

observe the voting process and report irregularities unrelated

to voter fraud to duly-appointed state officials.” Democratic

Nat’l Comm., 671 F. Supp. 2d at 622.

The District Court’s modifications more clearly define

ballot security and normal poll-watch function under the

Decree and provide lists of examples of both. 25 The RNC

and voter lists assembled pursuant

to the HAVA; the use of

challengers to confront potential

voters and verify their eligibility

at the polls on either Election Day

or a day on which they may take

advantage of state early voting

procedures; the recording by

photographic or other means of

voter likenesses or vehicles at any

poling place; and the distribution

of literature informing individuals

at or near a polling place that

voter fraud is a crime or detailing

the penalties under any state or

federal statute for impermissibly

casting a ballot.

Democratic Nat’l Comm., 671 F. Supp. 2d at 622.

25

The modification also includes a non-exhaustive list of

activities that do and do not fit into the Decree definition of

normal poll-watch function:

[O]bservers may report any

disturbance that they reasonably

49

contends that it cannot engage in normal poll-watch functions

because the definitions of the terms remain unclear. Contrary

to the RNC’s argument that the District Court’s definitions

and non-exhaustive lists of examples “worsen the problem,”

(Appellant’s Br. at 55), the modifications of adding specific

definitions and examples of ballot security and normal poll-

watch functions give both the RNC and the DNC more clarity

regarding what types of activities require preclearance, which

do not require preclearance, and which are prohibited by the

Decree.

Given these modifications, any hardship to the RNC is

not a product of the terms of the Decree. Clarity allows the

RNC to engage in normal poll watching activities while still

believe might deter eligible voters

from casting their ballots,

including malfunctioning voting

machines, long lines, or

understaffing at polling places.

Such observers may not question

voters about their credentials;

impede or delay voters by asking

for identification, videotape,

photograph, or otherwise make

visual records of voters or their

vehicles; or issue literature

outlining the fact that voter fraud

is a crime or detailing the

penalties under any state or

federal statute for impermissibly

casting a ballot.

Democratic Nat’l Comm., 671 F. Supp. 2d at 622–23.

50

maintaining adherence to fulfillment of the Decree’s purpose.

The District Court’s modification is suitably tailored to

resolve the prior ambiguity and does not strive to conform to

the constitutional floor by allowing the RNC to engage in all

activities without preclearance. See Rufo, 502 U.S. at 391.

The modification clarifies the previous ambiguity.

The District Court agreed with the RNC that the lack

of an expiration date in the Decree was “inherently

inequitable.” Democratic Nat’l Comm., 671 F. Supp. 2d at

621. The District Court modified the Decree by adding an

eight-year expiration date, December 1, 2017, and allowing

for an extension of the Decree for another eight years if the

DNC proves by a preponderance of the evidence that the

RNC has violated the Decree. The RNC argues that the

District Court’s December 1, 2017 expiration date is an abuse

of discretion and that the appropriate Decree termination date

is either eight years after the parties entered into the Decree in

1982, eight years after the Decree’s modification in 1987, or,

at worst, eight years after the Malone litigation.

Although a considerable number of years have passed

since the RNC and DNC agreed to the Decree in 1982 and

1987, the parties entered the Decree voluntarily and for over a

quarter of a century neither party objected to the duration of

the Decree. The District Court did not abuse its discretion by

declining to vacate the Decree due to the length of time since

its entry. See BCTC, 64 F.3d at 889 (declining to hold that

“the mere passage of time” is itself “sufficient to constitute

the type of changed circumstances that warrant lifting of an

injunction”). Thus, it does not follow that the original

decision not to include an expiration date requires vacatur

now that the Decree has an expiration date.

51

The District Court noted that it was imposing a

termination date of eight years from its ruling because the

Civil Rights Division of the Department of Justice, which is

charged with enforcing the Voting Rights Act, also imposes

consent decrees with time limits of eight years, which can be

extended for good cause. The RNC has not shown that the

District Court’s decision to set a termination date of eight

years from the date of its order modifying the Decree with

provisions allowing for an extension of that termination date

for good cause is “arbitrary, fanciful or clearly unreasonable.”

Moyer, 473 F.3d at 542.

By adding an eight-year expiration date, December 1,

2017, to the Decree, the District Court modified the Decree to

remedy the inequity that it perceived to be caused by the lack

of expiration date. 26 Accepting arguendo that the Decree

26

Neither party argued before this Court that the District

Court abused its discretion by imposing a formerly non-

existent time limitation on the RNC’s obligations under the

Decree, thereby relieving the RNC of its burden to show a

significant change of fact or law to secure release from those

obligations. Thus, this issue is not before this Court and we,

accordingly, do not decide it. The District Court decided to

impose that time limitation based on a hypothetical situation

that it speculated might well occur in the future. The District

Court held as follows with respect to this matter:

The final consideration weighing

in favor of modification involves

the fact that the Consent Decree

does not include a date on which

the obligations it imposes on the

52

RNC will terminate. In failing to

include such an expiration date,

the parties have created a situation

in which the RNC is, at least

nominally, bound by those

obligations in perpetuity,

regardless of whether it continues

to engage in voter suppression

efforts or has any incentive to do

so. That situation is inherently

inequitable. For example, if at

any point in the future the RNC

succeeds in attracting minority

voters in such numbers that its

candidates receive the majority of

votes cast by those populations, it

will have no incentive to engage

in anti-fraud measures that have

the effect of deterring those voters

from casting their ballots. Under

the Consent Decree as currently

written, though, the RNC would

be required to pre-clear any such

measures with this Court, while

the DNC would be free to

implement ballot security

programs without doing so. In an

effort to avoid similar situations,

the Civil Rights Division of the

DOJ—the government entity

charged with enforcing the

VRA—imposes a time limit of

53

without a time limit is “inherently inequitable,” the provision

allowing for an extension of the Decree for another eight

years if the DNC proves by a preponderance of the evidence

the RNC has violated the Decree preserves the purpose of the

eight years on its consent decrees,

which may be extended for good

cause. . . . The Court believes that

such a provision is justified in this

case.

Democratic Nat’l Comm., 671 F. Supp. 2d at 621-22.

This Court draws attention to this issue only to make

clear that we have not resolved it by implication or otherwise.

It is at least doubtful that a district court could decide to

impose a time limitation within the bounds of its appropriate

discretion while simultaneously concluding that the RNC

retained an incentive to violate the Consent Decree and had

shown no other existing and relevant change of circumstance.

Passage of time alone is not normally regarded as a

significant change of fact. Building and Const. Trades v.

NLRB, 64 F.3d 880, 889 (3d Cir. 1995) (“[W]e are unwilling

to hold, and BCTC cites no persuasive authority to the

contrary, that the mere passage of time and temporary

compliance are themselves sufficient to constitute the type of

changed circumstances that warrant lifting an injunction.”).

Moreover, given that the obligations of a consent decree are

necessarily subject to the limitations of Rule 60(b)(5) and

terminable whenever prospective application would no longer

be equitable, the District Court’s characterization of the

RNC’s situation as “inherently inequitable” also seems

questionable.

54

Decree so that the modification does not rewrite the consent

order more than equity requires. Moreover, we do not adopt

the RNC’s argument that the District Court abused its

discretion by not starting the eight year period from the date

of the entry of the Decree or from its 1987 modification,

“thus requiring . . . immediate vacatur.” (Appellant’s Br. 42.)

The District Court concluded, with ample record support, that

the purpose of the Decree had not yet been fulfilled and

vacatur would not have been suitably tailored to its findings.

The RNC has not established by a preponderance of

the evidence that any workability issues remaining after the

District Court’s modification are so acute that prospective

application of the Decree is inequitable. The District Court

did not abuse its discretion by declining to vacate due to

workability.

The RNC has not established that any of the District

Court’s decisions were “arbitrary, fanciful or clearly

unreasonable.” Moyer, 473 F.3d at 542. Thus, the District

Court did not abuse its discretion by holding that the RNC did

not establish by a preponderance of the evidence that any of

the following four Rufo factors necessitated vacatur or

modifications beyond those ordered by the District Court: (1)

a significant change in factual conditions; (2) a significant

change in law; (3) that “a decree proves to be unworkable

because of unforeseen obstacles”; or (4) that “enforcement of

the decree without modification would be detrimental to the

public interest.” Rufo, 502 U.S. at 384. Furthermore, the

District Court’s modifications were suitably tailored to the

changed workability circumstances.

3. BCTC Factors

55

We noted in BCTC that a court determining whether

to vacate or modify a decree should respond to the specific set

of circumstances before it by considering factors unique to

the conditions of the case. BCTC, 64 F.3d at 888. The

factors raised in the District Court that are unique to the

circumstances of this case are whether the RNC has complied

or attempted to comply in good faith with the terms of the

Decree and the likelihood that the conduct sought to be

prevented will recur absent the Decree. For any change to

justify vacatur, it must be a significant change, rendering the

prospective application of the Decree inequitable. See

BCTC, 64 F.3d at 886.

The RNC claims that it has complied with the Decree

since 1987 and that it is highly unlikely that the RNC will

attempt to intimidate or suppress minority voters in the future

if the Decree is vacated. The District Court did not abuse its

discretion or err by considering the Malone finding that, in

2004, the RNC engaged in substantive and procedural

violations of the Decree. Although the panel’s decision was

vacated as moot by this Court sitting en banc, that vacatur did

not disturb the panel’s factual determination that the RNC had

violated the Decree. Furthermore, the District Court did not

rely on Malone’s preliminary injunction as precedent, but,

instead, merely considered its finding of fact regarding the

Decree violation as instructive regarding the RNC’s level of

compliance with the Decree. 27

27

Because the District Court is not using the Malone

judgment to “spawn[] any legal consequences” and the

Court’s consideration of the findings of fact has no impact on

“relitigation of the issues between the parties,” United States

v. Munsingwear, Inc., 340 U.S. 36 (1950), is inapposite. Id.

56

at 39–41 (holding that the practice for dealing with a

judgment that “has become moot while on its way [to the

Supreme Court] or pending [the Supreme Court’s] decision

on the merits is to reverse or vacate the judgment below and

remand with a direction to dismiss”).

The RNC insists that the District Court’s 2004

decision in the Malone proceeding has no “precedential

effect.” Here, however, the District Court did not give

“precedential effect” to the judgment in another case. The

issue of whether the RNC had violated the consent decree in

Malone’s situation was litigated before the District Court in

this case and all of the evidence submitted by the parties with

respect to that issue remains part of the record in this case.

The Court referred to its factual finding of a consent decree

violation in the Malone proceeding in response to the RNC’s

attempt to carry its burden by relying on the results in the

enforcement litigation that had occurred since 1982.

According to the RNC, the “slim record of enforcement

success against the RNC demonstrates that it has strictly

complied with the Consent Decree since 1987, and there is no

evidence to suggest that its behavior will change if the Decree

is vacated.” RNC Proposed Conclusions of Law, App. at

1264. In this context, the Court did not err in referring to and

relying upon its factual finding of a 2004 violation in the

Malone proceeding. Contrary to the RNC’s suggestion, it

was clearly not surprised by the District Court’s response to

its argument. Evidence from the Malone proceeding was

discussed by the witnesses at the evidentiary hearing and in

the ensuing briefing of the parties. See, e.g., App. at 1081-82,

1234-35.

57

Furthermore, the RNC’s position regarding Malone is

contradictory. For purposes of determining RNC’s

compliance with the Decree, the RNC argues that the Court

should not consider Malone in any way. However, for

purposes of determining from which point the eight-year

Decree expiration date should begin to run, the RNC has

mentioned that the 2004 Malone decision could be an

appropriate starting point. Even if the RNC had not violated

the Decree since 1987, that fact alone is not necessarily

sufficient to justify vacating the Decree because compliance

is the purpose of the Decree. See BCTC, 64 F.3d at 889

(declining to hold that “temporary compliance” is itself

“sufficient to constitute the type of changed circumstances

that warrant lifting of an injunction”). As the District Court

noted, any past compliance might have been “because the

Decree itself has deterred such behavior.” Democratic Nat’l

Comm., 671 F. Supp. 2d at 601.

Additionally, the District Court did not abuse its

discretion by finding that the RNC had not produced evidence

demonstrating a lack of incentive for the RNC to engage in

voter suppression and intimidation. The racial and ethnic

background of this nation’s political leadership, the RNC’s

leadership, and the electorate do not decrease the likelihood

that the RNC will suppress minority voters such that

prospective application of the Decree is inequitable. If the

RNC does not hope to engage in conduct that would violate

the Decree, it is puzzling that the RNC is pursuing vacatur so

vigorously notwithstanding the District Court’s significant

modifications to the Decree.

The RNC’s decision not to engage in normal poll-

watch functions or obtain preclearance for voter fraud

security programs does not allow us to assume past or future

58

compliance. On the contrary, the RNC’s refusal to engage in

normal poll-watch functions or to obtain preclearance may be

because the RNC, as it has argued, is not sure of the

difference between normal poll-watch functions and voter

fraud security programs. That the RNC has not engaged in a

normal poll-watch function and has not presented a request

for preclearance of a voter fraud security program that does

not disproportionately target minority voters leaves open the

possibility that the RNC, absent enforcement of the Decree,

would not comply with the Decree terms in the future. See

BCTC, 64 F.3d at 890 (noting that a party deciding “not to

picket at all” does not “show that [the party] has in fact

learned how to picket without treading on the prohibitions

against secondary boycott contained both in the law and the

various negotiated consent decrees”).

In light of the District Court’s modifications, the RNC

does not point to any significant change that renders

prospective application of the Decree inequitable. The

District Court did not abuse its discretion by declining to

vacate or modify the Decree because of BCTC factors.

IV. CONCLUSION

For the reasons set forth above, we will affirm the

judgment of the District Court.

59