Amicus Curiae Brief — Republican National Committee, Petitioner v. Mi Familia Vota, et al.

No. 25-1017

In the

Supreme Court of the United States

REPUBLICAN NATIONAL COMMITTEE,

Petitioner,

v.

MI FAMILIA VOTA, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Richard P. Hutchison

Landmark Legal Foundation

2405 Grand Boulevard,

Suite 420

Kansas City, MO 64108

Michael J. O’Neill

Counsel of Record

Matthew C. Forys

Landmark Legal Foundation

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 554-6100

mike@landmarklegal.org

Attorneys for Amicus Curiae

September 4, 2026

121259

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

STATEMENT OF INTEREST OF

AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

FACTUAL SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

Federal consent decrees not aimed at

remedying a violation of federal law or

authorized by state amendment cannot bar

the enforcement of state law . . . . . . . . . . . . . . . . . 6

A. Federal consent decrees do not override

duly enacted state laws w ithout

purporting to remedy an admitted or

adjudged violation of federal law . . . . . . . . . 7

B. The LULAC Consent Decree contravenes H.B. 2492, and contravened

Proposition 200 . . . . . . . . . . . . . . . . . . . . . . . . 9

C. The LULAC Consent Decree does not

remedy any violation of federal law and

was entered without any accompanying

amendment to Arizona law . . . . . . . . . . . . . 10

ii

Table of Contents

Page

D. The LULAC Consent Decree cannot

bar enforcement of H.B. 2492 . . . . . . . . . . . 11

E. Ignoring the supremacy of state law

over a federal consent decree that does

not remedy an admitted or adjudged

violation of federal law in a matter

expressly reserved to the states is

especially problematic . . . . . . . . . . . . . . . . . 12

II. Adjustments to how courts apply Federal

Rules of Civil Procedure 24 and 60(b) will

allow non-parties who may be affected by

the types of decrees at issue in this case to

better protect their interests . . . . . . . . . . . . . . . 14

A. Consent decrees implicating institutional reform and state officials without

any admitted or adjudged violation

of federal law raise federalism and

separation of powers concerns . . . . . . . . . . 14

B. A c o n s e n t d e c r e e i n v o l v i n g

institutional reform litigation and

non-adversarial state officials without

any admitted or adjudged violation

of federal law can bind affected nonparties who have little recourse to

challenge the decree . . . . . . . . . . . . . . . . . . 18

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Table of Contents

Page

C. Rule 24’s current procedural avenue

for non-parties seeking intervention

is too narrow in cases involving

institutional, non-adversarial consent

decrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

D. Intervening parties who file 60(b)(5)

motions to modify or vacate a consent

decree should be excepted from the

Rufo Standard in cases involving

institutional, non-adversarial consent

decrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iv

TABLE OF CITED AUTHORITIES

Cases

Page

Ariz. v. Inter Tribal Council of Ariz., Inc.,

570 U.S. 1 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13

Citizens for a Better Env’t v. Gorsuch,

718 F.2d 1117 (D.C. Cir. 1983) . . . . . . . . . . 7, 10, 15, 18

Cleveland Cnty. Ass’n for Gov’t by the People v.

Cleveland Cnty. Bd. of Comm’rs,

142 F.3d 468 (D.C. Cir. 1998) . . . . . . . . . . . . . . 8, 10-12

David B. v. McDonald,

116 F.3d 1146 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . 18

Del. Valley Citizens’ Council for Clean Air v. Pa.,

674 F.2d 970 (3d Cir. 1982) . . . . . . . . . . . . . . . . . . 20, 21

Dunn v. Carey,

808 F.2d 555 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . 8

Edwards v. City of Hou.,

78 F.3d 983 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 20

Frew v. Hawkins,

540 U.S. 431 (2004) . . . . . . . . . . . . . . . . . . 1, 3, 15-17, 22

Heath v. De Courcy,

888 F.2d 1105 (6th Cir. 1989) . . . . . . . . . . . . . . . . . . . 23

v

Cited Authorities

Page

Horne v. Flores,

557 U.S. 433 (2009) . . . . . . . . . . . . . . . . . . . . . 15, 17, 18

Imprisoned Citizens Union v. Ridge,

169 F.3d 178 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . 3

Kasper v. Bd. of Election Comm’rs,

814 F.2d 332 (7th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . 7

League of United Latin Am. Citizens of Ariz. v.

Reagan,

No. CV17-4102-PHX DGC (Ariz. Dist. Ct. 2018) . . . 5

Loc. No. 93, Int’l Ass’n of Firefighters, etc. v.

Cleveland,

478 U.S. 501 (1986) . . . . . . . . . . . . . . . . . . . 7, 14, 20-21

Miller v. French,

530 U.S. 327 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Milliken v. Bradley,

433 U.S. 267 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 12, 17

Pa. v. Rizzo,

530 F.2d 501 (3d Cir. 1976) . . . . . . . . . . . . . . . . . . . . . 20

Pa. v. Wheeling & Belmont Bridge Co.,

59 U.S. 421 (1856) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Peery v. City of Mia.,

977 F.3d 1061 (11th Cir. 2020) . . . . . . . . . . . . . . . . . . 18

vi

Cited Authorities

Page

People who Care v.

Rockford Bd. of Educ. School Dist. No. 205,

961 F.2d 1335 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 7

Perkins v. City of Chi. Heights,

47 F.3d 212 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . 7, 8

PG Publ’g Co. v. Aichele,

705 F.3d 91 (3d Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . 8

Railway Emps. v. Wright,

364 U.S. 642 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Rufo v. Inmates of Suffolk Cnty. Jail,

502 U.S. 367 (1992) . . . . . . . . . . . . . . . 12, 15, 19, 22-25

Stallworth v. Monsanto Co.,

558 F.2d 257 (5th Cir. 1977) . . . . . . . . . . . . . . . . . . . . 20

St. Charles Tower, Inc. v. Kurtz,

643 F.3d 264 (8th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 8

Swift & Co. v. United States,

276 U.S. 311 (1928) . . . . . . . . . . . . . . . . . . . . . . 7, 10, 18

Sys. Fed’n No. 91 Ry. Emps. Dep’t v. Wright,

364 U.S. 642 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tex. v. N.M.,

602 U.S. 943 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vii

Cited Authorities

Page

United States v. Blue Chip Stamp Co.,

272 F. Supp. 432 (C.D. Cal. 1967) . . . . . . . . . . . . . . . 21

United States v. ITT Cont’l Baking Co.,

420 U.S. 223 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Mich.,

131 F.4th 409 (6th Cir. 2025) . . . . . . . . . . . . . . . . . . . 21

United States v. Swift & Co.,

286 U.S. 106 (1932) . . . . . . . . . . . . . . . . . . . . . . . . 14, 23

United States Constitution

U.S. Const.:

Art. I, § 2, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Art. I, § 4, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Art. II, § 1, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

Amend. XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

viii

Cited Authorities

Page

Statutes And Regulations

National Voter Registration Act,

52 U.S.C. § 20501 et seq. . . . . . . . . . . . . . . . . 4, 5, 11, 12

Ariz. Rev. Stat.:

§ 16-121.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

§ 16-121.01(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

§ 16-152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

§ 16-165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

§ 16-166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

§ 16-166(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

Fed. R. Civ. P.:

Rule 24 . . . . . . . . . . . . . . . . . . . . . 4, 14, 19, 20, 22, 24, 25

Rule 24(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Rule 24(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Rule 60(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 14, 19, 22

Rule 60(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 19, 22-25

Rule 60(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ix

Cited Authorities

Page

Other Authorities

Chi., Ill., Annual Appropriation Ordinance for

Year 2020 (Nov. 26, 2019) . . . . . . . . . . . . . . . . . . . . . . 16

Chi., Ill., Annual Appropriation Ordinance for

Year 2021 (Nov. 24, 2020) . . . . . . . . . . . . . . . . . . . . . . 16

Chi., Ill., Annual Appropriation Ordinance for

Year 2022 (Oct. 27, 2021) . . . . . . . . . . . . . . . . . . . . . . . 16

Chi., Ill., Annual Appropriation Ordinance for

Year 2023 (Nov. 7, 2022) . . . . . . . . . . . . . . . . . . . . . . . 16

Chi., Ill., Annual Appropriation Ordinance for

Year 2024 (Nov. 15, 2023) . . . . . . . . . . . . . . . . . . . . . . 16

Chi., Ill., Annual Appropriation Ordinance for

Year 2025 (Dec. 16, 2024) . . . . . . . . . . . . . . . . . . . . . . 16

Chi., Ill., Annual Appropriation Ordinance for

Year 2026 (Dec. 20, 2025) . . . . . . . . . . . . . . . . . . . . . . 16

Consent Decree, State of Ill. v. City of Chi.,

No. 17-cv-6260 (N.D. Ill. 2019) . . . . . . . . . . . . . . . . . . 16

Heather Cherone, Taxpayers Paid $28.6M Over 7

Years for Chicago’s Police Monitors to Enforce

Consent Decree: Data, WTTW News (Mar. 30,

2026), https://tinyurl.com/2ner33yh . . . . . . . . . . . . . . 16

x

Cited Authorities

Page

Stephen A. Gardbaum, The Nature of Preemption,

79 Cornell L. Rev. 767 (1994) . . . . . . . . . . . . . . . . . . . . 6

IMT Monthly Statements, Independent Monitoring

Team: Chicago Police Department Consent

Decree, https://tinyurl.com/334npuzw (last

visited Aug. 31, 2026) . . . . . . . . . . . . . . . . . . . . . . . . 16-17

Michael W. McConnell, Why Hold Elections?

Using Consent Decrees to Insulate Policies

from Political Change, 1987 U. Chi. Legal F. 295

(1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

Off. of the Inspector Gen., Mega Project Review

of Los Angeles Metro Rail Red Line Project:

Federal Transit Administration (1998) . . . . . . . . . . . 16

Restatement (Second) of Contr., § 178(1) (A.L.I. 1981) . 6

Restatement (Second) of Contr., § 264 (A.L.I. 1981) . . . 6

Transcript of Oral Argument, Frew v. Hawkins,

540 U.S. 431 (2004) (No. 02-628) . . . . . . . . . . . . 1, 2, 25

1

STATEMENT OF INTEREST OF AMICUS CURIAE1

Amicus Cur iae Landmark Legal Foundation

(“Landmark”) is a national public-interest law firm

committed to preserving the principles of limited

government, separation of powers, federalism, and

originalist construction of the Constitution and individual

rights. Landmark has filed amicus briefs to restore the

separation of power in multiple cases, such as Seila Law,

LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020),

Consumers’ Rsch. v. Consumer Prod. Safety Comm’n,

145 S. Ct. 414 (2024), and Trump v. Slaughter, 146 S. Ct.

2283 (2026).

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case raises several long-unresolved issues

concerning the adverse effects of certain types of consent

decrees on federalism and the separation of powers. In

2003, Justice Scalia pinpointed these issues during oral

argument in Frew v. Hawkins, 540 U.S. 431 (2004). He

remarked that it “trouble[d]” him that some “consent

decrees are imposed upon . . . absolutely willing State

officers who want to be thrown into the briar patch.”

Transcript of Oral Argument at 50, Frew v. Hawkins,

540 U.S. 431 (2004) (No. 02-628) (emphasis added). Justice

Scalia offered an example:

1. No counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amicus Curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

2

A suit is brought against a . . . secretary of

health and human services in the State who

absolutely wants to do these wonderful things

for pediatric care that are not required by

Federal law. And if the State Attorney General

were not in the situation, I am very reluctant

to think that this official can go in and say, yes,

require me to do these wonderful things that

State law does not require, that Federal law

does not require, but that I would like to do,

signs the consent decree, and then we’re stuck.

Id. at 50–51. He later inquired whether “a change in

administrations [is] a change of circumstances . . . that

justifies [Federal Rule of Civil Procedure] 60(b) being

invoked?” Id. at 54. When counsel responded “[n]o,”

Justice Breyer interjected, “Is there then a way to deal

with the problem that Justice Scalia raised, which is a

serious problem I think?” Id. Justice Breyer explained

the problem further: there could be “all kinds of things

in [a consent] decree that may be very nice and really

helpful to people, but actually the legislature would never

pass them, and they have nothing to do with Federal law.

Now, what [Justice Scalia is] looking for is a remedy for

that situation.” Id. Counsel then quickly pivoted from

the hypothetical to the facts at hand, without directly

addressing the Justices’ concerns.

The consent decree (“LULAC Consent Decree”) in

this case, entered into by the League of United Latin

American Citizens (“LULAC”), then-Secretary of State

Michele Reagan, and Maricopa County Recorder Adrian

Fontes involves an institutional reform consent decree

analogous to the one hypothesized by Justice Scalia and

3

explored by Justice Breyer. It obligates state election

officials to take actions not required, but in fact contrary

to state law. It did not remedy any admitted or adjudged

violation of federal law. Pet. App. 476a, 478a. It also

involves an area of the law explicitly reserved to state

legislatures: the establishment and enforcement of voter

qualifications. Despite these infirmities, both the circuit

and district courts concluded the consent decree bars

the enforcement of a duly enacted Arizona state law. Pet.

App. 76a, 383a.

Both the district and circuit courts erred in concluding

that the LULAC Consent Decree prevented Arizona from

enacting House Bill (“H.B.”) 2492. In short, the decree

cannot “bind future legislative action that contradicts

the decree” and “prevent Arizona’s executive branch

officials from executing duly passed laws subsequently

enacted by the Arizona legislature.” Pet. App. 170a. And

legislative acts must take precedence over consent decrees

particularly when there is no finding of “current and

ongoing violation of federal law.” Pet. App. 106a (quoting

Imprisoned Citizens Union v. Ridge, 169 F.3d 178, 189

(3d Cir. 1999)).

But this case also involves the larger issue raised by

Justice Scalia in Frew v. Hawkins: the lack of remedies

available to non-parties in cases involving an institutional

reform consent decree entered by a willing state official

without an admitted or adjudged violation of federal law.

These cases, where state officials enter into agreements

w ith litigants in a non-adversarial context, raise

constitutional, federalism, and separation of powers issues.

Under the current procedural framework, non-parties

(such as state legislators) must overcome significant

4

hurdles involving timeliness and change in circumstances

to intervene and amend or set-aside an existing consent

decree. As explained below, adjustments to how courts

apply Fed. R. Civ. P. 24 and 60(b)(5), will allow non-parties

who may be affected by the types of decrees at issue here

to better protect their interests.

FACTUAL SUMMARY

This case originates from a challenge to H.B. 2492

and H.B. 2243, two Arizona laws enacted in 2022 as part

of an effort to increase security in voter registration and

decrease the likelihood non-citizens cast votes. Pet. App.

336a. H.B. 2492 imposed additional requirements on

individuals registering to vote, Ariz. Rev. Stat. § 16-121.01,

and H.B. 2243 established procedures for identifying

and removing ineligible individuals from the voter rolls.

Ariz. Rev. Stat. § 16-165. Challengers argue that these

provisions conflict with federal voting laws, including the

National Voter Registration Act (NVRA). National Voter

Registration Act, 52 U.S.C. § 20501 et seq.

These challenges also implicated a portion of

Proposition 200, Arizona’s 2004 voter-registration law,

Ariz. Rev. Stat. § 16-166 (involving voter qualifications),

and the LULAC Consent Decree, Pet. App. 474a, that

purported to both govern voter-registration practices

and bind Arizona election officials to comply with certain

federal requirements.

In 2004, Arizona enacted Proposition 200, a portion

of which required individuals registering to vote to

provide documentary proof of citizenship (“DPOC”) when

submitting registration applications. Ariz. Rev. Stat.

5

§ 16-152, invalidated by Ariz. v. Inter Tribal Council of

Ariz., Inc., 570 U.S. 1 (2013). The Inter-Tribal Council of

Arizona (“ITCA”) challenged Proposition 200 in 2006,

alleging that it violated the NVRA, which requires states

to use federal forms when registering voters. ITCA, 570

U.S. at 7. The federal forms did not require DPOC. The

Court ruled that the NVRA, which did not require DPOC,

preempted Proposition 200, requiring Arizona to register

voters lacking DPOC as federal-only voters. Id. at 20. This

decision invalidated the part of Proposition 200 regarding

voter registration forms, under Ariz. Rev. Stat. § 16-152,

but not voter registration qualifications, under Ariz. Rev.

Stat. § 16-166.

A related challenge arose in 2018 from a dispute

between LULAC and the then-Secretary of State Michele

Reagan. League of United Latin Am. Citizens of Ariz.

v. Reagan, No. CV17-4102-PHX DGC (Ariz. Dist. Ct.

2018). LULAC claimed that Proposition 200 violated the

First and Fourteenth Amendments by requiring different

standards of registration for state and federal voters, since

Arizona required DPOC for the state form but not the

federal form. Pet. App. 474a–475a. The parties resolved

this dispute via consent decree, but the Secretary denied

any violation of state or federal law. Pet. App. 476a, 478a.

The LULAC Consent Decree required county recorders

to register a state form applicant lacking DPOC as a “Fed

Only Voter,” Pet. App. 486a, rather than rejecting them,

as Proposition 200 directed. Ariz. Rev. Stat. § 16-166(F).

Immediately after the passage of H.B. 2492 and H.B.

2243, eight suits were filed and consolidated in the federal

district court. Pet. App. 13a. The district court ruled

that the NVRA preempted H.B. 2492 and that Arizona

6

must abide by the 2018 LULAC Consent Decree. Pet.

App. 381a, 383a. The Ninth Circuit affirmed the district

court’s statutory and consent decree rulings, finding

that, despite a change in state law, the consent decree

prohibited Arizona election officials from rejecting state

form applications without DPOC. Pet. App. 49a.

ARGUMENT

I.

Federal consent decrees not aimed at remedying

a violation of federal law or authorized by state

amendment cannot bar the enforcement of state

law.

Under the Supremacy Clause, the federal Constitution

and federal laws are the supreme “Law of the Land.” U.S.

Const. Art. VI, cl. 2. Any state law in direct conflict with

a constitutional or federal law must therefore be vacated.

Stephen A. Gardbaum, The Nature of Preemption, 79

Cornell L. Rev. 767, 770 (1994). Within states—contracts

and prospective orders are generally subject to state

law. When a contract conflicts with state law, without any

admitted or adjudged violation of federal constitutional

or statutory law, state law must prevail, and the contract

must be voided. See Restatement (Second) of Contr.,

§ 178(1) (A.L.I. 1981). New legislation has the effect of

discharging contractual duties or rendering prospective

court orders null. Restatement (Second) of Contr., § 264

(A.L.I. 1981); Pa. v. Wheeling & Belmont Bridge Co., 59

U.S. 421 (1856); Miller v. French, 530 U.S. 327 (2000).

Federal consent decrees create tension within this

framework when they contradict or bar enforcement of

state law without remedying any admitted or adjudged

7

violation of federal law. Concededly, not all consent

decrees purport to remedy violations of federal law. As

“the parties’ consent animates the legal force of a consent

decree[,]” Loc. No. 93, Int’l Ass’n of Firefighters, etc. v.

City of Cleveland, 478 U.S. 501, 525 (1986), “a district

court has power to enter a consent decree without first

determining that a statutory violation has occurred.”

Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117,

1125 (D.C. Cir. 1983) (citing Swift & Co. v. United States,

276 U.S. 311, 327 (1928)). But when a consent decree does

not explicitly remedy a violation of federal law, the mere

consent of the parties, cannot preempt a duly enacted state

law. If allowed, that decree would effectively assume the

legal weight of a state constitutional amendment or the

federal Constitution without having appealed to either

authority.

A.

Federal consent decrees do not override duly

enacted state laws without purporting to

remedy an admitted or adjudged violation of

federal law.

In general, parties to a consent decree may not

agree to “disregard valid state laws.” People who Care

v. Rockford Bd. of Educ. School Dist. No. 205, 961 F.2d

1335, 1337 (7th Cir. 1992); See also Perkins v. City of

Chi. Heights, 47 F.3d 212, 216 (7th Cir. 1995) (“While

parties can settle their litigation with consent decrees,

they cannot agree to ‘disregard valid state laws.’”)

(internal citation omitted). Thus, “district judges should

be on the lookout for attempts to use consent decrees to

make end runs around the legislature.” Kasper v. Bd. of

Election Comm’rs, 814 F.2d 332, 340 (7th Cir. 1987). This

is especially pertinent when state officials are party to

8

a decree. Some state laws are necessarily “designed to

limit the authority of public officeholders, to make them

return to other branches of government or to the voters

for permission to engage in certain acts.” Perkins, 47 F.3d

at 216 (quoting Dunn v. Carey, 808 F.2d 555, 560 (7th Cir.

1986)). And though state officials might “‘chafe at these

restraints and seek to evade them . . . ’ they may not do so

by agreeing to do something state law forbids.’” Perkins,

47 F.3d at 216 (quoting Dunn, 808 F.2d at 560).

Courts have recognized an exception to the rule: a

consent decree may disregard otherwise valid state law if

it purports to remedy an “admitted or adjudged” violation

of federal law. Cleveland Cnty. Ass’n for Gov’t by the

People (“CCAGP”) v. Cleveland Cnty. Bd. of Comm’rs, 142

F.3d 468, 477 (D.C. Cir. 1998). See also Perkins, 47 F.3d at

216 (“[If the] remedy is necessary to rectify a violation

of federal law, the district court can approve a consent

decree which overrides state law provisions.”); St. Charles

Tower, Inc. v. Kurtz, 643 F.3d 264, 270 (8th Cir. 2011);

PG Publ’g Co. v. Aichele, 705 F.3d 91, 116 (3d Cir. 2013).

CCAGP also identified a second exception: “by a local act

of the General Assembly (i.e., by special amendment of

state law).” CCAGP, 142 F.3d at 477.

Assuming the broadest scope of exception based

on the relevant precedent, then, courts have identified

limited circumstances where a federal consent decree

may override a duly enacted state law. If neither of these

circumstances is present, “the consent decree must comply

with state law;” if it does not, “it must be vacated.” Id.

9

B. The LULAC Consent Decree contravenes H.B.

2492, and contravened Proposition 200.

The LULAC Consent Decree contravenes Arizona

state law. H.B. 2492 makes it a “class 6 felony” to fail

to “reject an application for registration” on the state

form lacking DPOC. Ariz. Rev. Stat. § 16-121.01(C). In

contrast, the LULAC Decree requires county recorders

to accept state form applications lacking evidence of

citizenship if the county recorder can verify citizenship

through the automated processes of the Arizona Motor

Vehicles Division (MVD) “database Proxy Table.” Pet.

App. 484a. If the application cannot be verified by the

MVD, county recorders must notify the applicant and

switch their registration to that of a “Fed Only Voter.”

Pet. App. 486a. Neither scenario will result in the rejection

of an application. This conflict is not merely semantic or

administrative. A command to reject a deficient application

is the opposite of a command to process, verify, notify, and

register the applicant in a different status. The LULAC

Consent Decree therefore does not simply fill a procedural

gap left by state law; it displaces the consequence Arizona

H.B. 2492 attaches to the absence of DPOC.

Even before the passage of H.B. 2492, the LULAC

Consent Decree contravened Arizona state law. Proposition

200 similarly required county recorders to reject

registration lacking DPOC. Ariz. Rev. Stat. § 16-166(F).

While Secretary Reagan and Maricopa County Recorder

Fontes argued that “current technology” would allow

the dictates of the consent decree to be carried out in

accordance with Proposition 200, no technology is capable

of eliminating the fundamental conflict between the

directive to reject applications, on the one hand, and to

10

switch voter registration status, on the other. Pet. App.

476a. Regardless, H.B. 2492 places the LULAC Decree

in conflict with state law.

C.

The LULAC Consent Decree does not remedy

any violation of federal law and was entered

without any accompanying amendment to

Arizona law.

For the LULAC Consent Decree to override Arizona

law and therefore avoid being vacated, it must either

purport to remedy an admitted or adjudged violation

of federal law, or else have been approved by a special

amendment to the Arizona Constitution. Neither occurred.

The LULAC Consent Decree was not entered to

remedy any admitted or adjudged violation of federal law.

As the Court in Citizens for a Better Env’t concluded,

parties can enter into a consent decree without first finding

a violation of law. Citizens for a Better Env’t, 718 F.2d at

1125 (citing Swift & Co. v. United States, 276 U.S. at 327).

By extension, this suggests that the mere existence of a

consent decree is not enough to assume an admitted or

adjudged violation of federal law. LULAC and the Arizona

Students’ Association (“ASA”) alleged that the dual voter

registration process outlined in Arizona’s Proposition

200 violated the First and Fourteenth Amendments.

Despite these allegations, Secretary Reagan denied that

“Arizona’s voter registration policies violate the First and

Fourteenth Amendments or are otherwise illegal under

state or federal law.” Pet. App. 476a.

As in CCAGP, then, “the consent decree in this case

specifically provides that no violation” of federal law “is

11

to be inferred.” CCAGP, 142 F.3d at 477. Just as it was

irrelevant in CCAGP whether “[a district court] might

ultimately have concluded that the county’s previous

election method was in violation of the Voting Rights

Act[,]” so too is it irrelevant here whether the District

Court of Arizona might have concluded that Proposition

200 was in violation of the NVRA. Id. Such speculation

does not establish whether a violation of the NVRA “did

indeed exist, and none is to be presumed from the fact

of the consent decree’s existence.” Id. Again, there must

have been “an admitted or adjudged” violation of federal

law. Id. None is present here.

Given that there was no admitted or adjudged violation

of federal law present in the LULAC Consent Decree, a

special amendment to Arizona’s Constitution would have

been necessary to justify its contravening state law. Id.

Arizona passed no special Amendment to accommodate

the LULAC Consent Decree. It therefore does not fall into

either of the two circumstances which would permit a

party to enter a consent decree in violation of state law.

D.

The LULAC Consent Decree cannot bar

enforcement of H.B. 2492.

Because the LULAC Consent Decree violates Arizona

state law, does not purport to remedy any admitted or

adjudged violation of federal law, and was not supported

by an amendment to the Arizona State Constitution; it

cannot bar the enforcement of H.B. 2492. In fact, given

its direct conflict with H.B. 2492, it should be vacated. See

CCAGP, 142 F.3d 468 at 477.

12

The district court held both that the NVRA preempted

H.B. 2492 and that Arizona must comply with the LULAC

Consent Decree, and the Ninth Circuit affirmed both

rulings. But a federal statute and a federal consent decree

do not occupy the same constitutional position. If the

NVRA itself preempts a state-law rule, the Supremacy

Clause supplies the answer. If, however, a consent decree

imposes obligations that federal law does not require,

the decree cannot acquire independent preemptive force

merely because a federal court entered it. The consentdecree holding requires its own limiting principle.

Thus, a consent decree which involves neither an

adjudged nor admitted violation of federal law cannot

bar enforcement of an otherwise valid state law. CCAGP,

142 F.3d at 477; Rufo v. Inmates of Suffolk Cnty. Jail, 502

U.S. 367 (1992); Milliken v. Bradley, 433 U.S. 267, 282

(1977). To hold otherwise would allow a federal court to

usurp the state of Arizona’s constitutional duty to decide

the “[q]ualifications requisite” to vote in federal and state

elections. U.S. Const. Art. I, § 2, cl. 1; Amend. XVII.

E. Ignoring the supremacy of state law over a

federal consent decree that does not remedy an

admitted or adjudged violation of federal law

in a matter expressly reserved to the states is

especially problematic.

A federal consent decree overriding a duly enacted

state law involving the establishment and enforcement of

voter qualification standards—an area of the law expressly

reserved to the states—is particularly problematic. The

Voter Qualifications Clause provides that, for the House

13

of Representatives, “the Electors in each State shall

have the Qualifications requisite for Electors of the most

numerous Branch of the State Legislature.” U.S. Const.

Art. I, § 2, cl. 1. The Seventeenth Amendment adopts the

same language for Senate elections. U.S. Const. Amend.

XVII. The Constitution also provides that “[e]ach State

shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors” for President. U.S.

Const. Art. II, § 1, cl. 2.

The federal government is granted some power over

election law within the states, but that power is limited to

the regulation of federal elections. The Elections Clause

states that the “Times, Places and Manner of holding

Elections for Senators and Representatives, shall be

prescribed in each State by the Legislature thereof.” U.S.

Const. Art. I, § 4, cl. 1. Thus, states’ power to regulate

the “Times, Places and Manner” is subject to Congress’s

authority to “make or alter” those regulations. Id. Under

this framework, states have the authority to determine

voter qualifications and the primary authority to regulate

elections. Only the latter is subject to the preemptive

authority of Congress. That concern is sharper still.

The power to enforce voter qualifications necessarily

follows the power to set them: “the power to establish

voting requirements is of little value without the power to

enforce those requirements.” ITCA, 570 U.S. at 17. It would

be constitutionally suspect “if a federal statute precluded a

State from obtaining the information necessary to enforce

its voter qualifications.” Id. It is constitutionally egregious

when the asserted source of displacement is not a federal

statute enacted by Congress, but a consent decree entered

without any admitted or adjudged federal violation.

14

The LULAC Consent Decree does just that. In the

words of the errant Ninth Circuit opinion, the consent

decree limits the “ability of executive officers in Arizona

to enforce legislation contrary to the final judgment of the

federal decree.” Pet. App. 48a–49a. The LULAC Consent

Decree, in other words, limits the ability of Arizona’s

Secretary of State and county recorders to carry out the

mandates of duly enacted Arizona law. If such reasoning

were affirmed, and the consent decree allowed to stand, the

Court would be permitting something uniquely offensive:

the ability of a federal consent decree to effectively dictate

enforcement of the voter qualifications standards for the

state of Arizona.

II. Adjustments to how courts apply Federal Rules of

Civil Procedure 24 and 60(b) will allow non-parties

who may be affected by the types of decrees at issue

in this case to better protect their interests.

A.

Consent decrees implicating institutional

reform and state officials without any admitted

or adjudged violation of federal law raise

federalism and separation of powers concerns.

Consent decrees first appeared in the Court in the

context of federal antitrust proceedings. See, e.g., United

States v. Swift & Co., 286 U.S. 106 (1932). The Court has

long recognized that consent decrees “‘have attributes

both of contracts and of judicial decrees,’ a dual character

that has resulted in different treatment for different

purposes.” Loc. No. 93, Int’l Ass’n of Firefighters, 478

U.S. at 519 (quoting United States v. ITT Cont’l Baking

Co., 420 U.S. 223, 236 n.10 (1975)).

15

A consent decree no doubt embodies an

agreement of the parties and thus in some

respects is contractual in nature. But it is an

agreement that the parties desire and expect

will be reflected in, and be enforceable as,

a judicial decree that is subject to the rules

generally applicable to other judgments and

decrees.

Rufo, 502 U.S. at 378 (citing Railway Emps. v. Wright,

364 U.S. 642, 650–51 (1961)). As consent decrees continued

to evolve from their federal antitrust origins, they began

to emerge in the context of institutional reform litigation,

which demanded novel standards from the Court. See,

e.g., Rufo, 502 U.S. 367. Consent decrees in such contexts

often implicate state officials as parties to the decree. See

id.; Horne v. Flores, 557 U.S. 433 (2009); Frew, 540 U.S.

431. And, as stated before, such consent decrees can be

entered without any admitted or adjudged violation of

federal law. Citizens for a Better Env’t, 718 F.2d at 1125.

Consent decrees implicating institutional reform,

however, “often raise sensitive federalism concerns”

particularly when the litigation “involves areas of core

state responsibility.” Horne, 557 U.S. at 448. And these

federalism concerns are “heightened” when the decree

“has the effect of dictating state or local budget priorities.”

Id. This is because, “when a federal court orders that

money be appropriated for one program, the effect is often

to take funds away from other important programs.” Id.

Though the Court has made clear that “when the objects

of the decree have been attained,” responsibility for the

state’s obligations should be “returned promptly to the

16

State and its officials,” Frew, 540 U.S. at 442, the lack of

a specific termination date often results in “federal-court

oversight of state programs for long periods of time even

absent an ongoing violation of federal law.” Id. at 441.

Compliance with a consent decree over extended

periods of time, especially when paired with federal

monitoring, can prove extremely costly. For example,

while entering the 1996 Los Angeles Bus Consent Decree,

the city of Los Angeles predicted $550 million in capital

costs for compliance. Office of the Inspector General,

Mega Project Review of Los Angeles Metro Rail Red

Line Project: Federal Transit Administration 22 (1998).

There is also the example of the ongoing Chicago Police

Department Consent Decree, which took effect in 2019.

Consent Decree, State of Ill. v. City of Chi., No. 17-cv-6260

(N.D. Ill. 2019). The City of Chicago Annual Appropriation

Ordinance Records from 2020 to 2026 indicate that the city

has allotted $99,661,743 over the seven years the consent

decree has been in effect.2 $28.6 million has been paid out to

the “Independent Monitor Team” alone. Heather Cherone,

Taxpayers Paid $28.6M Over 7 Years for Chicago’s Police

Monitors to Enforce Consent Decree: Data, WTTW

News (Mar. 30, 2026), https://tinyurl.com/2ner33yh; See

also IMT Monthly Statements, Independent Monitoring

2. See Chi., Ill., Annual Appropriation Ordinance for Year

2020 (Nov. 26, 2019); Chi., Ill., Annual Appropriation Ordinance

for Year 2021 (Nov. 24, 2020); Chi., Ill., Annual Appropriation

Ordinance for Year 2022 (Oct. 27, 2021); Chi., Ill., Annual

Appropriation Ordinance for Year 2023 (Nov. 7, 2022); Chi., Ill.,

Annual Appropriation Ordinance for Year 2024 (Nov. 15, 2023);

Chi., Ill., Annual Appropriation Ordinance for Year 2025 (Dec. 16,

2024); Chi., Ill., Annual Appropriation Ordinance for Year 2026

(Dec. 20, 2025).

17

Team: Chicago Police Department Consent Decree,

https://tinyurl.com/334npuzw (last visited Aug. 31, 2026)

(monthly statements from which the $28.6 million amount

was drawn). The burdensome costs of compliance with

such decrees fall, in part, on the taxpayers of the state

or locality where the consent decree has taken effect.

While this case involves election administration rather

than police reform, the federalism concern is identical: a

consent decree not compelled by federal law may displace

legislative budgeting and policy authority.

Yet the costs of complying with these decrees are

never approved through any democratic process by

those ultimately footing the bill. Because such consent

decrees affect the office, not merely the individual, state

officials risk improperly depriving “future officials of their

designated legislative and executive powers.” Frew, 540

U.S. at 441. This includes the legislative body itself, which

state administrative officials can effectively circumvent

when they enter into an institutional reform consent

decree. Such consent decrees may force local or state

legislators to approve budget or policy changes to which

they, as the representatives of the people, had no part in

approving, but which have still become legally binding.

This circumvention poses a threat to the separation of

powers. State officials risk realizing this threat when they

enter into consent decrees “not limited to reasonable and

necessary implementations of federal law.” Id.

The Court has affirmed the principle that federal

consent decrees “exceed appropriate limits if they are

aimed at eliminating a condition that does not violate

[federal law] or does not flow from such a violation.” Horne,

557 U.S. at 450 (quoting Milliken, 433 U.S. at 282). A

18

district court nevertheless “has power to enter a consent

decree without first determining that a statutory violation

has occurred.” Citizens for a Better Env’t, 718 F.2d at

1125 (citing Swift & Co. v. United States, 276 U.S. at 327).

The LULAC Consent Decree is one such agreement.

It implicates both institutional reform litigation and state

officials, thus raising the federalism and separation of

powers concerns discussed above. By entering the LULAC

Consent Decree, then-Secretary Reagan and Maricopa

County Recorder Fontes bypassed the authority of the

state legislature and dictated the election law preferences

of the citizens of Arizona by means of a federal court

decree. In this way, the LULAC Consent Decree “usurp[s]

the role of elected officials and deprive[s] the people of

their right to a democratically accountable government.”

Peery v. City of Mia., 977 F.3d 1061, 1069 (11th Cir. 2020).

In such situations, the Court should ensure that affected

non-parties, like legislatures, have a procedural remedy.

Where it appears the “parties were not adverse,” (such as

this case) a need for this remedy is all the more apparent.

David B. v. McDonald, 116 F.3d 1146, 1148 (7th Cir. 1997).

B. A consent decree involving institutional reform

litigation and non-adversarial state officials

without any admitted or adjudged violation of

federal law can bind affected non-parties who

have little recourse to challenge the decree.

“[P]ublic officials sometimes consent to, or refrain

from vigorously opposing, decrees that go well beyond

what is required by federal law.” Horne, 557 U.S. at 448

(citing Michael W. McConnell, Why Hold Elections?

Using Consent Decrees to Insulate Policies from Political

19

Change, 1987 U. Chi. Legal F. 295, 317 (noting that

government officials may try to use consent decrees to

“block ordinary avenues of political change” or to “sidestep

political constraints”)). In other words, in certain cases, a

state official enters into a consent decree as a willing, or

at least a non-adversarial, party.

Allowing a state official to enter a consent decree

implicating institutional reform litigation without any

admitted or adjudged violation of federal law as a nonadversarial party further heightens the federalism and

separation of powers issues. It risks binding unconsenting

non-parties, such as the legislature, with little or no

opportunity for relief.

Under current procedural standards, only a party

may seek relief from a consent decree. Fed. R. Civ. P.

60(b). But in this scenario, the parties are non-adversarial,

seeking to continue, rather than to modify or vacate the

decree. Affected non-parties, like the legislature, may

wish to seek judicial relief if the decree obligates those

non-parties to take action contrary to their legal duties or

if the decree substantially violates principles of federalism

or separation of powers.

Current procedural standards make the path to

relief for non-parties who nonetheless have a cognizable

interest in this scenario extremely narrow. Even if an

affected outside party managed to intervene in a consent

decree of the type entered into by LULAC and Arizona

election officials by means of Rule 24 of the Fed. R. Civ.

P. (overcoming timeliness issues), and subsequently to

file a 60(b)(5) motion for relief, the current standard

for granting such motions under Rufo would likely not

20

resolve the issue. Assuming successors to the state official

party to the decree desired to remain in the agreement,

it could continue to bind the legislature, and through it

the people, to budget or policy preferences to which they

never consented, without opportunity for procedural relief.

C.

Rule 24’s current procedural avenue for nonparties seeking intervention is too narrow in

cases involving institutional, non-adversarial

consent decrees.

A non-party may seek to intervene in a consent decree

under Rule 24 of the Fed R. Civ. P. They may do so by

claiming either intervention of right, under Rule 24(a),

or by permissive intervention under 24(b). Fed R. Civ. P.

24(a), (b). Both standards require that the application for

intervention be timely. Circuit courts have established

different standards for what constitutes timeliness. See,

e.g., Edwards v. City of Hou., 78 F.3d 983, 1000 (5th

Cir. 1996) (quoting the four-factor test for timeliness

established in Stallworth v. Monsanto Co., 558 F.2d 257,

264–66 (5th Cir. 1977)); Del. Valley Citizens’ Council for

Clean Air v. Pa., 674 F.2d 970, 974 (3d Cir. 1982) (quoting

the three-factor test for timeliness established in Pa. v.

Rizzo, 530 F.2d 501, 506 (3d Cir. 1976)).

Generally, these standards assume that intervention

will occur before the entry of a decree. Thus, if a non-party

intervened in the proceedings of a non-adversarial consent

decree of the kind described above before the entry of

the decree, and met the subsequent standards outlined

in Rule 24(a) or (b) it could achieve the status of party. At

this point, the intervening party “is entitled to present

evidence and have its objections heard at the hearings on

whether to approve a consent decree, [but] it does not have

21

the power to block the decree merely by withholding its

consent.” Loc. No. 93, Int’l Ass’n of Firefighters, 478 U.S.

at 529. Nonetheless, “a court ‘cannot dispose of the valid

claims of nonconsenting intervenors’ when ‘the parties’

settlement would also affect the intervenor’s claims.”

United States v. Mich., 131 F.4th 409, 425 (6th Cir. 2025)

(quoting Tex. v. N.M., 602 U.S. 943, 953, 954 (2024)).

If, however, an affected non-party could not intervene

before the entry of the decree, it may still attempt to

intervene after the entry of the decree by demonstrating

“extraordinary circumstances sufficient to overcome the

presumption against intervention at this late date” Del.

Valley Citizens’ Council for Clean Air, 674 F.2d at 974.

This standard, however, is especially narrow, and generally

courts are directed to deny a “motion to intervene after

entry of a decree.” Id. (citing United States v. Blue Chip

Stamp Co., 272 F. Supp. 432, 436 (C.D. Cal. 1967)).

The Court, then, ought to recognize the risks

associated with consent decrees implicating institutional

reform and non-adversarial state officials not remedying

any admitted or adjudged violation of federal law as

contributing to a finding of “extraordinary circumstance.”

While these risks alone may not be wholly sufficient to

grant intervention after the entry of a consent decree,

they should weigh heavily in a court’s consideration. If

such a motion to intervene was denied, that court would

effectively be closing the last procedural avenue for relief

available to non-parties who could not intervene before the

entry of such non-adversarial consent decrees.

While success intervening by means of Rule 24(a) or

(b) before the formation of a consent decree is not a given,

22

Rule 24 presents a procedural path for non-parties seeking

relief from a non-adversarial consent decree. Even if an

intervenor’s presentation did not convince a court to adjust

the terms of the consent decree, that intervening party

would maintain the right to file a 60(b) motion to modify

or vacate the consent decree in the future. Rule 24 also

provides a path, albeit narrow, for affected non-parties to

intervene after the formation of a decree, provided that the

court consider the risks associated with a non-adversarial

consent decree of this kind as contributing to a finding of

“extraordinary circumstance.” If a concerned non-party

intervenes in this fashion, it could then file a 60(b) motion

to modify or vacate the consent decree.

D.

Intervening parties who file 60(b)(5) motions

to modify or vacate a consent decree should

be excepted from the Rufo Standard in cases

involving institutional, non-adversarial

consent decrees.

A party may seek relief from a consent decree under

Fed. R. Civ. P. 60(b) if “applying it prospectively is no

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

relief.” Fed. R. Civ. P. 60(b)(5), (6). A party specifically

seeking relief from an institutional reform consent decree

may do so through a given federal court’s “equitable

powers and the direction given by . . . Rule 60(b)(5)” of

the Fed. R. Civ. P. Frew, 540 U.S. at 441. Rule 60(b)(5)

“provides that a party may obtain relief from a court order

when ‘it is no longer equitable that the judgment should

have prospective application,’” Rufo, 502 U.S. at 383–384.

In Rufo, the Court established the current standard

governing 60(b)(5) motions to modify or vacate institutional

reform consent decrees. “[S]ound judicial discretion may

23

call for the modification of the terms of an injunctive

decree if the circumstances, whether of law or fact,

obtaining at the time of its issuance have changed, or new

ones have since arisen.” Rufo, 502 U.S. at 380 (quoting Sys.

Fed’n No. 91 Ry. Emps. Dep’t v. Wright, 364 U.S. 642, 647

(1991)). Thus, to successfully modify or vacate a consent

decree under Rule 60(b)(5), a party must demonstrate a

“significant change either in factual conditions or in law.”

Rufo, 502 U.S. at 384. Additionally, the party must show

that the proposed alteration is “suitably tailored to the

changed circumstance.” Id. at 383.

This more “flexible approach,” Id., unlike Swift’s

“grievous wrong” standard, United States v. Swift &

Co., 286 U.S. at 119, recognizes that institutional reform

consent decrees “reach beyond the parties involved

directly in the suit and impact on the public’s right to the

sound and efficient operation of its institutions.” Rufo, 502

U.S. at 381 (quoting Heath v. De Courcy, 888 F.2d 1105,

1109 (6th Cir. 1989)). In developing this approach, the

Court acknowledged both the role of consent decrees in

achieving enduring institutional reform and the potential

harm in prescribing permanent remedies that have the

capacity to bind many parties without their consent. Id.

at 367.

Yet Rufo assumes that parties to a decree are

adversarial; that is, the decree arose as a compromise to

settle a conflict. Given this, the Rufo standard is designed

to prevent an adversarial party from evading the duties

imposed on it by the consent decree. Rufo made the

standard for 60(b)(5) relief more flexible in instances

of institutional reform, but it undoubtedly remained a

standard designed to apply when parties are adversarial.

24

In contrast, when two non-adversarial parties enter

into a consent decree, an intervening third party should

not be encumbered by Rufo’s standard of demonstrating

a significant change in fact or law. The third party is not

at risk of evading the duties of an institutional reform

consent decree. Rather, it is seeking a procedural remedy

to protect its interests in the context of a non-adversarial

consent decree. It is, in other words, attempting to protect

itself against the voluntary abuses of state officials. The

Court may determine what standard must be met by

parties seeking such procedural remedy, but the Rufo

standard appears to be inapplicable here.

The Court should therefore provide an exception to the

Rufo standard for intervening parties that seek 60(b)(5)

relief from consent decrees implicating institutional reform

and non-adversarial state officials without remedying an

admitted or adjudged violation of federal law.

Landmark recognizes that concerned non-parties,

rather than pursuing the procedural motions discussed

above, could decide to initiate a lawsuit to challenge the

legitimacy of a consent decree. Or, if the concerned nonparty was a legislature, it could have passed legislation

rendering the consent decree null, as the Arizona

legislature did by passing H.B. 2492, thereby rendering

moot the LULAC Consent Decree.

Concerned non-parties nonetheless should have the

option of intervening and successfully adjudicating their

claims to seek relief from such non-adversarial consent

decrees. The Court should ensure that a procedural avenue

exists whereby a concerned non-party might seek relief.

Though a non-party might successfully intervene through

Rule 24, they would not currently be able to effectuate

25

the necessary modification of the consent decree through

60(b)(5) due to the inapplicability of the Rufo standard.

The Court, therefore, ought to grant an exception to the

Rufo standard to ensure that a procedural remedy for

the issue presented above is available to concerned nonparties. This exception would resolve the original issue

posed by Justice Scalia involving an officer of the state

who wants “to be thrown into the briar patch.” Transcript

of Oral Argument at 50, Frew, 540 U.S. 431 (No. 02-628).

While a state official might still attempt to enter into

such a consent decree, that agreement would no longer

have the potential to bind the legislature and its citizens

in perpetuity without any prospect for procedural relief.

CONCLUSION

The lower court erred in concluding that the LULAC

Consent Decree precluded Arizona from rejecting state

form registrations lacking proof of citizenship. A federal

consent decree cannot bind future legislatures and prohibit

administrative officials from enforcing duly enacted laws.

This is particularly applicable in cases involving a state’s

authority to set voter qualifications. The Court should

reverse this conclusion.

This case also presents an opportunity for the Court to

carve out a limited exception as to how courts apply Fed.

R. Civ. P. 24 and 60(b)(5) for parties seeking to intervene

in consent decrees involving institutional reform litigation

and non-adversarial state officials. If left unaddressed,

institutional reform consent decrees implicating willing

and unaccountable officers of the executive have the

potential to bind legislatures and their electorate in

perpetuity and, in so doing, undermine fundamental

principles of federalism and separation of powers.

26

Respectfully submitted,

Richard P. Hutchison

Landmark Legal Foundation

2405 Grand Boulevard,

Suite 420

Kansas City, MO 64108

Michael J. O’Neill

Counsel of Record

Matthew C. Forys

Landmark Legal Foundation

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 554-6100

mike@landmarklegal.org

Attorneys for Amicus Curiae

September 4, 2026