2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-8-2012

Democratic Natl Comm v. Republican Natl Comm

Precedential or Non-Precedential: Precedential

Docket No. 09-4615

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1

 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-4615

_____________

DEMOCRATIC NATIONAL COMMITTEE; 

NEW JERSEY DEMOCRATIC STATE COMMITTEE; 

VIRGINIA L. FEGGINS; LYNETTE MONROE

v.

REPUBLICAN NATIONAL COMMITTEE; 

NEW JERSEY REPUBLICAN STATE COMMITTEE; 

ALEX HURTADO; RONALD C. KAUFMAN; JOHN 

KELLY

Republican National Committee,

Appellant

______________

APPEAL FROM THE JUDGMENT OF THE UNITED 

STATES DISTRICT COURT FOR THE DISTRICT OF 

NEW JERSEY

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

District Judge: Honorable Dickinson R. Debevoise

______________

Argued on December 13, 2010

______________
2

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
3

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

 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.

 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 
4

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:
5

[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;
6

(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

 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.) 

 The RNC also agreed to, “as a first resort, 

use established statutory procedures for challenging 

unqualified voters.” (Id.) 
7

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 
8

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.)
9

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 
10

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 predominantlyminority 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 
11

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 
12

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 posthearing 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 
13

“‘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 
14

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

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:

; (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.

 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)).
15

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 dulyappointed 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 
16

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 
17

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, AFLCIO 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 
18

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 
19

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 
20

motion to vacate or modify6

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. 

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. 

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. 
21

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

 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. 

 Third, we will 

inquire into whether the Court abused its discretion by 

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.
22

holding that its prescribed modifications to the Decree were 

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

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.

 Rufo, 

502 U.S. at 393.

1.

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. 

First Amendment

 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.
23

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 
24

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

 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).

 “Such volition and understanding 

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”).
25

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 
26

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”). 
27

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 
28

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
29

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

 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.

second, that minority voter registration and turnout have 
30

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 
31

Michael Steele,13

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

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.

14

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 

occupying leadership positions in the RNC does 

not mean that minority voter intimidation or suppression will 

decrease. 

 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. 
32

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.
33

b. Changes in Law15

The RNC’s arguments regarding changes in law 

brought about by the enactments of the Motor Voter Law or 

NVRA, BCRA,16

 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.

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. 

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.
34

“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

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

that

 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 

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)).
35

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. §1973gg10(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 
36

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 
37

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

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 . 

 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. 

 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)).
38

. . 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 
39

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 illequipped’ 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 
40

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 votingrelated 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. 
41

The Supreme Court has also noted the rarity of inperson 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 inperson 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-
42

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 
43

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 them19

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”

; (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. 

20 and “normal poll 

watching”21

 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)).

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

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 
44

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 dulyappointed 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.
45

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 
46

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’s argument is wholly speculative. The 

RNC’s supposed knowledge and experience of unworkability 

is mere conjecture because, since the preclearance provision 

 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.) 

 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.
47

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

 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.

 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.) 
48

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

 24 The modification includes a non-exhaustive list of ballot 

security programs:

and “[n]ormal poll-watch function” is 

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, 
49

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

 

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. 

 The RNC 

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 
50

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 pollwatch 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.
51

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. 
52

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

 26 Neither party argued before this Court that the District 

Court abused its discretion by imposing a formerly nonexistent 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:

 Accepting arguendo that the Decree 

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 
53

 

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 
54

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.
55

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
56

 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.

 
57

 

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. 
58

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 pollwatch functions or obtain preclearance for voter fraud 

security programs does not allow us to assume past or future 
59

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.