Democratic National Committee v. Republican National Committee, No. 09-4615; Third Circuit; opinion by Greenaway, U.S.C.J.; filed March 8, 2012. Before Judges Sloviter, Greenaway and Stapleton. On appeal from the District of New Jersey, No. 2-81-cv-03876. [Sat below: Judge Debevoise.] DDS No. xx-8-xxxx [59 pp.]

During the 1981 New Jersey gubernatorial election, the Democratic National Committee (DNC), the New Jersey Democratic State Committee (DSC), Virginia Peggins and Lynette Monroe brought an action against the Republican National Committee (RNC), the New Jersey Republican State Committee (RSC), John Kelly, Ronald Kaufman and Alex Hurtado, alleging the RNC and RSC targeted minority voters in an effort to intimidate them in violation of the Voting Rights Act of 1965 (VRA) and the Fourteenth and Fifteenth Amendments.

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 allegedly enlisted the help of off-duty sheriffs and police officers to intimidate voters by standing at polling places in minority precincts with “National Ballot Security Task Force” armbands. Some of the officers allegedly wore visible firearms.

To settle the lawsuit, the RNC and RSC entered into a consent decree, which is national in scope, and limits the RNC’s ability to engage or assist in voter fraud prevention unless the RNC obtains court approval in advance.

During the 1986 congressional elections, the RNC allegedly created a voter challenge list by mailing letters to black voters and, then, including individuals whose letters were returned as undeliverable on a list of voters to challenge. Voters on the list filed suit against the RNC. The RNC and the DNC settled the lawsuit by modifying the consent decree (the 1987 modification).

On Nov. 3, 2008, the RNC submitted a motion to vacate or modify the consent decree. The RNC argued (1) since the 1987 modification, the enactment of (a) the National Voter Registration Act of 1993 (the NVRA or Motor Voter Law), (b) the Bipartisan Campaign Reform Act of 2002 (BCRA), and (c) the Help America Vote Act of 2002 (HAVA) 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 complaint; (3) the decree was interpreted too broadly and inconsistently with the parties’ expectations at the time of 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 denied the request to vacate the decree but found four workability considerations justified modification of 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 lawsuits using “hard money,” while the DNC would not have to spend any money because it would not be a party; (2) the 20-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.

The RNC appeals, arguing that the District Court abused its discretion by modifying the decree as it did and by declining to vacate the decree.

Held: The RNC has not demonstrated the circumstances necessary for vacatur or for modifications to the consent decree aimed at preventing the intimidation and suppression of minority voters, other than those ordered by the District Court.

The RNC alleges that the District Court orders violate its First Amendment rights. However, neither order imposes limitations on the RNC’s First Amendment rights beyond those that the RNC voluntarily waived in 1982 and 1987. 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 that basis.

The RNC has not established that any of the District Court’s decisions were “arbitrary, fanciful or clearly unreasonable.” 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 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.” Furthermore, the District Court’s modifications were suitably tailored to the changed workability circumstances.

The District Court held that there were four workability issues that weighed in favor of modification.

The District Court 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 20 days to 10 days; (3) provided clearer definitions and examples of “ballot security” and “normal poll watching” activities; and (4) added an eight-year expiration date, Dec. 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 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 judgment of the District Court is affirmed.

— By Debra McLoughlin

For appellee Democratic National Committee — John W. Bartlett, Angelo J. Genova and Rajiv D. Parikh (Genova Burns). For appellant Republican National Committee — Bobby R. Burchfield and Jason A. Levine (Vinson & Elkins). For amici appellants: Republican Party of Wisconsin — James R. Troupis; Asheegh Agarwal et al. — Karl S. Bowers Jr. (Hall & Bowers).