Democratic Nat'l Comm. v. Republican Nat'l Comm.

Citation81 Fed.R.Serv.3d 1125,673 F.3d 192
Decision Date08 March 2012
Docket NumberNo. 09–4615.,09–4615.
PartiesDEMOCRATIC 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

OPINION TEXT STARTS HERE

John W. Bartlett, Angelo J. Genova (argued), Rajiv D. Parikh, Genova Burns, Newark, NJ, for Appellee, Democratic National Committee.

Bobby R. Burchfield (argued), Jason A. Levine, Vinson & Elkins, Washington, DC, for Appellant, Republican National Committee.

James R. Troupis, Middleton, WI, for Amicus Appellant, Republican Party of Wisconsin.Karl S. Bowers, Jr., Hall & Bowers, Columbia, SC, for Amici Appellants, Karl S. Bowers, Jr., Asheegh Agarwal, Esq., Roger Clegg, Esq., Robert N. Driscoll, Eric Eversole and Hans A. Von Spakovsky.Before: SLOVITER, GREENAWAY, JR., and STAPLETON, Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

In 1982, the Republican National Committee (RNC) and the Democratic National Committee (“DNC”) entered into a consent decree (the “Decree” or “Consent Decree”), which is national in scope, limiting the RNC's ability to engage or assist in voter fraud prevention unless the RNC obtains the court's approval in advance. The RNC appeals from a judgment of the United States District Court for the District of New Jersey denying, in part, the RNC's Motion to Vacate or Modify the Consent Decree.1 Although the District Court declined to vacate the Decree, it did make modifications to the Decree. The RNC argues that the District Court abused its discretion by modifying the Decree as it did and by declining to vacate the Decree. For the following reasons, we will affirm the District Court's judgment.

I. BACKGROUND
A. 1981 Lawsuit and Consent Decree

During the 1981 New Jersey gubernatorial election, the DNC, the New Jersey Democratic State Committee (DSC), Virginia L. Peggins, and Lynette Monroe brought an action against the RNC, the New Jersey Republican State Committee (RSC), John A. Kelly, Ronald Kaufman, and Alex Hurtado, alleging that the RNC and RSC targeted minority voters in an effort to intimidate them in violation of the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. §§ 1971, 1973, and the Fourteenth and Fifteenth Amendments to the Constitution of the United States. The RNC allegedly created a voter challenge list by mailing sample ballots to individuals in precincts with a high percentage of racial or ethnic minority registered voters and, then, including individuals whose postcards were returned as undeliverable on a list of voters to challenge at the polls. The RNC also allegedly enlisted the help of off-duty sheriffs and police officers to intimidate voters by standing at polling places in minority precincts during voting with “National Ballot Security Task Force” armbands. Some of the officers allegedly wore firearms in a visible manner.

To settle the lawsuit, the RNC and RSC entered into the Consent Decree at issue here. The RNC and RSC agreed that they would:

[I]n the future, in all states and territories of the United States:

(a) comply with all applicable state and federal laws protecting the rights of duly qualified citizens to vote for the candidate(s) of their choice;

(b) in the event that they produce or place any signs which are part of ballot security activities, cause said signs to disclose that they are authorized or sponsored by the party committees and any other committees participating with the party committees; (c) refrain from giving any directions to or permitting their agents or employees to remove or deface any lawfully printed and placed campaign materials or signs;

(d) refrain from giving any directions to or permitting their employees to campaign within restricted polling areas or to interrogate prospective voters as to their qualifications to vote prior to their entry to a polling place;

(e) refrain from undertaking any ballot security activities in polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct, or the actual conduct of, such activities there and where a purpose or significant effect of such activities is to deter qualified voters from voting; and the conduct of such activities disproportionately in or directed toward districts that have a substantial proportion of racial or ethnic populations shall be considered relevant evidence of the existence of such a factor and purpose;

(f) refrain from having private personnel deputized as law enforcement personnel in connection with ballot security activities.

(App. at 401–02.) 2 The RNC also agreed to, “as a first resort, use established statutory procedures for challenging unqualified voters.” ( Id.)

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 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

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 resident of Ohio, brought an enforcement action against the RNC, alleging that the RNC had violated the Consent Decree by participating in the compilation of a predominantly-minority voter challenge list of 35,000 individuals from Ohio. Malone's name was on the list. To compile the list, the RNC had sent a letter to registered voters in high minority concentration areas of Cleveland and the Ohio Republican Party sent a second mailing approximately a month later. Registered voters whose letters were returned as undeliverable were added to the challenge list.

Seeking solace pursuant to the Decree, Malone sought before the District Court a preliminary injunction barring the RNC and any state organizations with which it was cooperating from using the list in ballot security efforts.

On November 1, 2004, the DNC appeared before the District Court at an evidentiary hearing in support of Malone. The RNC argued that...

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