Democratic Nat'l Comm. v. Republican Nat'l Comm.
Justia.com Opinion Summary: During the 1981 New Jersey gubernatorial election, the Democratic National Committee and others sued the Republican National Committee, and others, alleging that defendants targeted minority voters for intimidation, in violation of the Voting Rights Act, 42 U.S.C. 1971, 1973, and the Fourteenth and Fifteenth Amendments. RNC allegedly mailed sample ballots to individuals in precincts with a high percentage of minority registered voters and included individuals whose postcards were returned as undeliverable on a list of voters to challenge at the polls and enlisted off-duty officers to intimidate voters by standing at minority precinct polling places, wearing βNational Ballot Security Task Forceβ armbands. Some allegedly wore visible firearms. In 1982, RNC and DNC entered into a consent decree, national in scope, limiting RNC's participation in voter fraud prevention without advance court approval. The decree was modified in 1987 and was the subject of enforcement actions in 2000, 2004, and 2008. The district court denied, in part, a motion to modify or vacate the decree, but made modifications. The Third Circuit affirmed, stating that if RNC does not hope to engage in conduct that would violate the decree, it is puzzling that it would pursue vacatur so vigorously. despite significant modifications.
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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 ______________ 1 Before: SLOVITER, GREENAWAY, JR., and STAPLETON, Circuit Judges. (Opinion Filed: March 8, 2012) ______________ John W. Bartlett Angelo J. Genova (argued) Rajiv D. Parikh Genova Burns 494 Broad Street 6th Floor Newark, NJ 07102 Counsel for Appellee, Democratic National Committee Bobby R. Burchfield (argued) Jason A. Levine Vinson & Elkins 2200 Pennsylvania Avenue, N.W. Suite 500 West Washington, DC 20037 Counsel for Appellant, Republican National Committee James R. Troupis 7609 Elmwood Avenue Middleton, WI 53562 Counsel for Amicus Appellant, Republican Party of Wisconsin 2 Karl S. Bowers, Jr. Hall & Bowers 1329 Blanding Street Columbia, SC 29201 Counsel for Amici Appellants, Karl S. Bowers, Jr., Asheegh Agarwal, Esq., Roger Clegg, Esq., Robert N. Driscoll, Eric Eversole and Hans A. Von Spakovsky ______________ OPINION ______________ GREENAWAY, JR., Circuit Judge. In 1982, the Republican National Committee (âRNCâ) and the Democratic National Committee (âDNCâ) entered into a consent decree (the âDecreeâ or âConsent Decreeâ), which is national in scope, limiting the RNCâs ability to engage or assist in voter fraud prevention unless the RNC obtains the courtâs 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 RNCâs Motion to Vacate or Modify the Consent Decree. 1 Although the District Court declined to vacate the Decree, it did make modifications to the Decree. The RNC argues that the District Court abused its discretion by modifying the Decree 1 Judge Dickinson R. Debevoise, a United States District Judge, has presided over all district court proceedings regarding the Consent Decree at issue in this case, beginning with the 1981 lawsuit through the Motion to Vacate in 2009. 3 as it did and by declining to vacate the Decree. For the following reasons, we will affirm the District Courtâs judgment. I. BACKGROUND A. 1981 Lawsuit and Consent Decree During the 1981 New Jersey gubernatorial election, the DNC, the New Jersey Democratic State Committee (âDSCâ), Virginia L. Peggins, and Lynette Monroe brought an action against the RNC, the New Jersey Republican State Committee (âRSCâ), 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 (âVRAâ), 42 U.S.C. Â§Â§ 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 âNational Ballot Security Task Forceâ armbands. Some of the officers allegedly wore firearms in a visible manner. To settle the lawsuit, the RNC and RSC entered into the Consent Decree at issue here. The RNC and RSC agreed that they would: 4 [I]n the future, in all states and territories of the United States: (a) comply with all applicable state and federal laws protecting the rights of duly qualified citizens to vote for the candidate(s) of their choice; (b) in the event that they produce or place any signs which are part of ballot security activities, cause said signs to disclose that they are authorized or sponsored by the party committees and any other committees participating with the party committees; (c) refrain from giving any directions to or permitting their agents or employees to remove or deface any lawfully printed and placed campaign materials or signs; (d) refrain from giving any directions to or permitting their employees to campaign within restricted polling areas or to interrogate prospective voters as to their qualifications to vote prior to their entry to a polling place; 5 (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 401â02.) 2 The RNC also agreed to, âas a first resort, use established statutory procedures for challenging unqualified voters.â (Id.) 2 The RNC agreed that the RNC, its agents, servants, and employees would be bound by the Decree, âwhether acting directly or indirectly through other party committees.â (Id. at 402.) 6 B. 1987 Enforcement Action and Consent Decree Modifications In Louisiana during the 1986 Congressional elections, the RNC allegedly created a voter challenge list by mailing letters to African-American voters and, then, including individuals whose letters were returned as undeliverable on a list of voters to challenge. A number of voters on the challenge list brought a suit against the RNC in Louisiana state court. In response to a discovery request made in that suit, the RNC produced a memorandum in which its Midwest Political Director stated to its Southern Political Director that âthis program will eliminate at least 60,000â80,000 folks from the rolls . . . If itâs a close race . . . which Iâm assuming it is, this could keep the black vote down considerably.â Democratic Natâl Comm. v. Republican Natâl Comm., 671 F. Supp. 2d 575, 580 (D.N.J. 2009) (citing Thomas Edsall, Ballot Security Effects Calculated: GOP Aide Said Louisiana Effort âCould Keep the Black Vote Down,â 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 âin full force and effect.â (App. at 404.) In the 1982 Decree, the RNC had agreed to specific restrictions regarding its ability to engage in âballot security activities,â but that Decree did not define the term âballot security activities.â (App. at 401.) As modified in 1987, the Decree defined âballot security activitiesâ to mean âballot integrity, ballot security or other efforts to prevent or remedy vote fraud.â Democratic Natâl Comm., 671 F. Supp. 2d at 581. The modifications clarified 7 that the RNC âmay 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.â (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 daysâ notice and the Court determines that the program complies with the Consent Decree and applicable law. 3 C. 1990 Enforcement Action 3 The modifications state that the RNC shall not engage in, and shall not assist or participate in, any ballot security program unless the program (including the method and timing of any challenges resulting from the program) has been determined by this Court to comply with the provisions of the Consent Order and applicable law. Applications by the RNC for determination of ballot security programs by the Court shall be made following 20 days[sic] notice to the DNC . . . (App. at 405.) 8 In 1990, the DNC brought a lawsuit alleging that the RNC violated the Consent Decree by participating in a North Carolina Republican Party (âNCRPâ) 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 (âNCRPâ) 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 âfederal crime . . . to knowingly give false information about your name, residence or period of residence to an election official.â Democratic Natâl 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 âMalone enforcement actionâ) In 2004, the week before the general election for President, Ebony Malone (âMaloneâ), an African-American 9 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. Maloneâs 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 Maloneâs 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 ânormal poll watch functionâ 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 Maloneâs 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 RNCâs argument that Maloneâs 10 claims were non-justiciable because she would suffer irreparable harm if she had to endure multiple challenges to her eligibility to vote. The District Court found that the RNC had violated the procedural and substantive provisions of the Consent Decree by participating with the Ohio Republican Party in devising and implementing the ballot security program and failing to obtain preclearance for the program. The RNC requested that our Court stay the Order. The panel denied the request for a stay and affirmed the District Courtâs Order, noting that emails between the RNC and the Ohio Republican Party showed collaboration between the two organizations sufficient to support the District Courtâs 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 panelâs ruling and stayed the District Courtâs 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 Maloneâs 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 individualsâ voting eligibility. The DNC requested a 11 preliminary injunction to prevent the RNC from using the information gathered by private investigators in any ballot security efforts. The District Court denied the DNCâs 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 DNCâs 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 âNVRAâ or âMotor Voter Lawâ), 42 U.S.C. Â§Â§ 1973gg et seq., (b) the Bipartisan Campaign Reform Act of 2002 (âBCRAâ), 2 U.S.C. Â§Â§ 431 et seq., and (c) the Help America Vote Act of 2002 (âHAVAâ), 42 U.S.C. Â§Â§ 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 partiesâ 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 RNCâs argument that the Consent Decree was void because it 12 ââimproperly extend[s] to ... private conductâ and grants prospective relief beyond what the DNC could have achieved if the original 1981 action had been litigated.â Democratic Natâl 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 RNCâs arguments that the Decree should be vacated or modified due to changes in law, changes in fact, and the public interest in the RNC combating voter fraud. The Court found that neither the purported changes nor the public interest justified vacating or modifying the Decree. While the Court found that the Decree was not sufficiently unworkable to warrant vacating the Decree, the Court did find that four workability considerations justified modifying the Decree. Those considerations are that: (1) the potential inequity of the RNC being subject to suits brought by entities who were not party to the Decree when, under the BCRA, the RNC has to defend 13 lawsuits using âhard money,â 4 while the DNC would not have to spend any money on such suits because it would not be a party5; (2) the twenty-day notice requirement for preclearance prevents the RNC from combating mail-in voter registration fraud in a number of states with later mail-in voter registration deadlines; (3) the Decree lacked a clear definition of normal poll watching activities and the parties have not provided a definition, which has led the RNC to refrain from normal poll watching activities that the Decree was never intended to prohibit; and (4) the Decree lacked a termination date. Thus, although the District Court denied the request to vacate the Decree, the Court granted the motion to modify the Decree. The District Courtâs modifications can be summarized as follows: 4 ââ[C]ontributions subject to [the Federal Election Campaign Actâs (FECA), 2 U.S.C. Â§Â§ 431â55] source, amount, and disclosure requirementsâ came to be known as âhard money,â while â[p]olitical donations made in such a way as to avoid federal regulations or limitsâ came to be known as âsoft money.ââ 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) (âShays IIâ); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1652 (4th Ed. 2006)). 5 The RNC would have to spend âhard moneyâ on any lawsuits because the âBCRA made a number of dramatic changes to campaign finance law . . . , including barring national political parties from soliciting soft money.â Shays, 528 F.3d at 918 (citing 2 U.S.C. Â§ 441i(a)). 14 1. Only parties to the Consent Decree, RNC and DNC, may bring an enforcement suit regarding a violation of the Decree. 2. The preclearance period is shortened from 20 days to 10 days. 3. âBallot securityâ is defined to include âany program aimed at combating voter fraud by preventing potential voters from registering to vote or casting a ballot.â Democratic Natâl Comm., 671 F. Supp. 2d at 622. The modification also includes a non-exhaustive list of ballot security programs. 4. âNormal poll-watch functionâ is defined as âstationing individuals at polling stations to observe the voting process and report irregularities unrelated to voter fraud to dulyappointed state officials.â Id. The modification includes a non-exhaustive list of activities that do and do not fit into the Decree definition of normal poll-watch function. 5. The Decree does not apply to any RNC program that does not have as at least one of its purposes the prevention of fraudulent voting or fraudulent voter registration. 6. The Consent Decree expires on December 1, 2017 (eight years after the date of the modification). If, before that date, the DNC proves by a preponderance of the evidence that the RNC violated the Decree, the Decree will 15 extend for eight years from the date of the violation. The RNC filed a timely appeal. II. JURISDICTION AND STANDARD OF REVIEW The District Court had subject matter jurisdiction over the litigation pursuant to 28 U.S.C. Â§ 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. Â§ 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 Courtâs decision modifying and refusing to vacate the Consent Order for abuse of discretion. Delaware Valley Citizensâ 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 courtâs decision was âarbitrary, fanciful or clearly unreasonable.â 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 âfree, calculated and deliberate 16 choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment.â 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 âthe judgment is void,â âapplying it prospectively is no longer equitable,â or for âany other reason that justifies relief.â 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 (âBCTCâ), 64 F.3d 880, 887 (3d Cir. 1995) (holding that Rufoâs 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 âa party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.â 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 âa decree proves to be unworkable because of unforeseen obstaclesâ; or (4) that âenforcement of the decree without modification would be detrimental to the public interest.â Id. at 384. The Court elaborated on the change in law factor, holding that a decree must be modified if âone or more of the obligations placed upon the parties has become 17 impermissibleâ and that a decree may be modified if âlaw has changed to make legal what the decree was designed to prevent.â Id. at 388. Typically, courts should not grant modification or vacatur âwhere a party relies upon events that actually were anticipated at the time it entered into a decree.â Id. at 385. If a party agreed to the decree notwithstanding the anticipated change in conditions, âthat 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).â Id. Although Rufo provides a general interpretation of Rule 60(b)(5), it does not provide a âuniversal formulaâ 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 âequity demands a flexible response to the unique conditions of each caseâ); The additional factors a court should typically consider before modifying or vacating a decree under Rule 60(b)(5) include: the circumstances leading to entry of the injunction and the nature of the conduct sought to be prevented; the length of time since entry of the injunction; whether the party subject to its terms has complied or attempted to comply in good faith with the injunction; and the likelihood that the conduct or conditions sought 18 to be prevented will recur absent the injunction. Id. In weighing these factors, âthe court must balance the hardship to the party subject to the injunction against the benefits to be obtained from maintaining the injunctionâ and the court should also âdetermine whether the objective of the decree has been achieved.â 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, âthe district court should determine whether the proposed modification is suitably tailored to the changed circumstance.â Rufo, 502 U.S. at 391. The modification âmust not create or perpetuate a constitutional violationâ; it âshould not strive to rewrite a consent order so that it conforms to the constitutional floorâ; and a court should not try to modify a consent order except to make those revisions that equity requires, given the change in circumstances. Id. B. Discussion The RNC asks that our Court vacate a decree that has as its central purpose preventing the intimidation and suppression of minority voters. When, as here, a party voluntarily enters into a consent decree not once, but twice, and then waits over a quarter of a century before filing a 19 motion to vacate or modify6 the decree, such action gives us pause. Further, the RNC, with the advice of counsel, twice chose to limit indefinitely its ability to engage in certain activities enumerated in the Decree by entering into a decree with no expiration date. At present, Appellant seeks review of the District Court's order denying vacatur because it prefers not to comply with the Consent Decree at a critical political juncture â the upcoming election cycle. See Rufo, 502 U.S. at 383. However, we cannot disturb the District Courtâs opinion unless it abused its discretion, meaning that its decision was âarbitrary, fanciful, or clearly unreasonable,â Moyer, 473 F.3d at 542, when it found that the RNC failed to demonstrate that prospective application of the Decree, with the Courtâs modifications, would not be equitable. In reviewing the District Courtâs opinion and its modifications to the Decree, we do not take lightly Judge Debevoiseâs 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 judgeâs finding that a reorganization plan provided adequately for the equitable treatment of dissenters â[i]n view of the District Judge's familiarity with the reorganizationâ); 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 RNCâs 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 RNCâs view. 20 of the conditions relevant to a specific lawsuit because the judge had presided over the litigation for twenty years, from the time of its inception). We shall review whether the District Court abused its discretion by first holding that the Decree need not be vacated due to any First Amendment violation. 7 Next, we shall review whether the District Court abused its discretion regarding Rule 60(b)(5). First, we shall analyze whether the District Court abused its discretion regarding the broad changed circumstances factors outlined in Rufo. Second, we shall analyze whether the District Court abused its discretion regarding the BCTC factors specific to the parties and Consent Decree at issue. 8 Third, we will inquire into whether the Court abused its discretion by 7 It is not clear from Appellantâs brief whether the RNC raises this First Amendment argument under Rule 60(b)(5) or Rule 60(b)(6); however, we would reach the same conclusion under either rule because we do not find a First Amendment violation. We need not determine whether the District Court abused its discretion by holding that the Decree was not void due to its extension to private conduct and granting relief beyond that which the Court could order absent the Consent Decree because the RNC has not raised that issue on this appeal. 8 Although the District Court opinion did not specifically reference any BCTC factors as such, the opinion did consider factors relevant to the specific circumstances of this Consent Decree, including the BCTC considerations that the parties raised. 21 holding that its prescribed modifications to the Decree were âsuitably tailored to the changed circumstance[s].â 9 Rufo, 502 U.S. at 393. The RNC has not demonstrated, by a preponderance of the evidence, the circumstances necessary for vacatur or for modifications, other than those ordered by the District Court. For the reasons set forth herein, we find that the District Court did not abuse its discretion in declining to vacate the Decree or in making the modifications to the Decree that it ordered. 1. First Amendment The RNC argues that the Consent Decree should be vacated because the Decree violates the First Amendment in two ways. The RNC claims that the 2004 modifications to the Decree, which bar the RNC from engaging in ballot security activities absent District Court preclearance, serve as a prior restraint on the RNCâs right to engage in political speech. Additionally, the RNC alleges that the District Courtâs 1990 Order unconstitutionally forces speech by requiring the RNC to provide a copy of the Decree, or information regarding unlawful practices under the Decree, along with any ballot security instructional or informational materials that the RNC distributes to any state party. 9 The District Court did not expressly state that the modifications it ordered were suitably tailored to the changes in circumstances, but the Court discussed in some detail how the modifications would address the specific workability concerns. 22 As the District Court correctly noted, in this context, the First Amendment applies only to state action. Cent. Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972). Under Shelley v. Kramer, 334 U.S. 1 (1948), court enforcement of certain private agreements constitutes state action. Id. at 19â 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) (âthe state courtâs enforcement of an agreement between two private individuals can, in certain instances, constitute state actionâ (citing Shelley, 334 U.S. 1)). Although a courtâs enforcement of a consent decree can constitute state action under Shelley, Shelleyâs 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, 1004â05 (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, âin resorting to a state sanction, a private party must necessarily make the state privy to his discriminatory purposeâ). Even if court enforcement of this Consent Decree constitutes state action, âspeech rights are not absolute.â Tennessee Secondary Sch. Athletic Assân v. Brentwood Acad., 551 U.S. 291, 295 (2007). â[C]onstitutional rights . . . may be contractually waived where the facts and circumstances surrounding the waiver make it clear that the 23 party foregoing its rights has done so of its own volition, with full understanding of the consequences of its waiver.â 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 partyâs ability to speak or associate does not necessarily violate the First Amendment. Ry. Emps. Depât. 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 âclearâ and âcompellingâ evidence of waiver and that waiver is voluntary, knowing, and intelligent. 11 âSuch volition and understanding 10 Furthermore, court orders can include limits on the ability of a party to speak, as occurs in confidentiality provisions regarding settlement agreements, and a party could bring an action for a court to enforce a private confidentiality agreement. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787-89 (3d Cir. 1994). 11 See Edwards v. Arizona, 451 U.S. 477, 482 (1981) (waiver of right to counsel must be voluntary, knowing, and intelligent); Faretta v. California, 422 U.S. 806, 835 (1975) (same); D.H. Overmyer Co. of Ohio v. Frick Co.,405 U.S. 174, 185â86, (1972) (waiver of due process rights must be voluntary, knowing, and intelligent); Curtis Publâg 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 âan intentional relinquishment or abandonment of a known right or privilegeâ). 24 are deemed to be, and indeed have been held to be, present, where the parties to the contract have bargaining equality and have negotiated the terms of the contract, and where the waiving party is advised by competent counsel and has engaged in other contract negotiations.â Erie Telecomm., 853 F.2d at 1096. âThe question of waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law.â Brookhart v. Janis, 384 U.S. 1, 4 (1966). The Supreme Court has held that courts must ââindulge every reasonable presumption against waiverâ of fundamental constitutional rights.â 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 âupon the particular facts and circumstances surrounding that case, including the background, experience and conductâ of the waiving party. Id. Here, in 1982, the RNC, with the assistance of counsel, voluntarily entered into the Decree. In consideration of the DNC and other plaintiffs amicably resolving all matters that were or could have been raised in the 1982 lawsuit, the RNC signed a settlement agreement in which they committed, among other provisions, to refrain from undertaking any ballot security activities in polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct, or the actual conduct of, such activities there 25 and where a purpose or significant effect of such activities is to deter qualified voters from voting . . . (App. at 401â02.) The RNC agreed that the terms of the Decree would bind the RNC, its agents, servants, and employees, âwhether acting directly or indirectly through other party committees.â (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 âballot securityâ efforts meant âballot integrity, ballot security or other efforts to prevent or remedy voter fraud.â Democratic Natâl 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 daysâ notice to the DNC. Only with the District Courtâs 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 partyâs 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 âeffectively relinquish . . . First Amendment rightsâ). 26 That the Decree and its 1987 modification resolved all issues that could have been raised by the DNC and other plaintiffs in that litigation was sufficient consideration to evidence a waiver. See D.H. Overmyer Co. of Ohio v. Frick Co., 405 U.S. 174, 186-87 (1971) (holding that the presence of consideration constitutes some evidence of a waiver). The Supreme Court has held that there is a valid waiver of constitutional rights where the party that waived âwas 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].â 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 considerationâ the plaintiffs in the 1982 and 1987 lawsuits relinquished all claims that could have arisen from those actions. The RNC âmay 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.â 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 RNCâs First 27 Amendment rights beyond those that the RNC voluntarily waived in 1982 and 1987. In 1990, the Court held that the RNC must provide a copy of the Consent Decree, or information regarding unlawful practices under the Consent Decree, along with any ballot security materials that the RNC distributes to any state party. Despite the RNCâs arguments before our Court, any restrictions on the RNCâs 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 Courtâs enforcement of the Decree against the RNC does not result in a First Amendment violation. The District Court did not abuse its discretion in denying the request to vacate the Decree on this basis. 2. Rufo Factors 28 We now address the three Rufo factors in turn. a. Changed Factual Circumstances The Decree and its 1987 modification aim primarily to prevent the RNC from âusing, [or] appearing to use, racial or ethnic criteria in connection with ballot integrity, ballot security or other efforts to prevent or remedy suspected vote fraudâ and to neither âhinder [nor] discourag[e] qualified voters from exercising the right to vote.â (App. at 404â05.) Given these purposes of the Decree, only a change that decreases minority voter intimidation and vote suppression ex ante can be a âsignificant change [that] warrants revision of the decree.â Rufo, 502 U.S. at 383. The RNC argues that the following factual changes warranted vacatur or modification of the Decree: first, the President and Attorney General of the United States and the President of the RNC (former) are African American; 12 second, that minority voter registration and turnout have 12 The only witness called by the RNC at the evidentiary hearing before the District Court was Thomas Josefiak, an election law expert who was appointed by President Ronald Reagan to serve as the Commissioner of the Federal Election Commission from 1985 until 1992. Josefiak testified that, since 1982, there has been a 41.6 percent increase in the number of registered voters classified as black and a 201 percent increase in the number of registered voters classified as Hispanic. The District Court discounted this increase based on the concomitant increase in the overall population of blacks and Hispanics. Democratic Natâl Comm., 671 F.Supp. 2d at 598-99. 29 increased; and third, that increased availability of alternative voting mechanisms such as early voting or permanent absentee voting are more widely available. The RNC also presented testimony at the evidentiary hearing before the District Court that the appointment of African-Americans as the RNC Chairman and Chief Administrative Officer decreased the likelihood that the RNC would engage in ballot security programs resulting in minority vote suppression. Testimony presented by the RNC further claimed that âwith an AfricanâAmerican President, and an AfricanâAmerican 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.â (Hrâg Tr. 65:22â66:2.) The RNC argues that increases in minority voter registration and voter turnout are changes in factual circumstances rendering the Decree unnecessary because this data âdemonstrat[es] that minority voters are not being suppressed.â (Appellantâs 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 âthe availability of provisional ballots squelches any effort to disenfranchise a voter who appears at the polls.â (Id. at 38.) The RNCâs argument that the fact that President Obama, Attorney General Eric Holder, RNC Chairman 30 Michael Steele, 13 and another RNC leader are minorities justifies vacatur or modification of the Decree hardly requires a serious response. The RNC posits that a minority President and Attorney General of the United States increase the likelihood of prosecution for violations of the Voting Rights Act (âVRAâ), such as intimidation of minority voters. Are we to conclude that all issues that affect African-Americans will now get greater funding, greater attention, and more focus because of President Obama? Our jurisprudence cannot depend on such assumptions. Even assuming that VRA violations will be more vigorously litigated by the current administration, that litigation would likely be brought after the VRA has been violated, so it will not prevent minority voter intimidation or vote suppression ex ante. Similarly, a handful of minorities temporarily 14 occupying leadership positions in the RNC does not mean that minority voter intimidation or suppression will decrease. Contrary to the RNCâs assertions, the increase in minority voter registration and voter turnout since 1982 does not demonstrate that âminority voters are not being suppressed.â (Appellantâs Br. 33.) The RNC has submitted no evidence to support its supposition. Voter registration and turnout data is not statistically relevant regarding the 13 Michael Steele served as the first African-American chairman of the RNC from January 2009 until January 2011. 14 Even if the racial background of the nationâs or RNCâs leaders makes voter intimidation and suppression less likely, it is illogical to vacate the Decree due to the racial makeup of the administration of the United States or the RNC. 31 argument that revision of the Decree is warranted. Moreover, the increase in minority voter registration and voter turnout could be evidence that the Decree is necessary and effective. The RNCâs 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 Decreeâs 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 RNCâs 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 âusing, [or] appearing to use, racial or ethnic criteria in connection with ballot integrity, ballot security or other efforts to prevent or remedy suspected vote fraudâ at polling stations. (App. at 404â05.) 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 RNCâs asserted factual changes. 32 b. Changes in Law 15 The RNCâs arguments regarding changes in law brought about by the enactments of the Motor Voter Law or NVRA, BCRA, 16 and HAVA are only relevant to our review if they render prospective application of the Decree inequitable. To do that, they must have some bearing on the purpose of the Decree â decreasing the RNCâs 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 RNCâs 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 âone or more of the obligations placed upon the parties  impermissible under federal lawâ or âmake legal what the decree was designed to prevent.â Rufo, 502 U.S. at 388. 15 We need not determine whether the alleged changes in First Amendment law raised by the RNC render prospective application of the Decree inequitable because we find that the RNC waived any relevant First Amendment rights by consenting to the 1982 and 1987 Decrees. 16 Because the RNCâs arguments regarding the BCRA center on the Decreeâs workability, the majority of our review of the District Courtâs opinion regarding the BCRA is included in the workability discussion infra. 33 âOne of the NVRAâs 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.â Welker v. Clarke, 239 F.3d 596, 598â99 (3d Cir. 2001) (citing 42 U.S.C. Â§ 1973gg(b)). 17 The NVRA authorizes election officials to use mailings to update voter registration rolls. Additionally, the NVRA imposes criminal penalties on individuals who submit false voter registration forms, knowingly cast a forged ballot, or 17 In Welker v. Clarke, 239 F.3d 596 (3d Cir. 2001), we noted that To achieve this purpose, the NVRA strictly limited removal of voters based on change of address and instead required that, for federal elections, states maintain accurate registration rolls by using reliable information from government agencies such as the Postal Service's change of address records. The NVRA went even further by also requiring the implementation of âfail-safeâ 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. Â§ 1973gg-6(b)(1)). 34 manipulate the tabulation of votes, and it specifies criminal penalties for intimidating, threatening, or coercing any person who is registering to vote or voting. 42 U.S.C. Â§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 âthe Consent Decree was not designed to encourage minority voter registration, but rather to prevent voter suppression.â Democratic Natâl 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 âmake legal what the decree was designed to prevent.â 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. Â§ 1973gg-6(c)-(d). The NVRA does not authorize targeting such mailings at predominantly minority precincts nor does the NVRA authorize the presence of voter fraud security teams targeted at predominantly minority precincts on Election Day, both actions that the Decree is designed to prevent. The NVRA provision that makes voter intimidation subject to a criminal penalty is not relevant to the purpose of 35 the Decree because it would not prevent minority voter intimidation or suppression. The provision allows for criminal penalties to be imposed ex post, only after voters had been intimidated and had lost their opportunity to cast their ballots. This provision does not render inequitable the application of the Decree, in which the RNC agreed not to âus[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.â (App. at 404â05.) The âcentral provisionsâ of the BCRA were âdesigned to address Congressâ concerns about the increasing use of soft money and issue advertising to influence federal elections.â McConnell v. FEC, 540 U.S. 93, 132 (2003). The âBCRA made a number of dramatic changes to campaign finance law to achieve these goals, including barring national political parties from soliciting soft money.â Shays v. Federal Election Comm'n, 528 F.3d 914, 918 (D.C. Cir. 2008) (citing 2 U.S.C. Â§ 441i(a)). The BCRA also âbarred state parties from spending soft money on âfederal election activity,â including âget-out-the-vote activityâ and âvoter registration activity.ââ Id. (quoting 2 U.S.C. Â§ 441i(b)(1)). The RNC argues that the BCRAâs prohibition on the spending of soft money by state parties for voter registration and get-out-the-vote activity has heightened the risk of voter fraud because it is difficult to track the voter registration efforts of the increased number of groups registering voters. As the District Court mentions, the Decree does not prevent the RNC from collaborating with non-party organizations to register voters and the RNC has not demonstrated that any ineligible voter registered by a non-party organization has ever actually cast a vote. The RNC has not demonstrated that 36 this provision of the BCRA is a significant change in the law that warrants revision of the Decree. âHAVA is concerned with updating election technologies and other election-day issues at polling places.â Gonzalez v. Arizona, 624 F.3d 1162, 1184 (9th Cir. 2010). One purpose of HAVA was âto prevent on-the-spot denials of provisional ballots to voters deemed ineligible to vote by poll workers.â Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004). 18 HAVA also established complaint procedures to challenge alleged voting violations. 42 U.S.C. Â§ 15512. The RNC argues that HAVA increases the risk of voter fraud and reduces the risk of vote suppression by allowing voters to cast provisional ballots. The provisional ballot portion of HAVA is not aimed at preventing voter suppression or intimidation and does not render the prospective application of the Decree inequitable. Despite the RNCâs 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 Natâl Comm., 671 F. Supp. 2d at 612â13, 616 (âSome voters . 18 âHAVA requires that any individual affirming that he or she âis 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.ââ Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (citing 42 U.S.C. Â§ 15482(a)). 37 . . may choose to refrain from voting rather than wait for the qualifications of those ahead of them to be verified . . . Others may be prevented from waiting by responsibilities . . .â (citing DNC Hrâg Ex. 18 at 6; RNC Hrâg 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 âmake legal what the decree was designed to prevent.â 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 ânot altered [the] calculusâ 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 Natâl 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 âpolitical parties, candidates, the Government, and the public all have an 38 undisputed interest in protecting the integrity of the election process.â (Appellantâs 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 âa durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper.â 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 âusing, [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.â (App. at 404â05.) 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) (âThough courts are capable of making refined and exacting factual inquiries, they âare inherently illequippedâ to âmake decisions based on highly political judgmentsâ . . .â) (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 RNCâs argument that the Decree must be vacated or modified because the risk of voter fraud outweighs the risk of voter suppression and 39 intimidation. As the District Court correctly points out, the Decree only requires preclearance for programs involving the prevention of in-person voter fraud. Furthermore, the District Court has never prevented the RNC from implementing a voter fraud prevention program that the RNC has submitted for preclearance, at least in part, because the RNC has never submitted any voter fraud prevention program for preclearance. Although the RNC pointed to charges that were noted in the Carter-Baker Commission Report against eighty-nine individuals and fifty-two convicted individuals to demonstrate the pervasiveness of voter fraud, those purported instances of voter fraud ranged âfrom vote-buying to submitting false voter registration information and votingrelated offenses by non-citizens.â (RNC Hrâg 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 âthe majority of those accused of wrongdoing were elected officials and political operatives.â Democratic Natâl Comm., 671 F. Supp. 2d at 607. 40 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 âno evidence of any [in-person voter] fraud actually occurring in Indiana at any time in its history);