In response to Ohio caging operations immediately before the 2004 election, Ebony Malone, an African American Ohio voter, and Irving Agosto, a Hispanic Ohio voter, filed a motion to intervene in the DNC v. RNC case, charging that the RNC had violated the consent decree. The factual grounds for the complaint were that the Ohio Republican Party sent out non-forwardable letters to all newly registered voters and compiled a caging list from those that were returned. The state GOP proposed to use to challenge the eligibility of all 35,000 voters. The intervenors charged, and provided evidence that, the RNC coordinated and assisted in the caging operation.

The Ohio voters claimed standing to intervene in the case on the grounds that, as minority voters, they were among the intended beneficiaries of the New Jersey consent decrees. Judge Dickinson. R. Debevoise of the New Jersey District Court granted their motion to intervene, found that the RNC was involved in the Ohio caging operation in violation of the consent decrees, and issued an order enjoining the RNC from using the Ohio caging list to challenge Ohio voters. This order was entered on November 1, 2004, one day before the presidential election.

The RNC appealed the district court order to the U.S. Court of Appeals of the Third Circuit Court and moved for a stay of the injunction. On November 1, 2004, a three judge panel of the circuit court, denied the RNC’s request for a stay. In issuing their opinion denying the stay, the three judge panel held that it was likely that the proposed caging operation would “take effect in precinct where minorities predominate, interfering with and discouraging voters from voting in those districts.” The three-judge panel, also found ample support for the finding that the RNC collaborated and cooperated in the Ohio caging, citing emails between the organizations. Judge Fisher dissented from this opinion.

The RNC filed a motion for rehearing by the full court, which was granted along with a reversal of the decision by the three judge panel. The Third Circuit Court, sitting en banc, granted a stay of the district court’s injunction against the RNC caging operation. The RNC motion for a rehearing was based on an eleventh hour decision in the U.S. Court of Appeals for the Sixth Circuit which reversed two Ohio district court decisions in the early hours of election day, November 2, 2004, and granted a stay of injunctions against the caging operation by the Ohio Republican Party. This Ohio decision opened the doors for the Republican Party to deploy challengers in Ohio polling places as planned.

With just hours to go before the November 2, 2003 polls opened, intervenor Ebony Malone sought relief in the U.S. Supreme Court, seeking a stay of the Third Circuit en banc decision. Justice Souter denied the relief, citing a declaration filed by Ms. Malone after she made her application in which she advised the court that she had voted.

Litigation Documents

Plaintiff's Complaint. 1982.

Intervenor Motion to Re-Open DNC v RNC. October 2004.

Intervenor Exhibits A through G. October 2004

Intervenor Exhibits H through O. October 2004.

Intervenor Exhibits P through T. October 2004.

Defendant's Answer to Intervenor's Motion to Re-Open DNC v RNC. October 2004.

Defendant's Exhibits 1-9.