NEW JERSEY DEMOCRATIC STATE COMMITTEE v. NEW JERSEY OATHKEEPERS

Filing 4

MEMORANDUM OPINION/ORDER denying 2 Motion for TRO. Signed by Judge Jose L. Linares on 11/7/16. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 16-8230 (JLL)

NEW JERSEY DEMOCRATIC STATE
COMMITTEE,

MEMORANDUM OPINION AND
ORDER

Plaintiff,
V.

NEW JERSEY OATH KEEPERS,
Defendant.

LINARES, District Judge.
This matter comes before the Court by way of a motion for an order to show cause seeking
preliminary injunctive relief filed by Plaintiff, the New Jersey Democratic State Committee, on
November 4, 2016. (ECF No. 2).’ The Court decides this matter without oral argument pursuant
to Federal Rule of Civil Procedure 78. Having reviewed the papers filed in support of the pending
motion, and for the reasons stated below, the Court denies Plaintiffs motion for emergent relief.
Before a court can enter a preliminary injunction, the moving party must show: “(1) a
likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is
denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving
party; and (4) that the public interest favors such relief.” Kos Pharms., Inc. v. Andrx Corp., 369
f.3d 700, 708 (3d Cir. 2004); see also Ortho Pharm. Corp. v. Amgen, Inc., 882 F.2d 806, 812 (3d
Cir. 1989). furthernrnre, an award of emergent relief is an extraordinary remedy that a district
‘Although no formal opposition from the Defendant was received by this Court, immediately prior to the issuance of
this Opinion, the Court did receive a phone call from Stewart Rhodes, who represented himself as the President of the
National Oath Keepers organization, requesting the opportunity to be heard in this matter. Given the outcome of this
Opinion, and in light of the last minute contact with this Court from the Oath Keepers organization, the Court finds
that no hearing or further action from either party is necessary at this time.

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court can grant only in limited circumstances.

See Eltakkany v. Common Fleas C’ourt of

Montgomery County, No. 16-1544, 2016 WL 4011145, at *2 (3d Cir. July 27, 2016). Here, the
Court finds that Plaintiff has not met the first prong required to secure a preliminary injunction.
That is, the Court finds that Plaintiff has not shown a likelihood of success on the merits of its

claims. Kos Fharms., 369 F.3d at 70$.
Plaintiff brings claims under two federal statutes: Section 11(b) of the Voting Rights Act,
codified at 52 U.S.C.

§ 10307(b), and under 42 U.S.C. § 1985(3). Both statutes were enacted with

the goal of preventing voter intimidation and thereby protecting the public’s right to participate in
the electoral process.

Section 11(b) of the Voting Rights Act prohibits any person from

“intimidat[ing], threaten[ing], or coerc[ing], or attempt[ing] to intimidate, threaten or coerce any
person for voting or attempting to vote.

.

.

.“

52 U.S.C.

§ 10307(b). Similarly, Section 1985(3)

prohibits any persons from “conspir[ing] to prevent by force, intimidation, or threat, any citizen
who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or
in favor of the election of any lawfully qualified person as an elector for President or Vice
President, or as a member of Congress of the United States...

.“

42 U.S.C.

§ 1985(3).

Plaintiff argues that Defendant organization, the New Jersey Oath Keepers, have called
upon their members to “intimidate lawful voters from exercising their right to vote, targeting in
particular minority voters.” (Pl.’s Br. at 11). Plaintiff chiefly relies upon Defendant’s “Call to
Action” to its members, which was posted on the New Jersey Oath Keepers’ website on October
26, 2016. (ECF No. 1, Compl. ¶ 23). This “Call to Action” requests its members’ help to “prevent
criminal voter intimidation on election day, 2016.” (Id.). The Call proceeds as follows:

[W]e call on you to form up incognito intelligence gathering and crime spotting teams
and go out into the public on election day, dressed to blend in with the public, without
any Oath Keepers hat or T shirt on, and with video, still camera, and notepad in hand, to

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look for and document suspected criminal vote fraud or intimidation activities, by any
individuals, groups, or parties, and then report these incidents to your local police.
(Id.).

Plaintiff has not explained how compliance with the above directive is likely to result in
voter intimidation. Plaintiff likens this case to a 2004 case out of the District of South Dakota,
Daschte v. Thtine, No. 04-cv-4177, Dkt. No. 6 (D.S.D. Nov. 2, 2004). In Daschle, the District

Court issued a temporary restraining order in movant’s favor after finding that the movant was
likely to succeed on the merits of its voter intimidation claims. Id. Specifically, the Court found
“that there was intimidation particularly targeted at Native American voters in Charles Mix
County.” Id. The Court therefore enjoined the defendants from carrying out their plans to follow
Native Americans to and from polling places, and to copy or record Native Americans’ license
plates. Id.
This Court finds Daschle to be distinguishable from the case at bar. In contrast to Daschle,
where the Court found that defendants were targeting Native American voters, here, there is no
evidence that Defendant’s “Call to Action” is targeted at any particular group or groups of voters.
Plaintiff attributes anti-Semitic sentiment to Defendant by citing to an “anonymous flyer”
circulated in New Jersey’s Fifth Congressional District depicting the incumbent’s political
opponent with anti-Semitic slanders, and by citing a December 11, 2015 post on Defendant’s
Facebook page stating that “[t]he jews/communists have taken the teaching of the Constitution out
of our schools while at the same time their operatives run around saying it’s a relic of a bygone
era.” (Compl.

¶J 30-34).

Even if the Court were to construe this evidence as indicative of anti

Semitism imbued within the Oath Keepers, which it declines to do, Plaintiff has not plead or argued
that Defendant is targeting voters of the Jewish faith. While Plaintiff alleges that “it is a fair

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conclusion that the polling of interest to Defendant will be located in high minority voting
districts,” Plaintiff has not offered any evidence or factual pleadings sufficient to support this
conclusion.
Additionally, unlike Daschle where defendants’ planned actions of following Native
Americans to the poiis appears to have been taken in an open and obvious manner, here, Defendant
has requested that its members proceed “incognito” and “dressed to blend in with the public.”
(Pl.’s Br., Exh. C, at 4). Although Defendant has instructed its members to film groups of people
who appear to be traveling to multiple polling locations, the Oath Keepers have directed their
members “NOT [to] film in an obvious maimer. In general, stay out of view and observe at a
distance. Observe and record covertly, report accurately.” (Id.) (emphasis in original). The Oath
Keepers further advise their members to “make it hard on the criminal bad guys to know if they
are being observed and filmed.” (Id.). As such, the Court fails to see how Defendant’s members
could intimidate voters who are not even aware of their presence.
In summary, Plaintiff has not shown the requisite likelihood of success on the merits of its
underlying claims to support its request for the extraordinary remedy of emergent injunctive relief.
Accordingly,

IT IS on this

7th

day of November, 2016

ORDERED that Plaintiffs motion for a temporary restraining order (ECF No. 2) is hereby
DENIED.

IT IS $0 ORDERED.
L. LINARES, U.S.D.J.

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