FAYETTEVILLE -- A group's attempt to stop the special election on the city's Uniform Civil Rights Protection ordinance has failed.
Washington County Circuit Judge Doug Martin on Thursday denied a motion for a temporary restraining order sought by Protect Fayetteville, the group opposing the proposed anti-discrimination law. That means early voting will continue today, and polls will be open Tuesday as scheduled.
However, complaints made in Protect Fayetteville's lawsuit still haven't been addressed. Also, the group said its legal team will study the possibility of appealing Martin's order.
The group filed its motion for a temporary restraining order Monday afternoon, less than 18 hours before early voting began. A renewed motion was filed Tuesday after Arkansas Attorney General Leslie Rutledge issued an opinion saying the ordinance and others like it are unenforceable under state law.
In his order addressing the restraining order request, Martin cited a 2008 Arkansas Supreme Court case as well as the Arkansas Judiciary's Rules of Civil Procedure, which state, "Upon the filing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the circuit court having jurisdiction to fix and announce a day of court to be held no sooner than two and no longer than seven days thereafter."
Martin said the two-day requirement didn't give him enough time for a hearing before voting began. A hearing that had been scheduled for today was canceled.
"The plaintiffs failed to pursue their petitions expeditiously," his order stated. "Waiting until the day before voting began to file the petition rendered it impossible for the court to fulfill (its) requirement."
His order echoed arguments made by City Attorney Kit Williams and Washington County Attorney Steve Zega in motions filed earlier in the day.
Danielle Weatherby, an officer for the pro-ordinance For Fayetteville campaign, applauded Martin's decision Thursday.
"We believe he did the right thing," Weatherby said. "His order recognizes that the 12th-hour attempt to stop this election is unfounded."
"The election will go forward as planned," she added. "It's important that voters get out there and exercise their democratic right to place their votes, so they have a say on this very, very important issue."
According to County Clerk Becky Lewallen, 2,767 people cast early ballots by 4:20 p.m. Thursday. Last year, 4,493 residents voted early -- just under 900 votes per day during five days of early voting. This year, an average of 922 votes have been cast per day. But, because Monday is a holiday, there will only be four days of early voting.
Residents can continue to cast early ballots from 8 a.m. to 4:30 p.m. today in the county clerk's office on the third floor of the courthouse, 280 N. College Ave.
Seventeen polling sites will be open from 7:30 a.m. to 7:30 p.m. Tuesday.
The lawsuit claims the City Council improperly referred the Uniform Civil Rights Protection ordinance to voters. Five of the council's eight members voted June 16 to advance the anti-discrimination law to its third and final reading. Mayor Lioneld Jordan cast the deciding sixth vote.
Travis Story, general counsel for Protect Fayetteville, said earlier this week the mayor isn't allowed under state law to vote when all aldermen are present. Williams contested his claim.
"Their interpretation that the mayor did not have a vote was totally without any real validity at all," Williams said Thursday. "The statute is crystal clear."
Arkansas Code Annotated 14-43-501 states, "The mayor shall have a vote to establish a quorum of the city council at any regular meeting of the city council and when his or her vote is needed to pass any ordinance, bylaw, resolution, order or motion."
The lawsuit also states the ordinance isn't allowed under Act 137, passed by state legislators earlier this year. Act 137 restricts cities and counties from enacting or enforcing "an ordinance, resolution, rule or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law."
The Arkansas Civil Rights Act of 1993 prohibits discrimination on the basis of race, religion, gender, national origin and disability but not based on someone's sexual orientation or gender identity. Story said the Fayetteville ordinance attempts to create a protected class and, thus, is illegal.
Williams has pointed to other sections of state law dealing with bullying in public schools and domestic-abuse shelters that mention sexual orientation and gender identity.
"The protected classifications are certainly there in state law, and, therefore, this is not a new protected classification," Williams said.
Story didn't return a phone call or text message after Martin's order Thursday, but Protect Fayetteville said in a prepared statement, "We are disappointed in the ruling.
"We believe denying the residents of Fayetteville their constitutional rights without a hearing, which was set for Sept. 4, is in error. The judge did not address the merits of the case, and the case will still move forward. Our legal team is currently reviewing our rights of appeal to the Arkansas Supreme Court."
An appeal of Martin's order denying a temporary restraining order hadn't been filed by the close of business Thursday.
Weatherby said Protect Fayetteville's complaint has no legal basis.
"We still believe and maintain that our ordinance is compatible with state law," she added. "We don't think there's merit to any of their allegations."
Martin as of Thursday hadn't set a date for any future hearing on the matter.
Fayetteville's ordinance, if approved, will prohibit specific acts of discrimination against gay, lesbian, bisexual and transgender residents. A seven-member, City Council-appointed commission would review complaints of discrimination if attempts at private mediation failed. Violators would be subject to fines of up to $100 on the first offense. Churches, religious schools and daycares and religious institutions of any kind are exempt from the ordinance's provisions.
Metro on 09/04/2015