FAYETTEVILLE -- County officials said early voting will proceed today despite a lawsuit filed Monday afternoon seeking to block a public vote on Fayetteville's proposed Uniform Civil Rights Protection ordinance.
An attorney representing Protect Fayetteville, the group opposing the ordinance, filed the suit less than 18 hours before early voting was set to begin in the Sept. 8 special election. The suit asks Washington County Circuit Judge Doug Martin to issue a permanent injunction preventing the vote.
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Go to nwadg.com/documents to read a copy of Protect Fayetteville’s complaint and motion for for declaratory judgment.
Martin will review the matter at a 9 a.m. hearing Friday.
"The ordinance is in violation of state law and religious First Amendment freedoms, has a misleading ballot title and was passed without due process," Protect Fayetteville stated in a news release. "The plaintiffs believe that the City Council has overstepped its authority, is recklessly spending taxpayer funds and putting local businesses and the public at risk."
Meanwhile, early voting for the special election will continue as scheduled today through Friday at the Washington County Courthouse, said County Clerk Becky Lewallen and County Attorney Steve Zega.
Among several arguments in Protect Fayetteville's complaint is the City Council improperly referred the city's latest anti-discrimination law to voters during a June 16 meeting.
State law requires city ordinances to be read three times at three separate meetings unless at least two-thirds of the council agrees to suspend the rules and advance the measure during a single meeting.
Five of the council's eight members voted June 16 to advance the Uniform Civil Rights Protection ordinance to its third and final reading. Mayor Lioneld Jordan cast the deciding sixth vote.
In Protect Fayetteville's complaint, attorney Travis Story cites a 1984 Arkansas Supreme Court ruling and said the mayor is an ex-officio member of the City Council whose vote cannot be used to advance an ordinance past its first or second reading when all City Council members are present.
"Accordingly ... Ordinance 5781 should be held void," Story stated in the complaint, adding, "The citizens of the city of Fayetteville ... were not afforded an opportunity to be heard at a meaningful time and a meaningful place before the City Council."
City Attorney Kit Williams responded by referencing a section of Arkansas Code spelling out the powers and duties of mayors in first-class cities. The law reads, "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 state law says the mayor has a vote any time his vote is needed," Williams said.
For Fayetteville, the group advocating for passage of the Uniform Civil Rights Protection ordinance, said in a Monday news release, "We want to be clear that this election is completely legal and will go forth as planned."
"Protect Fayetteville's attempt to halt an election at the 11th hour is an affront to the democratic process," the news release stated, adding, "This desperate act is a ploy to suppress voter turnout from a campaign that knows they are going to lose."
Story, for his part, said the timing of Monday's filing -- at 2:37 p.m. -- was not a political ploy.
"We think the issue is so important that, no matter when it's brought, the people of Fayetteville still have to have their due process and general rights," he said. "The city can hold another election, but the taxpayers can't get their money back."
The special election is expected to cost city taxpayers up to $40,000.
Protect Fayetteville in Monday's complaint also claims the city's Uniform Civil Rights Protection ordinance is illegal under Act 137, which state Sen. Bart Hester, R-Cave Springs, introduced and Arkansas lawmakers approved 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."
Protect Fayetteville's complaint says the act directly prohibits ordinances like Fayetteville's.
State Rep. Bob Ballinger, R-Hindsville, asked for Attorney General Leslie Rutledge's opinion on the matter last month, but, Rutledge's office had not rendered one as of Monday.
Williams and Little Rock City Attorney Tom Carpenter have both opined Act 137 doesn't prevent cities from offering protections to LGBT residents.
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. But other sections of state law dealing with bullying in public schools and domestic-abuse shelters do mention sexual orientation and gender identity.
Williams and Carpenter have said, therefore, those protections have a legal basis and can be included in municipal ordinances.
"I would be prepared to defend the legality of that," Williams told the City Council on June 16.
Story made several requests of Martin in Monday's complaint, including a permanent injunction of the special election and a complete voiding of the anti-discrimination law. But the ultimate goal, he said, "is to say, 'Fayetteville residents have already spoken on this.'"
Voters in a Dec. 9 special election repealed a similar Civil Rights Administration ordinance with about 52 percent of voters against it. The previous ordinance -- like the current proposal -- sought to prohibit specific acts of discrimination against LGBT residents.
However, the previous ordinance did not contain as broad of religious exemptions as the Uniform Civil Rights Protection law. It also routed complaints through a single civil rights administrator rather than a seven-member commission appointed by the City Council. The latest ordinance also makes direct references to and borrows language from existing state law, such as the Civil Rights Act of 1993 and Arkansas Fair Housing Act.
"This is not the same ordinance," Williams said Monday. "But there's nothing in Amendment 7 (of the Arkansas Constitution) that says, if something has been submitted to the voters you can never do it again."
The changes between last year's failed ordinance and this year's proposal have been enough to win the support of one main opponent from last time around.
The Fayetteville Chamber of Commerce, which listed more than a dozen problems with the previous Civil Rights Administration ordinance in the run-up to the Dec. 9 special election, sent out a mass email Monday encouraging residents to vote "yes" on the new Uniform Civil Rights Protection law.
"Nondiscrimination must be an essential element of the economic development policy of our city and our chamber to attract and retain the business and industry that will permit our community to thrive," Clark said in the email.
Early voting is available from 8 a.m. to 4:30 p.m. Tuesday through Friday in the County Clerk's office on the third floor of the Washington County Courthouse, 280 N. College Ave.
Polling sites are scheduled to be open from 7:30 a.m. to 7:30 p.m. Sept. 8. Voters will be able to cast ballots at any one of Fayetteville's 17 polling sites.
To check your voter registration status, go to www.voterview.org. For a list of all 17 polling sites, see the Washington County Election Commission page at www.co.washington.ar.us.
Friday's hearing will be held in Judge Martin's courtroom on the fourth floor of the county courthouse.
The city of Fayetteville, Mayor Jordan, all eight City Council members, Washington County and Washington County's three election commissioners were named as defendants in Protect Fayetteville's motion for declaratory judgment.
In addition to Protect Fayetteville, Paul Sagan, Peter Tonnessen and Paul Phaneuf -- three residents who spoke against the Uniform Civil Rights Protection Ordinance at the June 16 City Council meeting -- are listed as plaintiffs.
NW News on 09/01/2015