Judge dismisses complaint seeking to block Fayetteville civil rights special election
Travis Story, general counsel for Repeal 119, explains that petitioners want a “For” vote to be a vote against Fayetteville’s new Civil Rights Administrator ordinance at a City Council meeting earlier this month.
Photo: Todd Gill, Flyer staff
Washington County Circuit Judge Mark Lindsay dismissed complaints Thursday in a lawsuit that aimed to block a Dec. 9 special election to uphold or repeal Fayetteville’s new Civil Rights Administration ordinance.
Kristin Higgins, the plaintiff in the case, asked the court to invalidate signatures used to call a public vote of the new ordinance on the grounds that canvassers used misleading information to convince residents to sign petitions.
Higgins said Robert Johnson, a canvasser who came to her house, told her he was collecting signatures in support of the new law when, in fact, he was gathering names in an effort to repeal the ordinance. She said she did not read the petition she signed, but instead relied on what the canvasser told her about the issue.
Johnson said he never told anyone a signature was a mark of approval for the ordinance, but instead made sure to tell people he was working to gather support for a public vote to repeal the new law.
Judge Lindsay said while it may be true that Higgins did not understand what she had signed, she failed to provide proof that Johnson intentionally misled her.
Lindsay said without proof of fraud, the burden of understanding what a petition means is on the person who signs it.
“If you signed a document, you are presumed to have read it,” said Lindsay. “The fact that you did not read it is not a defense unless you can prove that somebody coerced you or forced you to sign that document.”
The lawsuit claimed the ballot title submitted by petitioners – and later approved by the Washington County Election Commission – is confusing because it requires a “For” vote be used to repeal the ordinance.
For that reason, the lawsuit asked Judge Lindsay to throw out the petitioners’ language and either cancel the Dec. 9 special election or use language submitted by the City Council that states a “For” vote be a vote for the ordinance and an “Against” vote to be a vote against the ordinance.
Lindsay found that the ballot language submitted by petitioners is sufficient, and that it meets all requirements of state law. He said he did not believe it was misleading and that the choices were clear.
“I believe that a person of average intelligence who reads the ballot in full can see that it is to repeal an ordinance and that they are either voting for repeal or against repeal,” said Lindsay, who added that copies of the ordinance are always available at polling locations.
Lindsay said it’s not uncommon for petitioners to seek repeal of a new law, and pointed to two other initiatives on the upcoming Nov. 4 ballot in Washington County were voters will be asked to vote for or against repeal of an item.
He also said it’s the duty of the petitioner to submit ballot titles, and that neither the Election Commission nor the Fayetteville City Council has the right to draft their own language.
The lawsuit also claimed the petitions should be voided because: they did not include a copy of the most recently revised ordinance; the attached ordinance was printed in a font size that was too small; and they did not meet a requirement that the canvasser verify their residence address with a printed statement of affidavit.
Lindsay found that changes to the ordinance after it was passed were simple corrections made to ensure the language matched the intent of the City Council. Linsday said those corrections did not effectively change the ordinance and that it was not necessary for canvassers to update their documents after they’d started collecting signatures.
Lindsay said that despite the small type on the ordinance attached to petitions, it was clearly legible, and that canvassers are advised by state law – but not required – to verify their printed addresses with a statement of affidavit.
The petitions and ballot title, he found, were in full compliance with state law.
Another complaint included allegations that Fayetteville City Clerk Sondra Smith’s office overlooked irregularities when certifying signatures. The lawsuit claimed that multiple voters whose residential addresses are in cities outside of Fayetteville signed the petition and that some signatures did not include a complete date of birth, or were added after the notarization date.
Smith said several of the 802 petitions included invalid signatures, but those names were thrown out and did not count toward the 4,095 signatures needed to force a special election.
Lindsay found that Smith’s office followed every procedure required by state law in certifying the signatures. He said without proof that invalid signatures were counted, he would not order any certified names to be thrown out.
The ordinance, if upheld by voters on Dec. 9, would prohibit business owners and landlords from unjustly firing or evicting someone because of their sexual orientation, gender identity, socioeconomic background, marital status or veteran status. It also creates a civil rights administrator position to receive and investigate complaints from residents who feel they are victims of those specific types of discrimination.
» Read more about Wednesday’s testimony
Chapter 119, Civil Rights Ordinance
Fayetteville City Council members passed a controversial anti-discrimination ordinance at around 3:45 a.m. Wednesday, Aug. 20 after nearly 10 hours of public discussion and debate inside City Hall.
The ordinance prohibits business owners and landlords from unjustly firing or evicting someone because of their sexual orientation, gender identity, socioeconomic background, marital status or veteran status. It also creates a civil rights administrator position to receive and investigate complaints from residents who feel they are victims of those specific types of discrimination. Offenders could be fined up to $500 if it is determined they violated the ordinance.
The ordinance was approved 6-2 with council members Adella Gray, Sarah Marsh, Mark Kinion, Matthew Petty, Rhonda Adams and Alan Long voting in favor of the measure. Ward 3 aldermen Justin Tennant and Martin Schoppmeyer voted against the ordinance.
A group called Repeal 119 immediately began a petitioning campaign to stop the implementation of the ordinance, and eventually turned in enough signatures to put the new law on hold and force a Dec. 9 special election to decide the fate of the ordinance.
