40/29 reports that Circuit Judge Doug Martin has denied a request for an injunction to stop the special election Tuesday on a city civil rights ordinance for Fayetteville.
Opponents of the ordinance had sued to stop the election, objecting to the Fayetteville City Council procedure that put the ordinance on the ballot and also raising a premature claim that the ordinance, if adopted, could violate a state law aimed at preventing cities from passing laws that protect gay people from discrimination.
A hearing had been scheduled Friday, but Martin canceled the hearing and denied the request.
Martin said that the objection was filed too close to the election — the day before early voting began. In an earlier case, the Arkansas Supreme Court invalidated a request to stop an election filed one day before the election. It said that the complainant had not moved expeditiously and failed to cite a compelling reason for not acting earlier.
Martin said the Fayetteville case wasn’t identical, but the rationale applies, with a complaint filed a day before voting began. He said the Fayetteville plaintiffs, represented by Travis Story, had failed to move expeditiously and offered “no compelling reason” for the delay. He said the late filing made it impossible for him to comply with rules on the speed for setting hearings on such proceedings. He declared the requests for restraining orders moot and canceled the hearing.
Story had argued to me that his suit was more in the nature of an illegal exaction lawsuit and the improper expenditure of money on holding the election didn’t really begin until the election began. His argument was that, if anything, he filed the complaint early. Story’s illegal exaction claim rested on shaky ground. The law is for illegal actions. If the election was properly called and held, that’s the only expenditure that could be considered. If it were to produce a law that was arguably unenforceable, it would be an argument of another sort for another day. And the ordinance, if passed, doesn’t take effect for 60 days, so no irreparable harm comes to anyone from holding the election.
Supporters of the ordinance had said the lawsuit was merely a political gimmick to attract attention. The ordinance appears to have broader support, particularly from the business community, than a more wide-ranging ordinance defeated in an earlier referendum. This measure is also more clearly put to voters as an up or down vote on the ordinance. Opponents, in referring the earlier ordinance, constructed the question in such a way that a vote “For” was a vote to repeal.
Said For Fayetteville, the group working to pass the ordinance:
As we expected, Judge Martin dismissed the opposition’s eleventh hour injunction to stop the election. Their desperate attempt to interfere with the democratic process has failed.
Now go out and exercise your constitutional right to vote! Show the opposition that Fayetteville will not be intimidated by frivolous lawsuits. We stand for diversity, inclusion, and equality. We are FOR 5781!