UPDATED: Judge hears testimony in lawsuit challenging civil rights special election

Update: Washington County Circuit Judge Mark Lindsay dismissed the complaint. Full story here.

A ruling is expected Thursday in a lawsuit that aims to block a Dec. 9 special election to uphold or repeal Fayetteville’s new Civil Rights Administration ordinance.

Washington County Circuit Judge Mark Lindsay heard from Kristin Higgins, the plaintiff in the case, and several witnesses before the court recessed Wednesday evening.

Higgins, a Fayetteville resident and associate professor of counselor education, said she filed the lawsuit because she was given misleading information when she signed a petition to put the ordinance on hold and force a special election.

The new law would prohibit business owners and landlords from unjustly firing or evicting someone because of their sexual orientation, gender identity and other characteristics.

Claims of misleading information

Higgins said the 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.

Higgins said she only discovered what she’d signed after her name appeared on an online list of over 4,000 people who’d signed the petition.

“I saw my name and I was appalled,” said Higgins, who told the court she teaches a class on sexual orientation and gender identity issues. “My name being on that petition goes against everything I believe in and value.”

Robert Johnson, the canvasser who collected signatures in Higgins’ neighborhood, said he had a basic routine when meeting with people that included explaining the petition was to put the ordinance up for a public vote.

Higgins said she would never have signed the petition if she’d known there would be a public vote. “I don’t believe the civil rights of an individual should be a voting matter,” she said.

Johnson was also questioned about a flyer he was given by Repeal 119, the group that organized the petition process. Johnson said the flyer, which he handed out to several residents while canvassing, included talking points he could use when asking people to sign the petition.

Duncan Campbell, president of Repeal 119, said the flyers included warnings that the civil rights ordinance, which provides protections based on gender identity, could lead to sexual predators entering women’s restrooms disguised as women. Campbell said the flyers also include language suggesting that the new law limits free speech and the free practice of religion.

Alderman Matthew Petty, who sponsored the Civil Rights Administration ordinance, said he was also given misleading information by canvassers who tried to convince him to sign the petition in front of City Hall one day.

Jeff Priebe, the attorney representing Higgins, asked Petty to describe the tactics used by the canvassers, but Travis Story, general counsel for Repeal 119, objected on the grounds of hearsay. Judge Lindsay sided with Story and said he could not admit into evidence a statement about unnamed canvassers who might not’ve been official volunteers of Repeal 119.

Ballot title

The lawsuit claims the ballot title submitted by Repeal 119 and later approved by the Washington County Election Commission is confusing because it requires a “For” vote be used to repeal the ordinance. It’s an argument that was also made by the Fayetteville City Council who submitted their own version of a ballot title that states a “For” vote be a vote for the ordinance and an “Against” vote to be a vote against the ordinance.

While the state does spell out rules for referendums on state and county law, municipalities do not have their own specific state statute to clearly explain how ballots should read.

Election commissioner Renée Oelschlaeger said it is typical procedure for the commission to use ballot language provided by petitioners in a municipal referendum election. She said there are at least two other referendum issues on the upcoming Nov. 4 general election ballot that include language “For” repeal of municipal legislation.

Jennifer Price, who has served as coordinator since 2009, said Wednesday this issue is a first for her because she has never received competing ballot language when preparing for a special election.

Price said the deadline to submit the ballot language is Thursday in order to get the ballots ready for a Dec. 9 special election. She said she has prepared a version with Repeal 119’s language and a version with the City Council’s preferred language in anticipation of Judge Lindsay’s ruling.

Signature irregularities

The plaintiff claimed that the certification process by Fayetteville City Clerk Sondra Smith’s office was “so irregular that the petitions are presumptively invalid.”

The lawsuit notes several irregularities in the list of certified signatures, including multiple voters whose residential addresses are in cities outside of Fayetteville, signatures that did not include a complete date of birth, and signatures added after the notarization date.

Priebe said because of those irregularities, all petitions should be thrown out and the special election should be canceled.

Story said only invalid names should be thrown out, or, at most, only the individual petition sheets which include irregularities should be invalidated.

Smith said Wednesday her office worked hard to ensure that only valid names were counted when certifying signatures. She 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.

Smith said petitioners turned in over 5,700 signatures, but she stopped certifying names after she’d counted about 200 more than was needed.

Smith maintained that she and her clerks followed every procedure required by state law in certifying the signatures.

Other claims

The lawsuit also claims the petitions should be voided because: they did not include a copy of the most recently revised ordinance; they did not meet a requirement that the canvasser verify their residence address is correct; and the attached ordinance was printed in a font size that was too small.

Fayetteville City Attorney Kit Williams said while he believes the ballot title is confusing, it’s possible the petitions themselves were valid because the administrative changes he made to the ordinance after it was passed were simple corrections that were not substantive enough to change the intent of the new law.

Williams said state law only advises canvassers to include an affidavit that their printed address is correct, and that it’s not mandatory to add that language to a petition.

Finally, Williams said he had no opinion on whether the font size of the ordinance was too small.

“I think that is up to the court to decide,” said Williams.

The lawsuit originally claimed the petitions were turned in one day later than the 31 days allowed to put an approved ordinance on hold and call a referendum.

“Counting the day the Ordinance passed, August 20, 2014, as the first day, 31 days after passage of the Ordinance was September 19, 2014,” states the suit.

Priebe said Wednesday that claim would not be pursued.

Ruling expected Thursday

Judge Lindsay said he would make every attempt to issue a ruling on the case by the end of the day on Wednesday, but a power outage in downtown Fayetteville put the proceedings on hold for about two hours.

Lindsay waited until all witnesses had been examined before recessing the court at about 5:30 p.m.

The court will reconvene with closing arguments beginning at 9 a.m. Thursday.

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.

» Read all Flyer coverage of the civil rights ordinance