Editor’s note: This story was updated.

ACE Speedway must shut down all races.

The Alamance County race track lost the first round of its lawsuit to overturn Gov. Roy Cooper’s executive orders barring most mass gatherings. Alamance County Senior Resident Superior Court Judge Thomas Lambeth on Thursday, June 11, granted the state’s request for a temporary restraining order. 

The race track joined a series of other constitutional challenges against Cooper’s executive orders that ban gatherings of more than 10 people inside and 25 people outside.

ACE Speedway hosted as many as 4,000 people in three races. It posted signs saying “this event is held in peaceful protest of injustice and inequality everywhere.” Alamance County Sheriff Terry Johnson refused to close the race track and questioned the constitutionality of the bans on mass gatherings.

Cooper ordered ACE Speedway closed immediately, and set a June 9 deadline to cancel all events through June 26. The abatement order called the races an “imminent hazard.”

The speedway ignored the order. It refused to change the schedule on the speedway’s website and Facebook page. The next race was set for Friday, June 19.

Lambeth will hear the case again late next week.

The N.C. Department of Health and Human Services said the speedway can still run races with the restrictions. The race track could host 25 people outside and another 10 people inside each suite, which is a “separate indoor” area. 

“The more people at an event, the greater the risk of spread of COVID-19,” said Andrew Kasper, attorney for NCDHHS. “We’re trying to stop those events in order to serve the public health.”

ACE Speedway argued those restrictions closed the track. 

“Well, I’m sorry, this is a private speedway. It’s not financed by the government,” said Chuck Kitchen, attorney for the speedway. “[Owners Robert and Jason Turner] simply don’t have the cash to go out and run races, give prizes, without money coming in. They will very quickly go into bankruptcy.” 

The race track accused the state of inconsistent enforcement, saying it only closed some race tracks. Kitchen said between nine and 12 N.C. tracks held races this past weekend. But the governor targeted only ACE.

Kasper said the state knew of only one other complaint against a speedway. 

“The owners of ACE Speedway were open and flagrant about disobeying the executive order,” Kasper said.

Kitchen said that argument was evidence of a targeted, unconstitutional suppression of free speech. 

“They made an issue of Mr. Turner speaking out against the government, and they indicated that’s why they’re going against him,” Kitchen said. “That’s what selective enforcement is.”

But Lambeth said it was “very clear there is an imminent health hazard in our state and county.” He spoke in support of giving government leaders “especially broad” latitude during the emergency. 

“People are getting quarantine fatigue, they want to get back to their life, but we’re not there yet,” Lambeth said. “Our leaders should be applauded for doing what they can in the delicate balancing act between public health and the economy.”

The race track faces a steep legal battle, said Jon Guze, John Locke Foundation director of legal studies. 

“A regulation that denies someone the fruits of their labor will almost always be upheld unless it involves religion or freedom of speech,” Guze said. 

The speedway’s chances could depend on whether the owners of the track can prove they’re  victims of targeted enforcement, Guze said. 

“It might embolden other judges to take a harder line, but it’s just so different,” Guze said. “None of us think this is actually a First Amendment protest. It’s a statement and a joke. They don’t have a leg to stand on legally because it’s not a real protest.”

But the speedway could prevail if it shifted its focus to selective enforcement, Guze said. Being singled out and punished for mocking the governor might be a winning argument.