Appeals Court blocks ruling that would put Fayetteville council’s future on ballot

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  • The N.C. Court of Appeals has blocked a lower court ruling that would place a referendum on Fayetteville's ballot for changing city council elections.
  • Appellate judges have asked for more information by 4 p.m. Thursday. Afterward they will decide to block the trial court's ruling permanently.

A unanimous three-judge panel of the N.C. Court of Appeals has blocked a trial judge’s decision to place a referendum on the election ballot in Fayetteville. The referendum would allow voters to decide whether to change the way Fayetteville elects its city council.

The Appeals Court asked parties in the dispute to submit more information by 4 p.m. Thursday. That information will help appellate judges determine whether to issue an order that would block the trial court’s decision permanently.

New filings in the case should “(1) discuss the authority of the trial court, if any, to select the date for the special election, and (2) identify the next available dates for the special election” under provisions of state law.

The city’s response focused on state courts’ ability to schedule a special election at any time. “[T]he special-election laws enshrine the established authority of our courts to oversee ‘the orderly and efficient exercise of the administration of justice,’ according to the city’s Thursday court filing. “In short, courts may order that a special election take place at any time.”

“Here, that flexibility is key: It means that this Court (or the trial court) may order that a special election take place for the Vote Yes Fayetteville referendum at any time,” the city argued. “The logistical implications of this, of course, are that if the Plaintiffs ultimately prevail on appeal, the Court can remand this case with an instruction to schedule a special election ‘at a time set by the [trial court].’”

Plaintiffs with the Vote Yes Fayetteville group argued in favor of keeping their referendum on the November ballot. They say that date would comply with provisions in state law calling on judges to set a special election on “a date that will result in the highest possible voter turnout.”

“This date is the next State general election, Nov. 8, 2022, which Judge Ammons ordered and which complies with the statutes limiting the choices in which a local government may set a
special election,” wrote attorney Robert Hunter. “Had the City performed its ministerial duty as required by statute, this is the date the City and Board of Elections would have to choose.”

Cumberland County Superior Court Judge Jim Ammons ruled on Sept. 1 in favor of petitioners seeking a change in the Fayetteville City Council’s structure. Ammons determined that the petitioners had met legal requirements to place their “Vote Yes Fayetteville” measure on the November ballot.

It would replace Fayetteville’s current system of nine council districts. The number of district seats would drop to five, while four council members would be elected in at-large citywide elections.

“A local board of elections should not be forced to print ballots that are invalid. Yet that is precisely what the trial court’s decision mandates, and in the absence of a temporary stay and writ of supersedeas, that is precisely what will occur,” wrote attorney Karen McDonald, who represents the city and its council members.

The city is fighting Ammons’ ruling. City council voted 4-3 in a special meeting to file an appeal.

“The underlying dispute arose when the Cumberland County Board of Elections confirmed to the Fayetteville city council that one of the statutory requirements for the ‘Vote Yes Fayetteville’ petition was not met,” McDonald wrote. “A valid initiative petition must meet certain statutory requirements. First and foremost, it must be registered with the relevant board of elections.”

“Here, as the Board of Elections confirmed, a notice of circulation for the petition at issue was never registered with the Cumberland County Board of Elections,” the city’s brief continued. “So the petition sponsors never started the one-year statutory clock to obtain signatures. Because the city council can only call a special election ‘[u]pon receipt of a valid initiative petition,’ they voted against adding the ‘Vote Yes Fayetteville’ referendum to the November 2022 ballot. Indeed, under the unambiguous requirements set forth by the General Assembly, the petition was invalid.”

The city takes issue with Ammons’ ruling. “The trial court viewed things differently. Faced with the same unambiguous registration requirement, the trial court carved out an exception: It determined that because ‘there is always a little gray in the law,’ so long as the petition complied with some of the statutory requirements that the General Assembly explicitly required, it was good enough to pass statutory muster,” McDonald wrote.

Ammons ordered the Cumberland County elections board to include the “Vote Yes Fayetteville” referendum on the general election ballot. That includes ballots for early voting, which must be available this Friday, according to the city’s legal filing.

“Fast-tracking the referendum onto November’s ballot does not provide Plaintiffs with a palpable benefit, nor is it required by law,” McDonald wrote. “Nevertheless, Fayetteville’s voters will soon head to the ballot box to vote for something that may ultimately mean nothing.”

If the Appeals Court rules in favor of Fayetteville city leaders after Friday, some voters might be required to receive “replacement ballots,” according to city officials’ legal filing.

Editor’s note: This article was updated at 3:30 p.m. with information about new court filings in the case.