LARAMIE -- Voters challenging a public vote in favor of a smoking control ordinance will be allowed to make their case in court that there were election irregularities that might have affected the outcome, 2nd District Judge Jeffrey Donnell ruled Wednesday.

Donnell, who has set a non-jury trial in the case for May 18-20, granted in part and denied in part a motion filed by the city to dismiss the legal challenge filed by eight voters. The ordinance is scheduled to go into effect April 6.

"Wonderful," said Sherri Derenzis, one of the eight challengers. "This means we still have a chance to make our case."

City Attorney Peggy Trent said she was "very, very pleased" with the judge's decision, in which he said the burden will be on the plaintiffs to prove that any errors affected the outcome.

Donnell said the plaintiffs' claim that ballot boxes were left unsealed and were opened during the election "may rise to the level of misconduct or material negligence of an election official which affected the result of the election, and must be allowed to proceed."

Janet Tyler, the attorney for the plaintiffs, could not be reached by telephone Wednesday evening.

Regarding the claim that voters were deprived of absentee ballots or that there was any effect on the result of the election, the judge said the plaintiffs had not demonstrated that this was the case and "will have to satisfy that demand eventually, but, at the present time, their claim must proceed."

Donnell also left standing the plaintiffs' claim that the ballot was invalid because it did not include language required by state law instructing voters how to mark their ballots "for or against" a ballot proposition, although he said the argument "may place form over substance."

As for the allegation that some absentee ballots obtained from the city clerk incorrectly said they should be returned to the county clerk, the judge said the plaintiffs are entitled to prove that this happened and affected the result, although they have not shown so far that any ballots failed to get counted.

Donnell also said that the "plaintiffs' assertion that polling places failed to post instruction for the special election as mandated by statute must stand as it presents a claim upon which relief can be granted." The same applies, he said, to claim that some ballots were not folded.

The judge dismissed the portion of the lawsuit saying that the language on the ballot did not accurately describe the ordinance passed by the City Council by a 6-3 vote and approved by 366 votes in the Nov. 2 election.

The ballot description said the ordinance would "prohibit smoking in enclosed areas to which the public has access and places of employment, including but not limited to, restaurants, bars and private clubs." The challengers said this failed to make clear that it would also apply to offices.

The judge ruled that "even when considered in a light most favorable to the plaintiffs, the ballot summary was not misleading, especially given the summary's inclusion of the phrase 'including but not limited to.'"

Donnell also dismissed the argument that not enough ballots were provided, saying the legal basis advanced for it applied only to general elections, not special elections such as the one on the smoking ordinance.

Star-Tribune correspondent W. Dale Nelson can be reached at wdnelson@bresnan.net.