After an Xpress report raised questions about the potential for a special election to fill the Asheville City Council seat of resigning member Vijay Kapoor, City Attorney Brad Branham has declared that the option is off the table. In a July 27 email, Asheville’s top legal adviser said that the city’s charter, which directs all Council vacancies to be filled by appointment, took precedence over a state law that called for an election under certain circumstances.
N.C. General Statute 160A-63, Branham noted, orders vacancies that occur more than 90 days before the next regular city election to be filled during that election. But G.S. 160A-3(b), he pointed out, says that a city’s charter supersedes general statutes “in case of conflict or inconsistency between the two procedures.”
“After thorough research and consultation with other election experts, I am fairly confident that the issue of timing is moot,” Branham said. “The applicable law precludes any special election.”
That interpretation differs from Branham’s advice to Council in a March 16 memorandum. In that document, the lawyer said that “the city will be required to conduct a second primary” if Kapoor’s resignation were effective more than 90 days before the Nov. 3 general election.
“I apologize for any confusion my prior memo may have caused,” Branham said on July 27 regarding his previous take on the law.
Branham acknowledged that the filling of Kapoor’s vacancy “has become a very hot topic in the past few days.” On July 25, Kapoor’s Council colleague Brian Haynes posted a link to the Xpress story on Facebook, commenting “Let the voters decide!” A petition by “Asheville Citizens for Free and Fair Elections” calling for a vote on the seat had nearly 350 signatures as of press time.
The language in Asheville’s charter requiring vacancies to be filled by appointment was enacted in 1985 as part of the same ordinance that called for the city’s mayor to be directly elected. Council last changed the city charter in October, when members moved to undo the election districting pushed through the General Assembly by Sen. Chuck Edwards, R-Henderson.
Despite Branham’s confidence, Buncombe County’s chief election official said he would wait to hear from the N.C. State Board of Elections before making his own conclusion. Jake Quinn, chair of the Buncombe County Board of Elections, said July 27 that he had yet to hear from the state board’s legal counsel.
“I’m going to feel a lot better once I’ve gotten guidance from the oracle, and I haven’t gotten it yet,” Quinn said.
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July 28, 2020 at 04:52AM
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Asheville concludes Kapoor vacancy to be filled by appointment - Mountain Xpress
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