Asheville concludes Kapoor vacancy to be filled by appointment

Brad Branham with books
MATTER OF (LEGAL) OPINION: Asheville City Attorney Brad Branham now says that the city's charter requires outgoing Council member Vijay Kapoor's seat to be filled by appointment, a change from his previous interpretation of the law. Photo by Brooke Randle

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. The Council member intends to resign Saturday, Aug. 8, less than 90 days before Nov. 3.

“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 over 700 signatures as of 12:30 p.m. on July 29.

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.

After conferring with the N.C. State Board of Elections and Buncombe County Attorney Michael Frue, Buncombe County’s chief election official said July 29 that legal opinions at all levels of government now aligned with Branham’s interpretation. Jake Quinn, chair of the Buncombe County Board of Elections, said that both Frue and Katelyn Love, the state board’s general counsel, agreed that G.S. 160A-3(b) was the relevant state law giving final authority to the city charter.

Love had previously expressed some uncertainty on the matter in a July 27 email to Quinn. “From what I can tell, it appears the city may be able to choose whether the follow the charter or the general statute,” she said, referencing a different section of the same law referenced by Branham.

According to G.S. 160A-3(a), “when a procedure that purports to prescribe all acts necessary for the performance or execution of any power, duty, function, privilege, or immunity is provided by both a general law and a city charter, the two procedures may be used as alternatives, and a city may elect to follow either one.” Love had highlighted that paragraph in her July 27 message, but according to Quinn, she revised her opinion after further consideration.

Updated at 1:31 p.m. on July 28 to include comment from the N.C. State Board of Elections.
Updated at 12:39 p.m. on July 30 to include updated opinions from Katelyn Love, Michael Frue and Jake Quinn, as well as an updated petition signature count.

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About Daniel Walton
Daniel Walton is the Green Scene editor and a reporter for Mountain Xpress. His work has previously appeared in Capital at Play, Edible Asheville, and the Citizen-Times, among other area publications. Follow me @DanielWWalton

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