Earlier Kapoor resignation could trigger special election

Whomever Asheville City Council appoints to the Council seat about to be vacated by Vijay Kapoor could serve through the remainder of his term: December 2022, a period of more than two years. That’s the duration the city promises in a July 22 city press release calling for applicants.

But a provision in state election law indicates that, if Kapoor’s resignation were to be effective immediately after his last planned Council meeting on Thursday, July 30, Asheville’s citizens would get to vote on his replacement. According to N.C. General Statute 160A-63, if a Council vacancy occurs more than 90 days before the next regularly scheduled city election — which takes place on Tuesday, Nov. 3, 96 days from July 30 — “a successor shall be elected at the next regularly scheduled city election… and the person appointed to fill the vacancy shall serve only until the elected successor takes office.”

Kapoor’s choice of timing may mean that Ashevilleans won’t get to make that vote. In response to an Xpress request for comment on July 24, he said that his effective date of resignation would be Saturday, Aug. 8 — within the 90-day window for the vacancy to be filled for the remainder of his term by Council appointment.

Kapoor initially announced his intention to step down on March 16 to move with his family to Philadelphia, noting that he would not resign until “after the budget process in the summer.” A deed filed with the Buncombe County Register of Deeds on July 9 lists an address in the Philadelphia suburb of Wallingford, Penn., for the Council member. However, Kapoor explained in a July 25 email that he had signed a seller’s possession agreement with the buyer of his house and would continue to live in Asheville through Aug. 8. City Attorney Brad Branham said on July 26 that he had reviewed the relevant documents and concluded that Kapoor remained in compliance with the residency requirement.

At the time of Kapoor’s resignation notice, Council’s timeline for budget adoption ended on June 30, which also would have been outside of the 90-day window from the general election; Council later extended the budget process in response to community racial justice protests and calls for defunding the Asheville Police Department.

“I am not changing my mind about my resignation date, which will be Aug. 8,” Kapoor said July 25, in response to an Xpress request for comment about the electoral ramifications of his decision. “I was democratically elected by the voters of this city to a term that would have initially expired in 2021, and I am going to fully participate as a council member until the minute my resignation is effective. Council members obviously do more than just attend regularly scheduled Council meetings, and given how unpredictable things have been this year, there’s always the possibility of the need to have an emergency meeting.”

Mayor Esther Manheimer said she would she not weigh in on the timing of Kapoor’s resignation in a July 26 email to Xpress. “As for the date of Councilman Kapoor’s resignation, that will be up to him and I support his decision to continue his council work until he can no longer carry out those duties,” she wrote.

The state law conflicts with language in Asheville’s city charter, which states that “any vacancy in the office of mayor or council shall be filled by the council for the remainder of the unexpired term.” Jake Quinn, chair of the Buncombe County Board of Elections, said on July 25 that city officials had not reached out to him about the apparent discrepancy between municipal and state rules.

“It was nothing that hit our radar at Election Services because municipal vacancies are generally filled by appointment,” Quinn said. “But I know that this is an unusual case, and I’m not really sure what the rules are for us.”

A memorandum distributed by Branham to Council members on March 16, however, indicates that Kapoor’s colleagues have long been aware of the potential for a special election. The document outlines both state and local laws regarding the vacancy and describes the electoral process that would be used to fill the seat if Kapoor were to resign more than 90 days before Nov. 3. He says that a second primary would be required for that election, which would take place in October if more than two candidates filed for the open office.

Branham suggested in the memo that, even if Kapoor resigned in early August, Council could still avoid holding an election by relying on the city charter’s language. “There is some risk in doing so because state law suggests that a primary may be necessary under these circumstances,” he explained. “However, Asheville is unique in that we have even-year elections on a nonpartisan primary basis. Currently, no one else in the state does this, and the law was not written to provide for such a condition.”

Quinn said he had reviewed the relevant laws as well but “didn’t find the clarity that I sought.” He plans to speak with legal counsel at the N.C. State Board of Elections in the near future to reach a more definitive conclusion.

Fairness and adherence to the law, Quinn added, should drive any process to fill Kapoor’s vacancy. “I umpire baseball too: It’s the same thing,” he said. “It’s just the rules are more clear in baseball.”

Updated at 3:20 p.m. on July 25 to add comment from Jake Quinn and additional details about Vijay Kapoor’s relocation plans.
Updated at 7:35 p.m. on July 25 to add comment and clarification from Vijay Kapoor.
Updated at 5:14 p.m. on July 26 to add comment from Esther Manheimer and Brad Branham.