Local law does not allow
for a special election in this case
The City of Asheville recently released information regarding an upcoming City Council vacancy. This will follow the upcoming resignation of Council Member Vijay Kapoor, who will be relocating outside of Asheville. In response to media inquiries, a memo about filling Council vacancies from the City Attorney was released to the public. This memo represented a preliminary description of the relevant local and state law regarding Council vacancies. In addition to the law, the memo also discussed different scenarios regarding Council options for filling the vacancy. No further research on the issue was conducted or provided to the Council until recent calls from the public for a special election.
In order to fully determine the proper process for filing the vacant seat, additional legal research was performed and election law experts consulted. As a result, it has been determined that local law does not allow for a special election in these circumstances. In addition, the timing of a resignation of a Council member in the City of Asheville has no effect on the process for appointing a replacement. Even though the State statutes lay out a different process based upon the timing of the vacancy, the City’s charter makes no such distinction. In cases where conflicts of this nature exist between the State statute and a city’s charter, the city charter supersedes state law.
The Asheville City Charter, Section 7 states: “Any vacancy in the office of mayor or council shall be filled by the council for the remainder of the unexpired term from the qualified electors of the City of Asheville.“
North Carolina General Statute 160A-3 states in part: “….. in case of conflict or inconsistency between the two procedures, the charter procedure shall control.”
Pursuant to these laws, Asheville City Council is required to appoint a successor for the vacant Council seat, and that individual will serve the remainder of the unexpired term. The timing of the vacancy has no effect on this legal requirement. Therefore, the City’s charter precludes any special election, regardless of when the Council vacancy occurs.