ASHEVILLE - A few days difference in the resignation of City Councilman Vijay Kapoor could determine whether it is voters or council members who pick his replacement.
Kapoor has said he will resign on Aug. 8. Under state and local law, that means the council will choose who will fill his term through its 2020 end date.
But some members of the public — and now one council member — are calling on Kapoor to quit about four days earlier. Under North Carolina General Statute 160A-63 that would trigger a special election. That is because it would be more than 90 days before the Nov. 3 election, as first reported by the Mountain Xpress.
Haynes, Kapoor differ on leaving earlier
Kapoor, a one-term councilman and 2017's top vote getter told the Citizen Times July 27 he will not change his planned departure date.
"The voters democratically chose me to serve until 2021 (now 2022) and I am going to serve as much of my term as I can," he said, referencing a change in council term length last year.
Among those now calling for a potential election are Councilman Brian Haynes.
"I would certainly prefer the voters deciding, if that option is still available," Haynes said. "I would also encourage Councilman Kapoor to move up his resignation date a few days if that would indeed make this possible."
Councilwoman Julie Mayfield said it would be better to have an election but holding that and a primary would not be "reasonable or cost effective" given the COVID-19 pandemic and the likelihood of record-breaking voter turnout.
"Election officials are scrambling to figure out how to manage the anticipated burden of absentee ballots and how they will staff the November elections, and asking them to mobilize all of that twice simply doesn't make sense," said Mayfield, a candidate for NC Senate District 49.
It's not clear, though, if the city would be required to hold a primary, a race used to winnow down the field if there are more than two candidates for one seat.
Other council members don't weigh in
The other four council members — Mayor Esther Manheimer, Vice Mayor Gwen Wiser, Sheneika Smith and Keith Young — didn't respond to requests for comment or declined to say which method they would prefer. Manheimer said the council "stands ready to comply with the requirements to fill the vacancy, whether that be by appointment or an election.
"Elected officials who need to resign for one reason or another make that decision on their own, it’s not for me to determine when Mr. Kapoor should resign. Vijay and his family will make this decision, and I support them in that process," she said.
State law says one thing, city charter another
Even if Kapoor leaves early, it's still not clear whether there would be an election. The city's charter conflicts with the state law in that it says the date of Kapoor quitting doesn't matter and that an appointment would be through the end of his term, according to Branham, the city attorney.
On July 27 City Attorney Brad Branham said the Charter would likely take precedence. But later that day Branham sent an email to the council saying that because the issue had recently become "a hot topic" he did additional research and was convinced that the Charter was the law and must be followed over the state statute.
"In cases where conflicts of this nature exist between the state statute and a city's Charter, it is the language of the charter that controls," Branham said. "Regardless of when (Councilman) Kapoor vacates his seat, the council must appoint a replacement and that replacement will serve out the full unexpired term."
Buncombe County Board of Elections Chair Jake Quinn, however, said he was not certain that was the case.
"There appears to be a small disconnect between what the statutes say and what the city charter says," he said.
Quinn said he had contacted the NC State Board of Elections for an opinion. He said he expected an answer by the end of the day July 27, but by 5 p.m. had not heard back.
A primary would be a "practical impossibility" because the Nov. 3 slate of candidates must be set in time to print absentee ballots and start sending them out Sept. 4, as required by law, he said.
Before joining the council, Kapoor gained prominence for his advocacy for South Asheville neighborhoods, pushing back against a 2016 plan to displace mobile home park residents for a multimillion-dollar apartment complex. In winning, he became the first Asian American to join the city's governing body.
On the council, he advocated for employee raises and clashed with other council members who wanted to limit police funding and increase what he said was already unprecedented sums added to public transit. On March 16, he said he and his family planned to leave Asheville to be closer to his consulting work in the Northeast, and that he would stay until the city passed a budget. That process, normally ending by June 30, has been delayed by the pandemic.
Joel Burgess has lived in WNC for more than 20 years, covering politics, government and other news. He's written award-winning stories on topics ranging from gerrymandering to police use of force. Please help support this type of journalism with a subscription to the Citizen Times.
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