If a Scotland County commissioner dies during the first two years of a four-year term after the filing deadline for the upcoming primary, but before the general election, how does the county select party nominees for the November ballot to fill the seat?

Plain-English summary

Scotland County Attorney Edward H. Johnston, Jr. asked the Attorney General a procedural puzzle that the General Assembly had not directly answered. A Scotland County commissioner died in the first two years of a four-year term, after the filing period for the upcoming primary had already closed. Scotland County uses the vacancy rules in N.C. Gen. Stat. § 153A-27, which provide that the appointed replacement serves only until the next general election. The county would then elect someone for the remainder of the unexpired term. But how did the parties nominate candidates for that November ballot when nobody had filed during the primary filing period?

Attorney General Rufus L. Edmisten and Deputy Attorney General James Wallace, Jr. acknowledged that no statute directly addressed the question. After consulting the Institute of Government, the State Board of Elections, and the Association of County Commissioners, they concluded that the closest analogue was N.C. Gen. Stat. § 163-115, which addresses (among other things) the procedure when a vacancy occurs in an elective state or district office during the window between 10 days before the close of filing and 30 days before the general election. In that situation, the political party's appropriate executive committee makes the nomination, and the nominee's name goes on the November ballot.

The AG's reasoning had three steps. First, the General Assembly clearly wanted a new commissioner to be elected at the next general election; the alternative (letting the appointee serve to the end of the deceased commissioner's term) was foreclosed by § 153A-27's text. Second, no statutory provision directly governed the nomination procedure for county commissioner vacancies in this timing window. Third, § 163-115 (with its cross-reference to § 163-114, which expressly applies to elective county offices) supplied a reasonable, off-the-shelf procedure for filling the gap.

The AG's office was candid that the opinion was a stopgap. The closing paragraph said: "On those occasions when we have done so, we have done so with a great deal of hesitation, but with the realization that, absent any other source of guidance, we should do so for temporary purposes. Our Opinion shall remain in effect only until such time as it is superceded by action of either the General Assembly or the Courts."

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The General Assembly has amended Chapter 153A (county government) and Chapter 163 (elections) many times since 1984, and the State Board of Elections has issued guidance documents that address vacancy mechanics for county offices. Anyone facing a current county commissioner vacancy should pull current G.S. 153A-27 (or the parallel statute for the specific county), current G.S. 163-114, current G.S. 163-115, and the State Board of Elections' current procedure manuals before relying on this 1984 stopgap opinion.

Common questions

Q: Why didn't the appointed commissioner just serve out the deceased commissioner's term?
A: G.S. § 153A-27 (the version applicable to Scotland County and most NC counties) does not allow that. If the vacancy occurs while the commissioner was in the first two years of a four-year term, the appointee serves only until the first Monday in December following the next general election. The voters fill the rest of the term at that election. So an election had to happen; the only question was nomination mechanics.

Q: Why couldn't the parties just hold a primary?
A: The filing period for the primary had already closed when the vacancy opened. Holding a special primary in a window between filing close and general election was not a procedure the General Assembly had authorized for this situation.

Q: How does G.S. § 163-115 normally apply?
A: It addresses two situations. First, vacancies in the office of clerk of superior court, with a specific subset of procedures. Second, vacancies in any elective state or district office (other than U.S. House of Representatives) during the window from 10 days before filing closes to 30 days before the ensuing general election. In that second window, the appropriate executive committee of each political party makes the nomination, and the nominee goes on the general election ballot.

Q: Why did the AG borrow § 163-115 for county commissioners when it doesn't list them?
A: Because § 163-115's last paragraph cross-references § 163-114, and § 163-114 does cover elective county offices. The AG read those two sections together as the closest available analogue for the situation Scotland County faced.

Q: How long does this opinion remain valid?
A: The opinion itself said it remained in effect only until superseded by action of the General Assembly or the courts. The General Assembly has substantially revisited election law since 1984. A modern county facing this situation should pull current statutes and State Board guidance.

Q: What is the broader lesson?
A: AG opinions sometimes have to do legislative gap-filling. The 1984 opinion is unusually explicit about it: the AG named the bodies he consulted (Institute of Government, State Board of Elections, Association of County Commissioners), acknowledged that the General Assembly had left a gap, and applied an analogous statute as a temporary solution while flagging the gap for the legislature.

Background and statutory framework

Vacancies on the boards of commissioners in most NC counties are governed by G.S. § 153A-27. The provision quoted in the opinion provides: if the vacant seat was being served in the first two years of a four-year (or longer) term, the appointee serves only until the first Monday in December following the next general election. At that election, the voters elect a person to serve the unexpired term, or, if the term has expired, to a full term.

The election-law mechanics for nominating candidates by political parties are spread across Chapter 163. G.S. § 163-114 addresses the situation where a previously-nominated candidate becomes ineligible or disqualified before the general election; the appropriate party executive committee picks a replacement nominee whose name goes on the general election ballot. § 163-114's coverage expressly reaches elective county offices.

G.S. § 163-115 addresses two distinct vacancy scenarios. The first (in the opinion's first quoted paragraph) is the office of clerk of superior court. The second (in the opinion's third quoted paragraph) is "an elective State or district office (other than member of the United States House of Representatives)" where the vacancy opens between 10 days before filing closes and 30 days before the general election. In that case, the party executive committee nominates and the name goes on the ballot.

Neither § 163-114 nor § 163-115 by its terms addresses the precise factual pattern Scotland County faced (a county commissioner vacancy after the filing period closes for the primary but before the general election). The AG borrowed the § 163-115 procedure as the closest analogue, leveraging the § 163-115 cross-reference to § 163-114's county-office coverage.

Citations

• N.C. Gen. Stat. § 153A-27 (vacancies on county boards of commissioners; appointee serves only until next general election when vacancy opens in first two years of term)
• N.C. Gen. Stat. § 163-114 (party executive committee nomination when nominee becomes ineligible; covers elective county offices)
• N.C. Gen. Stat. § 163-115 (analogous procedure for clerks of superior court and elective state/district offices)

Source

• Landing page: https://ncdoj.gov/opinions/elections-county-commissioners-filling-of-vacancy-in-certain-situations/

Original opinion text

Requested By:

Edward H. Johnston, Jr.

County Attorney, Scotland County

Question:

If a county commissioner who is holding office in the first two years of a four-year terms dies on a date following the close of the filing period for the upcoming primary and general election, how are party nominees to be selected for the purpose of running in the next general election?

Conclusion:

Absent any applicable provision of law the situation should be governed by N.C. Gen. Stat. § 163-115.

Scotland County is one of those counties where vacancy on the County Board of Commissioners is governed by the provisions of N.C. Gen. Stat. § 153A-27. (Vacancies on the Board of Commissioners of certain other counties are filled according to the provisions contained in N.C. Gen. Stat. § 153A-27 which relates to the inquiry addressed in this Opinion reads as follows:

"If the member being replaced was serving a two-year term, or was in the last two years of a four- or six-year term, the appointment to fill the vacancy is for the remainder of the unexpired term. Otherwise, the term of the person appointed to fill the vacancy extends to the first Monday in December next following the first general election held more than thirty days after the day the vacancy occurs; at that general election a person shall be elected to the seat vacated, either to the remainder of the unexpired term or, if the term has expired, to a full term."

No inquiry has been posed as to the proper manner of appointment of a member to fill the vacancy which currently exists on the Scotland County Board of Commissioners. The issue presented derives from the fact that the member who will be appointed to fill the vacancy will hold office only until the first Monday in December following the upcoming statewide general election in November of 1984, with no provision of the General Statutes addressing itself to the manner in which nominees are to be selected for election to that same office in November.

At the outset, we should note that since the General Assembly has made its intentions clear that a new county commissioner is to be elected in the November election, there is no room to conclude that, in the absence of a provision for placing party nominees on the general election ballot, we should entertain any suggestion that normal "holdover" consideration could apply, with the effect of leaving the current appointee in office until the expiration of the full term of the individual he has succeeded.

Therefore, following a thorough consideration of the issue by this office, the Institute of Government, the State Board of Elections, and the Association of County Commissioners, and in light of the agreement of us all as to the only proper method of responding to this inquiry, we conclude that the provisions of N.C. Gen. Stat. § 163-115 should control, pending clarification by the General Assembly.

N.C. Gen. Stat. § 163-115 reads in full as follows:

"If a vacancy occurs in the office of the clerk of superior court, otherwise than by expiration of the term, or if the people fail to elect, the vacancy shall be filled as provided in Sec. 9(3) of Article IV of the North Carolina Constitution. If the vacancy occurs after the time for filing notice of candidacy in the primary has expired in a year when a regular election is not being held to elect a clerk of superior court by expiration of term, then the county executive committee of each political party shall nominate a candidate whose name shall appear on the general election ballot. The candidate elected in the general election shall serve the unexpired portion of the term of the person causing the vacancy.

"In the event a special election is called to fill a vacancy in the State's delegation in the United States House of Representatives, the provisions of G.S. 163-13 shall apply.

"If a vacancy occurs in an elective State or district office (other than member of the United States House of Representatives) during the period opening 10 days before the filing period for the office ends and closing 30 days before the ensuing general election, a nomination shall be made by the proper executive committee of each political party as provided by G.S. 163-114, and the names of the nominees shall be printed on the general election ballots, unless the ballots have already been printed when the nominations are made, in which case the provisions of G.S. 163-139 shall apply."

If the last paragraph of N.C. Gen. Stat. § 163-115 simply included a reference to elective county offices, then the statute on its face would clearly be dispositive of the issue. Although this is not the case, N.C. Gen. Stat. § 163-114, to which the former statute refers, does refer to the nomination for the purposes of the general election of candidates by the county executive committee of the party of a nominee who becomes ineligible or disqualified before an ensuing general election. Elective county offices are among those offices to which the provisions of N.C. Gen. Stat. § 163-114 apply. In the absence of any other provision from which we can obtain any guidance whatsoever, and in light of the fact that the General Assembly clearly intended for an election to occur in November for the office in question, we know of no alternative other than to conclude that the provisions of N.C. Gen. Stat. § 163-115 should apply to the situation before us until such time as guidance is provided by the General Assembly or by the Courts.

It should be noted that this is not the first occasion on which this office has been required to use the methods and procedures of certain elections sections enacted for one purpose in order to provide a reasonable solution to a problem arising from a different factual situation. On those occasions when we have done so, we have done so with a great deal of hesitation, but with the realization that, absent any other source of guidance, we should do so for temporary purposes. Our Opinion shall remain in effect only until such time as it is superceded by action of either the General Assembly or the Courts.

RUFUS L. EDMISTEN

ATTORNEY GENERAL

James Wallace, Jr.

Deputy Attorney General for Legal Affairs