Question Chilton On Radio

Thursday, February 9, 9:15am to 10:15 am, on WCOM 103.5FM Carrboro/Chapel Hill (live stream:, Carrboro Mayor Mark Chilton will be interviewed live by The ESP Team on their political chat show.

Call in on 929-9601. Keep trying. It's community radio, and there is only one telephone line.

Too often people complain, and then don't 'show up' when they have the opportunity. You have the opportunity to 'show up' next Thursday - seize the opportunity!

Geoff Gilson
"The ESP Show"
WCOM 103.5FM



So far, the host has launched into the most tired attack on behalf of Katrina Ryan as if they had never read the newspapers or watched the meetings where this has been discussed to death.

Anyone want to get them back on track? Call 929-9601 or e-mail

Chilton is now trying to explain how the process worked and the host says he "doesn't want to get into a legal argument." No, it's much more important to repeat the mantra, "you must appoint the 4th place candiate" long as it's Katrina.

As much as I want local radio stations to cover local issues, I wonder about the utility of it when they don't know what they're talking about (and they're apparently pissed off about it!).

This guy is a moron. It's nice of Mark to spend his time doing this. I wouldn't be as gracious as he is being.

I have to go to a staff meeting in a few minutes.

These guys are ambushing and yelling at Chilton! How is this contributing to any discussion?

The two callers that have gotten through have both called this program a joke. I will make a point of not listening in the future. I hope others will do the same.

The hosts' webpage has a link to Katrina's candidacy website... what's up with these folks?

in the possible event that i get to interview you folks, if i Ever interrupt you that often, please feel free to walk out of the studio.


Thanks, Daniel. I think your chances of interviewing me are infitely higher than the ESP Team's. Something like 99% divided by zero... ;-)

I can't believe Mark actually sat there with them abusing him and the entire Town government for an hour. Those guys aren't even Carrboro residents!

Missed this!
What happened? Any place the I can listen to it?

Joan mentions the site has a link to Katrina -
it appears they have links to the websites of past guests.

The show does have a discussion forum

The ESP web site doesn't appear to have been updated since November. Let's see if they add a link to .

Hi, all- I'm just now putting an mp3 of the show up on our podcast page, down at the bottom of what is getting to be a long list of local public affairs program:


PS WCOM Listener-Supported Community Radio 103.5 FM. with 100+ hours a week of local-origin programming, needs YOUR support- you can make a secure donation on our website, of course, or send a check to the station at 201 N Greensboro St, Carrboro.

sounds crazy. I called in after the fireworks I guess. Ruby, can you send me your email address?

The hosts prodded Mark enough to get his dander up, but I wouldn't call it abusive. Several callers complained about the dead-horse line of questioning. One caller had a problem with the appointment of an influential newspaper columnist to the Board of Aldermen.

I didn't call it personally abusive, just pointless, hostile, uninformed, and combative. I can't imagine how that kind of provocation is supposed to lead to informative or productive dialogue.

David, you can use the contact form here on OP or on my personal website (linked next to my name below).

Thank you all for your interest. By the way, Mark survived, has agreed to come back - and Alex Zaffron will be on next Thursday (February 16). So. We must be doing something right.

People, we have a different style of interviewing, that's all. If you listen to BBC Radio, you'll recognize it. It isn't personally abusive. But it does challenge. And there's nothing wrong with that.

So. Listen to "The ESP Show," on WCOM 103.5FM. Live on Thursdays, 9.00am - 10.00am. Or get it on live stream @

Call in, with questions or comments. Don't be shy. You can be rude to our face, as well as on this blog. (919) 929-9601. Or e-mail comments or questions to:

Ruby, come on, change your mind, be a guest. We have the greatest of respect for what you've done with this site. At the very least, come and put us in our place. Can you really resist a good challenge?

I recognize other names on this site. We'd love to have you as guests, also. Why not contact us, before we contact you? We're about opening up politics, folks. That's all. What do you have to be scared of?

Happy blogging, and happy listening!

I'm listening to the mp3. "English style" interviewing or not, there were lots of cheap shots. I listen to the BBC interviewers on BBC World Service each morning, and while they are tough and aggressive, they do not launch cheap shots.

The cheapest shot: confronting Mark with a legal position (by actually reading, verbatim, the Carrboro charter), and then, when Mark tried to explain the legal complexity of the situation, saying "we are not here to have a legal debate; we're trying to get away from that." Totally bogus and unfair move by the interviewer.

Geoff, it takes more than an English accent to do what you're calling "English style" questioning of a guest.

The view you were espousing was that the language of the town's charter clearly required the Board of Aldermen to appoint the 4th place finisher, Katrina Ryan, to fill the vacancy created by Mark Chilton's becoming mayor. (Please don't protest that you were espousing no position and merely asking questions; it's quite evident that both you and your co-host thought the charter language quite clear on this point.)

You confronted Mark Chilton with the language of the charter--that is, you made a legal argument--and then asked him to explain why the Board of Aldermen didn't follow it.

And when Chilton then tried to explain that the language of the charter is not dispositive, and must be read in conformity with other provisions of North Carolina law, you cut him off, saying, "I am not going to spend an hour getting into a legal debate; that's exactly what I'm trying to get away from."

That was not "tough questioning;" it was an effort to grab control of the interview back from your guest after the guest played by your rules and began addressing the legal position that you yourself had just espoused and confronted him with.

For a radio interviewer, that's just not cricket, Geoff.

I had a guy screaming at me in the parking lot yesterday, having trouble getting his call through- he was definitely moved by "English Style" interviewing. I almost had to call the cops.

Hey, if it's good enough for the BBC, and for the FOX network, then why not WCOM?

Having said the above, I think there's a tougher question that Mark (and the rest of the Board of Aldermen) could have been asked.

I think Mark is quite right that the language of the Carrboro Town Charter does not automatically require the appointment of the 4th-place finisher in filling the vacated seat of another alderman. It's pretty clear to me that the relevant portion of the Charter is addressing a situation in which an alderman vacates his or her seat during his or her term and that alderman's seat is therefore open as an additional 4th seat at election time. In such a situation, as I read it (though I admit it's not a model of clarity), rather than just the top 3 vote-getters becoming aldermen, the 4th-place finisher also becomes an alderman (if there is a 4th seat open) (and the 5th-place finisher becomes an alderman if there is a 5th seat open and so on ...).

But here's the tougher question: even if that provision of the Town Charter did not control the outcome of the election because it did not apply with the force of law to the situation at hand, why did the Board of Aldermen therefore treat it as if it were a nullity and ignore it entirely in their deliberations? This is a provision in the town's organic law. Surely it is of some relevance that the the town's organic law actually does envision a scenario in which the 4th- (and 5th- and 6th-) place finisher can become an alderman by virtue of the simple fact of getting the 4th (or 5th or 6th) highest number of votes. It may not officially "apply" in the legal sense, but surely the provision nonetheless has some value as an indication that the "spirit" (as it were) of Carrboro's Town Charter is to recognize a kind of presumptive significance to the fact of being the number 4 finisher in an Alderman election.

A quick analogy: The U.S. Constitution says that to be elected President, a person needs to be 35 years old. It doesn't say anything at all about how old you need to be in order to be vice president. Suppose a party were to nominate a 30-year-old as its vice presidential candidate, and the other party were to challenge that in court. Naturally, in that lawsuit, the "you-have-to-be-35-to-be-President" language in the Constitution wouldn't apply. But wouldn't we expect a court, in considering the open legal question of whether a 30-year can be vice president, to consider the meaning and intent of what the Constitution does say about age limits? Wouldn't it be shoddy reasoning for the court simply to say, "Hey! The 35-year-old-to-be-president language doesn't technically apply here, so this whole age limit question is entirely open, and I therefore get to come up with my own answer without regard for what the Constitution generally has to say about the idea of age limits?"

That's the tougher question. Would Mark or any of the aldermen who read OP care to respond? I understand--and agree--that the Charter's language didn't compel anything in this situation with the force of law. But why did you all act as though the Charter's clear endorsement of the idea of sometimes seating 4th-place finishers did not tend to suggest that as the presumptively better way of resolving the question, at least until the language of the Charter could be amended and clarified?

This was not "English style" questioning of Mark Chilton; it was just combative. There's a big difference.

Listen to Robin Lustig on BBC's NewsHour each morning on WUNC. At times he is quite probing, and at judiciously selected moments, he tells an interviewee that he's not making sense or contradicting himself or what have you. That is not what the WCOM show with Mark Chilton did. Not even close.

Last two points, and then I'll shut up:

(1) The first person who called in to the show took the show to task for "rehashing" the question of the BoA's selection of Dan Coleman and for not "moving on" from a "settled" question to "more important" matters. This is also a view that has been stated, or at least implied, by some here on OP.

I couldn't disagree more. This "nothing to see here; let's move on" sort of argument is bogus when it's the Bush Administration saying it about some public controversy that they'd prefer to have behind them, and it's just as bogus here. People are still talking about how this all went down. Telling them to just pipe down and "move on" strikes me as (to use a word often seen here) "unhelpful."

(2) The lamest move in these discussions--both on the radio show and here on OP--is when people challenge those engaging in the debate by saying "Hey! You're not even a resident of Carrboro!" I can throw a stone from my front step over the Carrboro line, I do most of my day-to-day shopping in Carrboro, my kids went to school in Carrboro for several years. And my situation is not at all atypical. We are a community here; to point to the town line and say "discussion of public matters stops here" is just a way to shut down an uncomfortable discussion.

I could not disagree more with the first person who called in to the show

Perhaps you didn't recognize my "American Style" of blogging- I was kidding- I don't think we should emulate the BBC or FOX.

Any idiot interviewer can raise the temperature of a discussion- using the justification that it is "English Style" doesn't convince me that it is beneficial to the community.

(I intended to delete that last partial sentence, but forgot to do it before posting.)

The problem with the whole discussion of the Carrboro Charter provision on vacancies is it is out of context. Since the municipal law rewrite in 1971, new and revised municipal charters basically contain provisions designed to either flesh out or override the general law. The general law here, G.S. 160A-63 deals with filling vacancies, and it provides that if a vacancy occurs during the first two years of a four year term (but at least 90 days before the mid-term election), it is filled for the last two years by the voters. It is a separate election on the ballot for a two-year term. In 1973, southern Orange voters had their first experience with this when a Chapel Hill-Carrboro school board vacancy appeared as a separate ballot question - there were three four year terms, and a separate race for the two-year term. The General Assembly adopted a local law for the school board in 1973 to overturn this for future elections, providing that the extra seat is added to the main ballot, with the final winner getting the shorter term. Similar provisions were enacted for Chapel Hill and Carrboro later in the 1970s. The provision is only triggered if there is actually a vacancy prior to the election. The Carrboro charter has to be read together with G.S. 160A-63. G.S. 160A-63 creates the special election, the Carrboro charter provides that it is to be merged with the main election, not a separate filing. The legislative movement post-1971 was to have "short-form" charters, which instead of being 30 pages long and repeated the general law contained only modifications and the basic provisions on the size and name of the governing board, length of terms, etc, and were just 5-10 pages long. This was an attempt to standardize municipal law. I can understand that reading just the Carrboro charter would confuse people.
In Carrboro, there was no vacancy at the time of the election, so the charter was inapplicable. It would have been triggered, for example, if Zaffron and Chilton had resigned when they filed, the the 4th and 5th place finishers would have gotten two-year terms, but MOST importantly, the voters would have voted for five, not voted for three.

Thanks for explaining that Gerry.

In general I think we take conflicts of interest too lightly, and I think politicians generally accept that it is 'unhelpful' to bother to try to change things...

Along these lines, my favorite thing I read this weekend was Jim Black defending his aid, Meredith Norris. Black's son owns a successful family pest control business, and Norris has worked to get 'favorable' folks on the state board that regulates exterminators and the products they use. Blacks response to the allegation of conflict of interest here was: "My son is a young, good-looking guy, and Meredith Norris was trying to help him." ... It's a better excuse than Black usually comes up with...

Gerry, thanks, but this doesn't respond to the question I am asking.

I know that the provision is inapplicable to the precise situation that was at hand.

The fact that it did not apply in this situation with the force of law did not mean, however, that the provision did not exist at all. Look at my hypothetical about the age of the vice presidency in the US Constitution, and the problem of figuring out whether a 30 year old can be vice president. The fact that a law does not specifically control a new situation does not mean that the law has no bearing on how a government body should handle that new situation.

What I'm asking is why the Board of Aldermen felt that a provision of the Town Charter that explicitly contemplates seating a 4th-place (or 5th- or 6th-place) finisher had nothing at all to do with the problem that confronted them. Surely, at a minimum, the provision--even though inapplicable--is a strong indication that (contrary to what many said) Carrboro law does attach some sort of significance to the status of being a 4th-place finisher in an alderman election. Why, then, did the aldermen feel free to approach the matter as though the slate were entirely clean? Was this not inconsistent with the spirit of the town's Charter, even if not its letter?

The Carrboro charter attaches significance to being 4th place finishers in an election when there are four seats being elected and the voters are voting for four candidates.

And Gerry, again, I understand that had the provision actually applied, voters would have known going into the voting booth that the votes they cast would help produce a 4th-place "winner." That's an important point, and it may be a reason to view the 4th-, 5th-, and 6th-place finishers in this election with less "respect" (as it were) for their showing than if the election had been one in which voters were actually electing a 4th-, 5th-, or 6th-place finisher to the board.

But we heard many people emphasize the insignificance of being a 4th-place finisher in this race. People emphasized the fact that the 4th-place finisher did not poll a majority of votes, whereas the 3rd-place finisher did. People emphasized that more voters, presented with the slate of candidates, chose not to vote for the 4th- (and implicitly the 5th- and 6th-) place finishers. In other words, we heard lots of stuff about how meaningless and insignificant the fact of placing 4th in an election was.

What we did not hear was that the Town's own Charter blunts the impact of all of that reasoning, and in fact, to the extent it speaks on the issue at all, envisions a presumption in the other direction ... in favor of a 4th-place finisher ... even in a situation where the 4th-place finisher does not attract a majority, etc. etc. etc.

"Why, then, did the aldermen feel free to approach the matter as though the slate were entirely clean?"
Eric, because not many people are as smart as you... and you're not being helpful... and can you move on...

as to vice-president, you say:
"A quick analogy: The U.S. Constitution says that to be elected President, a person needs to be 35 years old. It doesn't say anything at all about how old you need to be in order to be vice president."

actually, the US Constitution DOES deal with this. The last sentence of the 12th amendment says "But no person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States"

so while it is true that from the ratification of the US Constitution in 1789 until the ratification of the 12th amendment in 1804, Article II, Section 1(5) only required the President to be 35 (and was silent about the qualification to be vice-president), the interesting legal issue has been settled for 202 years.

Gerry, so if an elected official came to you and asked you how to proceed on a question on which the town's Charter is silent, your advice to him or her would be that in his or her deliberations, he or she should not consider other related provisions of the Town Charter to see whether they offer any sort of guidance, or help to mark the boundaries of what are good and bad arguments for resolving the open question?

I think that would be bad advice.

I think the significance of being the "runner-up" 4th place finisher in a 3-seat race IS poltiically and ethically significant. I just don't think the significance has anything to do with the Carrboro Charter provision. The discussion of filling a vacancy and turning to the runner-up occurs all the time across the state, and only a few towns have the kind of provision that Chapel Hill and Carrboro do.

Fair enough, Gerry. But honestly.

Let's switch the hypothetical somewhere else. In deciding whether the Constitution's guarantee of free "speech" protects the right of a composer to compose a symphony (which is, after all, not "speech"), would you proceed as though all bets were off and the question were entirely open, or would you resolve the question at least in part by reference to what the Constitution does say and imply about expression?

In deciding whether the "trial" of an impeachment in the U.S. Senate needs to have this or that procedural mechanism, would you say that the question is entirely open, or would you say that the question ought to be examined, in part, with an eye to what the Constitution thinks a "trial" is in the other places where it speaks of "trials?"

I've had the kind of discussion you state as a hypothetical MANY times.
There are two schools of thought:
1) The runner-up has invested much time in a campaign, has faced the voters, and ought to be given some preference.
2) the voters have rejected the runner-up, and the governing board should select someone else

I'm wondering when the charter provision would ever kick in. As stated by Mark in the interview, and previously on OP, for the fourth place finisher to be elected the resignation would have to occur long enough before the election to have this reflected on the ballot. Well, this resignation happened plenty long enough before the next election for that. So what is the window? Soon enough before the next election, but not so soon that there is an empty seat for a year or more? If Mark and Alex had resigned in August, could the BOA have appointed their successors before the election?

Yes, Gerry, and my point is simply that the Charter does shed some light on the choice between 1 and 2. Not none, as you've said here, and as the board seems to have said.

the resignation did not occur until December, not "plenty long enough before the election."

If the resignation had occurred in mid-July (more than 90 days before the election), the board would have appointed someone to serve until December, and then the 4th place finisher would have served the last two years. If the resignation had occurred in mid-September, then the Town Board would have apponted someone to serve 26 months.

Put it this way, Eric: If Democrat Mike Easley were to suddenly leave office, would it be appropriate for Republican Patrick Ballantine to take the governorship? I mean Ballantine was the next runner-up in November of 2004, right? Or maybe the next runner-up in the 2004 Democratic primary, Rickey Kipfer should take it?

Well, of course the NC Constitution specifically lays out what should happen, so that is an irrelevant question - except in the following regard: The NC Constitution specifically calls for something BESIDES giving the seat to the next runner-up. Why? Because both Rickey Kipfer and Patrick Ballantine were roundly defeated. Their point of view was explicitly rejected by the voters.

As I pointed out on WCOM, that used to be exactly how the US Presidency worked. And early in the history of our republic this idea was tossed out - because it was a bad idea.

I am not trying to villify Katrina Ryan. I have a lot of respect for Katrina, but the fact is that 33.5% of all the voters who showed up on election day voted for her, whereas 66.5% of voters who showed up purposefully cast their ballots in such a way as to keep her off the Board of Aldermen. Compare that to third place finisher John Herrera. A little more than half of all voters who showed up that day cast ballots for John - less than half of voters passed him over. The discrepancy between third place and fourth place in this election was VERY large. Sometimes it's not, but this time it was.

It's fine for folks who don't live in Carrboro to have an opinion about this matter, but honestly Eric, I am curious why is it that the people who rail on about this issue (you, Robin Cutson, Jessie Beard, Terri Buckner etc.) all live somewhere else? What is the real issue there? The appointment process or Dan Coleman? (Or possibly Mark Chilton?)

Some of ya'll have also raised the point that folks in northeast Carrboro were procedurally denied the right to vote in this recent election. I agree and I think that was unfair and I voted against the annexation because of the timing issues. However, I am not willing to follow ya'll down the path of what-if's. That is, the extension of that line of argument is that we should look at the results of the last election and then apply your/my/someone's theory about what would have happened if . . . I respectfully decline to go there. However many if's you throw at it, someone else will throw some "well then I woulda"s at it, too.

The point is that we do not know what would have happened if some of the basic rules or facts had changed. Yes, the new residents would have voted, but how many of them? How many more residents from other areas would have shown up in that case? How would these different scenarios have affected the endorsements from the newspapers and interest groups? We cannot say what would have happened - only what we wish had happened. And I don't think it is appropriate to make the decision based on a set of assumptions about what might have happened if . . .

I know there are folks in Carrboro who are unhappy with the results of this appointment process. There concerns are valid, but I guarantee this: I am here to represent all the residents of Carrboro. And I am not going to allow the Town of Carrboro to inore any area within its jurisdiction. I am absolutely committed to that and I believe that I am not alone on the Board of Aldermen in that point of view. I want anyone in Carrboro who feels that Dan Coleman will not represent them and their view point to feel free to get in touch with me. I don't promise to do what you say, but I do promise to consider your point of view. YOu can reach me anytime by email - or on my cell phone at 919-636-0371.

In the meantime, the appointment is over. It was legal. The Institute of Government said so. The Town attorney said so. The North Carolina General Assembly staff attorneys who drafted the charter said so. And for goodness sakes, Katrina Ryan's attorney even said so. We did what North Carolina law calls for: We used our discretion.

Okay. Now I truly am done with this topic. I actually enjoyed talking to the ESP crew on the air. It was hard to get the full scope of my viewpoint out there in quite the way I just did on OP, but I think I slipped a lot of that into the broadcast, but in a less organized way. I hope I did better just now.

Oh, and one more thing Eric, stop throwing stones from your front step over the Carrboro line ;)

Mark, a very thoughtful response that demonstrates why politics in the Paris of the Piedmont is a different kind of beast.

Oh, almost forgot, what were you wearing for your interview?


As you know, I am not a lawyer. The discussion here brings up an interesting and more general issue. Let me proceed in this discussion as a layman. Sometimes laws are wrong. If they are not “mortal” wrongs, I grit my teeth and follow them, at least in public. However, if something is wrong and doesn't have the true force of the law behind it why should we suggest that anyone take it into consideration? In the situation we are discussing, the choice of the person with the fourth most votes in the election to fill the BOA vacancy both did not have the law behind it and was wrong. It was wrong because finishing fourth in an election where voters had only three votes does not indicate who was the fourth choice of the voters. I am not saying anything specific about this fourth place finisher. I am not saying that the way the seat was filled is necessarily fair. I am not saying that giving some credence, during the selection process, to a fourth place finish in the election was wrong. (Clearly, some, perhaps all of the alderpersons did give some weight to the fourth place finish.) I am saying that immediately appointing the person finishing fourth would have been wrong.
I attended the BOA meeting at which the issue of how to choose a replacement for Mark Chilton on the board was discussed. At that meeting a legal opinion was read by a supporter of “choosing the fourth place finisher”. Listening to that opinion and having no legal training, I came to the conclusion that the opinion did not support appointing the fourth place finisher but did support invalidating the recent election because voters did not get a chance to vote for four candidates. (In any case that opinion was not supported by other lawyers.) Almost everyone I have talked to on this subject agrees that the fairest way to choose the additional alderperson would have been to have another election but apparently the state would not allow that to happen. In any case, I think we need to thank the five alderpeople and the mayor for the hard work they performed in selecting the final member of the board. The process, while not ideal and certainly divisive, was better than slavishly choosing the fourth place finisher. I hope the town recovers rapidly from this ordeal.

Mark, FYI, I live in Carrboro's EJT. Technically I have a vested interest through my land ownership in Carrboro politics and government. And I bet that I've lived in Carrboro many more years than you have. Emotionally, Carrboro has been my home for nearly 25 years. Sorry I don't have the income required to live within the city limits.

Why did I keep 'railing on' about something you clearly think I have no business interfering in? Besides the fact that I live in the EJT and have both an economic and emotional investment in the town, I also believe that elections are the basis of democracy. I did not challenge the legal interpretation of the appointment process once the town's lawyer ruled on it. But you and all the other BOA members know that there was a strong competition to come in 4th and lots of backroom speculation that if Catherine or David came in 4th, they would be appointed to the open slot. David and Catherine speculated on that scenario themselves. If you didn't hear all those conversations, you really weren't paying attention.

It was your choice to make. You chose a technical interpretion--one that followed the letter of the law. I would have chosen to follow the spirit of the law, which is what I think Eric is pointing out is just as valid as the technical.

Eric & Gerry--enjoyed your interchange. Lawyers have a differing way of thinking!

In this day and age when the president of the united states lies on a regular basis it's really cool to have local politicians that are so honest. (and thorough) This level of transparency is really important to democracy and will benefit us all.

Historians take note. This is the real first person story of Carrboro politics in 2006.

Gerry, what I wrote was, "this resignation happened plenty long enough before the next election for that." Not the last election. The next election yet to occur.

So when is it too early to wait for the next election cycle, and too late to appoint? Without that definition, the charter provision could never kick in.

Terry says:
"Eric & Gerry–enjoyed your interchange. Lawyers have a differing way of thinking!"

Yes, I know that. My wife often says "stop talking like a lawyer"

There is a four-year term of office. For a term starting December 1, 2005 for example, the election window is December 1, 2005 through August 1, 2007. If a vacancy occurs during that period, then in the 2007 municipal election someone is elected to serve the last two years of the term (and the board if aldermen can appoint someone on a temporary basis to serve until December 1, 2007.) If the vacancy occurs August 2, 2007 through November 30, 2009, the board appoints someone to serve until November 30, 2009.

Mark, one could easily interpret the results of the election differently than you do. Voters who did not vote for Katrina might not have been voting against her, as you imply. They might have just had a specific order of preferences among the candidates. With a fourth vote, Katrina might have garnered 60% of the vote. Or put another way, without one of the top three on the ballet, she might have won by a landslide. Who's to say?

That said, if the BOA is not bound by the vote, it is not bound by the vote. Case closed.

Thanks for the specifics, Gerry.

Mark wrote:

"Put it this way, Eric: If Democrat Mike Easley were to suddenly leave office, would it be appropriate for Republican Patrick Ballantine to take the governorship? I mean Ballantine was the next runner-up in November of 2004, right? Or maybe the next runner-up in the 2004 Democratic primary, Rickey Kipfer should take it?"

That's not a responsive analogy to the point I'm making, Mark. The right analogy is this: suppose that the NC Constitution had a provision that said that the losing candidate in a two-way governor's race should assume the governorship in the event of "the resignation of the sitting governor." (I know it doesn't; I'm just pursuing an analogy here.) But then a sitting governor died in office. The provision of the Constitution about what to do upon resignation would not apply, because it specifies a procedure to follow "resignation," not death. So the state would need to figure out what procedure to use for something as to which the state's organic law is silent. My point all along has been that, in making that decision, it would certainly be appropriate to take into account--not "apply" or "follow," because it's not technically applicable, but "take into account"--that the state's organic law does, in a not entirely dissimilar situation, say that the election's loser should fill out the governor's term. (Again, remember: we're just speaking hypothetically here.)

More to the point, Mark wrote:

"the fact is that 33.5% of all the voters who showed up on election day voted for her, whereas 66.5% of voters who showed up purposefully cast their ballots in such a way as to keep her off the Board of Aldermen."

This is precisely the argument against appointing the 4th-place finisher that I think is inconsistent with the spirit of the Charter (although, I again concede, not its letter). The Charter envisions that, in an alderman election to fill the conventional 3 seats as well as a 4th (or 5th or 6th) seat opened by a vacancy, the 4th (or 5th or 6th) place finisher takes a seat on the board regardless of the percentage of the vote s/he got, regardless of the gap between him/her and the candidate above him/her. Indeed, if the 4th-place finisher got 2% of the vote, s/he would, by command of the Charter, take a seat on the board. In such a case, by Mark's reasoning, ninety-eight percent of the voters would have "purposefully cast their ballots in such a way as to keep her off the Board of Aldermen." Yet the Charter would require his or her seating on the Board.

So it is exactly this argument against seating the 4th-place finisher that the Charter itself rejects--not in this precise situation, to be sure, but in a similar one.

Mark wrote:

"We did what North Carolina law calls for: We used our discretion."

Agreed. Absolutely. What I'm talking about, though, Mark, is what guides that discretion.

Mark also wrote:

"It's fine for folks who don't live in Carrboro to have an opinion about this matter, but honestly Eric, I am curious why is it that the people who rail on about this issue (you, Robin Cutson, Jessie Beard, Terri Buckner etc.) all live somewhere else? What is the real issue there? The appointment process or Dan Coleman? (Or possibly Mark Chilton?)"

I'll answer this, but my experience on OP suggests strongly to me that I won't be believed.

The real issues or motivators here, for me, are that (a) I'm interested in process, and (b) from my position here just a few inches from the Carrboro line, I sometimes see a clubbiness to both Carrboro and Chapel Hill politics that rubs me the wrong way, and (c) I have a bit of a contrarian streak.

I would not know Mark Chilton, or Dan Coleman, or Katrina Ryan, or anyone else who ran for alderman (or, in Dan's case, didn't run), if I tripped over their foot at Weaver Market. (Neither do I know Robin Cutson, Jessie Beard, or Terri Buckner.) Neither do I have any greater sense of what any of the candidates' views were than I've been able to glean from reading this site and the local papers. I know that people find it hard to believe that in writing about this--or "railing," as Mark says--I'm not grinding some sort of axe for somebody--that I'm not really angling for some sort of result and just using the talk about process as a stalking horse to reach some substantive outcome. In my case, I'm not.

If you're thinking, "why would anyone spend so much time on this if they weren't just pushing for some or other result (as opposed to analyzing process)?" I guess I'd say that, in my idiosyncratic case at least, it comes with the territory of being a lawprof and of being engaged in, and by, some aspects of life in the local community.

Jim, I hope you understand that I am not advocating any particular outcome, let alone "slavishly choosing the fourth place finisher."

I think you're right that a new election for 4 slots would have been a more democratic way of proceeding than the process that was used, but I also believe Mark (and others) when they say that state law did not allow this, and that the board therefore had the discretion to pick an alderman.

And I even agree with you that "immediately appointing the person finishing fourth would have been wrong."

What I've tried to present is simply how I think the Charter continues to have some background influence in informing the board's exercise of its discretion, even where it (the Charter) does not "apply" with the force of law. In my view, the provision of the Charter about appointing the 4th-place finisher in an election following the vacating of a seat would have (for me) created at least a mild presumption in favor of the 4th-place finisher. I would have investigated in my own mind whether the voting dynamics of a 6-person race for 4 open seats was sufficiently different from the voting dynamics of a 6-person race for 3 open seats that this mild presumption in favor of the 4th-place finisher should be disengaged.

On this point, I'd actually be interested to hear a little more, if anybody has the patience with me to respond: how is it that the voting dynamics of a 6-person race for 4 open seats would be expected to be so different from a 6-person race for 3 open seats? (Jim, you seem to be saying that it would be, and Mark has said it a number of times.) Is it that people who really don't like the person they think might come in 4th (in a race for 4 open seats) would shift some or all of their 4 votes to the people they perceive as the likely 5th- and 6th-place candidates, so as to prevent they likely fourth-place finisher from coming in fourth? (Note: there'd be nothing at all wrong with that!) Is there some other sort of strategy in voting that is being alluded to?



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