Who will fill the open Wake County school board seat? It all depends on who you ask.

There’s a new twist in the case of how the seat of deceased Wake County school board member Kathy Hartenstine could be filled — and it’s one that could lead to a special election and potentially a lawsuit.

Hartenstine, 68, was running unopposed on the ballot when she died Sept. 23 from what her family says were complications due to the flu. The school board plans to appoint a replacement, but attorneys for the Wake County Board of Election are saying that the seat could go to the write-in candidate who got the most votes.

Now, elections and school board attorneys are trying to sort through the issue.

If elections officials decide to fill the seat based on who has the most write-in votes, then potentially a person with a few votes could win or there could be a special election if the top two people were tied, according to Gerry Cohen, former general counsel to the General Assembly.

“Letting the school board fill the seat would avoid an absurd result,” Cohen said in an interview Monday.

In the meantime, school officials are continuing with the process of trying to fill the seat before Christmas. Applications for the District 7 seat, which includes Morrisville and parts of Cary and northwest Raleigh, are due to the school board Nov. 26.

“The Wake County Board of Education has developed a fair process to receive applications, conduct interviews, and appoint a qualified individual to fill the vacancy,” school board attorney Jonathan Blumberg said in an email Monday. “The Board of Education has been operating with the understanding that it will be the body that fills the vacancy.

“There are a number of reasons why the Board of Education should fill the vacancy, and we received guidance from counsel for the State Board of Elections consistent with the view that the Board of Education would fill the vacancy.”

At issue are different and conflicting parts of state law for filling the seat.

County elections lawyers are citing state statute 115C, which says that the votes for deceased candidates won’t be considered and the next person with the highest number of votes will win.

It’s unknown which write-in candidate had the most votes because the results won’t be compiled until later this week. At least one person, Karl Rectanus, founder of a Raleigh-based education technology firm, launched a last-minute write-in campaign for the seat.

Some Morrisville parents upset with the plan to open Parkside Elementary on a year-round calendar had also encouraged a write-in campaign for a candidate.

But Cohen pointed to state laws governing Wake school board elections that cite state statute 163A, which says that if a deceased candidate has the most votes then the seat is declared vacant with the governing body filling the position.

A portion of statute 115C specifically covers school board elections, while statute 163A covers elections in general. But the state law that creates Wake County school board election district cites statute 163A.

The Wake County Board of Elections will meet Friday to canvass this year’s results to make them official.

Greg Flynn, vice chairman of the Wake County Board of Elections, said Monday he wants additional information so that the elections board can make a decision on a sound legal basis. But based on the research he and Cohen have done, Flynn said he thinks 163A takes precedence.

“To my lay eyes the school board is still doing the right thing even if the reasons are as yet unclear,” Flynn said in a direct message.

Cohen also said he thinks state law supports having the school board fill the seat. But he acknowledged that there could be a lawsuit if anyone contests that the school board can fill the vacancy.

“In the U.S. if a dead person gets the most votes, then nobody wins,” Cohen said. “It’s not that the number two person wins.”

This story was originally published November 12, 2018 at 12:38 PM.