NC Board of Elections refuses to count constitutionally-valid votes

One would think that, even in a pretend democracy, they’d at least give the appearance of counting everybody’s votes. It can be frustrating when The Powers That Be cheat to ensure that they’ll be elected over their challengers; it’s even more frustrating that they cheat even when they don’t have to.

Ray Ubinger is a North Carolina activist for voter’s rights, especially the right of write-in votes to be counted. North Carolina law requires even write-in candidates to qualify to the Board of Elections; however, the North Carolina Constitution spells out in VI.6 who is eligible for election to office, and standing court precedent Spruill v. Bateman says that the legislature may not make additional qualifications to those in the Constitution.

Folks, this isn’t about the right of candidates to seek election; this is the right of the people to have their votes counted. The State of North Carolina is blatantly and unapologetically violating that right, as Ubinger’s email exchange with Don Wright, General Counsel for the NC Board of Elections, shows:

From: Ray Ubinger <ubinger@gmail.com>
Date: Fri, Nov 16, 2012 at 12:53 PM
Subject: Question to Don Wright
To: mperry@durhamcountync.gov

Shouldn’t Ray Ubinger’s write-in vote be counted for Timothy Rohr (Caldwell county voter #1460206 and a licensed attorney) for Attorney General, since NC Const. VI.6 defines Rohr as eligible to be elected to office by the people, and since the NC Supreme Court specifically ruled in Spruill v. Bateman that the legislature may not create additional qualifications to elective office beyond those already spelled out by the People in the organic instrument of the Constitution?

On Mon, Nov 19, 2012 12:50PM, Wright, Don <don.wright@ncsbe.gov> wrote:

Dear Mr. Ubinger,

Timothy Rohr was not a certified write-in candidate for NC Attorney General and a write-in vote for him would not count based upon the statute GS 163-123.

Mr. Rohr, who I understand, had filed as a Libertarian Party candidate before in another election, was free to file  for the Libertarian nomination for this office or qualify as a certified write-in. The Libertarian Party  has been enjoying ballot access in North Carolina for several years now with interested Libertarian voters only needing to file for office.

The Durham County Board of Elections properly did not count your attempted write-in vote for Mr. Rohr.

Don Wright
General Counsel

(Note: Timothy (T.J.) Rohr is an attorney, Libertarian, and Councilman for the City of Lenoir, NC.)

From: Ray Ubinger <ubinger@gmail.com>
Date: Mon, Nov 19, 2012 at 1:42 PM
To: "Wright, Don" <don.wright@ncsbe.gov>

Hello Mr. Wright,

The Board are only sworn to uphold statutes which are “not inconsistent with” the Constitution, correct?

NC Const. Art. VI Sec. 6 say that qualifications to elective office must be contained in the Constitution, correct?

Certifying by petition is not a requirement contained in the Constitution, is it?

And the NC high court said likewise in Spruill v. Bateman, did they not: that the legislature may not create any additional qualifications to office whatsoever beyond those in the Constitution? And that ruling has never been struck down, has it? I quote verbatim from it here:

“The Legislature is therefore forbidden by the organic instrument to disqualify any voter not disqualified by that article from holding any office.  The General Assembly cannot render any ‘voter’ ineligible to office by exacting any additional qualifications, as by prescribing in this instance that the candidate shall be a ‘licensed attorney at law,’ any more than it could prescribe that he should own a specified quantity of property, or should be of a certain age, or race or religious belief or possess any other qualification not required to make him a voter.”

Further, the same case law cites:

“Brightley, Elections, 44; McCafferty v. Guyer, 59 Pa. 109. Whoever is entitled to vote is entitled under our Constitution to hold office, except as where restricted by that instrument. The constitutional provision in these matters cannot be abridged by requiring any qualifications whatever in addition to those set out in the Constitution.”

I was not asking you whether or not the legislature ordered my vote to be discarded. Everyone agrees they think they own my vote in that regard. What I am asking you, still, is how the Board members can rightfully obey that order when the People’s organic instrument as clarified by the state high court says the legislature has no such authority to issue the order in the first place.

It is not about candidates or political parties (two terms that appear nowhere in the Constitution). It is about Ray Ubinger’s right as a voter. The legislature is telling the Board to treat me like a convicted felon: ‘throw Ubinger’s vote away’. But I have never even been charged, much less convicted of a felony. (I am furthermore a commissioned, commended, disabled and honorably discharged U.S. Army officer.) I am constitutionally “entitled” to vote. That’s the word in Art. VI Sec. 1, “entitled”. So you would seem to be talking about an entitlement that doesn’t count. But that is a contradiction in terms, isn’t it?

Thank you.
Ray Ubinger
Durham Disfranchised Voter #642520

On Mon, Nov 19, 2012 1:47PM, Wright, Don <don.wright@ncsbe.gov> wrote:

Dear Mr. Ubinger,

I disagree with your opinion. Your vote for Mr. Rohr was properly not counted.

Don Wright

From: Ray Ubinger <ubinger@gmail.com>
Date: Mon, Nov 19, 2012 at 1:52 PM
To: "Wright, Don" <don.wright@ncsbe.gov>

Dear Mr. Wright,

It’s a question of fact. Doesn’t the NC high court say the legislature may not pick and choose which constitutionally qualified person We the People may elect?

Ray Ubinger

On Mon, Nov 19, 2012 2:27PM, Wright, Don <don.wright@ncsbe.gov> wrote:

Mr. Ubinger,

Again, I disagree with your opinion that candidate filing or qualifying as a write-in candidate in a partisan race is unconstitutional.

Don Wright

From: Ray Ubinger <ubinger@gmail.com>
Date: Mon, Nov 19, 2012 at 2:57 PM
To: "Wright, Don" <don.wright@ncsbe.gov>

Mr. Wright, if you’re not going to answer my question, there is no need to keep replying. My question did not contain the words “candidate” or “filing”. Those words are being put in my mouth. Except I would say that *I* filed—as a VOTER—correct? Durham Voter #642520 since 1992–true, or not?

And NC Const. VI.1 says I am entitled to vote in the AG contest—true, or not?

And NC Const. VI.6 says only the Constitution may define someone as disqualified to be elected—true, or not? “Every qualified voter in North Carolina who is 21 years of age, except as IN THIS CONSTITUTION disqualified, shall be eligible for election by the people to office.”

And, the NC Supreme Court’s position on this issue in Spruill v Batemane took the words that ‘the legislature may not create any qualifications whatever to elective office beyond those contained in the organic instrument’—correct?

Ray Ubinger

(I assume this post went unanswered, as the next email from Ray is in December:)

From: Ray Ubinger <ubinger@gmail.com>
Date: Sat, Dec 1, 2012 at 6:43 PM
To: "Wright, Don" <don.wright@ncsbe.gov>

Don’t take my word for the citation. View a published version yourself:

http://tinyurl.com/spruillvbateman

Then ignore it, because you don’t care about my right to vote.

People tell me to sue. But the court has already ruled. Spruill has never been overturned. Picking and choosing which votes to count is none of the legislature’s business, by NC high court decree since 1913.

Durham county officials be sure not to try to get Don to answer my questions which he repeatedly ducked. You don’t want to tick your masters off.

On Mon, Dec 3, 2012 8:41AM, Wright, Don <don.wright@ncsbe.gov> wrote:

Dear Mr. Ubinger,

The issue that concerns you is that you desire a write-in vote for Timothy Rohr, a registered Caldwell voter, be counted as a vote for North Carolina Attorney General. Mr. Rohr did not file as the Libertarian candidate for that office. In fact, the Libertarian Party (nor the Republican Party) did not have a candidate for Attorney General. Mr. Rohr did not file a petition under GS 163-122 to be an unaffiliated candidate for that office. Nor did Mr. Rohr file a write-in petition under GS 163-123 to be a certified write-in candidate for that office. Thus your attempt to vote For Mr. Rohr as a write-in for the office of North Carolina Attorney General  was not authorized by law and your vote for him was properly not counted by the Durham County Board of Elections.

Your personal criticism of Attorney General Cooper, as set out in your earlier e-mails. for being an unopposed candidate for Attorney General is misplaced. Your concerns should be directed to both the Libertarian and Republican Parties and their members for not having a filed candidate against Mr. Cooper. Ballot access, enjoyed by the Libertarian, Republican, and Democratic Parties , allows qualified members of those parties to easily become candidates for office by the mere payment of a filing fee.

This agency makes no judgment on the failure of Mr. Cooper to be opposed. It was a fact, and we dealt with it on that basis.

This ends the matter of your attempted write-in vote for Timothy Rohr to be counted. The county canvass has occurred and the State Board has certified the statewide results for the Office of Attorney General.

Don Wright
General Counsel

(Wow, note the finality there! “This ends the matter.” Screw the Constitution, screw the courts, we’ll do what we want.)

From: Ray Ubinger <ubinger@gmail.com>
Date: Mon, Dec 3, 2012 at 1:37 PM
To: "Wright, Don" <don.wright@ncsbe.gov>

Mr. Wright, you spend a lot of words answering questions I didn’t ask and stating facts I don’t dispute.

Yes the legislature invented a title called “Candidate” (a term appearing nowhere in the Constitution) and yes the legislature defined Mr. Rohr as not being one. Yes the legislature grants a special privilege exclusive to “Candidates,” so, yes, the title amounts to a title of nobility. Yes the legislature forbids anyone but someone whom it feels like calling a “Candidate”, to have votes for him or her be counted for partisan non-municipal elective office.

Yes the legislature invented a hurdle by which if a constitutionally eligible person neither files “candidacy” under a recognized “party” banner (political parties are another term invented by the legislature, not appearing in the Constitution)—nor collects a number of petition signatures high enough to please the legislature—then the legislature disqualifies that person from winning elective office higher than city council, or soil & water, anywhere in North Carolina.

Yes the legislature disapproved of Mr. Rohr’s being allowed to be voted for for AG.

Yes the legislature forbade Us the People from electing Mr. Rohr as Our AG.

Yes the legislature went so far as to order that ALL AG votes for ANYONE BUT Roy Cooper “shall not be counted for any purpose.” Yes this was tantamount to election by the legislature back at noon on August 8, when NCS 163-123(f) narrowed the number of possible AG winners from thousands down to one, on a date when not one ballot was cast anywhere in the state.

What you keep NOT saying is WHO TOLD THE LEGISLATURE THEY COULD DO ANY OF THIS.

Did the Constitution tell the legislature so?

No, the Constitution defined Mr. Rohr as eligible to be elected by the people to AG.

“EVERY qualified voter in North Carolina who is 21 years of age, except as IN THIS CONSTITUTION disqualified, shall be eligible for election by the people to office.”

NC Const VI.6.

You do not dispute that Mr. Rohr cleared every hurdle in that document:

    • citizenship
    • age
    • residency
    • licensed attorney
    • legally registered to vote
    • not a felon
    • never been impeached out of office.

Was it the NC Supreme Court, who told the legislature they could declare Cooper the only possible winner back on August 8, before a single ballot was cast?

No, the NCSC says the opposite:

“The Legislature is therefore forbidden by the organic instrument to disqualify any voter not disqualified by that article from holding any office.  The General Assembly cannot render any ‘voter’ ineligible to office by exacting any additional qualifications, as by prescribing in this instance that the candidate shall be a ‘licensed attorney at law,’ any more than it could prescribe that he should own a specified quantity of property, or should be of a certain age, or race or religious belief or possess any other qualification not required to make him a voter.”

“Or that he should file ‘candidacy’ papers and/or petitions,” we might just as well add.

Yes, your holy lords in the legislature disapproved of Mr. Rohr. But so what? Aren’t they supposed to work for me? Didn’t they get to vote at the polls? Who said they could cast a second vote by having my vote voided? You didn’t petition to have your vote counted, so why should I have to petition to have my vote counted?

Ray Ubinger
who by the way met every Constitutional entitlement to have my vote counted
and incidentally is a disabled, commended and honorably discharged veteran of the 82nd Airborne Division
but you are treated me like a damned felon

ps Stop trying to pass the buck onto the NC Republican or Libertarian party. Counting my vote is YOUR job.

And this is where the replies from Wright stop coming in. Must be nice to have absolutely no accountability, eh?

2 thoughts on “NC Board of Elections refuses to count constitutionally-valid votes

  1. Dang sorry to hear about this. I have an idea! Libertarians and centrists form a coalition to get more third-party candidates into office. Think about it: we both hate the curent options and we both hate the current government. This coalition would be perfect. Let me know what you think by replying to this comment, or by visiting my blog.

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