Metropolitan News-Enterprise


Thursday, July 11, 2013


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Ninth Circuit Restores ‘None of These Candidates’ Option


From Staff and Wire Service Reports


“None of These Candidates,” Nevada’s perpetual ballot loser, will continue to be an option for voters after the Ninth U.S. Circuit Court of Appeal yesterday rejected a Republican-backed lawsuit challenging its constitutionality.

The panel overturned a preliminary injunction that would have removed the option from the November 2012 general election ballot, and from all future primary and general election ballots. The Ninth Circuit had stayed the injunction, and yesterday ordered that the suit be dismissed on the ground that none of the plaintiffs—11 individuals and the Nevada Republican Party—had standing.

Nevada is the only state in the nation that that gives voters the option of “none of these candidates” in statewide races—president, U.S. Senate, state constitutional offices and the Nevada Supreme Court.

But under state law the option—commonly referred to as NOTC—can never win even if it receives the most votes, though it can play spoiler.

Sway Outcome

Republicans sued last year over the law, arguing that NOTC could siphon votes from a disgruntled electorate and sway the outcome of a close 2012 presidential and Nevada U.S. Senate race.

They said NOTC disenfranchises voters because it has no legal bearing on an election.

The state countered that NOTC is an expression of an idea that “is not reflective of the voter’s will on the ultimate question in the election, which is, ‘Who should represent the people?’ “

The plaintiffs argued that to be constitutional, Nevada’s election law should give more legal weight to NOTC by allowing it to win and setting up a process for voters to then decide on another living candidate, such as declaring a vacancy or having a follow-up election.

Senior Judge Raymond C. Fisher, in his opinion yesterday for the Ninth Circuit, said the plaintiffs’ arguments were “questionable,” but that the court could not consider them because none of the plaintiffs was seeking a remedy for a concrete harm.

The plaintiffs, he explained, broke down into three groups—voters who did not say they intended to vote for NOTC in November 2012 or at any subsequent election, voters who said they intended to vote for NOTC in 2012, and the Nevada Republican Party and two members of the unsuccessful presidential elector slate backing Mitt Romney.

The judge emphasized that the plaintiffs did not challenge the requirement that NOTC appear on the ballot, only the provision that precludes votes for NOTC from being considered for purposes of determining election outcomes.

Group Lacked Standing

That being the case, Fisher explained, the first group of plaintiffs lacked standing because they did not allege injury, the second group lacked standing because their proposed remedy would not cure their alleged injury, and the third group lacked standing because the injury they were alleging—the fear of losing the election because of votes siphoned off by NOTC—was not attributable to the portion of the statute they attacked.

The “none” option has been on the ballot in Nevada since 1976. It was enacted by the Legislature the previous year as a way to combat voter apathy in the wake of the Watergate scandal that brought down President Richard Nixon.

The intent was to give voters a way to voice their displeasure with candidates and elected officials at the ballot box.

NOTC has never received the most votes in a general election but is often a popular choice that can and has played spoiler in high-profile races. Fisher noted that when it was used for the first time, in the 1976 Democratic presidential primary, NOTC beat Ted Kenney and finished just behind frontrunner Jimmy Carter.

It wasn’t a factor in last year’s hard-fought president contest between President Barack Obama and Romney. But it played a familiar role in Nevada’s U.S. Senate race between Republican Sen. Dean Heller and Democratic challenger Shelley Berkley, a seven-term congresswoman.

Heller defeated Berkley by about 12,000 votes. More than 45,000 votes were cast for NOTC.

In 1998, U.S. Sen. Harry Reid defeated then Republican Rep. John Ensign by 428 votes, but more than 8,000 voters rejected both men and opted for “none.”


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