RENO, Nev. — In a high-stakes election that could help determine the presidency and control of the U.S. Senate, a judge has ruled Nevada’s unique “none of the above” ballot option is unconstitutional and has to go.
U.S. District Judge Robert C. Jones ruled Wednesday that because the “none” option can never win, even if it gets the most votes, it essentially makes those votes not count.
The ruling came during oral arguments in Reno over a lawsuit filed in federal court in June and financed by the Republican National Committee. It sought an injunction to remove the state’s unique voter option, which has appeared on every election ballot for statewide races — including presidential and Senate contests — since 1976.
Secretary of State Ross Miller said his office planned “an immediate and expedited appeal to protect the long-standing public interest of the ‘none of these candidates’ option.”
Nevada is the only state to offer the quirky option. It was a way to combat voter apathy after the Watergate scandal that brought down President Richard Nixon and give them a chance to register their disdain for their choices.
While the law says “none” can’t win, it could have played spoiler in a close race.
“None” has never bested named candidates in a general election, though it has come out on top in a few primary contests. In the 1998 U.S. Senate race, however, Democrat Harry Reid won re-election by 428 votes over then-GOP Rep. John Ensign. More than 8,000 voters rejected both men and opted to vote for “none.”
That’s a scenario the option’s challengers — a mix of Republicans, Democrats and independents — didn’t want to see this year.
The contest between President Barack Obama and presumptive Republican nominee Mitt Romney promises to be close, as does the one between GOP U.S. Sen. Dean Heller and his Democratic challenger, U.S. Rep. Shelley Berkley.
Conventional thinking suggests voters who select “none” may be more likely to favor a challenger, such as Romney, if the option wasn’t available.
In their lawsuit against the secretary of state, opponents argued that because “none” doesn’t count in the tally to determine a victor, voters — whether they opt for “none” or a candidate who breathes — are disenfranchised.
Michael Morley, in his argument to boot the “none” option, argued that the Voting Rights Act and other laws are designed to ensure everyone’s votes are counted.
Deputy Attorney General Kevin Benson, representing the secretary of state, argued the lawsuit should be dismissed. They said voters “always have the right to not vote” for listed candidates, and voting for “none” is essentially no different than skipping a particular race on a ballot altogether.
But the judge disagreed, and early in the hour-long hearing said he believed that a “none” vote was indeed a vote that should be counted toward election results, and not just to register a protest.
“I don’t buy your arguments that it isn’t a vote, because it is a vote,” Jones said.
Benson and John Parris, who represented a Las Vegas voter who intervened to preserve his right to vote for ‘none,’ told the judge he could order ‘none’ votes to be counted instead of striking the entire option from the ballot, and for a time the judge’s comments and questions seemed to indicate that’s how he would rule.
Instead, the judge granted an injunction, ordering “none of these candidates” be removed from the ballot.
Jones said he would issue a written ruling detailing his legal reasons at a later date but before Sept. 7, when state elections officials ballots have to ready for printing.