Judge strikes down ‘none of these candidates’ as an option

RENO, Nev. — Nevada's "none of the above" voting option was struck down Wednesday by a federal judge, who ruled the state's decades-old ballot alternative was unconstitutional because votes for "none" don't count in the final tallies that determine winners.

The ruling by U.S. District Judge Robert C. Jones came at the end of a lively hearing where the judge challenged both sides in the legal arguments with hypothetical questions and ramifications of possible rulings he was considering.

In the end, he struck the option down altogether for both federal and statewide races, and refused to grant a stay while his decision is appealed to the 9th U.S. Circuit Court of Appeals.

Secretary of State Ross Miller said his office would pursue "an immediate and expedited appeal to protect the long-standing public interest of the 'none of these candidates' option."

A federal lawsuit filed in June and bankrolled by the Republican National Committee argued Nevada's unique voter option, which has appeared on every election ballot for statewide races since 1976, disenfranchises voters because it's a perpetual loser. Under state law, even if "none" receives the most votes, it doesn't win. Victory is reserved for people, though "none" before has played a role in determining the winner in some high-profile races.

Deputy Attorney General Kevin Benson, representing the secretary of state, argued voters "always have the right to not vote" for listed candidates, and that voting for "none" is essentially no different than skipping a particular race on a ballot altogether or not voting at all.

"You're free to stay home on the couch," he said, arguing that such non-votes don't count either.

He likened "none" to a protest vote, a way for voters to communicate with politicians that they are unhappy with their choices.

"The purpose of the option is to send a clear message," he said

But the judge disagreed, and early in the hourlong 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," Judge Jones said.

At one point Judge Jones suggested that requiring votes for "none" to be counted and binding would satisfy the legal challenges raised in the lawsuit. If "none" got the most votes, nobody would be elected and the vacancy could be filled by governor appointment, he theorized.

Instead, he granted an injunction to strip "none" from the Nevada ballot.

"None" has never bested named candidates in a general election, though it has come out on top in a few primary contests. But in the 1998 U.S. Senate race, however, Democrat Harry Reid won re-election by 428 votes over then-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 didn't want to see this year. The contest between President Obama and presumptive Republican presidential nominee Mitt Romney promises to be close, as does the one between Republican Sen. Dean Heller and his Democratic challenger, Rep. Shelley Berkley.

Conventional thinking suggests voters who select "none" may be more likely to favor a challenger if the option wasn't available.

Judge Jones said he would issue a written order detailing his legal analysis at a later date but before Sept. 7, when state elections officials said ballots have to be ready for printing.

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