9th Cir: 'None of these Candidates' Can Stay on Nevada Ballot

The Ninth Circuit Court of Appeals issued an order on Tuesday to reinstate Nevada’s “none of these candidates” ballot option, The Associated Press reports.

Barring Supreme Court action, Nevada voters will be able to vote for none of the above in November.

The "none of these candidates" option was introduced to Nevada in 1978. While state law says "none" can't win - even if it receives the most votes - opponents feared that it could siphon votes from other candidates and influence the election outcome, Fox News reports. It's not an entirely irrational fear: "None" has never won a general election, though it has drawn the most votes in a handful to primary contests. In 1998, there were more than 8,000 "none" votes in a U.S. Senate race that was decided by 428 votes.

A "none" vote may be wacky in most states, but it works in Nevada, where write-in voting is mostly prohibited. (Write-in votes are only accepted through a federal write-in absentee ballot under the Uniformed Military and Overseas Absentee Voters Act.)

In August, however, U.S. District Judge Robert Jones ruled that Nevada's ballot alternative of "none of these candidates" was unconstitutional because votes for "none" don't count in the final tallies that determine winners.

Secretary of State Ross Miller then turned to the Ninth Circuit to protect the long-standing public interest of the 'none of these candidates' option. The appellate court stayed the district court's order this week.

In a concurring opinion, Judge Stephen Reinhardt was skeptical about the plaintiffs' odds of winning an end to the "none of these candidates" choice on appeal. He wrote:

I wish to make clear that the panel is in agreement that the basis for our grant of the stay of the district court's order pursuant to Winter v. Natural Res. Def. Council, Inc. is that the likelihood of success on the merits overwhelmingly favors the state. Plaintiffs' arguments offer no colorable basis for this court to conclude that Nevada's 37-year-old statute providing for "none of these candidates" ballots is contrary to the Constitution or to any federal statute.

The Election Law Blog notes that this isn't just another case of the Ninth Circuit Court of Appeals being contrarian:

This was a unanimous ruling by Judges Wardlaw, Reinhardt and Bea. This is significant because while Reinhardt is one of the most liberal judges on the Ninth Circuit, Judge Bea is one of the most conservative, and Judge Bea has not hesitated to issue strong dissents on motions panels when convinced that emergency relief is wrong. Judge Bea's agreement will go a long way toward convincing the Supreme Court, should there be further emergency action, that this is not a liberal 9th Circuit panel running amok.

What do you think? Is the "none of these candidates" option here for good?

Related Resources:

• Townley v. Miller (Ninth Circuit Court of Appeals)
• Judge: Nevada Voters Can't Choose 'None of the Above' (FindLaw's Ninth Circuit Blog)
• Is Early Voting Allowed in My State? (FindLaw's Law & Daily Life)