None of the Above

By J. DeVoy

Earlier this week, the United States Supreme Court denied a Republican petition for certiorari in a case that could have removed the “none of these candidates” option from ballots in elections for Nevada’s statewide positions.  Nevada Revised Statutes (NRS) Section 293.269(1), which has been on the books since 1975, contains this requirement for statewide elections of both state and federal offices:

Every ballot upon which appears the names of candidates for any statewide office or for President and Vice President of the United States shall contain for each office an additional line equivalent to the lines on which the candidates’ names appear and placed at the end of the group of lines containing the names of the candidates for that office. Each additional line shall contain a square in which the voter may express a choice of that line in the same manner as the voter would express a choice of a candidate, and the line shall read “None of these candidates.”

However, this is a “non-binding” none-of-the-above option.  Ultimately, someone must win the election, and that person is the individual with the most votes.  If “nobody” wins the election, the runner-up will be awarded the office – even though he or she normally would have been the loser.  NRS 293.269(2) sets forth this standard:

Only votes cast for the named candidates shall be counted in determining nomination or election to any statewide office or presidential nominations or the selection of presidential electors, but for each office the number of ballots on which the additional line was chosen shall be listed following the names of the candidates and the number of their votes in every posting, abstract and proclamation of the results of the election.

Reducing the statute down to plain English, Bruce Woodbury previously described the nature of Nevada’s non-binding none-of-the-above option as follows:

“One of the above candidates is going to get elected,” said Bruce Woodbury, a Republican and a former longtime Clark County commissioner, who is among those signing onto the lawsuit. He called the “none” option a “bait-and-switch scam.” (source)

The Republican push to remove Nevada’s none-of-the-above ballot option began in 2012, when 11 individuals and the Nevada Republican Party filed suit against Nevada Secretary of State Ross Miller.  The United States District Court for the District of Nevada entered a preliminary injunction in the plaintiff’s favor, enjoining the defendants from including “none of these candidates” as a ballot option in the November, 2012 election.  (Notably, and as discussed in detail in the Ninth Circuit’s order staying the injunction, this ruling was not reduced to writing when the defendants took their appeal.)  On an emergency appeal to the United States Court of Appeals for the Ninth Circuit, the appellate court stayed the District of Nevada’s preliminary injunction, and reversed and remanded the district court’s decision to enter a preliminary injunction.

The court’s dismissal of the case was based on a standing issue and made without prejudice.  While the litigation is dead, the underlying issue may not be.  (Prior to dismissal, the plaintiffs moved for leave to file an amended complaint.)  It is entirely possible that there may be more litigation on this issue, from either political party, in advance of this year’s statewide elections.

4 Responses to None of the Above

  1. bravian says:

    Reducing the statute down to plain English, Bruce Woodbury previously described the nature of Nevada’s non-binding

    That’s not plain English. Its ones person’s extremely partisan opinion of the process.

    And how is this really a problem anyways? If this didn’t exist wouldn’t a person who didn’t want to vote for any of the candidates simply not vote in that category? Or write in a candidate? In the last election I wrote in “king of the lizard people” at least twice for two local elections I had no interest in.

  2. Ancel De Lambert says:

    Bait and switch my ass. This is an opportunity for voters to state, in no uncertain terms, “fuck all y’all!” A candidate who governs in the very tenuous circumstance of being second to “No-one” governs carefully and with diligence, because their ass is on notice.

  3. Jay Wolman says:

    Though I profess I do not know Nevada election law or the rules of office successorship in the event of a vacancy, I think the Republicans chose the wrong remedy. Their point is valid that the option is a smokescreen–that if you choose “none of the above”, you are harming the chances of the person who is your least unfavored, and if it weren’t on the ballot, someone else might get elected.
    I would recommend that, instead of deleting the option, they enforce it. If “none of the above” wins, the election should be deemed void and the office vacant, triggering successorship/vacancy rules/special election/whatever.

    Obligatory:

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