Nevada’s ‘none’ voting option nixed

RENO, Nev. – A quirky Nevada law that Republicans feared could siphon votes from a disgruntled electorate and sway the outcome of close presidential and U.S. Senate races in the state was struck down Wednesday by a federal judge.

U.S. District Judge Robert Jones said the state’s decades-old ballot alternative of “none of the above” was unconstitutional because votes for “none” don’t count in the final tallies that determine winners.

Jones 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.

“We’re glad we were successful in our efforts to bring clarity to the Nevada presidential election ballot,” the RNC said in a statement when asked for comment.

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.

The “none” option, he argued, was akin to a protest vote that allows 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 an 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,” Jones said.

Nevada is the only state to offer the “none” 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.

“None of these candidates” has been a choice for races where voters statewide cast ballots – the president, U.S. Senate, state constitutional officers and Nevada Supreme Court justices.

While the law says “none” can’t win, it could have played spoiler in a close race.

That’s a scenario the option’s challengers 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.

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.