(CN) – The full 9th Circuit showed little patience for a challenge to Nevada’s unique “none of these” ballot option, pressing opponents about their seemingly shaky standing.
Though the option has been on all Nevada ballots since 1976, opponents claim that it disenfranchises voters since state law requires election officials to ignore such votes in determining the outcome of state and presidential elections.
Nevada is the only state to offer such an option, which has faced challenges from the Republican National Committee.
In June 2012, 11 voters from all parties, including former Clark County Commissioner Bruce Woodbury and the state’s Republican Party Secretary James DeGraffenreid, filed suit against Nevada and its secretary of state over the option.
U.S. District Judge Robert Jones found the ballot option unconstitutional in August and ordered it removed.
A three-judge panel of the 9th Circuit quickly stayed the order and later amended it and entered a lengthy concurring opinion from Judge Stephen Reinhardt.
After the full court voted to rehear the issue before an 11-judge en banc panel, Nevada Deputy Attorney General Kevin Benson insisted at the hearing Monday that “the plaintiffs can show no possibility of success on the merits.”
“And this is because all of their claims are based on the false premise that choosing ‘none of these candidates’ is exactly the same thing as voting for a candidate,” Benson said.
Affording these choices constitutional protection as votes furthermore does not override the state’s “compelling governmental interests in not counting it in a way that it would win and therefore create a vacancy in the seat,” he added.
Just as citizens have “the right to vote for the candidate of their choice and to have that vote counted,” they also have “the right to withhold their vote,” Benson said.
“And voters do this in a variety of ways: they do this by abstaining, by under-voting, by defacing their ballot, by illegally marking it or by choosing none of these candidates,” Benson said. “In each of these cases that choice is never counted in determining who wins the election. And the reason it’s not counted is because in each of those cases it doesn’t function as a vote. It’s not analytically like a vote.”
Benson questioned the opponents’ motives in trying to remove “none of these” as ballot option, rather than pursuing the more “natural remedy” of simply having such votes counted.
“Presumably the fear there is that the candidate plaintiffs – the ones who are the Republican nominees or were the Republican nominees for presidential elector – would have a better chance of being elected to that position if they didn’t have to compete against this option. Now, of course, if it’s not a vote and it’s not an illegal option, then there’s no interest in having it taken off the ballot. Otherwise we could have all kinds of minor parties, or other parties, or other candidates that we don’t like, Independent candidates, struck from the ballot simply because competing against them makes it more difficult to win the election.”
He argued that the “overall purpose of this statute is to give voters a protest vote, to give them a chance to say they don’t like any of these candidates.”
“‘None of these candidates’ … as its very name implies, is both a logical and legal opposite of voting for any candidate, it’s a conscious decision to withhold one’s vote,” Benson said. “The federal right to vote extends only to the right to vote for a federal candidate and to have that vote counted. There is simply no federal constitutional right or statutory right or any fundamental liberty interest in creating a vacancy, which is what would occur if ‘none of these candidates’ were counted.”
Arguing for the other side, attorney Michael Morley argued that ballots case for “None of These” are votes no matter how the court looks at the issue from.
“They are legally cast by registered voters in accordance with Nevada state law,” Morley said.
Judge Jacqueline Nguyen seemed puzzled as to Morley’s intent.
“But the relief that you’re seeking in this case is not to have the ‘none of these candidates’ votes counted but rather strike this option from the ballot altogether, is that correct?”
After Morley affirmed, Nguyen fired back: “And that makes me concerned regarding standing because in order to establish standing it’s the plaintiff’s burden to show that the relief that you’re requesting for redresses the injury that you’re suffering from. So the injury that’s articulated in the plaintiff’s briefing is disenfranchising, that your vote somehow is not granted, so how does the relief that you’re asking for address – striking this option altogether – address the injury that the plaintiff’s claim they suffered?”
Morley cited Drake v. Obama, “which held that a candidate and a political party is harmed by the presence of an allegedly illegal ballot alternative that hurts the candidates’ own chances of prevailing in the election.”
“So it’s a notion of competitive injury,” he added.
Morley said there are some opposing candidates and a political party in the plaintiff group, and they compete against this “illegal ballot option.”
Thus they have standing to challenge its “existence on the ballot and argue that it should not appear on the ballot,” Morley added.
“If those votes are required to be counted and given some legal effect, then this court would be turning what the legislative history clearly and repeatedly shows was intended as simply as a symbolic measure, simply to allow the voters to express -“
Judge Fisher interrupted: “But, that’s where you lost me. … What is the legal effect you want the ballot for ‘none of the above’ to be given?”
Interrupting Morley’s hesitant response again, Fisher asked: “What legal effect do you have in mind? What it is so that we can find out what it is you’ve been deprived of?”
Morley explained that the Legislature failed to call for run-off elections or to prohibit candidates from losing to a “none of the above” vote.
“The Legislature did not want it to have any legal effect,” Morley said. “The Legislature intended this to be a solely and symbolic gesture.”
An unamused Judge John Noonan asked to “be very candid” with Morley.
“You’ve put the court through a good deal of work, made the law clerks very busy, we’ve spent time here listening to you,” Noonan said. “Why did you bring the suit? What’s the purpose? Who’s behind it? I just don’t understand why any rational person would’ve paid you to come up and argue this case. Can you tell me why?”
Morley answered: “Prior to the election, among the plaintiffs were candidates for presidential elector who faced competition from an illegal ballot alternative. Looking to the future…”
Noonan interrupted again: “Did anybody lose? Did any of the electors get defeated by this?”
Morley replied that nobody had lost, but that Drake v. Obama already shows “that the presence of an illegal ballot alternative harms political parties and their candidates by lessening the possibility that someone’s going to vote for them.”
“And that is the reason behind this lawsuit: to have the illegal alternative struck from the ballot to prevent voters from being disenfranchised and protect candidates and parties from illegal competition,” he added.
In his rebuttal, Benson accused Morley of elevating “form over substance.”
“What this case boils down to is all Nevada voters who cast a vote for a federal candidate will have that vote counted,” Benson said. “‘None of these candidates’ does not in any way impair, restrict, alter or diminish the federal right to vote.”
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