(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."