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.
The ruling came at the end of a lively hearing where the judge challenged both sides in the legal arguments with hypothetical questions and ramifications of possible rulings he was considering.
In the end, he 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 the hour-long 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.
At one point Jones suggested that requiring votes for "none" to be counted and binding would satisfy the legal challenges raised in the lawsuit. If "none" got the most votes, nobody would be elected and the vacancy could be filled by governor appointment, he theorized.
Instead, he granted an injunction to strip "none" from the Nevada ballot.
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.
"None" has never bested named candidates in a general election, though it has come out on top in a few primary contests. In the 1998 U.S. Senate race, however, Democrat Harry Reid won re-election by 428 votes over then-GOP Rep. John Ensign. More than 8,000 voters rejected both men and opted to vote for "none."
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.
Michael Morley, in his argument to boot the "none" option, argued that the Voting Rights Act and other laws are designed to ensure everyone's votes are counted.
He argued a vote for "none" was an affirmative, deliberate action, as opposed to waiving one's right to vote in a particular race, and that "none" votes can affect the outcome.
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 ready for printing.