Court tosses challenge to state’s ‘none’ option

“None of the above,” Nevada’s perpetual ballot loser, will continue to be an option for voters after a federal appeals court on Wednesday rejected a Republican-backed lawsuit challenging its constitutionality.

A three-judge panel of the 9th U.S. Circuit Court of Appeals dismissed the suit, ruling that the 11 plaintiffs lacked standing.

Nevada is the only state that gives voters the option of “none of these candidates” in statewide races — president, U.S. Senate, state constitutional offices and the Nevada Supreme Court.

But under state law, “none” can never win even if it receives the most votes, though it can play spoiler.

Republicans sued last year over the law, fearing “none” could siphon votes from a disgruntled electorate and sway the outcome of close 2012 presidential and Nevada U.S. Senate races.

The suit argued “none” disenfranchises voters because it has no legal bearing on an election. In legal briefs, attorney Paul Swen Prior argued that votes for “none” are treated as “legal nullities” under the law, while voters who choose “none” are disenfranchised because their choice has no legal standing on the outcome.

Deputy Attorney General Kevin Benson countered that “none” is an expression of an idea, not a vote for which candidate should be elected.

Secretary of State Ross Miller, Nevada’s chief election officer, called the ruling “a triumph for Nevada voters.”

“Voters who want to express their dissatisfaction with the federal and statewide candidates on the ballot should have the option and freedom to do it,” Miller said.

The suit argued that to be constitutional, Nevada’s election law should give more legal weight to “none” by allowing it to win and setting up a process for voters to then decide on another living candidate, such as declaring a vacancy or having a follow-up election.

But the appellate judges, while making no determination on the merits of those arguments, said the plaintiffs’ positions “are questionable.”

“None” has never received the most votes in a general election but is often a popular choice that can play and has played spoiler in high-profile races.

It wasn’t a factor in last year’s hard-fought president contest between President Barack Obama and GOP nominee Mitt Romney. But it played a familiar role in Nevada’s U.S. Senate race between Republican Sen. Dean Heller and Democratic challenger Shelley Berkley, a seven-term congresswoman.

Heller defeated Berkley by about 12,000 votes. More than 45,000 votes were cast for “none.”

In 1998, U.S. Sen. Harry Reid defeated then-Republican Rep. John Ensign by 428 votes, but more than 8,000 voters rejected both men and opted for “none.”