“None of the above” option ruled unconstitutional

Whenever libertarians consider the idea of electoral reform in Australia, the first matter raised is abolition of compulsory voting. Optional preferences follow, along with abolition of public campaign funding, and the introduction of recall elections.

Most, then come to the rather unique concept that exists in Nevada; the ‘none of the above’ option. Libertarians insist that this should be an option on all ballots. Should it win the election, then the position should be left unfilled or unfunded, or a new election called with the previous candidates banned from contesting it.

Unfortunately as result of legal action by the Republican Party, Nevada’s shining light on the hill has been extinguished, ruled unconstitutional. This appears to be part of a larger effort by the GOP to lawyer up the campaign to its advantage, in parallel with efforts in several states to legally block the Libertarian Party from appearing on the ballot.

Some of the assertions made in the case are questionable:

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. …

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. …

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. …

It is difficult to believe the suggestion that voting ‘none’ is the same as staying home and not voting at all. Not voting is an option for those who have no interest either way in the result of the contest. Voting ‘None’ on the other hand, is the action of people who are so disgusted with the available options that they make the effort to go to the polling station and let the parties know this.

It is the difference between saying nothing, or declaring, “These dropkicks are oxygen thieves and I wouldn’t give any of them standing room in my paddock.” A great deal of difference!

The main sticking point seems to be that the ‘none’ option is not considered binding were it to win an election, however it is a valuable tool for assessing the real public attitudes toward the candidates. It certainly should be binding.