I am a big fan of having a “None of the Above” option on ballots. I know it is the Rodney Dangerfield of election reforms. It gets so little respect that the only state that offers NOTA is Nevada, and there it decides nothing because if “no one” wins — as he has a few times — nothing happens. In fact, just last month U.S. district judge Robert Jones ruled NOTA unconstitutional for precisely that reason.
The lawsuit opposing Nevada’s NOTA was brought by two of the state’s Republican members of the Electoral College. They argued that, theoretically, the law could provide for a runoff or appointment of new candidates when NOTA wins the most votes. Then it would be constitutional. But — so their suit went — because the law in reality doesn’t do either of those things, voters who vote “None of the Above” are being unconstitutionally discriminated against.
Luckily, late last week a three-judge panel of the Ninth Circuit Court of Appeals overturned Judge Jones’s ruling and reinstated NOTA as an option for Nevada voters. The unanimous ruling was agreed to by both Judge Stephen Reinhardt, one of the circuit’s most vehement liberals, and Carlos Bea, one of the circuit’s staunchest conservatives.
Why were Nevada Republicans trying to neuter NOTA? My sources there describe the logic of NOTA’s GOP opponents: People usually check “None of the Above” as a protest vote; anyone choosing NOTA would probably otherwise protest by choosing the challenger, i.e., Romney; but if NOTA is available as an option on the ballot, that’s a vote not cast for Romney. The NOTA vote comes out of his hide.
I have no idea how NOTA might affect the 2012 presidential election. I do know that it has reduced — to the second-lowest in the nation — the number of Nevada voters who leave their ballots blank in the presidential contest. I’m glad it will remain on Nevada’s ballot, even if it is only symbolic.
Many voters might wish that such a ballot option were more than mere symbolism. If I had my way, a plurality or majority vote for NOTA would trigger a special election with new candidates. If people fret that allowing a vote for NOTA casts the election in too negative a light, the ballot line could instead read: “In Favor of a New Election.”
“None of the Above” would have been extremely useful in many past elections. Take the infamous 1991 race for governor of Louisiana between Democrat Edwin Edwards, who later went to prison for corruption, and Republican David Duke, a racist who was a former head of the Ku Klux Klan. In a Mason-Dixon poll taken right before the vote, 66 percent of Louisiana voters wished they had the NOTA option. In a hypothetical runoff election against Duke and Edwards, NOTA finished with about a third of the vote and could easily have won if major political leaders in the state had campaigned for it.
Millions of Americans are tired of entering polling booths and having to choose the “lesser of two evils” or even, as wags have it, “the non-evil of two lessers.” In most election years, a fifth or more of House incumbents face no major-party opposition. Perhaps it’s time that entrenched incumbents in one-party districts actually had something to fear from voters.