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.
NOTA has worked overseas. It played a key role in establishing democracy in the crumbling Soviet empire. In 1989, the Communists in Poland grudgingly allowed a semi-free parliamentary election; they thought they had rigged the game by guaranteeing that many of their candidates had no opponents. But they forgot that voters would be able to cross out the names of candidates they rejected.
This allowed voters to defeat even the sitting Polish prime minister and dozens of other Communist incumbents because these candidates didn’t get the required absolute majority of votes. “This device changed history, because it proved how far people despised the Communist rule,” trade-union leader Lech Walesa once told me. “It accelerated the entire decline of the Communists in Eastern Europe.”
NOTA also played a role in the end of Communism in the former Soviet Union. The failure of many incumbents to win a majority of votes in parliamentary elections in 1991 led to new elections with new candidates in 200 out of 1,500 races for the Congress of People’s Deputies.
In the runoff elections, more than 100 Communist incumbents were defeated. Boris Yeltsin, who presided over the dissolution of the Soviet Union later in 1991, told me during a visit to the U.S. that the Soviet version of NOTA “helped convince the people they had real power even in a rigged election, and [it] played a role in building true democracy.”
Even in Nevada, the toothless version of NOTA has had an impact. Don Mello, a former state legislator who authored the 1976 law providing the ballot option, noted that if NOTA wins, the candidate who finishes second is humiliated. A significant NOTA vote, he told me, “forces the winner to undergo a reality check, and if he was falling down on the job, he usually walks the straight and narrow after that.”
NOTA has supporters from across the political spectrum. The staunchly conservative New Hampshire Union Leader once wrote in a publisher’s note that “NOTA is the only issue we’ve ever agreed on with the Boston Globe and Ralph Nader.” The late Seymour Martin Lipset, a respected political scientist at Stanford University, supported NOTA because it would represent an American version of the “no confidence” vote that frequently brings down parliamentary governments in Europe. In 2010, then-Representative Pete Hoekstra of Michigan proposed making a “None of the Above” option on ballots for federal elections mandatory. A new election would be required if NOTA placed first. Hoekstra is now a GOP candidate for the U.S. Senate, running against incumbent Democrat Debbie Stabenow.
The late Tony Schwartz, a New York political consultant who did commercials for Democratic presidential candidates ranging from Lyndon Johnson to Bill Clinton, was a big NOTA fan. He once shared with me a sample commercial he would have run in favor of NOTA:
Taxes go up while businesses shut down. Who’s going to fix this mess?
Republicans, Democrats, the White House? Let’s choose.
Who was not tainted by the recent financial scandals?
Clearly, None of the Above.
Which candidates refuse to be influenced by special interests? Clearly, it’s NOTA.
Which elected officials do not raise taxes or run down public schools, do not put image above issues or make promises that are impossible to keep?
The choice then is clear.
At the voting booth select NOTA. NOTA. A reliable option.
Because if the candidates won’t change, we’ve got to change the candidates.
Paid for by the None of the Above Committee.
NOTA would be far more effective than campaign-finance reform in reducing the overwhelming advantages of incumbency. In many races, second-rate incumbents win by beating third-rate challengers. With NOTA, a sitting officeholder could lose an election and give another candidate a chance even in a hopelessly gerrymandered, one-party district. And if NOTA came at all close to winning, even the most entrenched incumbents might be forced to rethink their positions and inject some needed humility into their approach.
NOTA might even discourage highly negative campaigning, because candidates would be running for the approval of voters — not just to offend fewer people than their opponents do.
Finally, adding NOTA to the ballot might improve the nation’s abysmal voter turnout. When confronted with the option of bad versus worse, disenchanted people could use NOTA to say, “Give me a better choice.” Isn’t that one of the things American democracy should be all about?
— John Fund is national-affairs columnist for NRO and a co-author of the newly released Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter Books).