Nevada voters are going to have to pick a candidate or stay home from the polls, now that a federal judge has struck down the Silver State's unique "none of the above" ballot option just in time for a crucial Senate election. U.S. District Judge Robert C. Jones tossed the option, which has been on Nevada state election ballots since 1978. The protest vote had become a tradition in which disgusted voters vented their spleens and sent a message to candidates. But a GOP-linked law firm filed suit, claiming that the protest choice disenfranchises other voters, and Jones ruled Wednesday that because the "none" option can never win, even if it gets the most votes, it essentially makes those votes not count.
The issue would likely have little effect on the presidential race, because the "none" option is only available for state ballots. But Nevada is currently seeing a pitched battle between Republican Sen. Dean Heller and his Democratic challenger, Rep. Shelley Berkley, in a race that could have major national implications.
"None of the above" was introduced to Nevada in 1978, when it was reasoned by the state that those who offer their consent to elect an official also have the right to withhold their consent. Nevada was the only state to offer the "none" option, and while state law says "none" can't win - even if it receives the most votes - opponents fear it could siphon votes from other candidates and influence the election outcome.
"None" has never won a general election, though it has drawn the most votes in a handful to 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."
The lawsuit, filed by Nevada law firm Snell and Wilmer, with Washington lawyer and Republican operative Michael T. Morley, listed as co-counsel, was also formally backed by the Nevada Republican Party. The suit was brought against Secretary of State Ross Miller, who argued that voters "always have the right to not vote" for listed candidates, and voting for "none" is essentially no different than skipping a particular race on a ballot altogether.