Breaking News: Ninth Circuit Order Will Allow “None of the Above” Option to Appear on Nevada Ballot

A unanimous Ninth Circuit panel has issued an order which will have the effect (barring any Supreme Court action) of allowing Nevada voters to vote, as they have in the past, for “None of the Above” on races on the ballot, including the presidential race.  Here are a few thoughts on that order:

1. This was a unanimous ruling by Judges Wardlaw, Reinhardt and Bea. This is significant because while Reinhardt is one of the most liberal judges on the Ninth Circuit, Judge Bea is one of the most conservatives, and Judge Bea has not hesitated to issue strong dissents on motions panels when convinced that emergency relief is wrong. Judge Bea’s agreement will go a long way toward convincing the Supreme Court, should there be further emergency action, that this is not a liberal 9th Circuit panel running amok.

2. The order itself is short and simply points to the Winter factors for the granting of emergency relief.  But Judge Reinhardt issued a nine-page concurring opinion, which begins with the point that the state of Nevada is likely to succeed on the merits: “I wish to make clear that the panel is in agreement that the basis for our grant of the stay of the district court’s order pursuant to Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), is that the likelihood of success on the merits overwhelmingly favors the state. Plaintiffs’ arguments offer no colorable basis for this court to conclude that Nevada’s 37- year-old statute providing for ‘None of these candidates; ballots is contrary to the
Constitution or to any federal statute. A failure to stay forthwith issued by the district court would accordingly result in irreparable injury to the State of Nevada and its citizens, and would be directly contrary to the public interest.”  This strikes me as clearly right–I was very surprised by the district court ruling and was anxious to see any written opinion from the district court (there is none) explaining this curious ruling.

3. The remainder of Reinhardt’s concurrence just rips into the district court judge for delaying this case repeatedly when it was clear that ballots needed to be printed in just a few days to get ballots out to military and overseas voters.  Really inexcusable conduct by the district court.  But it is also clear that Reinhardt wanted to be clear about some tricky jurisdictional questions in the case, given that the trial judge never issued a written opinion and has tried to assert continued jurisdiction over this matter.

4. Finally, politically, this ruling hurts Romney—who does not want protest voters in Nevada who dislike Obama to have another avenue to express dissatisfaction on the ballot.

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