[EL] Concern about judges playing political scientist: Nevada ruling on none of the above

[Rob Richie]

Folks,

It's not the most momentous ruling of the year, but I wanted to add a
comment to Rick's post below from a few days ago in which he reported on a
federal judge throwing out Nevada's "none of the above" option because the
NOTA option can't win -- meaning that, in his estimate, those votes "don't
count."

This example to me exposes a judicial environment in which judges can run
amok when it comes to election law, at least --- far from avoiding the
political thicket, they now seem all to ready to jump in, play amateur
political scientist and make back-of-the-seat calculations about what
elections are and should be.

I'd be curious to hear what others think about this -- feel encouraged to
send me a note directly, as I'd like to write more about this in the future.

I'd also like to explain more about why I think the judge's ruling is wrong
on its face in Nevada -- and misses an overwhelmingly important fact, which
is that it seems like many NOTA votes in Nevada, probably most, are simply
expressions of indifference to the race and those voters would have
otherwise skipped over it.

As a reminder of the case, Judge Robert Jones struck down Nevada's NOTA law
last week. Here is an excerpt from the news story that underscores that he
basically seemed to be making a gut analysis as an amateur political
scientist.

<<The “none” option, he argued [for the state of Nevada], was akin to a
protest vote that allows voters to communicate with politicians that they
are unhappy with their choices. “The purpose of the option is to send a
clear message,” he said. But the judge [Jones] disagreed, and early in the
hour-long hearing said he believed that a “none” vote was indeed a vote
that should be counted toward election results, and not just to register a
protest. “I don’t buy your arguments that it isn’t a vote, because it is a
vote,” Jones said.>>

Jones even goes so far as getting into solutions-- apparently proposing one
from the bench that I think is an absolutely terrible idea. The story
reports:

<<At one point Jones suggested that requiring votes for “none” to be
counted and binding would satisfy the legal challenges raised in the
lawsuit. If “none” got the most votes, nobody would be elected and the
vacancy could be filled by governor appointment, he theorized.>>

It may be fun to muse in that way, to be sure, but does Nevada really want
to force a vacancy that then would be filled with a non-elected appointee?
That would be unconstitutional for US House races, of course, but do we
even want judges to be getting into such ideas? Is that calling balls and
strikes or coming up with whole new games?

What's particularly unfortunate is that there's a very straightforward
rationale for having a NOTA option that has nothing to do with protest
votes. NOTA provides a way for a voter to indicate "no opinion" without
skipping the ballot item. When we see undervotes in U.S. elections in
elections without NOTA, it's hard to know if they're intentional. Sometimes
they are product of a lousy ballot design or a voter simply going too fast
and not noticing the ballot item.

As it turns out, Nevada in fact has a particularly LOW rate of undervotes,
at least from a spotcheck. MIT's Charles Stewart has an important study on
"residual votes" (uncounted votes) in the 2004 presidential election, in
which he compares state data from 2004 to 2000. (The paper is here:
http://www.vote.caltech.edu/sites/default/files/vtp_wp25.pdf )

Stewart finds that Nevada and Maryland had the lowest residual rate of
ballots in the nation in 2000 and 2004 -- with Nevada at 0.6% in 2000 and
0.3% in 2004. I'd like to see more data, but this suggests that NOTA may
primarily lowers the number of undervotes, not create a "spoiler" as some
third party candidates can be called.

For that reason, there's a very reasonable policy argument to have a NOTA
option on ballots to make it more feasible to alert a voter to skipping a
race. Right now, we alert voters to overvotes because we know that's almost
certainly a mistake. If NOTA were a part of every ballot choice, then every
undervote would be a mistake as well - -and voters could be alerted to it.
That could be really helpful for making votes count even if Judge Jones
might say it's not a "vote."

Is my suggested use of NOTA a good idea? Maybe, maybe not. But is it the
place for a judge to strike down a longstanding law based on his individual
thoughts on the matter? We obviously have a judicial process involving
appeals, but playing political scientist isn't something that just lower
court judges do -- some excerpts of Supreme Court rulings dealing with
elections  to me are great examples of amateur hour, yet can be
justifications for rulings that can affect the whole country for decades to
come.

- Rob Richie, FairVote

###########
Surprising Ruling from US District Court on “None of the Above” Option in
Nevada <http://electionlawblog.org/?p=38910>
Posted on August 22, 2012 12:43 pm <http://electionlawblog.org/?p=38910> by
Rick Hasen <http://electionlawblog.org/?author=3>

AP:<http://www.washingtonpost.com/politics/federal-judge-strikes-down-nevadas-none-of-the-above-voting-option/2012/08/22/16a19c34-ec89-11e1-866f-60a00f604425_story.html>
“In
a high-stakes election that could help determine the presidency and control
of the U.S. Senate, a judge has ruled Nevada’s unique “none of the above”
ballot option is unconstitutional and has to go. U.S. District Judge Robert
C. 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.”

I find this result very surprising, and will write about its chances of
being upheld on appeal before the 9th Circuit once I see the written
opinion which the judge has promised to issue.

The case has important implications—Republicans want to eliminate NOTA
because they think doing so will help get more anti-Obama votes for Romney.
(h/t Richard Winger<http://www.ballot-access.org/2012/08/22/u-s-district-court-judge-in-nevada-says-state-law-on-none-of-these-candidates-is-unconstitutional/>
)


-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"Respect for Every Vote and Every Voice"

Rob Richie
Executive Director

FairVote
6930 Carroll Avenue, Suite 610
Takoma Park, MD 20912
www.fairvote.org  <http://www.fairvote.org> rr at fairvote.org
(301) 270-4616

Please support FairVote through action and tax-deductible donations -- see
http://fairvote.org/donate. For federal employees, please consider  a gift
to us through the Combined Federal Campaign (FairVote's  CFC number is
10132.) Thank you!
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120827/42a75a33/attachment.html>