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

Mon Aug 27 13:58:04 PDT 2012

Judge Jones hasn't even written his opinion yet, so I don't think it's fair to criticize him now.  Also I think he is right.  All voters deserve to have their votes treated equally.  If "None of these Candidates" is a vote (and it seems obvious that it is), it should have just as much punch as any other vote in the same race.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147

--- On Mon, 8/27/12, Rob Richie <rr at fairvote.org> wrote:

From: Rob Richie <rr at fairvote.org>
Subject: [EL] Concern about judges playing political scientist: Nevada ruling on none of the above
To: "Election Law" <Law-election at department-lists.uci.edu>
Date: Monday, August 27, 2012, 1:49 PM

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

Posted on August 22, 2012 12:43 pm by Rick Hasen

AP: “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)

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