[EL] Breaking News: None of the Above Order from 9th Circuit

[Rick Hasen]

    Breaking News: Ninth Circuit Order Will Allow "None of the Above"
    Option to Appear on Nevada Ballot <http://electionlawblog.org/?p=39602>

Posted on September 4, 2012 10:45 pm 
<http://electionlawblog.org/?p=39602> by Rick Hasen 
<http://electionlawblog.org/?author=3>

A unanimous Ninth Circuit panel has issued an order 
<http://www.ca9.uscourts.gov/datastore/general/2012/09/04/panel_order_stay.pdf> 
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 
<http://electionlawblog.org/archives/015199.html> 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 <http://electionlawblog.org/?p=39374> 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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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv


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