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

[Joe La Rue]

I think the Panel got this one right (though I reserve my right to change
my mind if/when the district court issues its opinion, providing us with
its reasoning). However, if evidence demonstrated that some minority-race
voter block regularly and disproportionately cast their ballots for "none
of the above," such that their votes regularly were not counted, would
Section 2 of the VRA require the option to be removed from the ballot? I'm
not as familiar with the VRA as some on the ListServe, but my limited
exposure leads me to believe it might. I'm interested in hearing the
thoughts of those who know more about this than I. [NOTE: I am not
suggesting that my hypothetical is true; I'm merely wondering what the
effect would be].

Joe
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On Tue, Sep 4, 2012 at 10:48 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>
>  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.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D39602&title=Breaking%20News%3A%20Ninth%20Circuit%20Order%20Will%20Allow%20%E2%80%9CNone%20of%20the%20Above%E2%80%9D%20Option%20to%20Appear%20on%20Nevada%20Ballot&description=>
>   Posted in campaigns <http://electionlawblog.org/?cat=59>, voting<http://electionlawblog.org/?cat=31>
> | Comments Off |
>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
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>
>
>
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