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

Wed Sep 5 05:37:38 PDT 2012

As suggested by my email last month, I also agree with this ruling.

Two things:

1. As I explained in that email, the affect of NOTA on the presidential
race is likely to be minimal, contrary to Romney campaign fears. Voters
using the NOTA option seem primarily voters who would otherwise skip the
race, and the race is very low overall.  Here's the data from that email:

<<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.>>

Of course Nevada is a semi-swing state ("semi" in the sense that the
campaigns are fighting for votes that, but the 2008 results suggest that
Romney will only win it if he's won an Electoral College majority in other
states) and the campaigns have to deal with the plurality vote rules their
parties maintain in states. Every time you hear a charge of "spoiler" or
"NOTA splits votes", keep in mind that the political leaders in the state
in question could eliminate that concern by passing a voting method like
instant runoff voting (instantrunoff.com)

2. NOTA raises no voting rights concerns when properly administered. NOTA
in fact is likely to help lower-income voters cast an effective ballot, as
having a NOTA option makes it sensible to alert voters to undervotes as
well as overvotes. When voters are alerted to undervotes, this will reduce
unintentional undervotes. Low-income voters are more likely to cast
unintentional undervotes. See this excerpt below of a scholarly article
below making this point, with a specific reference to Nevada.

Rob

##############
http://sekhon.berkeley.edu/papers/BlackCandidates_HerronSekhon.pdf

..Many scholars and commentators argue that voting technology which prevents
or makes difﬁcult the casting of residual votes should be adopted because it
shrinks the white-black residual vote rate gap and reduces the overall
number of
residual votes. But since some voters truly do wish to cast a “none of the
above”
vote, such technology can frustrate their wills. The obvious solution is to
adopt
error-alerting voting technology and also allow for a “none of the above”
option
on the ballot. The state of Nevada already affords voters this option, and
it should
be more widespread.

On Wed, Sep 5, 2012 at 8:13 AM, Joe La Rue <joseph.e.larue at gmail.com> wrote:

> 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
> ___________________
> *Joseph E. La Rue*
> cell: 480.272.2715
> email: joseph.e.larue at gmail.com
>
>
> CONFIDENTIALITY NOTICE:  This e-mail message, including any attachments,
> is for the sole use of the intended recipient(s) and may contain
> confidential and privileged information or otherwise be protected by law.
> Any unauthorized review, use, disclosure or distribution is prohibited. If
> you are not the intended recipient, please contact the sender by reply
> e-mail and destroy all copies of the original message.
>
>
>
> 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
>> Now available: The Voting Wars: http://amzn.to/y22ZTv
>>
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"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/20120905/d670437d/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120905/d670437d/attachment.png>