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

Wed Sep 5 05:52:09 PDT 2012

Thank you, Rob. That's an interesting comment about undervotes; I had not
considered that but it makes sense. Thank you.

Joe
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On Wed, Sep 5, 2012 at 5:37 AM, Rob Richie <rr at fairvote.org> wrote:

> 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
>>>
>>>
>>>
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>>>
>>
>>
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>
>
>
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>
> Rob Richie
> Executive Director
>
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