A major win for ‘None of the above’

February 25, 2015


(this post originally appeared on June 18, 2014. It has been updated to reflect newly introduced legislation)

A number of states recently held their primaries for the November mid-term elections.  Voting in Virginia yielded some big news that will be discussed in days, weeks, and likely years to come, but in Nevada, another fascinating story was unfolding: ‘None of these candidates’ was leading in the Democratic primary for governor.

For those unfamiliar with this odd quirk of Nevada elections, here’s a brief primer: Nevada Revised Statutes section 293.269 requires that in all elections for statewide office (and in presidential elections), after the names of all the candidates, there will be an extra line box for voters to check and “the line shall read ‘None of these candidates.’” The option was added to Nevada law in the 1970s in reaction to voter antipathy to elected officials following the Watergate scandal. (While the law clearly states that the ballot must say ‘None of these candidates,’ the national media often refers to this option as ‘None of the above.’)

The provision made the news briefly in 2012 when a coalition of plaintiffs sued to have it declared unconstitutional, and a Nevada federal district judge enjoined the Secretary of State from including ‘None of these candidates’ on the 2012 general election ballot.  That injunction was swiftly stayed by the 9th Circuit Court of Appeals, and 5,770 Nevadans were able to express their preference that the job of President of the United States not go to anyone who was actually seeking it.

The effects of no one winning are negligible.  Tuesday didn’t mark the first victory for ‘None of the above’.  As with prior victories, the second place finisher, a Robert Goodman, was declared the winner as the highest placing human being (N. R. S. 293.269(2) makes clear that only votes for named candidates count when determining a ‘winner,’ though the state is required to tally and report votes for ‘None of these candidates’).  Nevada’s current Governor, Republican Brian Sandoval being quite popular, this is probably the last time we’ll hear a lot about Mr. Goodman.

The 9th Circuit threw out case challenging the statute out based on issues of standing last year, and the Supreme Court subsequently denied a writ of certiorari. ‘None of these candidates,’ with a half-dozen wins under its belt and a new mandate from the voters, will likely be with Nevadans for many elections to come.



February 2015 Update: ‘None of the above’ may soon be running in an election near you!  Legislation has been introduced in Minnesota to add a ‘None of the above’ (abbreviated (NOTA)) to the ballot in most state elections.  Unlike the law in force in Nevada, NOTA would have the ability to win an election; this would force a new election in which candidates who previously ran would be ineligible.  Minnesota is the only state to see this type of legislation currently under consideration, but a few other states have considered similar legislation over the past few years.