Wednesday, Sept. 5, 2012 | 10:41 a.m.
Nevada voters will have the option in the upcoming election to choose "none of the above" in the close presidential contest between President Obama and Republican Mitt Romney.
A panel of the U.S. 9th Circuit of Appeals issued a stay Wednesday of a ruling by federal District Judge Robert Jones that would have kept the none option off the ballot.
The stay is a setback for Republican leaders who had hoped that those who were dissatisfied with both candidates would choose Romney if forced to make a choice.
Polls in Nevada show the presidential race is close.
The three judge panel said the suit by Republican leaders would return to district court and follow the normal procedures in challenging the "none" law.
And Circuit Judge Stephen Reinhardt had some harsh criticism of Judge Jones of Reno for his handling of the case.
Reinhardt said the circuit court permitted Nevada voters to cast their ballots for "none" because "the likelihood of success on the merits overwhelmingly favors the state" which supports the "none" option on the ballot.
Reinhardt in his concurring opinion said the ruling by Jones would do "irreparable injury to the State of Nevada and its citizens and would be directly contrary to the public interest."
Reinhardt accused Jones of deliberately delaying the case to stymie an appeal by the state to the circuit court. "His dilatory tactics appear to serve no purpose other than to seek to prevent the state from taking an appeal of his decision before it must print its ballots."
Senior Deputy Attorney General Kevin Benson said this decision allows the lawful process to continue. Attorney Paul S. Prior of Las Vegas who represented the Republican leaders could not be reached for comment.
Benson said in his appeal to the circuit court that it must issue a decision by this Friday for the counties to start proofing and printing the ballots. He said the absentee ballots for the military and overseas voters must be mailed 45 days before the election, which is Sept. 22.
"None" has been on the ballot since the 1975 Legislature enacted it into law. The Legislative Counsel Bureau said its goal was to stimulate turnout by allowing voters to express dissatisfaction with the candidates or with the nature of the campaign.
The vote is counted but does not affect the final tally in who wins for president.