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9th Circuit panel to hear arguments Monday about Nevada’s ‘none of the above’ voting law

Updated Sunday, March 10, 2013 | 1:34 p.m.

The unique Nevada law that allows voters to cast a ballot for "none of the above" is coming under new scrutiny over whether it's constitutional.

A U.S. appeals court will hear arguments Monday in a lawsuit backed by national Republicans that argues the ballot option violates federal law by disenfranchising voters.

Nevada is the only state in the nation that gives voters the option of "none of these candidates" in statewide races — president, U.S. Senate, state constitutional officers and the Nevada Supreme Court. Nevada enacted the law as a way to combat voter apathy in the wake of the Watergate scandal that brought down President Richard Nixon. It was intended to give voters a way to voice their displeasure with candidates and elected officials at the ballot box.

Though sometimes a popular choice, "none" can never win even if it receives the most votes. That's never happened in a general election contest, though "none" has played spoiler in some high-profile races.

Republicans sued last year over the law, fearing "none" could siphon votes from a disgruntled electorate and sway the outcome of a close presidential or U.S. Senate race.

Filed on behalf of 11 Nevada voters, the suit claimed that not allowing "none" to win in an election violates a slew of constitutional protections such as due process and equal protection, not to mention the Voting Rights Act.

In August, U.S. District Robert Jones in Reno agreed and struck down the ballot option as unconstitutional. The attorney general's office, representing Secretary of State Ross Miller, filed an emergency appeal with the 9th U.S. Circuit Court of Appeals. The appellate court took the case away from Jones and stayed his ruling, allowing "none" to remain on the November ballot while ordering further proceedings.

A three-judge panel of the 9th Circuit will hear oral arguments Monday in San Francisco.

Attorney Paul Swen Prior, in legal briefs, argued that votes for "none" are "treated as legal nullities," and disenfranchise voters who cast ballots for viable candidates by skewing the outcome. Likewise, voters who choose "none" are disenfranchised because their choice has no standing in an election's final outcome.

Prior argues to be constitutional, the Legislature should have given "none" more legal weight by allowing it to win and setting up a process for voters to then pick another live candidate, such as by declaring a vacancy or having a follow-up election.

He said a voter disgruntled with a slate of candidates can "refrain from voting for any of those candidates by simply skipping that race on the ballot."

But Senior Deputy Attorney General Kevin Benson countered that voting for "none" doesn't deprive anyone of the right to vote, and therefore Prior's arguments lack merit.

"None of these candidates," Benson wrote, "is fundamentally different from voting for a named candidate," and "is not a 'vote' that must be counted and allowed to 'win' the election."

"Although it is certainly an expression of an idea, it is not reflective of the voter's will on the ultimate question in the election, which is who should represent the people," he said.

"None" wasn't' a factor in the last year's hard-fought presidential race in Nevada. President Barack Obama defeated GOP nominee Mitt Romney in Nevada by nearly 68,000 votes. Only 5,770 people voted for "none."

But it played a familiar role as spoiler in Nevada's hotly contested U.S. Senate race between Republican Dean Heller and his Democratic challenger Shelley Berkley, a seven-term congresswoman.

Heller defeated Berkley by about 12,000 votes, while more than 45,000 voters opted for "none."