On March 11, the 9th circuit heard arguments in Townley v Miller, 12-16881. The hearing went badly for the people who filed the lawsuit, and those people and groups include the Nevada Republican Party. They argue that Nevada’s law, which puts “none of these candidates” on the primary and general election ballot for statewide office, discriminates against voters who choose to vote for “none of these candidates.” They argue that these voters don’t get what they want, because even if “none of these” gets a plurality, that has no effect.

The problem with this argument is that it seems insincere. The people who filed the lawsuit are perceived to simply desire that “none of these candidates” be eliminated from the ballot. They don’t seem to really want “none of these” to have binding effect. They seem to be partisan Republicans who feel if “none” were removed, Republican nominees would gain an advantage in November.

The judges asked both sides about motivation for this lawsuit. The attorney for Nevada state government spoke first, and the first question for him was, “What do the plaintiffs want?” Of course, it makes somewhat more sense to ask this of the plaintiffs themselves. But the attorney for the state was happy to ask the question, and he told the judges that his opponents simply want to eliminate “none.” Judge Raymond Fisher, who had asked the first question, asked whether the U.S. District Court (which had issued an injunction keeping “none” off the ballot) had considered instead issuing an order providing that if “none” wins, then no one is elected or nominated. The attorney for Nevada responded that there would have been severability problems if the U.S. District Court had done that.

When the attorney for the plaintiffs was up, the first question for him was the same question, “What relief do you want?” The attorney, Michael Morley, said it wouldn’t be proper for any court to order Nevada to make “none” binding. He said this would violate federal law, which says that states must elect members of Congress in November. This response is not fully correct. Federal law requires states to hold congressional elections in November of even-numbered years, but it does not say states must choose members of Congress on that day. Georgia and Louisiana provide that if no one gets 50% for Congress in November, then a run-off will be held in December, and Georgia’s law on that point has been upheld.

Morley was challenged on standing, but he pointed out that in Drake v Obama, the 9th circuit had ruled that candidates who are on the ballot do have standing to challenge a competing candidate who, they believe, should be off the ballot. Drake v Obama is one of the “birther” cases, filed by Wiley Drake, vice-presidential nominee of the American Independent Party in 2008.

Judge John Noonan addressed Morley, saying “I’ll be candid. What is the purpose of this case?” Judge Noonan went on to say that as far as he could tell, the lawsuit is a waste of the court’s time and resources.