On July 10, the Ninth Circuit ruled that the individuals and groups who challenged Nevada’s “None of these candidates” ballot option lack standing. Therefore, the lawsuit is dismissed. Townley v Miller, 12-16881. Here is the 17-page opinion.

The basis for the challenge had been that Nevada discriminates against voters who vote for “None of these candidates”, because even if “None of these candidates” gets the most votes, it has no effect, and whichever candidate in that race had more votes than any other candidates still wins, even if “None” outpolled that candidate.

The Ninth Circuit said the voters who intended to vote for “None” don’t have standing because the relief they are asking for makes them worse off. All the plaintiffs had asked for a ruling that “None” should be taken off the ballot, instead of asking for a ruling that “None” actually defeat all the candidates if “None” gets the most votes. The decision says if these voters got what they say they want, their voting rights would be shrunk, not expanded. At oral argument, the attorneys for the Republicans had argued that the legislature wouldn’t have passed “None” back in 1976 if it had been binding, so therefore the Republican Party had no choice but to ask that “None” be removed from the ballot. The decision doesn’t acknowledge this point.

The Ninth Circuit said the two Republican nominees for presidential elector, and the Nevada Republican Party, do have some elements of standing, because it is plausible that having “None” on the ballot subtracts from votes that would otherwise go to Republicans. However, the presidential elector candidates and the Republican Party still don’t have standing because the theory that “None” is unconstitutional (because it isn’t binding) is not related to the harm done to the Republicans. In theory, a new lawsuit, filed by voters who said they intend to vote for “None” and who want “None” to be binding, might still conceivably win.