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.