Nobody for President?
Do you wish you could vote against all the presidential candidates, including the minor party ones? A 1978 Nevada law gave voters the option of voting for "None of the Above" (hereinafter "None") in all elections, including presidential. In 1998 over 8,000 voters selected that option in the US Senate race in which Harry Reid beat John Ensign by a few hundred votes. But on August 22 US District Judge Robert Jones ruled the law unconstitutional in a suit brought by Republicans who hoped that anti-Obama voters would then back Romney instead of None. The state is appealing the ruling. Who is right?
1. States must appoint electors. The US Constitution requires that "Each state shall appoint...a number of electors,equal to the whole number of senators and representatives in Congress..."(1) The word "shall" (rather than "may") means that appointing electors is a legal obligation of each state, and states do not have the option of declining to do so. So, even if None would win the Nevada presidential election, Nevada must still appoint electors.
2. Electors may be unpledged and may abstain. Twenty-one states do not require that electors pledge to vote for any particular candidate or party nominee, and even electors from states that do require such a pledge can vote as they please. Three electors abstained from voting in the presidential election of 1820 (2), and if None would carry Nevada, the state's electors could abstain.
3. If no candidate garners a majority of electoral votes, the House decides. If this election is very close, the failure of some electors to vote at all, or to vote for a third candidate, could throw the selection of the President into the House of Representatives; the members elected in 2012 would cast these votes, with each state having one vote.
nce there is no established method of selecting presidential electors in Nevada if None wins in November, permitting the None option to remain on the ballot would effectively defraud those voting for None of their right to vote for President. Therefore the judge was right to rule the option unconstitutional.
However, the Nevada legislature could easily amend the current law before the 2016 election to provide for slates of unpledged electors, perhaps identified on the ballot by a slogan such as "Legalize Marijuana" or "Ban Abortion." ( In 1960, 14 unpledged electors were appointed (3), and they all voted for Senator Harry Byrd for President and Senator Strom Thurmond for VP. ) Or the new law could authorize the Governor to appoint electors to represent the None option who would pledge to abstain from voting in the Electoral College. Why anyone would bother voting for that slate is anybody's guess.
Even without the None option, Nevada voters who don't like any of the candidates for President can leave that office blank and vote for the other offices on the ballot, or they can stay home altogether. Nearly half of all eligible voters do that anyway.
Gerald S Glazer
(1) Article II, Section (2), Paragraph (2).
(3) Eight from Mississippi and six from Alabama.