9th Circuit

In 'Remarkable Smackdown,' 9th Circuit Allows Nevadans to Vote for None of the Above


A federal appeals court has granted an emergency stay that will allow Nevadans to choose “none of these candidates” in the November election.

The San Francisco-based 9th U.S. Circuit Court of Appeals assumed jurisdiction in the case in “a remarkable smackdown,” according to the Recorder’s Legal Pad blog. U.S. District Judge Robert Jones had ruled the 37-year-old statute requiring the option was unconstitutional and had enjoined the secretary of state from putting the language on the ballot, according to the Associated Press and the Wall Street Journal Law Blog.

The 9th Circuit opinion (PDF) blocking Jones’ order is getting some attention because of a concurrence by Judge Stephen Reinhardt criticizing Jones, a Republican appointee, for “dilatory tactics.” (Reinhardt is no stranger to smackdowns; three of his criminal justice opinions were unanimously reversed by the U.S. Supreme Court in a trend some viewed as an intended message, according to news stories published in early 2011.)

The lawsuit challenging the Nevada law was backed by the Republican National Committee, apparently because of fears that voters who dislike President Barack Obama would choose “none of these candidates” rather Mitt Romney, the stories say.

Reinhardt questioned why Jones had delayed holding hearings and issued a written explanation for his preliminary injunction. “His dilatory tactics appear to serve no purpose other than to seek to prevent the state from taking an appeal of his decision before it must print the ballots,” Reinhardt said.

If the 9th Circuit did not exercise its jurisdiction, Reinhardt said, the district judge would be allowed to deprive citizens of their right to participate in the electoral process in the manner set by Nevada law. “Such arrogance and assumption of power by one individual is not acceptable in our judicial system,” Reinhardt said.

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