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

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(1) Article II, Section (2), Paragraph (2).

(2) Wikipedia.

(3) Eight from Mississippi and six from Alabama.