‘Their’ votes

Mitt Romney and Dean Heller backers are trying to reduce ballot options in order to force all voters seeking alternatives into major party choices.

In Nevada, they are suing jointly to overturn the state’s “None of these candidates” (NOTC) ballot line to keep it from draining away votes from them.

And in Michigan, Romney is suing to keep Libertarian Party presidential nominee Gary Johnson off the ballot to keep him from drawing votes that might otherwise go Republican.

The NOTC option in Nevada has been in place since 1976, but only in statewide races. State legislators in the 1975 Nevada Legislature did not want it applied to themselves. And they made it non-functional. Although voters would get to express their unhappiness, it could not prevail in an election. The election results would be certified as though NOTC were not on the ballot—the human who came in first still won.

The Romney and Heller supporters are arguing that by creating the NOTC ballot option and inviting voters to use it while making it ineffective, Nevada is invalidating their votes without due process. Their complaint says state officials “ignore it [NOTC] in determining and certifying the winners of elections”—which is what the law requires election officials to do. Among the plaintiffs are two state Republican leaders, including one of Romney’s presidential elector candidates, plus several unknown voters.

NOTC is generally regarded as draining votes away from challengers, so incumbent Heller could be adversely affected by the lawsuit.

In the past, NOTC victories—which came in pluralities, not majorities—have occurred mainly in non-competitive races where one party or the other fails to field a serious candidate. And so far they have always come in primary elections, which political analysts believe are regarded by voters as “free” votes whose effect can always be remedied in the subsequent general election.

In 1976 NOTC won its first victory in the GOP primary election for what then was the state’s only U.S. House seat. Nevada Republicans were unable to get a strong candidate against incumbent Democrat James Santini, with the result that unknowns Walden Earhart and Dart Anthony both trailed NOTC. But because “None of these candidates” is non-binding, Earhart won the nomination anyway. NOTC did have one effect, though—whatever small chance Earhart had was snuffed by the indignity of losing to “None of these candidates.”

Earhart went on to achieve the uncertain distinction of being a double-NOTC victim, when he came in second in the GOP primary for secretary of state in 1978.

In their complaint, the Romney/Heller group said there were at least two ways the Nevada Legislature in 1975 could—and should—have made NOTC effective.

It could, they said, have required that when NOTC won an election, “the office at issue must be deemed vacant at the commencement of its term,” upon which the normal procedure for filling vacancies would kick in. That’s the way Nevada law works when a person who has died after getting on the ballot is elected.

Or the legislators could have required that if NOTC won, a runoff would be held for that office. “States that require candidates to win elections by a majority (rather than plurality) of votes often hold run-off elections after Election Day for races in which none of the candidates received more than 50 percent of the vote,” the complaint reads. It fails to note that runoffs are held mostly in Southern states and were devised as a way to keep black candidates from winning the plurality elections that prevail in most other states. It is also used in what the Atlanta Journal-Constitution calls “some politically charged cities north of the Mason-Dixon line.”

Runoffs have been the target of attacks under the U.S. Voting Rights Act. Moreover, in Nevada they could require an additional statewide election, which brings an expense factor into play.

Obama and Romney have been in near-ties in several surveys since Romney emerged as the clear frontrunner for the Republican nomination, and those same surveys have shown unusually small segments of undecided voters for so early in the campaign year. That makes the few votes that might be drawn by other ballot options precious.

Both major parties have a history in tight races of attacking independent or third party candidates for taking “their” votes and being “spoilers,” as when such charges were thrown at Ralph Nader on Al Gore’s behalf in 2000. In a 2010 New York Times story about the impact of NOTC on that year’s U.S. Senate race, a Republican manager said, “Any vote not for Sharron Angle is a vote for Harry Reid.” In that race, it turned out not to be true—if Republican Angle had received every vote cast for NOTC, she still would have lost heavily to Democrat Reid. But in 1998, NOTC saved Reid—he defeated John Ensign by just 428 votes as NOTC took nearly 8,000 votes.

NOTC rarely breaks the 5 percent mark, but even a smaller number comes dearly in a close election.

Although the Romney/Heller complaint says NOTC nullifies votes, it also says that the option does have some impact—the Legislature, the complaint says, gave the public “a way of expressing ‘nonconfidence’ in their candidates for elected office and telling the prevailing candidate to ‘clean up your act.’”

Though Nevada’s unusual ballot option has become known outside the state, there is little indication that other states are anxious to imitate it. In California, voters rejected, by a 2 to 1 margin, a 2000 ballot measure that would have created a “none” option in that state.

The Romney effort to keep Libertarian Gary Johnson, a former New Mexico governor, off the ballot is more complicated. Johnson began the year running for the Republican presidential nomination and appeared on the Michigan GOP primary ballot. He later dropped out of that race and won the Libertarian Party nod at its national convention in Las Vegas. Michigan Secretary of State Ruth Johnson, a Republican, says state law puts a time limit on when candidates can switch parties and then run for office. The Johnson campaign was informed of the decision in a letter written by state Attorney General William Schuette, Romney’s state campaign chair. The secretary of state also said candidate Johnson’s ballot application arrived in her office three minutes past the deadline.

However, in 1980 when Republican presidential candidate John Anderson ran in the general election as an independent using a newly created Michigan party—the Anderson Coalition Party—as a vehicle, that state’s officials did not interfere with his ballot listing. In addition, it is uncertain whether states can impose additional qualifications on candidates for the presidency that do not appear in the U.S. Constitution.

Elections deputy Scott Gillis in the Nevada secretary of state’s office said the Libertarian Party already has ballot status in the state and all it has to do to list Gary Johnson as its presidential nominee is file the paperwork.

Nevada Secretary of State Ross Miller is a Democrat. He does not have a position, honorary or otherwise, with the Obama campaign. He said he would decline such an invitation: “I am very cautious about political activity because I count the votes.”

He’s speaking figuratively—county officials do the actual counting—but he writes the election rules the counties must follow.