CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 11/2/2023 1

“None of These Candidates” 

Townley v. Nevada (Robert C. Jones, D. Nev. 3:12-cv-310) 

A June 8 federal complaint sought to prohibit a state from including “none of these candidates” on the ballot, because state law prevented that choice from prevailing. On August 22, the judge granted the plaintiffs relief, but the court of appeals stayed the injunction. Later, the court of appeals determined that the plaintiffs did 

not have standing because the relief sought—elimination of the 

none-of-these choice—would not redress the alleged impropriety—

not counting none-of-these votes when determining the winner. 

Subject: Voting procedures. Topics: Intervention; recusal; case 

assignment; Electoral College. 

On June 8, 2012, nine voters and two Electoral College candidates in Nevada 

filed a federal complaint seeking an order prohibiting Nevada from including 

“none of these candidates” on the 2012 general-election ballot because Nevada law did not permit “none of these candidates” to win.1

On June 11, Judge Edward C. Reed, Jr., recused himself in light of his decision to cease presiding over cases as of September 30.2

 Chief Judge Robert 

C. Jones assigned the case to himself in light of the case’s time pressures.3

The plaintiffs filed an amended complaint on June 20.4 They moved for a 

preliminary injunction on June 28.5

On July 13, a voter moved to intervene in defense of Nevada’s law and his 

opportunity to vote for “none of these candidates.”6 On August 22, Judge 

Jones granted intervention and granted the plaintiffs a preliminary injunction.7

 A preliminary question was whether Nevada’s voting machines allowed 

voters to skip parts of the ballot rather than select “none of these candidates” 

based on an out-of-court representation by the judge’s assistant.8

 Based in 

part on an out-of-court representation by his mother, the attorney for Neva1. Complaint, Townley v. Nevada, No. 3:12-cv-310 (D. Nev. June 8, 2012), D.E. 1; Townley v. Miller, 722 F.3d 1128, 1131–32 (9th Cir. 2013). 

2. Notice, Townley, No. 3:12-cv-310 (D. Nev. June 11, 2012), D.E. 6; Order, id. (Sept. 5, 

2012), D.E. 51 [hereinafter Sept. 5, 2012, Order]. 

Judge Reed died on June 1, 2013. Federal Judicial Center Biographical Directory of Article III Federal Judges, www.fjc.gov/history/judges. 

3. Sept. 5, 2012, Order, supra note 2; Docket Sheet, Townley, No. 3:12-cv-310 (D. Nev. 

`June 8, 2011) [hereinafter D. Nev. Docket Sheet] (D.E. 21). 

4. Amended Complaint, Townley, No. 3:12-cv-310 (D. Nev. `June 20, 2012), D.E. 10. 

5. Preliminary-Injunction Motion, id. (June 28, 2012), D.E. 15; Townley, 722 F.3d at 

1132. 

6. Intervention Motion, id. (July 13, 2012), D.E. 26. 

7. Transcript at 2–3, 50, id. (Aug. 22, 2012, filed Aug. 29, 2012), D.E. 46; D. Nev. Docket 

Sheet, supra note 3 (D.E. 39); Townley, 722 F.3d at 1132; see Sarah Wheaton, The Protest 

Vote: “None” Judged a Loser in Nevada, N.Y. Times, Aug. 23, 2012, at A13. 

8. Transcript, supra note 7, at 3. 
“None of These Candidates” 

2 Federal Judicial Center 11/2/2023 

da assured the court that the voting machines did warn voters if they skipped 

an item on the ballot, but the machines did allow voters to skip items.9

Both Nevada and the intervenor appealed.10 Relying on a docket entry reflecting Judge Jones’s oral decision, the court of appeals, on September 4, 

stayed the injunction.11 In concurrence, one circuit judge scolded Judge Jones 

for his delay in assigning the case, his delay in holding the hearing, and his 

not issuing an appealable written order.12

The appeal was heard on March 11, 2013.13 While the appeal was pending, on July 9, Judge Jones allowed the plaintiffs to amend their complaint to 

add Nevada’s Republican Party as a plaintiff.14 On the following day, the 

court of appeals determined that the plaintiffs on appeal did not have standing because the relief sought—eliminating the none-of-these choice—would 

not redress the alleged impropriety—not counting none-of-these votes when 

determining the winner.15 On August 14, Judge Jones ordered “that the mandate be spread upon the records of” the court.16

9. Id. at 4–6. 

10. Docket Sheet, Townley v. Miller, No. 12-16882 (9th Cir. Aug. 27, 2012) (intervenor’s 

appeal); Docket Sheet, Townley v. Miller, No. 12-16881 (9th Cir. Aug. 27, 2012) (Nevada’s 

appeal); Townley, 722 F.3d at 1132. 

11. Townley v. Miller, 693 F.3d 1041, 1042 (9th Cir. 2012); Townley, 722 F.3d at 1132; see

Sandra Chereb, In Nevada, “None” Will Still be an Option in Nov., Wash. Post, Sept. 6, 2012, 

at A5. 

12. Townley, 693 F.3d at 1042–45 (Reinhardt, concurring); see Chereb, supra note 11. 

13. Oral Argument, Townley, No. 12-16881 (9th Cir. Mar. 11, 2013), D.E. 43, www.ca9. 

uscourts.gov/media/audio/?20130311/12-16881/ (audio recording). 

14. Order, Townley v. Nevada, No. 3:12-cv-310 (D. Nev. July 9, 2013), D.E. 59. 

15. Townley, 722 F.3d 1128, cert. denied, 571 U.S. 1127 (2014); see Sean Whaley, Court 

Rules Silver State Voters Retain “None” Option, Las Vegas Rev.-J., July 11, 2013, at 3B. 

16. Order, Townley, No. 3:12-cv-310 (D. Nev. Aug. 14, 2013), D.E. 63; see Order, id.

(Sept. 16, 2013), D.E. 64 (dismissing the action for lack of standing).