I’m not sure if NOTA is unconstitutional. It’s pretty hard to
convince a court that a statute is unconstitutionally irrational. But I’m
pretty sure the United States would be a better place if MoreMarrowDonors.org
could offer college scholarships without ending up in jail.
Jeff
Rowes says yes (but there’s pushback in the comments):
[S]ome people have argued in the comments that just because a law is arbitrary or irrational, it’s not unconstitutional. That’s actually incorrect. The Supreme Court has always said that the constitutional standard in the rational basis context (including the equal protection and substantive due process contexts) is arbitrariness or irrationality. If a statute is arbitrary or irrational, then it’s unconstitutional. That’s con law 101.