their objections to the presence of straight party levers, irrespective of the fact that these levers were now provided for all the political parties and bodies. The plaintiffs also complained that the "spatial gaps" which appeared on the ballot discriminated against their candidates. These "gaps" are the result of the failure of two parties (whose columns separate the two major parties on the left of the ballot from the independent bodies on the right of the ballot) to run candidates for the office of Councilman in the First District.
At the October 6th hearing, the defendants also presented to the Court the revised voting instructions
which would appear on the ballots. These also were objected to by the plaintiffs who contended that it would be more logical to have the instruction for "splitting" a ticket come before the instruction which explains how to vote a straight party ticket.
Plaintiffs contend that notwithstanding the apparent equality of treatment on the face of the ballot, in that all parties and bodies now have their own vertical columns and party levers, the mere presence of party levers will cause voters who would otherwise vote for independent candidates to "shift" their votes to candidates of the major political parties. However, we find that the plaintiffs have failed to meet their burden of proof in this regard as no testimony was adduced to show that, where all parties and bodies had a straight party lever above their respective columns on the ballot, one desiring to vote for any of the independent candidates would in some way be deterred from so doing by the mere existence of a party lever appearing at the head of the Republican and Democratic columns.
In the absence of such evidence, plaintiffs have urged the court to take judicial notice of several studies of voter habits which they contend support their theory that the use of a party lever causes a "voter shift".
This court has concluded that these studies are not properly before the court since they have not been identified by any witnesses as standard reference works and none of the experts who testified commented as to these specific studies either as to the authors' methodology or the accuracy of their results. In addition to this technical objection, however, a reading of the studies reveals that they simply do not support plaintiffs' claim. First, none of the studies were directed to the question of whether or not, in an election such as the one before the court, the mere presence of the party lever in and of itself would cause voters to shift their votes from independent candidates to the candidates of a major party. On this critical question, the studies are entirely silent. Secondly, the only tangible fact reported by these studies appears to be that, in the elections studied, candidates appearing below the top of the tickets tend to get more votes in states where party levers are used than they do in states where party levers are not used. The authors offer various hypotheses to explain this phenomenon, including voter confusion, voter fatigue, disinterest in the lower offices appearing on the ballot and a tendency to use the line of least resistance and vote for party affiliation when that can be done easily. None of the studies suggest that the well-informed, motivated voter would be in any way affected by the presence of the party levers. They also tend to indicate that the removal of the party lever would discriminate against poorly educated voters by depriving them of an opportunity to vote for the candidates of their political party in a convenient way.
In the case at bar, a voter wishing to vote for an independent candidate for City Council has just as many ways of voting for that candidate as he has for voting for a candidate of one of the regular political parties. He can turn either the large party lever at the top of the column in which the candidate's name appears or he can use the smaller lever opposite the candidate's name. Hence it will not be substantially more difficult, as plaintiffs claim, to vote for an independent candidate for City Council than for a candidate of one of the regular political parties. Accordingly, this court has concluded that the plaintiffs have failed to sustain their burden of proving that the use of party levers in this election attains the dimension of an "invidious discrimination" proscribed by the Federal Constitution.
The Election Code of Pennsylvania makes it mandatory to have party levers on voting machines. It is set out at 25 Purdon's Pa.Stat. § 3007 that:
"No voting machine shall * * * be approved by the Secretary of the Commonwealth * * * unless it shall, at the time, satisfy the following requirements: