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GILHOOL v. CHAIRMAN & COMMRS.

October 14, 1969

Thomas K. GILHOOL et al.
v.
CHAIRMAN AND COMMISSIONERS, PHILADELPHIA COUNTY BOARD OF ELECTIONS et al.



The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 Plaintiffs brought this action to enjoin the City of Philadelphia "from preparing or utilizing voting machines or ballots employing straight party voting levers for the offices of Councilman in the First and Seventh Councilmanic Districts in the special elections to be held in those Districts in Philadelphia on November 4, 1969, or from conducting the election in any other manner causing discrimination against independent candidates for Councilman, their supporters, or electors wishing to vote for such candidates."

 The plaintiffs are residents and electors of the First and Seventh Councilmanic Districts of the City of Philadelphia. The purpose of the special election in question is to fill vacancies which have occurred in the office of councilman in these districts. Pursuant to writs of election issued on September 5, 1969, by the President of City Council, the special elections are scheduled to be held in conjunction with the regular municipal election on November 4, 1969.

 In their complaint, the plaintiffs requested the convening of a district court of three judges on the ground that the injunctive relief sought would restrain the enforcement, operation and execution of state statutes of state-wide application, namely, the Election Code of the Commonwealth of Pennsylvania, as amended, 25 Purdon's Pa.Stat.Annot. §§ 2787 and 3010(h). *fn1" Pursuant to 28 U.S.C. § 2281, *fn2" a three judge court was convened and a hearing was scheduled for September 24, 1969. Prior to the hearing, motions to intervene as party-defendants were made by the Philadelphia County Democratic Executive Committee and the Republican City Committee and the motions were granted by the Court. *fn3"

 At the initial hearing, the plaintiffs' complaint was three-pronged: (1) they averred that the use of a straight party lever, which permits a voter to vote for all the candidates of a party by turning a single large lever above the column in which the party's candidate appears, unconstitutionally favors the major parties and results in a discrimination against candidates of other political parties and bodies; (2) plaintiffs also contended that the physical layout of the ballot allegedly proposed for the special election in the First Councilmanic District discriminated against the so-called independent candidates since all the independent candidates' names were arranged vertically on the far right side of the ballot, whereas the major parties' candidates for the same office would appear horizontally on the left of the ballot; *fn4" (3) plaintiffs further complained that the instructions to the voters appearing at the bottom of the ballot in recent elections, *fn5" and presumbably these same instructions would be employed in this election, were misleading since they appeared to state that the voter would have to vote a straight party ticket before he could "split" his vote for candidates of other parties.

 At the conclusion of the first hearing, it was readily apparent that this Court could not decide the issues presented because the facts were in an unsettled state. More specifically, the defendants advised the Court that the physical layout of the ballot would not be finally determined until the state courts ruled on challenges lodged against parties which had filed for ballot position in the First Councilmanic District for the November 4th election. The outcome of these challenges would be the controlling factor as to whether all the political parties would have their own vertical columns on the ballot so as to allow candidates for a particular office to appear on the same horizontal plane across the ballot. The defendants also agreed to have the plaintiffs participate in the drafting of new voter instructions with the intention that the new instructions would be acceptable to all. In light of these developments, the initial hearing was adjourned until such time as the final format of the ballot could be determined.

 On October 6, 1969, another hearing was held. At this time, the defendants stated to the Court that of the 11 political parties and bodies that had filed for ballot position in the First Councilmanic District the state courts had sustained objections to three of the bodies and that the County Board of Elections had rejected the nominating papers of a fourth body. Consequently, only 7 political parties and bodies remain on the ballot in the First Councilmanic District. The defendants also stated that the 9-column voting machines will be used in this District, thus providing each party and body with their own vertical column and party lever and allowing all candidates for a particular office to appear on the same horizontal plane on the face of the ballot. Similar arrangements are planned for the Seventh Councilmanic District where we have been told that not more than eight political parties and bodies will appear on the ballot. However, these procedures did not satisfy the plaintiffs who reiterated 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 *fn6" 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. *fn7"

 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". *fn8" 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. *fn9"

 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, ...

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