Judge widens backup paper ballots provision in Pa.

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(AP Photo/Chuck Burton)

[UPDATED.]

A federal judge has ruled that Pennsylvania must make emergency paper ballots available to voters on Election Day if 50 percent or more of voting machines fail.

"Even in the best of circumstances, voters can expect and must tolerate more delay than usual on November 4," Judge Harvey Bartle III of the U.S. District Court, Eastern District of Pennsylvania, wrote. "Nonetheless, we would be blind to reality if we did not recognize that many individuals have a limited window of opportunity to go to the polls due to their jobs, child care and family responsibilities, or other weighty commitments. Life does not stop on election day. Many must vote early or in the evening if they are to vote at all."

Bartle took note of the defendants' argument that the suit, filed just 12 days before Election Day, could throw the system into chaos. Joseph Passarella, director of voting services in Montgomery County, testified yesterday, "It would be a huge mistake to do this late in the game." He told the judge that poll workers aren't full-time experts and that he didn't "want to confuse them any more than they already are."

At the same time, Passarella testified that an infrastructure was in place to quickly remedy machine failure and that poll workers were trained to follow certain instructions during mishaps. Also at issue was the definition of failure.

"If someone calls in and a machine is down for 10 minutes, are we supposed to provide emergency ballots for that 10 minutes? It makes no sense," Passarella said.

Passarella testified that total machine failure was "very rare" and said that the number of machines that have needed to be replaced under his watch was just two. The ability to predict how many of the direct-recording electronic (DRE) voting machines in use in Pennsylvania was less of a concern for Bartle, however.

"The evidence, not surprisingly, demonstrated that DRE voting machines, like all other machines, sometimes fail. When that happens, time is of the essence. The polls are open for one day and one day only and then for only 13 hours," he wrote.

Pennsylvania has turned out to be one of the hottest battlegrounds this cycle. It does not, however, permit early voting. The lawsuit was brought amid concerns that polling places would not be able to handle the large volume of voters expected to turn out on Tuesday -- particularly in Philadelphia, which has seen a sharp spike in new voter registrations.

The 11th-hour decision follows a series of voter enfranchisement moves in other states. In Florida, Republican Gov. Charlie Crist today ordered early-voting poll hours be extended from eight to 12. Voters there and in other early-voting battlegrounds are already experiencing waits of several hours. In Ohio, a U.S. District judge ordered the secretary of state not to reject provisional ballots from voters with unconventional addresses. That lawsuit was brought by an advocacy group for the homeless.

The Pennsylvania lawsuit, brought by plaintiffs including the NAACP and Voter Action, an advocacy group, challenged a state law that permits the issue of emergency paper ballots only in instances when 100 percent of machines failed. Enfranchisement concerns have been somewhat high in Pennsylvania since the April primaries, when voters reported that machine breakdowns and long lines prevented them from casting a ballot.

In his ruling, Judge Bartle rejected the main contentions of the defendant, Secretary of the Commonwealth Pedro Cortés: that two voting systems in one polling place would be too chaotic for poll workers and voters to handle, that polling locations do not provide sufficient privacy for filling out paper ballots, and that paper ballots would not be secure. He appeared to be unswayed by the defendant's contention that voting officials would have fail-safes in place in the event of 100-percent failure, but that 50-percent failure would be too much for the state to handle.

The difference between 100-percent failure and 50-percent failure wasn't that significant, Bartle said, adding that the secretary's concerns "will exist when 100% of the machine are inoperable."

In a statement released after the ruling, Secretary Cortes said his office would not appeal.

"Conducting a successful election requires proper training and clear procedures, and with this goal in mind, the department will issue a revised directive instructing the counties on how they should use emergency paper ballots when 50 percent or more of the voting systems malfunction. The department will work closely with the counties to ensure that the emergency paper ballots are administered in a consistent manner statewide," the secretary said.