L.A. re-inked votes

City clerk ordered election workers to fill in faintly marked ballots

By Troy Anderson and Rick Orlov, Los Angeles Daily News   12 March 2005

Without informing mayoral challengers, Los Angeles City Clerk Frank Martinez ordered election workers Tuesday night to use blue highlighter pens to re-ink thousands of voters' ballots that had "bubbles" partially or faintly filled in, the Daily News learned Friday.

Martinez, appointed to his post last September by Mayor James Hahn, who narrowly won the second spot for the May 17 runoff election, defended what he did, saying he was following secretary of state-approved procedures to mark over voters' incompletely filled out bubbles to make sure the InkaVote machines counted them.

But election experts say his action raises a number of troubling questions since the new InkaVote system was supposed to pick up even faint markings on the ballots and raised the possibility that ballots could be tampered with or changed.

"I've never heard of anything like this before," said Bob Stern, president of the Center for Governmental Studies. "It's unprecedented. You don't tamper with the ballots.

"You want to have the ballots in the same condition when they were deposited into the ballot box and you never want to touch ballots in terms of putting a mark on them. It's shocking."

Los Angeles County Registrar-Recorder Conny McCormack said she can't understand why Martinez decided to delay the count for hours and have his more than 200 election workers examine each ballot individually to make sure the ink mark was highly visible.

"We have counted more than 5 million ballots on the InkaVote system since 2003-04 and we have shared our experience with them and everything has been fine," McCormack said. "The machines read even the smallest amount of ink.

"So we are puzzled and frankly surprised at their decision to hand-count every ballot. It's certainly not our procedure and there was no need to do it. We had no pre-knowledge that they were going to do this."

But Martinez defended his decision, saying it was legal and he wanted to ensure every ballot was counted.

"It might have been out of an overabundance of caution on our part since it was our first time using the InkaVote system," Martinez said. "Just like with pulling chads, we have guidelines for what we do to overmark ballots.

"It was done in a public process and the ballots are available for review. We are confident that process was accurate and ensured every proper vote was counted."

Mayoral candidate Bob Hertzberg, who lost to Hahn by about 5,800 votes for the right to face front-runner Antonio Villaraigosa, said he would not call for a recount at this point, but would monitor the process as the election results are certified.

"My concern is that every vote is counted," Hertzberg said. "If there was a problem in how they were counted, we should know about it. It's bad enough the count was so slow. There is nothing more important than the integrity of the system. I just want to make sure everything was done properly."

Parke Skelton, Villaraigosa's campaign consultant, said he was not aware of the use of the blue highlighters and would have insisted that all the campaigns have observers present if he had known.

"If I was Bob Hertzberg, I'd want to go in and look at those ballots," Skelton said. "A decision like this should be made in broad daylight. It seems unusual to me they would make a unilateral decision to re-ink ballots before a problem has been demonstrated.

"I think it's rather unusual that they would go in and do that without there being any indication that there is a problem and without it being done in an extremely public way."

Hahn indicated he was unaware of Martinez's action but noted he took extra precautions on his own ballot.

"I held it up and it didn't look like it had marked the spots well enough, so I put the ballot back in the machine and really pushed it in to make the marks."

Hahn added that the county used InkaVote in November and "there didn't seem to be a problem."

County Supervisor Michael D. Antonovich criticized Martinez's actions, suggesting that "questionable activities such as this undermine the integrity of the process and voter confidence."

The Secretary of State's Office said inquiries should be directed to the Los Angeles City Attorney's Office because laws governing Los Angeles city elections are enforced at the local level.

City Attorney Rocky Delgadillo's office had yet to receive a complaint but is prepared to look at any improprieties, a spokesman said.

"Our understanding is that election supervisors oversaw all aspects of it to make sure that the voters' intent was carried out," Frank Mateljan said. "We have not received any formal complaints and would act immediately if there is a problem."

Mateljan said the City Attorney's Office also is looking to determine what role it will play in any City Council review of the election.

Because of the time problems in getting the ballots counted, the City Council said earlier in the week it wanted a full review of the InkaVote system and how the City Clerk's Office handled the election.

Martinez said he decided a few weeks ago during a test run of the new InkaVote system to have election workers use the highlighters to "swipe" left to right over bubbles not completely filled in to ensure the election machines counted the votes. He said the test run didn't turn up any problems, nor were any counting problems encountered on election night.

He said more than 200 election volunteers monitored by city election supervisors were trained how and when to make the mark over incompletely filled-in bubbles.

"You can clearly see the original mark and the highlight so if anybody has a question about the judgment we made, you can go right back to the ballot," Martinez said. "It's an extra precaution to make sure that when these cards go through the machine that the mark will be correctly recorded."

Martinez said his decision was based upon secretary of state-approved guidelines that state ballots marked with X's, checkmarks, dots or circles may be overmarked with special blue marking pens rather than be duplicated.

"The blue pen allows the voter's original markings to show through, so you will always see the voter's intent, but guarantee that their votes will be counted," according to the guidelines.

Martinez said he consulted with vote-counting-machine vendor Martin and Chapman of Anaheim about the type of highlighter to use.

Scott Martin, president of the company, said the firm developed the highlighter procedure to flag questionable ballots in case a recount is needed. The firm doesn't have a contract with the city.

"He's following the same procedure we tell all other cities to do to take the time election night to do this," Martin said.

Although Martinez could not estimate how many ballots were "overmarked," he said it was "quite a few" but not a majority of the ballots cast.

At the table she was monitoring election night at the downtown Piper Technical Center, county Chief Deputy Registrar-Recorder Kristin Heffron said workers used the highlighters on about a quarter of the ballots.

"I think they were being very cautious," Heffron said. "The way they were doing it was to essentially fill in the entire square where the bubble was located and that would certainly ensure that the position was going to be tallied."

Heffron said she doesn't believe the use of the highlighters altered the outcome of the election.

"I didn't see anything that was going to in any way damage the integrity of the election," Heffron said. "The ballots were secured. Supervisors had oversight at every table. They had posters up on the walls with pictures saying if it looks like this, it's OK, and if it looks like this, it's not OK."