State to join ballot probe

Software change not pre-approved

By Troy Anderson and Beth Barrett    LA Daily News   17 March 2005

The California Secretary of State's Office announced Wednesday that it will investigate why City Clerk Frank Martinez changed the software on the voting system used in Los Angeles' mayoral primary without state approval one of several steps he took that slowed the count and raised questions about the integrity of the process.

Martinez said he ordered a change in computer code in the scanner that "reads" InkaVote ballots in order to reduce uncertainty in what was anticipated to be an extremely close race. And on election night, he ordered workers to hand-sort the ballots and re-ink thousands of votes that might be too faint to scan.

But the change was made without getting the required approval of state officials, said Secretary of State's Office spokeswoman Caren Daniels-Meade.

"I'm really surprised to hear this," she said. "We were not alerted to any changes. We did not approve any changes.

"There is a provision in the elections code that says no change or modification to a voting system that has been previously certified can happen without written notification to the Secretary of State. We'll obviously be contacting (election officials) to determine if there indeed was a modification without our knowledge."

Martinez, who has been criticized for not telling the candidates or allowing independent observers to watch the over-writing of ballots, said his office tested the new InkaVote system about a month before the March 8 primary and required a change in computer software telling the system to proceed to the next ballot. He thought the change was so minor it did not need to be approved by the state.

"Obviously, we have our vote tally software that has been certified," said Martinez, earns $185,018 a year in the post he was appointed to in September by Mayor James Hahn. "Our card reader and the InkaVote system was certified. This was a peripheral adjustment that we didn't think went to the core of the system."

Bob Stern, president of the Center for Governmental Studies, who has previously said that ballots should not be tampered with, questioned on Wednesday why Martinez didn't have the software change certified by the state.

"He should have been much more open with what he was doing," Stern said. "Had he been more open, he would be facing less criticism. The whole process should be examined so everybody has the utmost confidence in the results of the election."

Kim Alexander, president of the California Voter Foundation, said the fact that the city clerk made a change in the software before the election isn't evidence that "someone tried to cheat."

"Whether it's illegal to do that depends on whether the city has to follow state law that only certified election equipment be used."

The City Council has demanded answers from Martinez about delays and other problems in the primary election, and the clerk is scheduled to report to the council's Rules Committee on March 23.

Martinez said he was being conservative by dealing with potentially questionable ballots in advance rather than facing challenges after the election as county officials have done.

"What if it had been close, a couple hundred votes?" asked Martinez, a 26-year city employee who served as the executive officer for the City Clerk's Office since 2000.

He said it has been city policy to inspect every ballot since the April 2001 election. Punch-card ballots were used in those elections, and officials were looking for "hanging chads."

City Councilwoman Wendy Greuel, who asked for a review of the election and was among those who didn't know the blue highlighting of ink dots was being done, said the council wants to leave "no doubt as to the legitimacy of the election."

Fredric D. Woocher, attorney for Bob Hertzberg, who missed beating Hahn for a runoff spot by about 5,600 votes, said Martinez since has offered to make the ballots available for review, and has been "very accommodating."

"He said, Come down and we'll show you," Woocher said. "We'll probably take him up on that."

Woocher said the campaign would like to see a sample, to make sure all the candidates received the same treatment in terms of the amount of overmarking done, but added he doesn't anticipate widespread irregularities.

John Medcalf, president of VOTEC, the elections software and hardware company that sold the city its ballot-counting system in 1989 and has serviced it ever since, said the software change was because a mark in the upper left corner of the ballot that tells the counting machine what offices and questions to read was printed darker than normal. That caused the ballot reader to stop periodically.

"They didn't want the reader stopping frequently so they wanted me to make a small change. It was one line of code in the software that runs the card readers and tells them whether to continue and read the next card. I did that a month ahead of the election, giving them ample time to test it. They were looking to eliminate as many distractions as possible in managing such a big operation."