Troubling Vote Counting Issues in Los Angeles

A Los Angeles Daily News investigation revealed that Frank Martinez , the Los Angeles city clerk, had his staff use blue highlighter pens to fill in partially inked ballots in the city's recent mayoral election. Is this ballot tampering—as some have suggested—or sound election administration? In my view, it is neither.

First a bit of background: Martinez, appointed to the job by Mayor Hahn in September, conducts elections only for city candidates and ballot measures. County, state, and federal elections are conducted by Los Angeles County elections officials, headed by Conny McCormack, the Registrar-Recorder.

This was the first election the city conducted using the “Inkavote” system—an ink-based system for registering voter choices that has replaced the now-discredited punch cards with their hanging chads. Inkavote has been used by the county in a few elections now, and it is meant to be a temporary system to be used until the county buys and deploys touch screen voting technology. That purchase in turn has been mired in national controversy over the propriety of using electronic voting machines lacking a paper trail for use in case of a recount. So Inkavote may be with us for a while.

Martinez stated he acted to ensure that every vote would be counted. He worried that lightly marked ballots would not be read by the vote counting machines, so he relied upon a state law that allows elections officials to “correct” “defective” ballots. His staff used blue highlighter pens to fill in many partially marked ballots, and claims the highlighter marks will be read by the vote counting machines but be light enough to allow anyone to see the initial marks of ink made by the voters.

This practice of “correcting” ballots is not as unusual as one might think. Under the old punch card systems, for example, elections officials sometimes “cleaned” hanging chads from the back of the ballots before they were run through vote counting machines.

Martinez’s actions could have been viewed as sound election administration practice, especially because a recent study by UC Berkeley political scientist Henry Brady found that the Inkavote system is the worst performing voting system used in California—now that the terribly-performing punch card machines have been decertified.

But Martinez deserves criticism on two grounds. First, Martinez did not adequately get the word out to candidates and the press before the election that this correcting practice was going to take place, and that it would likely delay the announcement of results on election night. The delay and subsequent investigation of the reasons for it now have created a great deal of suspicion about the vote counting process, with at least one observer noting that the city employees working under Martinez are members of a labor union that had endorsed Jim Hahn for mayor.

Unfortunately, the revelations come after Florida 2000, with many reports since then on nationwide problems with the casting and counting of ballots. The reports about Los Angeles simply feed into a growing national belief that we cannot conduct elections in this country in a competent and neutral way.

Second, the “correction” process puts too much discretion in the hands of election officials and in close elections could sway election outcomes. Consider the controversial San Diego mayoral election in November between two runoff candidates and a strong write-in candidate, San Diego city council member Donna Frye. San Diego election officials “corrected” some optically scanned ballots in the very close mayor’s race but not others. If someone put an “x” or a check mark rather than completely filled in the bubble next to a mayoral candidate’s name, the registrar filled in the bubble entirely, defending the correction as fulfilling the voter's intent. However, officials declined to fill in the bubble next to the write-in line if someone wrote “Frye,” despite the fact that the voter’s intent was clear there as well. Officials said state law prevented the latter type of correction.

There are enough unbubbled Frye votes to tip the race to her if a court orders those votes counted, and the failure to correct Frye votes but to correct those other votes raises serious equal protection problems that will soon be resolved by the California appellate courts.

Hertzberg has said he won't contest the election. Had the Los Angeles mayoral election been closer than it was, we would have suffered the same fate as San Diego. I have no doubt that the numerous decisions of city employees over which ballots to “correct” would have been subject to close scrutiny and likely court action.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
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rick.hasen@lls.edu
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