VOTING RESULTS WON'T BE DISPUTED HERTZBERG TEAM FINDS NO FRAUD.

Byline: Beth Barrett Staff Writer

Defeated mayoral candidate Bob Hertzberg's campaign team reviewed thousands of ballots Friday and found no evidence of fraud or ballot tampering despite the controversial measures taken election night by City Clerk Frank Martinez.

``I'm not going to challenge the election,'' said Hertzberg, who narrowly lost a runoff spot to Mayor James Hahn. ``If there were improprieties we wanted to take a look; we wanted to make sure.''

He said his observers ``were convinced the integrity of the election was preserved.''

Concerns were raised after the Daily News disclosed that Martinez, without telling the candidates or allowing independent observers, had ordered election workers to pre-sort ballots and then re-ink votes when they thought Ink-a-Vote marks might be too faint. The problem arose because coding on the ballots was printed too dark so Martinez ordered a software change in the ballot-reading equipment without getting approval from the California secretary of state.

Observers were on hand Friday when 14,271 mail-in votes turned in on election day were counted and when there was a random review of ballots that had been overmarked on election day.

The tally showed small discrepancies between sample precincts counted by hand versus the machine count. The result was a 78-vote gain for Mayor James Hahn, widening his lead over Hertzberg from 5,769 votes to 5,847. Hahn now has 92,552 votes to Hertzberg's 86,705 with about 15,000 votes left to be counted.

Councilman Antonio Villaraigosa remains the front-runner with 32.92 percent of the vote; Hahn received 23.72 percent, and Hertzberg 22.23 percent.

Ronald B. Turovsky, Hahn's campaign attorney, said the tally reinforced the mayor's belief election night that he had made the runoff. ``The (mayor's) margin continues to expand, while the available pool of votes shrinks.''

John Shallman, Hertzberg's consultant, said that while there seemed to be ``a great deal of subjectivity'' in the process, ``we saw nothing to indicate voter fraud.''

The campaign was worried that the potential for fraud existed if workers either had highlighted blank mayoral ballots to boost the numbers for Hahn or had highlighted a second mayoral box to depress votes for targeted candidates because such ballots would not have been counted.

None of those patterns emerged, and Martinez said there were no cases identified in which a blank circle was later marked by an election worker.

Martinez acknowledged that most of the Ink-a-Vote ballots could have been read without the highlighting, but said he was being conservative in what was anticipated to be a close election.

Shallman, however, said he remained bothered by the amount of ``subjectivity'' election workers were allowed to exercise, even if it didn't affect the final tally.

``There was a lot of marking of ballots that seemed to be perfectly fine,'' he said.

Hertzberg campaign attorney Fredric D. Woocher said that while the outcome of the election wasn't changed, the review revealed a degree of ``arbitrariness.''

``It definitely raises questions how good this system is as a voting system.''

Martinez said in the May 17 election, with only a handful of races, voters will get a ballot on which they can see both the names of candidates and the circles they fill in. He said election workers probably will only ``fan'' through the ballots for obvious smears or tears, and set those ballots apart while the remainder are counted immediately.

Beth Barrett, [phone]

beth.barrett(at)dailynews.com

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Photo:

Los Angeles City Clerk Frank Martinez, right. takes part in a review of some of the ballots with a city official and attorneys for mayoral candidates Bob Hertzberg and Mayor James Hahn.

David Sprague/Staff Photographer