By Abdul-Hakim Shabazz, Esq.
Paula Copenhaver lost the Republican primary in Senate District 23 to State Sen. Spencer Deery by three votes. That’s close. That’s recount territory. Nobody disputes she’s entitled to ask for one, and she did.
What she’s also asking for — and this is where the petition stops being a recount and starts being performance art — is for the Indiana Recount Commission to subpoena 14 voters, put them under oath, ask them which party’s primary they “really” belonged to, and then throw their votes in the trash.
The 100-plus-page petition, filed Monday by Kroger, Gardis & Regas, identifies the 14 by name. Their sin, according to the petition, is that they posted on social media or told reporters they’re normally Democrats but pulled Republican ballots May 5 to vote for Deery — and that some of them plan to vote Democratic in November. Copenhaver’s team says that violates IC 3-10-1-6, the statute that tells voters which primary ballot they’re allowed to take. The theory is that by talking about it publicly, the 14 waived their ballot secrecy and opened themselves up to a post-election deposition.
There’s just one problem. Two, actually. Maybe three.
Problem one: the statute says the challenge happens at the polling place. Period.
Yes, IC 3-10-1-6 sets the rule about which primary ballot you can take. You’re supposed to have voted for a majority of that party’s nominees last time, or intend to vote for a majority of them this time. Fine. But the enforcement mechanism for that rule lives in a different statute — IC 3-10-1-9 — and it operates in exactly one place: where the voter is voting.
That means the polling site. Or, if a county uses vote centers and a courthouse happens to be one of them, then at the courthouse — as a polling site, on Election Day, while the voter is standing there with a ballot in hand. Not at the courthouse six weeks later, in a hearing room, with a court reporter and a subpoena.
Under IC 3-10-1-9, any voter of the same party can challenge another voter at the polls. The challenged voter is handed a PRE-6 affidavit. Sign it and swear you meet the standard, you vote. Refuse to sign, you don’t. That’s it. That’s the whole enforcement structure for party affiliation in an Indiana primary, and it is locked to the moment the ballot is issued.
The 2025 General Assembly tinkered with 3-10-1-9 to let challengers come from anywhere in the county instead of just the precinct. They did not, in their wisdom, create a post-election version of the challenge. There is no statute that says “and if you missed them at the polls, you can drag them in front of the Recount Commission six weeks later.” That statute does not exist. I checked. Twice.
Once the voter walks out of the polling place with that “I Voted” sticker, the affiliation challenge window is closed. It does not reopen at the Statehouse. It does not reopen at the courthouse. It does not reopen because somebody tweeted something inconvenient on the way home.
Problem two: the Recount Commission can’t do what she’s asking even if it wanted to.
The Recount Commission is a creature of statute. It lives in IC 3-12-10 and operates under IC 3-12-11. Its job is to recount ballots and resolve contests on the specific statutory grounds the legislature gave it. Read those chapters carefully and you will not find authority for the Commission to compel a voter’s testimony about which candidate that voter chose, or to invalidate a ballot on the theory that the voter privately failed an affiliation test. The Commission resolves disputes between candidates over what is on the ballots. It does not function as a tribunal that re-examines individual voters’ party loyalty after the fact, and the legislature has never given it the tools to try.
Problem three: even if the first two problems didn’t exist, the ballots aren’t traceable.
Article 2, Section 13 of the Indiana Constitution guarantees the secrecy of the ballot. Indiana courts have consistently treated that guarantee as structural — a feature of the system itself, not a personal privacy interest the voter can hand away on Facebook. And the mechanics back that up. Once a ballot is cast and mixed with the others, it cannot be identified and pulled. There is no “Voter X’s ballot” sitting in a labeled envelope somewhere. Even if all 14 voters showed up in matching t-shirts, raised their right hands, and announced under oath exactly who they voted for, the ballots are gone into the pile. You can’t un-mix them.
Elizabeth Bennion at IU South Bend made the same point this week, and she’s right: because Indiana doesn’t register voters by party, the affiliation rule has no teeth outside the polling-place challenge. After the polls close, the law has nothing left to grab.
Meanwhile, in Fort Wayne.
If you want to know the difference between a recount petition and a fishing expedition, compare what Copenhaver filed Monday to what Darren Vogt filed Tuesday.
Vogt lost the SD-15 Republican primary to incumbent Sen. Liz Brown by 15 votes. Like Copenhaver, he’s within recount range. Like Copenhaver, he filed. Unlike Copenhaver, his petition does the thing recount petitions are supposed to do: it questions Allen County’s ballot-counting process and points at the technical glitches that prevented the county from posting final tallies until the day after the primary. Audit the machines. Recount the ballots. See if the count was right. That is exactly what IC 3-12-10 and IC 3-12-11 exist to do, and it is exactly what the Recount Commission knows how to handle. Bennion, who used the word “unprecedented” this week, was talking about Copenhaver — not Vogt. There’s a reason for that, too.
The politics in SD-15 also run the opposite direction from SD-23, which is worth noting because the coverage has occasionally smushed the two together. Brown supported the Trump redistricting push and was endorsed by the president. Vogt is backed by Sen. Jim Banks and AG Todd Rokita. So in Fort Wayne, the Trump-aligned candidate is the incumbent who’s ahead, and the challenger asking for the recount is the one running against the Trump lane. In SD-23, it’s the reverse — Copenhaver is the Trump-endorsed challenger going after Deery, who voted against redistricting.
Same week, same Recount Commission, same kind of margin. Two completely different petitions. One asks the Commission to do its job. The other asks it to invent a job it doesn’t have.
The politics, briefly.
SD-23 was one of seven Senate primaries this cycle where Republican incumbents who’d voted against the Trump administration’s mid-decade redistricting push got hit by Trump-aligned challengers and outside money. Eight of those incumbents were on the ballot. Only two survived. Deery is the second, by three votes. So the political stakes here are real, and a recount is a reasonable thing for Copenhaver to ask for.
A recount is reasonable. Subpoenaing voters is not. They’re different documents, even if they showed up stapled together.
If the Recount Commission entertains the voter-deposition piece of this petition, every losing primary candidate in Indiana from now until the heat death of the universe will have a template for trawling social media, finding voters who said something inconvenient, and dragging them into a courthouse for sworn testimony about their political loyalties. The legislature already picked the room where party-affiliation challenges happen, and it isn’t that one.
The likeliest outcome — and the correct one — is that the Commission rejects the subpoena request as outside its statutory authority, the recount proceeds as a conventional manual count of a three-vote margin, and the 14 challenged ballots stay in the count where they belong. Then we find out whether Spencer Deery really won by three, or by some other small number, or not at all. That’s what a recount is for.
What it isn’t for is rewriting Indiana’s primary-affiliation enforcement scheme on the fly because the result didn’t go your way.
Deery put it about as cleanly as it can be put: the petition “is not a license to intimidate voters or to rewrite election laws after the results are in.”
Abdul-Hakim Shabazz is the editor and publisher of IndyPolitics.org and is licensed to practice law in Indiana and Illinois.
