Club for Growth, the national fiscal conservative group headed by former Indiana Congressman David McIntosh, asked the Indiana Supreme Court on Monday for leave to file a friend-of-the-court brief supporting Paula Copenhaver in the Senate District 23 recount appeal, one day before responsive briefs are due in the case.
McIntosh represented Indiana’s 2nd District in Congress from 1995 to 2001 and was the Republican nominee for governor in 2000. He ran for Congress again in 2012 in the newly drawn 5th District, losing the Republican primary to Susan Brooks by 1,010 votes. He has led Club for Growth since 2014.
The group is represented by James Bopp, Jr. and Taylor C. Shetina of the Bopp Law Firm in Terre Haute, along with Michael Donnelly of Club for Growth’s Washington office, whose petition for temporary admission in Indiana is pending. The motion was filed under Indiana Appellate Rule 41, along with a 4,068-word proposed brief.
The filings disclose that School Freedom Fund, Club for Growth’s affiliated independent-expenditure organization, supported Copenhaver in the May 5 Republican primary and supports her in the appeal. McIntosh chairs that organization.
The motion states that Club for Growth consulted with Copenhaver’s counsel to avoid unnecessary repetition, citing Appellate Rule 46(E)(2). A footnote in the brief certifies that no party’s counsel authored any part of it and that no party’s counsel or other person contributed money intended to fund it.
The brief makes two arguments. The first is that Senator Spencer Deery’s appeal is moot because the General Assembly’s election calendar forecloses any effective relief. Club for Growth argues that no order entered now could lawfully or practically place Deery on the general-election ballot given the completed recount, the passed certification deadline and the ballot-preparation work already underway in the six counties in the district.
The brief contends that while Indiana Code § 3-12-10-18 permits judicial review of Recount Commission errors of law, it does not stay certification, displace the correction timetable or hold the ballot open during an appeal, and that Article 3 of the Indiana Constitution bars the courts from supplying a substitute calendar. It cites the U.S. Supreme Court’s decision in Purcell v. Gonzalez and the Indiana Supreme Court’s 2025 decision in Thomas v. Foyst.
The second argument reaches the merits of the six absentee ballots at the center of the appeal. Two ballots each from Montgomery, Warren and Vermillion counties were counted by county election boards but rejected by the Recount Commission because the circuit court clerk’s seal, signature or both were not affixed.
Club for Growth argues that Indiana Code §§ 3-11-4-19 and 3-11-10-27 require both markings, that the initials of the absentee voter board serve a different function, and that a ballot lacking the clerk’s authentication is “just a scrap of paper, or at worst a fraudulent ballot.”
The brief also argues that the savings clause at Indiana Code § 3-12-1-12(b) does not apply, on the ground that there is no evidence in the record that the missing seal resulted from an election officer’s failure rather than from ballots created by someone without access to the clerk’s seal.
Copenhaver’s own filing opposing transfer, submitted August 21, argued mootness and did not address the six ballots.
The Commission’s August 10 Certificate of Recount showed Copenhaver with 6,332 votes to Deery’s 6,329, reversing a county-certified count of 6,337 for Deery and 6,334 for Copenhaver. The six disputed ballots exceed Copenhaver’s three-vote margin. The Commission voted 2-1 to reject them, with member Michael Claytor dissenting.
The Supreme Court granted immediate transfer on August 24 and set oral argument for 11:15 a.m. on September 10. Appellees’ briefs are due at 4:30 p.m. Tuesday and Deery’s reply at noon Thursday.
Deery is represented by Karen Celestino-Horseman, William Groth and Samantha E. DeWester. Copenhaver is represented by William Bock III, Ted Nolting, Sarah Pfister and Adam Doerr of Kroger Gardis & Regas.
The Court has not ruled on the amicus motion or on Deery’s pending emergency motion to stay.
