Attorneys for Paula Copenhaver told the Indiana Supreme Court Friday that Sen. Spencer Deery’s appeal of the Senate District 23 recount is moot, arguing the statutory deadline for certifying candidates to the November ballot expired at noon that day and there is no longer any way to put Deery’s name on it.
The response, filed by William Bock III of Kroger, Gardis & Regas ahead of the court’s 4:30 p.m. deadline, opposes Deery’s motion to transfer the case from the Court of Appeals, where it is docketed as 26A-EX-2271.
Indiana Code § 3-8-7-2 requires the Election Division to certify primary results to county election boards no later than noon on the 74th day before the general election. Copenhaver’s filing says the Division certified her to the boards in the six counties that make up SD 23 within days of the Recount Commission’s Aug. 10 decision, and that she appeared as the Republican nominee on the Division’s public candidate list as of 12:01 p.m. Friday.
The filing draws a distinction Deery’s motion did not address: that the Commission’s Certificate of Recount is not what placed Copenhaver on the ballot. The Election Division’s certification did, Bock wrote, and Deery neither asked to stay that certification nor sought to make the Division a party.
Copenhaver’s lawyers also argue Deery moved too slowly. An attached declaration from attorney Sarah Pfister includes an email chain in which Copenhaver’s counsel asked for a final hearing on Aug. 6, 7 or 10, while Deery’s counsel preferred Aug. 13, 18 or 20. The Commission set Aug. 10. Deery then waited a week before filing his emergency motions and has not yet filed an appellant’s brief, the response says.
The 4,200-word filing does not address the substance of Deery’s appeal. Deery has argued the Commission wrongly rejected six absentee ballots — two each from Montgomery, Warren and Vermillion counties — because circuit court clerks failed to affix a seal, even though all six carried the required absentee board initials. He contends a savings clause at Ind. Code § 3-12-1-13(b) preserves such ballots absent fraud or misconduct. Commission member Michale Claytor dissented from the decision to reject them.
The recount finished with Copenhaver at 6,332 votes and Deery at 6,329. County-certified totals had Deery ahead 6,337 to 6,334.
Copenhaver’s response cites the U.S. Supreme Court’s Purcell decision on late judicial intervention in elections and lists the deadlines ahead: counties must begin printing absentee ballots in early September, deliver them by Sept. 14, and transmit ballots to military and overseas voters by Sept. 19. Deery’s proposed briefing schedule would not finish until Sept. 7, the filing notes.
Deery is represented by Karen Celestino-Horseman, William R. Groth and Samantha DeWester. His reply is due to the Supreme Court clerk by 4:30 p.m. Monday, after which the transfer motion goes under advisement. The court has not ruled on Deery’s request for an emergency stay.
David Sanders is the Democratic candidate in SD 23. Joshua Brant is running as an independent.
