As expected, Paula Copenhaver has filed a verified petition for recount and contest of the May 5 Republican primary for Indiana State Senate District 23, which she lost to incumbent Sen. Spencer Deery. But the more striking filing landed alongside it Monday evening at the Indiana Election Division: a motion asking the Indiana Recount Commission to subpoena 14 named voters and compel them to sit for sworn depositions about how they cast their ballots.
The petition, docketed as No. 16134 before the Recount Commission sitting in Indianapolis, was filed by attorney William Bock III of Kroger Gardis & Regas, along with Ted Nolting and Sarah Pfister. Bock, a veteran Indianapolis litigator and former general counsel to the U.S. Olympic and Paralympic Committee, is best known nationally for his work on the Lance Armstrong doping case.
The motion does not allege any error in the vote count itself. Instead, it argues that ballots cast by certain voters should be excluded from Deery’s total because those voters were not legally qualified to vote in the Republican primary under Indiana’s closed-primary statute, IC § 3-10-1-6. That statute requires a primary voter to have either voted for a majority of that party’s nominees at the last general election, or to intend to vote for a majority of that party’s nominees at the next one.
The evidence Bock cites comes almost entirely from public social media posts and a May 10 Substack column by Lafayette journalist Dave Bangert titled “Did these crossover votes save Indiana Sen. Spencer Deery?” According to the motion, the 14 voters — identified by full name and home address — publicly stated on Facebook or to Bangert directly that they were Democrats or independents who pulled a Republican ballot specifically to vote for Deery and had no intention of supporting Republicans in November.
Among those named is Mary (McDaniel) Nelson of Kingman, the elected Democratic Millcreek Township Trustee in Fountain County, who ran unopposed on the Democratic ballot in the same May 5 primary. Also named are James, Annette, and Emma Brehm of West Lafayette — an entire family the motion says crossed over together.
Bock argues the Commission has authority under IC § 3-12-10-5(2) to issue the subpoenas and that ballot secrecy under Article 2, Section 13 of the Indiana Constitution does not shield voters who, by their own admission, cast illegal ballots. He cites Kelso v. Cook (1916), Pedigo v. Grimes (1887), and a Texas crossover-voter case, Green v. Reyes, among others.
Reaction from the Indianapolis legal community was swift.
“How in the hell are you going to try and depose voters based upon what they said on social media?” Indianapolis attorney Samantha DeWester said in a message Monday evening. “These voters are going to hate her.”
The motion does not specify the current vote margin or how many ballots Copenhaver believes need to be thrown out for the result to flip. Deery, who survived a Trump-aligned primary challenge that took down three other incumbents on May 5, was served at his West Lafayette home rather than through counsel, suggesting he has not yet retained an attorney for the recount proceeding.
If the Commission grants the motion, it would mark what appears to be the first time in modern Indiana history that private voters have been compelled to testify under oath about their primary ballot choices.
The Recount Commission has not yet set a hearing date.
