State Sen. Spencer Deery is asking Indiana’s appellate courts to freeze the recount result that flipped the Senate District 23 Republican primary to challenger Paula Copenhaver by three votes.
Deery filed two emergency motions Monday: one asking the Indiana Court of Appeals to stay the Indiana Recount Commission’s certificate of recount pending appeal, and one asking that court to send the case straight to the Indiana Supreme Court under Appellate Rule 56(A) before the Court of Appeals takes it up. State law allows a party to appeal a final determination of the recount commission involving a nomination to state office to the Court of Appeals for errors of law.
The dispute comes down to six absentee ballots.
County-certified results from the May 5 primary had Deery ahead, 6,337 to 6,334. The commission’s Aug. 10 certificate, built on the State Board of Accounts’ final tally, has Copenhaver at 6,332 and Deery at 6,329 — a three-vote plurality. An amended certificate was file-stamped with the Election Division at 12:50 p.m. Monday, signed by Secretary of State Diego Morales, Paul Mullin and Michael Claytor.
The six ballots — two each from Montgomery, Warren and Vermillion counties — were counted by county election boards but rejected by the commission because the circuit court clerk had not affixed the clerk’s seal and signature to the back of the ballot. Morales and Mullin voted against counting them. Claytor would have counted them.
Deery’s legal argument is that the seal is the clerk’s duty, not the voter’s, and that Indiana Code contains a savings clause allowing a ballot marked and cast in compliance with the election code to be counted in a recount even when an election official’s error would otherwise disqualify it, absent evidence of fraud, tampering or misconduct. That savings clause expressly carves out ballots missing the initials of two members of the absentee voter board — but says nothing about a missing clerk’s seal. Under the canon that expressly including one thing implies excluding others, Deery argues seal-less ballots survive. All six carried the required initials, according to the filings.
The stay motion asks the court to bar clerks in the district’s six counties — Tippecanoe, Montgomery, Fountain, Warren, Parke and Vermillion — from finalizing, printing or transmitting ballots identifying a Republican nominee in Senate District 23, while letting every other piece of general election preparation continue. Deery also asks that any bond be waived or set at a nominal amount, arguing a stay preserves the status quo rather than costing the other side money.
Timing drives the request. In an affidavit filed with the motions, Deery says ballot preparation for the Nov. 3 general election is already underway, that absentee ballots must go to military and overseas voters 45 days before Election Day, and that early voting begins Oct. 6. Waiting, he argues, risks pushing the case past the point where a court can fix anything without disrupting candidates, election officials and voters.
Under the schedule Deery proposes, objections to transfer would be due in two days, his brief five days after transfer is granted, responses five days after that, and a reply in three.
Only the recount is on appeal. The contest — Copenhaver’s separate challenge alleging illegal votes were cast — was dismissed by the commission following the Aug. 10 hearing without objection from her counsel, according to the transfer motion.
Deery is represented by Karen Celestino-Horseman, William R. Groth and Samantha E. DeWester. Copenhaver is represented by William Bock III and Ted Nolting of Kroger Gardis & Regas. No response from Copenhaver or the commission had been filed as of Monday afternoon.
Democrat David Sanders and independent Joshua Brant are also on the November ballot in Senate District 23.
