State Sen. Spencer Deery told the Indiana Supreme Court on Monday that a statutory certification deadline that passed last week does not end his appeal of the recount that cost him the Republican nomination in Senate District 23.
The 14-page reply brief, filed by Deery’s lawyers under a schedule the court set Aug. 18, is the last filing before the justices decide whether to take the case directly under Appellate Rule 56(A). The appeal, docketed as No. 26A-EX-2271, is from the Indiana Recount Commission.
At issue are six absentee ballots — two each from Montgomery, Warren and Vermillion counties — that county boards counted but the Commission removed. The Commission found the circuit court clerks had not affixed a seal or signature to the ballots. Secretary of State Diego Morales and member Paul Mullin voted to exclude them; member Michael Claytor dissented. The Commission’s Aug. 10 Certificate of Recount put Paula Copenhaver ahead 6,332 to 6,329.
Copenhaver argued in an Aug. 21 response that the appeal is moot. She said the deadline in Indiana Code 3-8-7-2, which requires the Indiana Election Division to certify primary results by noon 74 days before the general election, expired at noon Aug. 21, and that the Division had already certified her to the six county election boards. She also argued Deery waited too long to seek review.
Deery’s reply says Copenhaver does not dispute that the case presents a substantial question of law of great public importance, or that an emergency requiring a speedy determination exists.
On the deadline, the reply argues the statute is not absolute. It points to Indiana Code 3-8-7-3, which allows certification errors discovered more than 60 days before a general election to be corrected, and to the recount statutes, which it says govern when a court finds an error of law. One of those, Indiana Code 3-12-11-24, entitles a candidate shown by a corrected tabulation to a certificate of nomination “even though one may have been issued upon a previous tabulation.”
None of the recount provisions sets a deadline for completing judicial review, the filing says, and the General Assembly imposed such a cutoff elsewhere in the election code when it wanted one.
The reply also argues that under Copenhaver’s reading, a recount certificate issued at 11:50 a.m. would be certified by the Division at noon and extinguish a candidate’s appeal rights before they could be exercised. Reading the certification statute that way, Deery’s lawyers wrote, would infringe his rights under Article 1, Section 12 of the Indiana Constitution, which guarantees a remedy by due course of law, and Article 2, Section 1, on free and equal elections.
The brief disputes Copenhaver’s claim that county election boards must begin printing ballots by Sept. 4. The statutes she cites set a deadline for estimating absentee ballot numbers, the reply says, and direct boards to print after receiving all required certifications. A footnote says the stay Deery has requested would let clerks complete ballot design in every other respect and insert a placeholder in the Senate District 23 Republican slot.
A separate footnote states that the docket shows Attorney General Todd Rokita appearing for Morales but not for Mullin or Claytor, and that the Commission has not objected to either of Deery’s motions.
Deery is represented by Karen Celestino-Horseman, William R. Groth and Samantha DeWester. Copenhaver is represented by William Bock III and Ted Nolting of Kroger Gardis & Regas.
The matter is now under advisement. The court has not ruled on Deery’s separate request to stay the Commission’s determination.
Senate District 23 covers parts of Tippecanoe, Montgomery, Fountain, Warren, Parke and Vermillion counties. Democrat David Sanders and independent Joshua Brant are also on the November ballot.
