by Abdul-Hakim Shabazz, Esq.
Three votes. That is the whole ballgame in Senate District 23 — Republican Sen. Spencer Deery at 6,337, challenger Paula Copenhaver at 6,334, a margin of roughly two one-hundredths of one percent.
And so Copenhaver’s lawyers have asked the Indiana Recount Commission to subpoena eleven Hoosier voters, put them under oath, and ask them who they voted for.
Seriously.
The theory is that these voters cast what her petition calls “illegal votes” — Democrats and self-described progressives who pulled a Republican ballot to help Deery and were careless enough to say so to a reporter or on Facebook. Having gone public, the argument goes, they gave up the secrecy of their ballots and can now be deposed about them.
We think the Commission should say no on Tuesday morning, and we don’t think it’s a close question.
Start with the fact that Indiana does not register voters by party and never has. What we have instead is a statute (IC 3-10-1-6) saying you may vote in a party’s primary if you backed a majority of that party’s nominees last November, or, if you sat that one out, you intend to affiliate with the party next time. Read it again. The test is intent — a state of mind. And a state of mind is allowed to change on a Tuesday afternoon in a voting booth. Deery’s attorney, Samantha DeWester, makes the point in her filing and she is right: there is nothing illegal about changing your mind about a political party.
Second, the remedy Copenhaver wants existed on May 5, and she didn’t use it. The law lets a voter challenge someone who “offers to vote” at a primary — present tense, at the polls, before the ballot is ever marked. The challenger has to belong to the same party whose ballot is being pulled, which Copenhaver does. The challenged voter then signs a party-affiliation affidavit under penalty of perjury and — read the state’s own PRE-6 form — casts a regular party ballot, expressly not a provisional one.
That last detail is the whole case. Challenge a Hoosier over photo ID or registration and he gets a provisional ballot: segregated, sequestered, reviewed after election day on a fixed schedule. The General Assembly knows exactly how to build a post-election review track. It has built several. It deliberately declined to build one for crossover voting, because the affidavit at the polls is the remedy and it is self-executing on the spot.
So this isn’t really a matter of being 82 days late. Copenhaver is asking the Commission to run a procedure that has never existed in Indiana law.
Third, the grounds for contesting a nomination are a closed list: an ineligible winner, a mistake in printing or distributing ballots, a programming error, a machine malfunction, or a deliberate act or series of actions making it impossible to determine who got the most votes. “Eleven Democrats pulled our ballot” is not on that list. The only door left to knock on is the last one, and look where it leads — when that ground is proven, the remedy is a special election. The runner-up does not get handed the office. Which means Copenhaver’s best-case outcome, on her own theory, fully vindicated, is that she and Deery run the whole race over again. If that’s what she’s after, she should say so, because it is not what she’s asking for.
Fourth, and this ought to end the argument: even if all eleven confess, nobody can find their ballots. The secret ballot exists precisely so that no poll worker, no county clerk and no recount commission can walk backward from a voter to a piece of paper. Ballots are commingled by design. If a subpoenaed voter admits he pulled a Republican ballot and marked it for Deery, the Commission cannot go pull that ballot out of the stack. It can only subtract a vote based on testimony about a mark nobody on earth can locate. That is not a recount. That is an interrogation with an arithmetic component.
There is also a Fifth Amendment fork here, and it cuts against Copenhaver whichever way she turns. Sam Cody of Warren County has told Based in Lafayette he’d take the Fifth if hauled in. Notice the trap in Copenhaver’s own filing: she calls these votes illegal. If they are illegal, they are a criminal matter — the venue is a prosecutor’s office, the Fifth is squarely in play, eleven people invoke it, and the Commission learns exactly nothing. If they are not illegal, there is nothing to depose anybody about. Pick one.
None of this is happening in a vacuum. Copenhaver is the Fountain County GOP chair and a staffer to Lt. Gov. Micah Beckwith, and she carried President Trump’s endorsement because Deery wouldn’t fall in line on last year’s congressional redistricting push. This is that purge continuing by other means. If you can’t beat a sitting senator at the polls, beat him at the deposition table.
If Republicans want closed primaries, then have that fight in the open. File the bill, register voters by party, take the heat in an election year. Common Cause’s Julia Vaughn will show up to oppose you and it will be a real debate, and that is how a self-governing state is supposed to settle this. What you don’t get to do is play by open-primary rules in May and closed-primary rules in July.
Meanwhile the Aug. 21 certification deadline is bearing down, independent Joshua Brant already has ballot access, and Democrat David Sanders is up in West Lafayette watching Republicans depose their own voters in a district the GOP normally wins in its sleep. Keep this up and a safe seat becomes an interesting one.
The Commission — Secretary of State Diego Morales, Paul Mullin and Michael Claytor — convenes at 9 a.m. Tuesday at Government Center South. Three votes is a brutal way to lose an election. It is not a license to make Hoosiers explain themselves, under oath, for the sin of voting.
Abdul-Hakim Shabazz is the editor and publisher of IndyPolitics.org and an attorney licensed in Indiana and Illinois. He has also lost an election, and it never once occurred to him to subpoena the people who voted against him.
