The Indiana Supreme Court agreed Monday to take State Sen. Spencer Deery’s appeal of the recount that cost him the Republican nomination in Senate District 23, granting immediate transfer hours after the last brief on the question was filed.
The order, signed by Chief Justice Loretta Rush and filed at 3:34 p.m., grants Deery’s motion under Appellate Rule 56(A) and directs the clerk to assign a Supreme Court case number to be used for all filings. The appeal, docketed in the Court of Appeals as No. 26A-EX-2271, will proceed in the Supreme Court “as if it had been originally filed here.” All justices concurred.
The court set a compressed schedule. Deery’s brief is due at 4:30 p.m. Aug. 28. Briefs from Copenhaver and the other appellees are due at 4:30 p.m. Sept. 1. Deery’s reply is due at noon Sept. 3. Opening briefs are capped at 6,000 words and the reply at 3,000. Oral argument is set for 11:15 a.m. Sept. 10, with further details to come in a separate order. The court said no extensions will be granted absent extraordinary circumstances.
The Recount Commission was ordered to prepare and file the record of proceedings by 4:30 p.m. Aug. 27, including the transcript of its Aug. 10 hearing and front-and-back images of each of the six contested ballots.
Those six absentee ballots — two each from Montgomery, Warren and Vermillion counties — are the heart of the appeal. County boards counted them; the Commission removed them after finding the circuit court clerks had not affixed a seal or signature. 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, reversing a county-certified count of 6,337 to 6,334 for Deery. Morales, Mullin and Claytor are named as appellees as members of the Commission.
The order does not rule on Deery’s separate request for an emergency stay, which would bar clerks in the six counties from finalizing ballots naming a Republican nominee in the district while the appeal is pending. The court said the appeal proceeds along with any pending motions.
Copenhaver argued in an Aug. 21 response that the appeal is moot because the deadline in Indiana Code 3-8-7-2 — requiring the Indiana Election Division to certify primary results by noon 74 days before the general election — passed at noon Aug. 21, and the Division had already certified her to the six county election boards. Deery’s reply, filed Monday morning, argued the deadline is not absolute, pointing to a statute allowing correction of certification errors discovered more than 60 days out and to recount provisions entitling a candidate shown by a corrected tabulation to a certificate of nomination even if one was already issued.
Copenhaver also argued county election boards must begin printing ballots by Sept. 4. Oral argument is scheduled six days after that date. Deery’s lawyers disputed her reading of the printing statutes and offered to have clerks insert a placeholder in the Senate District 23 Republican slot.
Neither side has yet briefed the merits of whether the six ballots should have been counted.
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.
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.
