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INDIANA SUPREME COURT AGREES TO CONSIDER DEERY’S APPEAL IN SENATE DISTRICT 23 RECOUNT
Correction: The Indiana Supreme Court order Tuesday agreed to consider the appeal in the Senate District 23 recount but had not accepted transfer of the case. This edition has been corrected.
The Indiana Supreme Court announced Tuesday that it will consider state Sen. Spencer Deery’s appeal of Indiana Recount Commission decisions that rejected ballots and flipped his three-vote victory in the May primary into a three-vote margin for challenger Paula Copenhaver for the Republican nomination in Indiana Senate District 23.
In an order signed by Chief Justice Loretta Rush, the justices agreed to accept briefs in the case filed Monday to the Indiana Supreme Court, considering the matter on an expidiated hearing schedule.
The state’s high court gave Copenhaver until Friday afternoon to file a response, with any Deery reply due Monday afternoon.
The order did not set dates for a hearing on the appeal, saying justices would “take the matter under advisement.”
The Court of Appeals had not ruled, as of Tuesday afternoon, on a stay requested by Deery that would block election officials in the six counties of Senate District 23 – Tippecanoe, Warren, Fountain, Montgomery, Parke and Vermillion – from putting Copenhaver’s name on the ballot, despite a state certification deadline of Friday, Aug. 21.
Copenhaver did not immediately respond Monday or Tuesday, after news of the appeal and that it had made its way to the Indiana Supreme Court.
Bill Bock, an Indianapolis-based attorney who led Copenhaver’s challenge of the primary results, declined to comment Monday, saying he was going through Deery’s appeal.
The appeal takes aim at decisions made Aug. 10, when Copenhaver’s team successfully persuaded the three-member Indiana Recount Commission to wipe out enough votes for Deery to swing the results.
Bock that day had pointed to mistakes in how ballots were handled – whether they had required poll worker initials, or whether a county clerk stamped a seal or signature on a ballot. The Recount Commission ultimately rejected eight votes cast for Deery and two for Copenhaver, all based on errors by county election staffs.
That put the final count in the May 5 primary at 6,332-6,329 for Copenhaver.
Deery’s appeal focuses on six of those ballots, including two each in Montgomery, Vermillion and Warren counties, which lacked the seal and signature of the county clerk – or two of three required elements state election law considers reliability indicators.
The Recount Commission had voted 2-1 to reject those six ballots, with commission members disagreeing about whether state election law gave them latitude to consider voter intent over clerical errors, given that no fraud had been alleged by Copenhaver’s side.
In the appeal Monday, Deery’s attorneys – Karen Celestino-Horseman, Samantha DeWester and William Groth – argued that the Indiana Recount Commission’s decisions were reversable errors that had disregarded “undisputed intent of those voters to nominate Sen. Deery … through no fault of their own.”
The appeal points to a “savings clause intended to protect against clerk errors such as the omission of the seal/signature, while expressly stating that absentee ballots lacking initials cannot be counties in a recount.”
The appeal points to a provision in Indiana Code that says that a ballot cast by a voter in compliance with state law, other than “the act or failure to act of an election officer,” may be counted in a recount, “unless evidence of fraud, tampering or misconduct affecting the integrity of the ballot is presented by a party to the proceeding.”
The appeal also cites Brown v. Grzeskowiak, a 1959 Indiana Supreme Court ruling that concluded “in the absence of fraud, actual or suggested, statutes will be liberally construed to accomplish this purpose (of the free and fair casting and counting of ballots), so as to uphold the will of the voters and ‘prevent disenfranchisement.’”
The appeal argues that the 2-1 votes on ballots that contained questions about clerk’s signatures and seals leaned on “unbridled discretion” that was “standardless.”
Deery said Monday that he didn’t consider the appeal a partisan issue, but one “about voter protection and the integrity of future elections.”
He included a seventh voter not included in the appeal – one from Fountain County who voted with a provisional ballot after questions about their registration but later supplied the necessary documentation to have the election board count the vote. In that case, the vote was rejected by the Indiana Recount Commission because county officials didn’t add their initials, the clerk’s seal or the clerk’s signature.
“Our appeal aims to protect seven voters who fulfilled their civic duty,” Deery said. “There is no dispute that they were legally registered, and there is no question whom they intended to vote for. They proved their identity, signed their names, and did everything we ask of voters. But their government let them down, and now their voices have been silenced and their votes erased by a politically appointed commission. Silencing these voters is neither lawful nor just. The government must never be able to arbitrarily take away votes because it wants a different result.”
For more
Here’s more on the appeal from a Monday edition of BiL:
Here are the filings for the appeal and the motion to stay on finalizing ballots:
THIS AND THAT/OTHER READS …
‘DODGED A BULLET’ ON STATEWIDE FLOODING; LOCAL RESPONDERS BACK FROM WATER RESCUES: This week, Jeff Houston, Tippecanoe Emergency Management Agency director, said his agency and first responders were monitoring several places over the weekend where the Wildcat Creek, Tippecanoe River below Oakdale Dam and the Wabash River were riding high from storms that dumped buckets across Indiana. His assessment, offered to county commissioner Monday, is that Tippecanoe County was largely spared the worst, considering the 10-plus inches that pummeled parts of the state, washing out roads, destroying homes and bringing a disaster declaration from Gov. Mike Braun.
“We dodged a bullet,” Houston said. “So very lucky compared to our neighbors up north and south.”
A water rescue team from Lafayette Fire Department, West Lafayette Fire Department and the Tippecanoe County Sheriff’s Office returned early this week after being deployed to Anderson, where members conducted searches and welfare checks of 226 structures Saturday and Sunday, according to LFD numbers.
For photos of the scenes in and around Indianapolis, particularly along the White River, Mirror Indy had this: “Flooding displaced residents and damaged property. Photos tell the story.”
The Indianapolis Star continues to have live updates from the damage and the recovery, found here.
Free Press Indiana also had this, looking at the numbers when it comes to flood insurance in Indiana:
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Tips, story ideas? I’m at davebangert1@gmail.com.
One would hope that the Indiana Supreme Court will rule in Sen. Deery's favor. It's not the voter's fault if some clerk mishandles their ballot. If there ever was a case of rigging the system and cherry picking, it's this one. Shame on Copenhaver for being such a cheat.
Thanks, Dave. This case will be watched by everyone around the State.
Keep the news coming, as I know you will, Dave.