Latest in fight over 3-vote Indiana Senate race: can state Supreme Court still act?

The Indiana Supreme Court is weighing whether courts can still intervene in a Republican primary recount that gave President Donald Trump-endorsed challenger Paula Copenhaver a three-vote lead over state Sen. Spencer Deery, who opposed congressional redistricting.

Attorneys for Deery on Monday disputed arguments from Copenhaver that the courts can no longer overturn the Indiana Recount Commission’s decision because the Aug. 21 certification deadline for this fall’s election has passed.

Deery has asked the state Supreme Court to review whether six ballots that were cast for him were wrongly rejected by the Recount Commission over omissions by election workers. 

Senator argues ‘court has the power’

The senator’s attorneys argued in a Monday court filing that state law allows errors to be corrected until 60 days before an election, giving the courts time to act.

“The deadline argued by Copenhaver is not a final and absolute deadline,” Deery’s filing said. “This court has the power to determine that the six votes should be counted.” 

The Recount Commission decisions on challenged ballots during an Aug. 10 meeting turned what had been a three-vote lead for Deery into a three-vote margin for Copenhaver.

Trump-backed challenger jumps ahead of Republican senator in Indiana recount

The commission’s certified totals gave Copenhaver 6,332 votes to Deery’s 6,329 in Senate District 23, which spans all or parts of six counties in the area between Lafayette and Terre Haute.

Attorneys for Copenhaver, the Fountain County Republican chair and a staffer to Lt. Gov. Micah Beckwith, maintained in a Friday court filing that the Aug. 21 deadline must be respected.

“The statutory certification deadline has expired, and with it the period for concluding proceedings related to the primary election has ended,” the filing said. “Under clear Indiana law, the primary election is over, and the general election period has begun.”

Deery’s attorneys argue that state law allows the six ballots to be counted because the missing county clerk seals or signatures were the result of election worker omissions rather than anything the voters did.

They also contend Indiana law specifically excludes ballots lacking bipartisan election worker initials from that protection but does not impose the same explicit exclusion on ballots lacking a clerk’s seal and signature.

Copenhaver says law avoid elections “chaos”

Copenhaver’s side, however, insisted that it was too late under state law for court action.

“Respect for the Legislature’s carefully chosen deadlines ensures that elections are conducted in a uniform and equal manner, avoiding chaos that could arise from ad hoc or judicially established election deadlines,” the Copenhaver filing said. “While Senator Deery may argue that dismissal of his appeal is a harsh consequence, the result is one of his own making. The statutory certification deadline was well known and specifically identified to both parties more than a month before its expiration.”

Deery’s attorneys wrote that shutting off his appeal of the Recount Commission’s decision would violate his constitutional rights to review by the courts.

“This court should reject Copenhaver’s invitation to abstain from deciding Deary’s appeal by transforming statutory deadlines, intended to facilitate an orderly election, into a mechanism for insulating the Commission’s alleged errors of law from meaningful appellate review,” Deery’s filing said.

The state Supreme Court did not take any immediate action Monday or schedule any hearings.

The Deery-Copenhaver race is the last one undecided from the Republican primary in which Trump-endorsed challengers defeated six of the seven other incumbent senators targeted by the president in retaliation for their votes against redistricting.

The Republican winner will face Democratic West Lafayette City Councilman David Sanders and independent candidate Joshua Brant in the November election for the heavily GOP district.