The Indiana Recount Commission met Tuesday and voted down a motion to subpoena voters in a razor-thin Republican primary race for Indiana’s 23rd Senate District.
“I think the time to challenge voters is at the polls,” Secretary of State Diego Morales said as he seconded a motion to deny the challenge. “This is the right thing to do.”
Morales said he believed the legislature should ultimately make the decision to close the primaries - but the commission should not subpoena voters. In a closed primary only registered party members or voters affiliated with a party are allowed to vote for that party.
Despite the decision, the commission will still need to convene again on August 18th to determine whether disputed ballots can be counted. Both sides have disputed hundreds of ballots, more than enough to sway the election.
The election division certifies names for the general election ballot on August 21st.
At issue Tuesday was whether the state should subpoena voters over statements they made on social media showing they had “crossed over” and voted for a republican despite being regular democratic voters. The request was made by candidate Paula Copenhaver, whom President Donald Trump backed in the May primaries.
Experts said the challenge was based on a difficult-to-enforce law requiring voters to vote in the Republican primary only if they voted Republican in the last general election or intend to support most Republican candidates in the future.
The race between Copenhaver and Sen. Spencer Deery (R-West Lafayette) came down to just three votes. Deery was one of the Indiana Republicans who voted against President Donald Trump’s push to redraw congressional maps to favor the party nationally.
Trump launched primary campaigns against those Republicans who opposed him. That push was mostly successful for the president, with only one incumbent Republican winning outright.
That left Senate District 23, where Copenhaver quickly moved for a recount. Copenhaver’s campaign went a step further calling for voters to be subpoenaed.
William Bock, Copenhaver’s attorney, argued it was the duty of the commission to ensure no illegal ballots were counted. Bock has previously been involved in high profile cases, including Trump’s 2020 effort to overturn the Wisconsin presidential election.
Bock argued voters' privacy interests were waived when they voted in the primary.
“Our position is that when someone votes in a partisan primary they waive their secrecy because they are saying that they voted and how they voted in the past,” he said.
Bock said their team had identified eleven voters who made statements on social media and had voted in District 23. Those names, he said, were not made public but were sent to the commission.
As part of Bock’s exhibits, he put voter statements up on a screen. Those included a number of voters who noted they had voted for Deery but did not intend to do so in the General Election.
Bock noted that was explicitly against state statute. “There is a strong basis to question each of these people.”
Copenhaver’s challenge comes as more Indiana Republicans have called for closed primaries. The party’s Secretary of State Candidate, Max Engling, noted closed primaries would be one of his key issues if elected in November.
But in arguments made before the commission, Samantha DeWester, attorney representing Deery, said that the subpoena of voters was based solely on social media hearsay. To act on this, she argued, would open up election challenges far into the future based on social media posts.
“This opens the door to other contests in the future based on what anyone says on social media,” she said. “Do we just start deposing the electorate every election cycle? Just depose people and ask who they voted for in a primary?”
DeWester also raised concerns about voter privacy.
“The general public is now put on notice that if you vote in a primary election, per what they just said, you waive your right to secrecy,” she said.
Those arguments appear to have swayed the recount commission.
“Primary crossover voting is not voter fraud,” Commission Michael Claytor said in his statements before his vote. “Ballot secrecy is a fundamental right of voters.”
The State Board of Accounts noted its audit of the election found the same vote tally as the county clerks in District 23, something recount director Evan Norris commended clerks for. That tally was 6,334 to 6,337.
Asked whether that audit finding hurt her chances of disputing ballots on the 18th, Copenhaver said it did not.
“That doesn’t take into play the objections given for the ballots,” she said. “Those ballots will be reviewed and we’ll go from there.”
DeWester noted that she told Deery not to be in attendance at the hearing. She said the audit makes her hopeful they will prevail.
“Anything’s possible but I’m confident in the process, confident in what I’ve seen so far.”
Contact Government Reporter Benjamin Thorp at bthorp@wfyi.org
