The question of whether some voters could face questions from lawyers over how they cast their ballots looms over the recount of a hotly contested Indiana Senate race.
The Indiana Recount Commission is set to take up claims from Paula Copenhaver next week in what certified results show as a three-vote loss to Sen. Spencer Deery of West Lafayette in the May Republican primary.
Copenhaver’s attorneys want the commission to issue subpoenas to compel testimony from perhaps 11 voters. Her attorneys argue the primary was tainted by “illegal votes” cast by those who disclosed in social media posts or to news reporters that they had cast Republican primary ballots to support Deery despite being Democrats or self-identified “progressives.”
Deery’s side and voting-rights activists have denounced the attempt to question voters under oath as a desperate tactic that would undermine the privacy of the secret ballot.
The recount dispute follows a hostile campaign between Deery and Copenhaver, the Fountain County Republican chair and staffer to Lt. Gov. Micah Beckwith who had President Donald Trump’s endorsement because of Deery’s opposition to the Indiana congressional redistricting plan pushed last year by the president.
DISPUTED BALLOTS
Signs point to a contentious hearing Tuesday before the Recount Commission over numerous ballots in the Senate District 23 race where certified results show Deery leading by a 6,337 to 6,334 margin.
An order issued last week by state Recount Director Evan Norris, an attorney from Zionsville, did not disclose the number of contested ballots remaining after recent reviews by State Board of Accounts auditors across the district’s six counties.
That order, however, suggested there could be many being challenged as Norris urged the two sides to “winnow down” that figure “given the number of disputed ballots in this matter.”
Copenhaver’s lawyers initially sought subpoenas against 14 voters from Tippecanoe and Warren counties, but set aside requests for three voters after finding that they did not live within the Senate district.
She is seeking to question those voters under oath as to whether they abided by state law that limits primary voting to those who intend to support a majority of that party’s candidates in the general election or voted for a majority of the party’s nominees in the last election.
Copenhaver’s attorneys, from the Indianapolis law firm Kroger, Gardis & Regas, argue that those voters waived their right to ballot secrecy.
“Each of the identified voters not only voluntarily disclosed but voluntarily publicized to a news reporter and/or on social media platforms the illegality of their ballots, admittedly crossing party lines in the Republican primary election for District 23, and stating who they voted for,” Copenhaver’s recount petition said.
The depositions would include questions about whether those voters improperly voted in the Republican primary “and, if so, for whom they voted,” her lawyers wrote.
SUBPOENA PUSH DENOUNCED
Allegations of cross-party primary voting have been rarely investigated, although some Republicans are using alleged involvement of Democratic voters in the Deery-Copenhaver race to renew a push for Indiana to require party registration for primary voting.
Some election observers say it is perhaps unprecedented in Indiana for voters to face depositions over how they cast their ballots.
Among those is Julia Vaughn, executive director of the voting-rights group Common Cause Indiana who has been following state election law for about 30 years.
She considers the subpoena request “dangerous” and said the “privacy of one’s vote needs to be paramount.”
“I think this effort by Copenhaver is very desperate,” Vaughn told the Indiana Capital Chronicle. “It really reeks of a desperate attempt to undo the results of an election and the end result is intimidation of voters.”
Deery’s lawyer, Samantha DeWester, has urged the Recount Commission to reject the subpoena request, calling it an attempt to “conduct an open-ended fishing expedition to harass non-party voters.”
DeWester argued in a legal filing to the commission that no voter fraud had been committed and that “there is nothing illegal or ‘invalid’ about changing a Party primary preference at any time.”
“The secrecy of the ballot and the freedom of political association should not be invaded merely because a losing candidate is in a desperate search for more votes and to be declared the winner,” DeWester wrote.
QUESTIONING VOTERS WOULD DELAY OUTCOME
If the Recount Commission decides to issue the subpoenas, the panel’s final decision on the vote tally might not come until just before the Aug. 21 deadline set by state law for the Indiana Election Division to certify candidates for the November ballot.
The Republican candidate would move on to face Democrat David Sanders, a West Lafayette City Council member, for the fall campaign in what has typically been a strongly Republican district.
It is uncertain what legal recourse would be available to the subpoenaed voters, who are not identified in public legal filings.
Warren County resident Sam Cody told the news outlet Based in Lafayette that he would “stand up for my rights” if questioned over his online comments about pulling a Republican primary ballot and voting only for Deery.
“Who I’ve voted for in past elections and who I intend to vote for in future elections is private information,” Cody said. “… I’m happy to exercise my Fifth Amendment right in court testimony.”
The Fifth Amendment includes the right to not answer questions about criminal allegations, so it might not apply in the proceedings involving the Recount Commission.
Vaughn said she hoped the Recount Commission would not allow the voter questioning to happen.
“We have a secret ballot for a reason,” she said. “So trying to use social media or any other free speech that a person has to catch them up and involve them in legal proceedings surrounding a recount just reeks of big government.”