By Marilyn Odendahl
The Indiana Citizen
August 17, 2026
Asserting the Indiana Recount Commission erred in overturning the results of the Senate District 23 Republican primary, state Sen. Spencer Deery filed an appeal on Monday, asking the Indiana Supreme Court to reverse the decision that awarded his challenger, Paula Copenhaver, the election victory.
Deery’s legal team, which has been expanded to include Karen Celestino-Horseman and William Groth, along with Samantha DeWester, filed two emergency motions. The first seeks to transfer his appeal directly to the Indiana Supreme Court, while the second requests a stay and a preliminary injunction against the implementation of the certificate of recount results.
“This appeal presents a substantial question of law of great public importance, as the error of the Commission overturned an election and disregarded the voice of the voters who have a fundamental right to vote in free and fair elections and to have their vote counted,” Deery asserted in his emergency motion for transfer.
The focus of the appeal is on six absentee ballots cast for Deery that were tossed because they were missing the county circuit court clerk’s seal and signature. The disputed ballots were cast in Montgomery, Vermillion and Warren counties.
Copenhaver’s legal team argued before the Recount Commission that state statute required absentee ballots without clerk’s markings to be rejected, but Deery countered the statute did not place any such requirement on those votes and only mandated ballots without election workers’ initials be invalidated.
In his motion to stay and for a preliminary injunction, Deery wants the Supreme Court to enjoin county election officials from finalizing, issuing and transmitting the general election ballots that contain the Senate District 23 race. He underscored the urgency of a stay by noting the imminent deadlines for the Nov. 3 election, which require delivery of the ballots to the printer by Sept. 14, the mailing of ballot to start on Sept. 19 and the opening of early in-person voting on Oct. 6.
“Permitting ballots to be finalized and printed while the identity of the lawful Republican nominee remains subject to judicial review, risks creating unnecessary confusion, duplication of election-administration expenses, reprinting costs, and potentially irreversible consequences,” Deery said in the motion.
The decision to seek a judicial remedy was expected. Following the Recount Commission hearing on Aug. 10, which stripped Deery of the primary win, DeWester called the decision “unprecedented” and said her client would be appealing. Also, Deery posted on X that the Indiana courts would have the last word and would restore the vote totals.
In the hours after the polls closed in May, Deery, R-West Lafayette, had been declared the winner of the Republican primary. He topped Copenhaver, a member of Lt. Gov. Micah Beckwith’s staff who had the endorsement of President Donald Trump, by just three votes: Derry had 6,337 votes to Copenhaver’s 6,334.
However, the Recount Commission rejected 10 absentee ballots. Four of the ballots – two for Copenhaver and two for Deery – were tossed because they lacked the election workers’ initials required by state statute. The remaining six were all for Deery. In 2-to-1 votes, with the Republicans on the Recount Commission, Paul Mullin and Indiana Secretary of State Diego Morales (who also serves as commission chair), forming the slim majority, the six ballots were rejected because they lacked the corresponding circuit court clerk’s seal and signature.
Consequently, the vote tally changed the election outcome, with Copenhaver holding 6,332 votes and Deery slipping to 6,329.
Speaking after the hearing, William Bock III, legal counsel for Copenhaver, was confident the Recount Commission’s decision would be upheld in any appellate review.
“This recount was really about the integrity of the election on multiple levels and that was our theme today that some of the absentee ballots had issues. They didn’t comply with Indiana law,” Bock said. “It’s important that voters feel secure about how absentee ballots are handled and so I think, in every case, the Recount Commission made the right choice.”
However, Deery’s appeal countered that Bock’s argument is not supported by a plain reading of state statute.
Citing to Indiana Code, Deery asserted that while statute requires that absentee ballots without the initials of the election workers are not to be counted, the provision regarding the clerk’s markings does not include such direction.
Rather, Deery argued, the legislature enacted a “savings clause” in order to protect voters from clerk errors like the omission of the seal and signature.
State law requires the circuit court clerk’s official seal and signature be put on the back of every absentee ballot, but, Deery asserted, the statute places the mandate on the clerk. Therefore, Deery contended, a voter’s ballot cannot be invalidated because of this kind of error by an election official “unless evidence of fraud, tampering, or misconduct affecting the integrity of the ballot is presented.
In his motion, Deery maintained the six ballots were properly cast and the problem was caused by an election official’s error, so the Recount Commission should have accepted those votes.
Indiana Code “does not grant the Commission unbridled discretion to reject the ballots lacking the seal/signature,” Deery said in his motion. “Such unbridled discretionary power would be arbitrary and capricious.”
Deery has requested an expedited briefing schedule in order to get a ruling in time for the November election.
The case is Senator Spencer R. Deery v. Paula K. Copenhaver and Secretary of State Diego Morales, Paul Mullin, and Michael Claytor, as members of the Indiana Recount Commission.
Dwight Adams, an editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.
