By Marilyn Odendahl
The Indiana Citizen
September 10, 2026
A few hours after hearing oral arguments, the Indiana Supreme Court ordered the Indiana Recount Commission to reverse its certification in the Senate District 23 Republican primary and declare state Sen. Spencer Deery the winner of the race.
The single-page order, issued on Thursday, indicated the Supreme Court’s decision was not unanimous, but that the majority agreed with Deery’s argument that state statute allowed the six absentee ballots that the Recount Commission had rejected to be counted. That boosted the incumbent’s vote total and made him the winner by a slim margin of three votes.
Further, the Supreme Court ordered the GOP primary to be recertified to declare that Deery received 6,335 votes and Paula Copenhaver, his challenger, received 6,332. The ruling allows election officials in Senate District 23 to resume preparations for the Nov. 3 general election with Deery’s name on the ballot.
Signed by Chief Justice Loretta Rush, the order said the Supreme Court would issue a written opinion further explaining its reasoning.
Copenhaver released a statement after the Supreme Court’s ruling, saying the primary nominating process has ended and while she disagrees with the outcome, she respects “the Court’s right to their opinion.” She said her campaign fought to ensure all the valid ballots cast in the Republican primary were counted.
“As a former county clerk, I have always been concerned about the will of the voters being accurately reflected through our election process,” Copenhaver said in her statement. “I plan to remain involved in supporting election integrity, fighting to close our primaries, and seeking ways to ensure our future elections are fair and secure with integrity.”
Following oral arguments, Deery said the recount dispute highlighted that Indiana’s election laws were written decades ago. They have not been updated to adequately address the options that Hoosier voters have today to cast an absentee ballot either by mail or during the early-voting period.
“One thing that I hope that comes from this, no matter what, is that it opens everybody’s eyes that our Title III, which is the election code, is really out of date,” Deery told reporters.
The issue with the six absentee ballots at the center of this case is that none had the county circuit court clerk’s seal and signature. State statute mandates that absentee ballots must have the initials of the two election workers representing Republican and Democratic parties, and the clerk’s markings.
However, while the election law clearly states that absentee ballots without the workers’ initials must be tossed, Deery’s legal team argued the provision regarding the seal and signature has a “savings clause,” which allows a ballot without the markings to be counted if there is no evidence of fraud or tampering.
“The voter has a paramount interest in his right to vote and to having that vote counted and not having it thrown out due to the neglect of an election official,” Karen Celestino-Horseman, an attorney representing Deery, told the Supreme Court. “In Indiana, we believe that voters should be enfranchised. You find that in the cases. We don’t disenfranchise.”
William Bock III, partner at Kroger Gardis & Regas, who represented Copenhaver, countered the seal and signature are necessary to protect the integrity of the election by placing strict requirements on receiving, storing, transporting and counting absentee ballots. Since absentee voters are not subject to the “extensive Election Day precautions,” the clerk’s markings prove the absentee ballots are authentic, he said.
“Recognizing the important role of authenticity markers on absentee ballots does not cause voter disenfranchisement,” Bock asserted.
The oral arguments were the culmination of the exceptionally tight race for the Republican nomination in Senate District 23, which covers portions of Tippecanoe and Montogmery counties and all of Warren, Fountain, Vermillion and Parke counties in northwest Indiana.
Deery, a first-term legislator, was among the handful of GOP state senators who were targeted by President Donald Trump for voting against redrawing Indiana’s nine congressional districts ahead of the 2026 midterms. Copenhaver, a member of Lt. Gov. Micah Beckwith’s staff, was endorsed by Trump and benefited from the millions of special-interest dollars that flowed into those Hoosier Senate primaries this spring to boost the candidates backed by the president.
Hours after the polls closed in May, Deery was declared the winner of the GOP primary by three votes. Copenhaver petitioned for a recount and initially argued the ballots from 11 primary voters should be discarded because they violated the state statute prohibiting crossover voting. In social-media posts and interviews with reporters, those voters indicated they allegedly were Democrats but had pulled Republican ballots solely to help Deery win the nomination.
However, at the Recount Commission’s August hearing, Copenhaver’s legal team shifted its arguments to focus on the six absentee ballots that lacked the clerk’s seal and signature. In a series of 2-to-1 votes, the commission rejected the absentee ballots and declared Copenhaver the winner by three votes.
Deery appealed and sought emergency transfer to the Indiana Supreme Court. During the oral arguments, the justices peppered the attorneys with questions about the state statute and seemed more skeptical of Bock’s arguments.
Justice Derek Molter said he did not dismiss concerns about nefarious conduct with absentee ballots, but he did not understand how it could have been known in advance that Deery was going to win by a slim margin and, therefore, “some plot” had been concocted to tamper with only a few ballots.
“It’s hard for me to reverse engineer how only six ballots, not 200 or something like that, just six, spread across three counties, could be something other than a valid indication of how those six people were trying to vote,” Molter said.
Justice Christopher Goff jumped in, saying he was having trouble ascertaining how authenticity was a concern in this case.
“The implications that you’d want these Deery ballots counted and you’re going to intentionally then leave off the clerk’s seal, that just doesn’t make any sense to me, either,” Goff said.
Speaking to reporters after oral arguments, Copenhaver pointed to her service as Fountain County Circuit Court clerk and said she saw the importance of doing due diligence when handling ballots. The clerk’s markings need to be on the back of the absentee ballots to ensure they are authentic, she said.
“I understand protecting voter intent,” Copenhaver said. “And, as a former county clerk, I also know what it’s like to make sure that those ballots are authenticated with the county clerk’s seal and the county clerk’s signature.”
Deery also emphasized election integrity in his post-argument comments. He said he believes the Supreme Court heard the case because six Hoosiers, who followed the election rules, cast votes that were in danger of being invalidated on account of somebody forgetting to apply a seal and signature.
“There are few things more sacred in our republic than your right to vote and if you right to vote can be invalidated either intentionally or unintentionally by the actions of the government or the government’s volunteer, that’s a serious threat,” Deery said.
This story will be updated.
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.
