INDIANAPOLIS — Several hundred ballots from Elkhart County’s Baugo Township came under scrutiny by the Indiana Recount Commission during the frigid winter of 1987. The winner of the 2nd Congressional District race between Republican Rep. John Hiler and Democrat Tom Ward and two Indiana House seats were hanging in the balance.
The rookie Democratic secretary of state was Evan Bayh, the first in the history of that office to preside over the commission. He had appointed legendary Notre Dame Law School Dean David Link to direct a grueling 77-day hand recount. The Republican on the commission was Rex Early, future state chair and candidate for governor. The Democrat was David Hamilton, a future federal judge. Would-be senator Joe Donnelly represented the Democratic candidate.
In covering this monthslong process for The Elkhart Truth, I described watching this recount in the bowels of the county courthouse in Goshen as akin to experiencing a colonoscopy.
“Without anesthetics,” Bayh reminded me this past Tuesday.
They would be confronted by the “lipstick ballot.”
It was a ballot that was described as “inadvertently smudged with lipstick.” There was a call to discard it in a race where Hiler had a 66-vote lead over Ward.
“Rex was not unfamiliar with the opposite sex,” Bayh continued. Early voted to count this particular ballot because, as he reasoned, “Lipstick smudges are always inadvertent.”
Hiler won by 47 votes.
I asked Bayh, the future two-term Indiana governor and U.S. senator, to recall his 1987 recount experience after Monday’s decision by the current Indiana Recount Commission to discard eight votes for Sen. Spencer Deery, R-West Lafayette, and two for challenger Paula Copenhaver, giving the latter a three-vote Senate District 23 GOP primary win.
The three-member commission, chaired by Republican Secretary of State Diego Morales, certified Copenhaver as the winner. After months of recount proceedings, the commission rejected several absentee ballots for deficiencies, including missing county clerk signatures, stamps or election judge initials.
In essence, rejected on technicalities.
Copenhaver’s attorney William Bock argued that ballots should be rejected if voters acknowledged on social media that they crossed party lines to participate in the GOP primary. But that is not a threshold established in Indiana Code.
“Today, we saw members of the Indiana Recount Commission attempt to undermine the will of voters by treating ballots differently based on whether they furthered the president’s political goals,” Deery posted on X.
Deery aimed at Morales, saying, “This was not a meeting intended to find fairness; it was designed to find votes. Indiana law makes clear that valid votes should not be silenced simply because of minor errors made by clerks — clerks who were supposed to be trained by the chairman of this very commission.”
On Thursday, Deery said that Paul Mullin, a member of the recount commission and an ally of U.S. Sen. Jim Banks, should have recused himself, citing a conflict of interest. Banks had backed the primary challenges to seven incumbent GOP senators. “These conflicts raise serious concerns that some members of this commission may have been more committed to finishing what the dark-money groups started than to defending the will of voters and following the rule of law,” Deery said in a statement.
Bayh told me that historically under Indiana law, “voter intent” is the paramount consideration. “If you can, you count the vote,” he said. “That’s exactly what we did in 1987.”
Bayh added that, in the case of the Baugo Township ballots, the seal on the box had not been broken during transport to Goshen. There was no evidence of fraud or tampering.
“I followed the spirit of the law,” Bayh said. “Unless there was some evidence of fraud, I wasn’t going to disqualify a ballot due to a technicality.”
Because Bayh and Early followed this voter intent mantra, it established both as credible stewards of the process. Both resisted persistent pressure from their respective parties to create partisan disruptions.
Bayh said the current commission did not follow the precedents that he, Early, Hamilton and Link established in 1987.
“They’re throwing out votes even though there was no evidence of fraud or tampering,” Bayh said. “They were thrown out because of an inadvertent mistake by a poll worker.”
So this is the penultimate act of the corrupt Morales — discarding votes despite the intent of the Hoosiers who cast them to seat Copenhaver in the Senate. This case will come under scrutiny before the Indiana Court of Appeals and, perhaps, the Indiana Supreme Court.
The dispute comes as President Donald J. Trump has attempted to “federalize” elections that the U.S. Constitution largely leaves to the states. Morales complied with Trump’s efforts to obtain Indiana voter rolls (why?) when dozens of other states refused. Republicans are attempting to co-opt the U.S. Postal Service to disrupt mailed ballots. There was the SAVE Act — a vote-suppression effort backed by Indiana U.S. Sens. Jim Banks and Todd Young — that the Senate left unresolved when it fled town last week.
Still to come is the November general election, which Morales will oversee as Indiana’s chief elections officer. I shudder to think what might come next.
Brian A. Howey is an opinion columnist for State Affairs Indiana and the founder of Howey Politics Indiana. His writing offers analysis and opinion shaped by decades of experience covering Indiana politics. Email him at howey@stateaffairs.com.
