Around 10 a.m. on Tuesday, Indiana’s recount commission confirmed Republican Dave Hall as the winner of the election for District 62 state house over Democrat Penny Githens.
The final recounted tally was:
Penny Githens (D): 12,963
Dave Hall (R): 13,037
That’s a plurality of 74 for Hall.
The original tally was:
Penny Githens (D): 12,950
Dave Hall (R): 12,990
That was a plurality of 40 for Hall.
This brief has been updated with more detail below.
The vote by the three recount commissioners came towards the end of a meeting that lasted a little more than an hour. The meeting started at 9 a.m.
Members of the recount commission are: Republican Party appointee Mark Wynn; secretary of state Holli Sullivan, who is a Republican; and Democratic Party appointee Michael Claytor.
The final tally confirmed by recount commissioners was the same as the tally that was a part of the initial report to the three commissioners at the start of the meeting—from general counsel for the state board of accounts (SBOA), Kendra Leatherman, and recount director Phil Sicuso.
The only two ballots adjudicated by the recount commission on Tuesday maintained their same status as determined by the recounters. One ballot for Githens that had been excluded from the recount tally remained excluded. One ballot for Hall that had been included in the recount tally was still included.
For both ballots, the issue was the lack of initials on the ballot from two election workers. For absentee ballots, which includes early in-person voting, the requirement under state election law is that the ballot has to be initiated by two election workers. The recount commission has no latitude to count the votes on an absentee ballot, if it is missing one of the initials.
An absentee ballot with a vote for Githens was analyzed by SBOA recounters as missing one of the initials. Monroe County Democratic Party chair David Henry told recount commissioners that in his view, there was, in fact, a mark on the ballot that should be considered an initial. On a unanimous vote, the commission concluded that the ballot was, in fact, missing an initial.
Under state law, for ballots cast on election day, a recounting team can consider a ballot as valid, even if it is missing an initial from an election worker. The ballot with a vote for Hall was cast on election day. So even though it was missing one initial from an election worker, the recount commission voted unanimously to count it.
The two ballots that were disputed would not have been enough to affect the outcome, given the 74-vote plurality for Hall, after the recount. Several other potentially disputed ballots of a similar kid were waived by Henry at Tuesday’s meeting.
Henry did not waive all such disputed ballots—so that he could raise at a public meeting the “defects” that had been discovered in the election process for Brown County. The number of absentee ballots that had been invalidated in one Brown County precinct due to a lack of a signature was 9—but the split was 8 for Githens and 1 for Hall. That meant that the failure of election workers to initial a ballot had cost Githens a net of 7 votes in that precinct.
Henry said the difference was enough to be “considered a pattern” that could indicate gross negligence or willful ignorance or lack of adequate election worker training.
Another issue Henry raised were the 261 ballots were initially missing in Brown County, which were later reduced to 91 and finally to 17 missing ballots. Those missing ballots made it hard to figure out what the correct count for the election in Brown County precincts was, Henry said.
Henry raised the specter of invalidating all the ballots in one precinct, which is a possible remedy under state election law. But as co-counsel for the recount commission, Matthew Kochevar, noted, state election law says that throwing out all the ballots in a precinct by a recount commission requires “evidence of fraud, tampering or misconduct affecting the integrity of the ballot within a precinct.”
The idea that there had been fraud or tampering did not have any traction in the room.
Dave Hall’s attorney, Samantha Dewester, said that it’s a high bar to show fraud, and that the fact of some missing ballots is not evidence of fraud. The idea of throwing out a whole precinct’s worth of ballots, thereby disenfranchising those voters, “makes zero sense,” Dewester said.
Recount commissioner Michael Claytor, the commission’s Democratic Party appointee, agreed that there was no evidence of fraud or misconduct. But he added that he found the idea of 17 missing ballots to be “outrageous.” In his experience with recounts, Claytor said, it’s rare that a ballot is missing, maybe one, if that.
The way that Brown County’s missing ballot number started off much larger and then was carved down to 17 is still “outrageous,” Claytor said. It’s “absolutely terrible,” Claytor said.
Claytor put the responsibility on Brown County’s clerk for not training election staff well enough: “You want to shake the clerk quite hard…” Claytor said.
In his remarks to the recount commission, Henry had alluded to a controversy in the 2020 Brown County primary—which also included initials on ballots—over which Brown County clerk Kathy Smith had presided.
After the recount commission’s meeting had concluded, Henry responded to a B Square question by saying, “I’m not unhappy with what we did here today—we surfaced those [Brown County] issues. Now it’s on the record that you need to pay attention to the Brown County clerk. That’s it.”
It will be Republican Pearletta Banks, not Smith, who serves as Brown County clerk starting in 2023—because she won this year’s election for clerk with about 66 percent of the vote.
One of the last pieces of business for the recount commission was to vote on not refunding the $430 deposit paid by the petitioner for the recount, who was David Henry, chair of the Monroe County Democratic Party. If the result had flipped, the deposit would have been refunded.
The recount commission convened its Tuesday meeting in Room 404 of the Indiana state house, which is the usual venue for the house ways and means committee.
Tuesday’s meeting of the state recount commission ends the recount determination for the state house District 62 race, but there are various formal communications to relevant parties that still have to be made.
A recount of the Benton Township board race in Monroe County can now get started once the ballots are returned by the state police to the Monroe County election division.
Judge Erik Allen, out of Greene County, who is presiding over the recount for Benton Township, has extended the deadline for completing the recount from Dec. 20 to Dec. 22.