Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Near the end of this past summer, county clerks across Indiana became inundated with demands from individual voters that officials provide copies of their oaths and bonds and release voting data from the 2020 general election.
“It became very stressful because everybody was trying to get ready for this election and we’re dealing with threats of lawsuits and (the individuals) demanding we take meetings with them,” Shelley Septer, president of the Association of the Clerks of the Circuit Courts of Indiana, said. “Everything the clerk would say to prove that (the individuals) were not correct, they would come back even angrier.”
Primarily, those individuals were asking for what they called the “cast vote record.” They believed the 2020 data was going to be destroyed on Sept. 3. They wanted the information preserved and handed over to them.
However, the individuals, the clerks and other state officials had no clear idea what a cast vote record was.
The Indiana Secretary of State Election Division determined the CVR would identify each voter and his or her ballot selections. Because, under Indiana state law, such information is confidential, the division advised the clerks that the data being sought could not be made public.
Also, the Indiana public access counselor issued an opinion that reflected the confusion over the CVR. A “homogenous definition” was not available, and there was “significant and disparate disagreement” about what data the clerks had available.
In the end, Indiana Public Access Counselor Luke Britt concluded he could not make a determination because “the complainants and respondents cannot agree on the ‘who,’ ‘what,’ ‘when,’ and ‘where.’”
What happened next still surprises Britt.
After the public access counselor posted his written opinion Sept. 23, the individuals who had been clamoring for the data simply stopped.
“Especially on something like that, I’ll get follow-ups, I’ll get the hate mail, get the people doxing my social media. That’s pretty common,” Britt said, explaining what typically happens when he issues a ruling denying a complainant’s records request. “But I didn’t hear a word from these folks, which scares me, but also, maybe, just maybe, I got through … because I think a lot of them just wanted to get an answer.”
Duplicative complaints
In all, the public access counselor’s office received 19 complaints stemming from clerks not giving access to the CVR. Also, Britt estimated his office was receiving about 100 calls a week during roughly a two-month period from individuals wanting the voting data. Several of the complaints were filed as letters, many of which were exact copies of each other.
They all requested “ballot tabulation reports, ‘Ballot Log’, a ‘Vote Log File’, or a ‘Tabulation Report, aka ‘CVR’ Records’” for the Nov. 3, 2020, election. Also, they quoted directly from the “Indiana election Admin Manual, page 243” and included a chart that appears to list the other states that are complying with CVR requests.
Finally, they referenced Mike Lindell, CEO of My Pillow and a vocal election denier. Specifically, the complainants asked Britt to advise the Indiana secretary of state to preserve all records from the 2020 general election “in conjunction with Mr. Mike Lindell’s Notion of Preservation filing on each and every county clerk and commissioner.”
A few letters addressed the confidentiality concerns.
“I specifically do NOT want any information that identifies a specific voter, and I guarantee and stipulate that this information will not be used for that purpose,” some complainants wrote.
Indiana Lawyer emailed and called the complainants who provided their contact information on the documents they submitted to the public access counselor. None of the individuals responded with a comment or granted a request for an interview.
Indiana First Action, an organization that describes itself as a “citizen-driven team” working to ensure Indiana’s elections represent “the will of Hoosiers,” claimed state officials were wrongly denying access to the CVR data. The group asserted the cast vote record allows “us to see trends in tabulation that may look awry” and does not “encroach on the secrecy of any voter.”
Indiana Attorney General Todd Rokita issued a statement Sept. 4 recommending county clerks “retain and preserve all election material from the 2020 elections … .” He cited the need to have the records available if a lawsuit is filed.
Septer noted that by law, the clerks could have destroyed the records after 22 months had passed from the last presidential election, but many heeded the attorney general’s advice. They are holding on to the materials “while things calm down.”
“It’s just a very different time in our country right now. There’s a lot of extreme on all sides, everywhere,” Septer, of Huntington County, said. “(My) advice to our Indiana clerks is, we’re bipartisan clerks and we just have to keep our integrity intact and be very transparent and protect the voters.”
Time-sensitive process
In at least one instance, the quest for the CVR data turned into litigation.
The plaintiffs in Brown County Voters for Election Integrity v. Brown County Clerk of Court; Brown County Election Board, 07C01-2208-MI-000233, were seeking preservation. Specifically, the group wanted the court to require the defendants to retain the November 2020 election records for another 22 months and to produce the cast vote record.
On Sept. 19, the Brown Circuit Court granted the defendants’ motion to dismiss with prejudice.
Paul Jefferson, partner at McNeely Law in Indianapolis, represented the county officials. He was part of the legal team that handled the 2006 recount that confirmed the late Sen. Dick Lugar’s victory by more than a million votes. From that experience, he said he sees Indiana as giving a lot of power to citizens to make sure election results are correct.
But, as he asserted in the motion to dismiss, the challenge has to come in a timely manner. Being allowed to upend the ballot results years later, he said, is dangerous.
“So there’s a process — and it’s very-time sensitive on purpose — for asking for a recount for verifying election results,” Jefferson said. “It’s time-sensitive on purpose because our government doesn’t function if you can overturn an election two years later.”
In writing his opinion, Britt said he had the dual task of figuring out what exactly the complainants wanted while not being dismissive of their concerns. Still, his typical approach of looking to see how state law addresses the issue did not work in this situation because of the “way those requests were crafted and created.”
The push for the 2020 general election records seems to have abated, but Britt said he is uncertain if the 2022 midterms will reignite the fight for Indiana’s voting records.
“(In) this election cycle, I will say the rhetoric has been more heated than any I’ve encountered during my tenure” as the public access counselor, Britt said. He noted that in every election, candidates call asking for public records on their opponents.
“But this one’s been a little more different.”•
Please enable JavaScript to view this content.