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Tippecanoe County’s closed primary voting system is constitutional and does not violate a man’s right to vote, the Court of Appeals of Indiana ruled Thursday in affirming a trial court’s granting of summary judgment to the state.
Indiana has a closed primary system where each eligible political party, like Republican and Democratic parties, hold separate primaries to choose its nominees for the general election. Only voters affiliated with that party may vote in that party’s primary.
According to court records, Thomas Herr, who resides and works as an attorney in Tippecanoe County, doesn’t want to affiliate with a single political party but cannot participate in primary elections unless he does.
In 2022, Herr filed a lawsuit in Tippecanoe Superior Court seeking a declaratory judgment that the county’s primary election system is unconstitutional. He argued that it violates his right to vote under the state and federal constitutions.
Herr further argued that other counties in Indiana hold nonpartisan elections for judicial officers and, therefore, the disparate treatment between counties also violates state and federal constitutions.
Both Herr and the state filed cross-motions for summary judgment.
The Tippecanoe Superior Court granted the state’s motion and denied Herr’s. It found no constitutional violation in Tippecanoe County’s closed primary election system.
Herr appealed.
In his appeal, Herr first claimed that Tippecanoe County’s closed primaries inflict an unconstitutional burden on his right to vote and are thus a violation of the First Amendment.
Judge Nancy Vaidik wrote the opinion for the appellate court.
The COA found the closed primary system doesn’t place a heavy burden on Herr’s First Amendment rights, and the state’s regulatory interests justify its restrictions.
“To vote in Tippecanoe County’s primary election, a voter must have simply voted for the majority of that party’s candidates in the previous general election or intend to do so in the next. This is not particularly burdensome,” Vaidik wrote. “Unlike other systems the U.S. Supreme Court has upheld, it does not even require prior action on the part of the voter or formal enrollment with the party.”
Herr also claimed that the system violates the equal protection clause of the 14th Amendment.
“Because Herr is treated the same as other voters in his county, there is no equal-protection issue,” Vaidik wrote.
Vaidik added that Herr failed to show Tippecanoe’s closed primary system for electing judges violates the First or 14th Amendments.
The appellate court found that the trial court did not err in denying Herr’s motion for summary judgment and granting the state’s motion.
The appellate court also rejected Herr’s argument that the county’s primary system is making him choose loyalty to either the Republican or Democratic Party.
“As an initial matter, we disagree with Herr’s contention that the closed primary system in Tippecanoe County requires him to express loyalty to the Republican or Democratic Party in order to vote,” Vaidik wrote. “Primary elections are not limited to Republican or Democratic candidates, but rather to political parties whose nominee received at least ten percent of the votes cast in the state for secretary of state at the last election, I.C. § 3-10-1-2, although generally only the Republican and Democratic Parties have met this threshold.”
Vaidik added that the statutes don’t require an expression of “loyalty,” but rather the voter must have voted for the majority of that party’s candidates in the previous election or intend to do so in the next election.
The appellate court found the trial court did not err in determining Tippecanoe County’s closed primary system does not violate Herr’s right to vote under the Indiana Constitution.
Lastly, Herr argued that the primary system violates the equal privileges and immunities clause found in Article 1, Section 23 of the Indiana Constitution.
The appellate court again rejected Herr’s argument, with Vaidik writing that Herr had not shown he had been treated differently than other similarly situated individuals.
“He is treated the same as other voters in his county,” Vaidik wrote.
Judges Paul Mathias and Rudolph Pyle concurred.
The case is Thomas J. Herr v. State of Indiana, 22A-PL-142.
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