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In a 3-2 decision last month, the Indiana Supreme Court effectively excluded John Rust from the May 7, 2024, Republican primary ballot as a candidate for the U.S. Senate because he had not voted in both of the last two Republican Party primaries, a standard that the so-called affiliation statute now requires.
In the 83-page ruling, Morales v. Rust, 228 N.E.3d 1025 (Ind. 3/6/24), reh’g pending as of 3/11/24, the state’s high court reversed the trial court, declaring Ind. Code 3-8-2-7(a)(4) (the “affiliation statute”) constitutional.
Over a dissent authored by Justice Goff, joined by Chief Justice Rush, the majority ruled that even though its application had the effect of excluding Rust from the ballot, the Affiliation Statute imposed only a slight burden on Rust and thus warranted deferential “rational basis” review.
Morales means that voters who participate in the Republican Party primary will be denied a choice for its nominee for U.S. Senate and the Party’s preferred candidate will appear on the primary ballot unopposed, a result hardly conducive to increasing voter turnout in Indiana, the state ranked dead last according to the Indiana Civic Health Index among all states for voter turnout in 2022.
Morales should deeply trouble democracy advocates as well as those who believe in the essential judicial role to check legislative overreach.
The majority opinion, authored by Justice Massa, accords near absolute primacy to the interests of the leaders of a partisan political organization, downgrading the myriad competing interests essential to the proper functioning of our democracy, including the fundamental right of Hoosier voters to have a meaningful choice in who should be their next Senator.
As Justice Goff’s dissent observed, “[p]rimaries are not meant to be opportunities for party leaders to crown their favored candidates.” The voters should also have a say.
The U.S. Supreme Court has said that “care must be taken not to confuse the interest of partisan organizations with governmental interests,” and rejected the notion that preserving party unity during a primary is a compelling state interest that would justify a statute preventing an otherwise qualified candidate from accessing the ballot.
Morales represents a profoundly anti-democratic approach to adjudicating ballot access and potentially other types of election law disputes.
First, it contradicts the court’s own prior opinions which have consistently emphasized that whenever possible Indiana election statutes should be construed to allow voters to cast a meaningful ballot and to prevent disenfranchisement.
Second, the majority disregarded U.S. Supreme Court decisions such as Lubin v. Panish and Bullock v. Carter holding that states which decide to conduct primary elections instead of party conventions may restrict ballot access only if the restrictions do not “unfairly” or “unnecessarily” burden the electorate’s right to vote for candidates of their choice.
Third, though paying lip service to the need to balance the competing interests involved, the majority viewed this dispute through the lens of party bosses, ignoring the fact that those interests do not necessarily align with rank-and-file voters and that, as the U.S. Supreme Court observed, courts should not conflate the interests of partisan political organizations with governmental interests. A state law does not severely burden a political party merely because it may result in the nomination of a candidate with whom party leadership disagrees.
Morales has broader (and more dangerous) implications. It signals a retreat from our judiciary’s fundamental role as a co-equal branch of state government to protect representative democracy by serving as a check on laws the legislature passes that stifle electoral competition and the exercise of the franchise.
By adopting a crabbed view of the judicial role, the majority abdicates the essential judicial role to restrain legislative overreach and vests in party officials nearly unfettered discretion to squelch insurgent candidacies.
Morales is more than just a deeply-divided decision which excluded John Rust from the primary ballot this year. It also signifies an increasing reluctance by our Supreme Court to protect traditional democratic norms and values. This should be a source of grave concern to all Hoosiers.•
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Attorney William R. Groth submitted an amicus brief in the Morales case on behalf of Common Cause Indiana and the Indiana League of Women Voters. Opinions expressed are those of the author.
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