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A would-be Republican candidate for U.S. Senate is challenging an Indiana law that would keep him off next year’s GOP primary ballot based on his previous voting record.
John Rust, chair of Seymour-based Rose Acre Farms, filed the lawsuit in Marion Superior Court on Monday.
Rust wants to be on the May 7, 2024, ballot for the Republican primary for U.S. Senate. He, alongside Congressman Jim Banks, is seeking to succeed current Sen. Mike Braun, who is running for Indiana governor.
But according to Rust’s complaint, Indiana Code 3-8-2-7(a)(4) is standing in the way of his getting on the ballot. The statute provides that to appear on the ballot affiliated with a party, a candidate must have voted in that party’s primary in the last two elections.
For Rust, that wasn’t the case. While he did vote in the Republican primary in 2016, he did not in 2020 because, according to the complaint, “most Republicans on his Jackson County, Indiana ballot were running unopposed and as such, there was little, if any, incentive to vote.”
Also, in 2012, Rust voted on the Democrat primary ballot, according to The Associated Press. Those votes went to candidates he knew personally, AP reported.
His next option under the statute, then, was to have his county party chair certify him.
According to the complaint, Amanda Lowery, the Jackson County Republican Party chair, refused to do so because of Rust’s voting record.
Rust’s lawsuit — John Rust v. Diego Morales, in his official capacity as Indiana Secretary of State, the Indiana Election Commission and Amanda Lowery, in her official capacity as Jackson County Republican Chair, 49D13-2309-PL-036487 — claims I.C. 3-8-2-7(a)(4) “creates a cycle of voter disenfranchisement.”
The complaint first seeks declaratory and injunctive relief, alleging First and 14th Amendment violations.
“Denying Rust ballot access violates his constitutionally protected rights to freely associate with the Republican party and to cast his vote effectively,” the complaint states.
The suit also alleges the statute is overly broad and void for vagueness.
“I.C. § 3-8-2-7(a)(4) is overbroad and void for vagueness because in Indiana party membership and certification are not statutorily defined, just as party membership was not defined in the statute at issue in (Ray v. State Election Board, 422 N.E.2d 714 (Ind. Ct. App. 1981)),” the complaint states. “In addition, I.C. 3-8-2-7(a)(4)(B) impermissibly delegates to party chairs total discretion to decide who they certify without any guidelines or restrictions, and without regard for actual party membership.”
The complaint further alleges violations of Article 1, Section 23 and Article 2, Section 1 of the Indiana Constitution as well as the 17th Amendment to the U.S. Constitution.
It claims that denying Rust ballot access violates his right to equal protection, and alleges the statute “disenfranchises voters by giving the legislature and party chairs the ability to control who is on the ballot for U.S. Senate contrary to the Seventeenth Amendment and Article 2, Section 1.”
Finally, Count V alleges violations of Article 4, Section 7 of the Indiana Constitution, while Count VI alleges Lowery’s application of the statute violates “multiple canons of statutory construction.”
“The clear purpose of the statute by its plain language is to determine if a candidate is a bon(a) fide member of the party. The statute does not provide for a county party chair to make decisions about who should run or to endorse or select candidates. It only provides for a determination of the candidate’s party membership,” the complaint states.
Rust is also seeking attorney fees and costs.
His attorney, Michelle Harter with Leske Harter LLC, said being a write-in candidate isn’t the answer even under current law.
“Most Hoosiers do not know about this statute (IC 3-8-2-7) and that they are ineligible to run for office. They do not know that candidates who reflect their values are denied candidacy or deterred from even trying to run for office because of it. This time the courts cannot claim the case is moot,” Harter said. “We look forward to a decision on the merits, one that is consistent with the federal and state constitutions. Hoosier voters deserve, and are constitutionally guaranteed, the right to freely associate and vote effectively. The statute denies candidates and voters these fundamental and cherished rights.”
Indiana Lawyer has reached out to the Office of the Attorney General for comment.
Rust said on Twitter/X that ballot access is something he wants to work on if elected to the Senate.
“This is why I’m running to be Indiana’s next United States Senator. I will fight for Hoosiers every day. I am fighting now for the 80 percent of Hoosier voters who are ineligible to run for office. The political establishment is against us, but we will prevail,” he wrote.
Banks, the other Republican candidate for Senate, said of Rust, “No one is trying to keep him off the ballot, he just thinks he’s above the law and can throw his money around to buy a U.S. Senate seat,” according to the AP.
Other ballot access cases
The Court of Appeals of Indiana has addressed the statute in two other cases this year, but the court found each of the candidates’ arguments were moot because the elections at issue had passed.
First, on April 11, the appellate court ruled in Amy Rainey v. Indiana Election Commission, Daniel Holtz, 22A-PL-1548, that the appeal was moot because Amy Rainey waited to appeal until after the May 2022 election.
Rainey had wanted to be on the May 2022 Republican primary ballot for Indiana House District 49. But Elkhart County Republican Party Chair Daniel Holtz challenged her candidacy, claiming she was not affiliated with the party in the way that is required by state law.
Rainey moved for a preliminary injunction, but the Marion Superior Court denied her that relief, keeping her off the ballot. The trial court issued its ruling in March 2022, and Rainey did not seek interlocutory appeal.
In dismissing her eventual appeal as moot, the appellate court found Rainey’s situation to be unique and noted that it was not likely to recur.
The second case, handed down eight days later, involved another Republican candidate who didn’t get to appear on the May 2022 ballot.
In Thomas Charles Bookwalter v. Indiana Election Commission, Gregory L. Irby and Cody Eckert, 22A-PL-1981, the court found Thomas Bookwalter failed to establish either that the issues in the case were of great public interest or likely to recur.
Bookwalter had filed for candidacy for the U.S. House of Representatives, but his candidacy was challenged on the basis that, among other arguments, he didn’t vote in the last two Republican primaries.
In a hearing before the Indiana Election Commission, Bookwalter testified that he didn’t vote in the 2020 Republican primary because the candidates were unopposed. He also stated that the party chair refused to certify him as a party member.
A trial court denied Bookwalter’s request to reverse the commission’s decision keeping him off the ballot, and he moved to certify that decision for interlocutory appeal on April 27, 2022. The election was held May 3.
His complaint was subsequently dismissed, partly on the basis of mootness.
Affirming, the COA ruled, in part, “Bookwalter could have petitioned for judicial review the day after the Commission’s ruling, or soon thereafter, but chose to wait twenty-four days, until the very day absentee ballots were required by law to be delivered to counties.”
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