Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Editor’s note: This article has been updated.
U.S. Senate candidate John Rust has secured a preliminary injunction against a state law that would prohibit him from appearing on the GOP primary ballot in May.
Marion Superior Judge Patrick J. Dietrick issued an order Thursday evening finding Indiana Code 3-8-2-7(a)(4) is unconstitutional and enjoining its enforcement.
The law requires that a candidate who wants to appear on a party’s ballot must have pulled that party’s ballot in the last two primary elections in which the candidate voted or must have the backing of the local party chair. Until 2022, the rule was only one primary, according to the Indiana Capital Chronicle.
Rust, who is running to succeed U.S. Sen. Mike Braun, meets neither of those qualifications.
While Rust 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.
The complaint further alleged that Jackson County Republican Party Chair Amanda Lowery refused to certify Rust as a member of the party because of his voting record.
Rust filed the lawsuit in September, claiming the law violates the First and 14th Amendments, as well as other state and federal constitutional provisions.
In granting the injunction, Dietrick noted that the law effectively bars and excludes the candidacies of about 81% of Hoosiers.
“When the immense power of the state is turned toward and upon its citizens in such a way that it imperils a sacred and cherished right of those same citizens, the state’s actions must be for an articulated compelling and pressing reason, and it must be exercised in the most transparent and least restrictive and least intrusive ways possible,” Dietrick wrote. “The 2021 amendment to I.C. § 3-8-2-7(a)(4) fails in this regard. It unduly burdens Hoosiers’ long recognized right to freely associate with the political party of one’s choosing and to cast one’s vote effectively.”
Dietrick found I.C. § 3-8-2-7(a)(4) violates Rust’s First and 14th Amendment rights.
“There is no compelling or even rational government interest being served here,” the judge wrote. “The State Defendants have alleged that the statute is a means to ensure party membership and/or commitment to the party.
“However, the statute has not ensured and cannot ensure membership in or commitment to the party,” he continued. “That is, any Hoosier may vote in the primary of either party, if the majority of candidates that they intend to vote for in the next general election, are the candidates of that party. I.C. § 3-10-1-6.
“This requirement is practically unenforceable. There is no way to know what a voter intends. As such, voting is not indicia of party membership or loyalty.”
Dietrick further found the ballot access law violates the 17th Amendment, as it improperly takes rights away from voters and gives them to the state Legislature and party chairs.
“Here, the statute also indirectly violates the 17th Amendment as it protects incumbents and other party insiders, and disqualifies candidates like Rust, who are constitutionally qualified to run but precluded due to the statute,” he wrote.
Further, the law violates Rust’s Article 1, Section 23 right to equal protection under the Indiana Constitution, the judge ruled, finding it fails the first prong of Collins v. Day, 644 N.E.2d 72 (1994).
Finally, Dietrick found that the law serves to improperly amend the Indiana Constitution without going through the proper constitutional amendment process, and that Lowery’s application of the statute violates the canons of statutory interpretation.
He noted that with a voting age of 18, younger would-be candidates wouldn’t have the chance to vote in two primary elections until they are 22.
“While the Defendants offer that younger candidates and those who move from out of state can simply run as an independent or write-in candidate, giving these candidates less than all of the options to run for office violates their rights to freely associate and to equal protection,” Dietrick wrote. “If our framers wanted to make the voting age higher or the residency requirement longer, (then) they would have. They did not. I.C. § 3-8-2-7(a)(4) changes the constitutional requirements to run for office without going through the proper constitutional amendment process.”
Dietrick also denied the state’s motion to dismiss and ordered the defendants to pay the plaintiff’s attorney fees and costs.
Rust’s attorney, Michelle Harter, gave a statement to Indiana Lawyer celebrating the ruling.
“I do not think I can say anything more eloquently than what Judge Dietrick said in his fantastic order, but this is a win for John Rust, all Hoosiers and the rule of law. It returns decision-making to the people who should have had it all along,” Harter said. “A primary voting record means nothing about party affiliation when anyone can vote in any primary, most do not vote in primaries, and there are not meaningful choices on the ballot. And one person — a county party chair — should not get to dictate who may run for office.
“No voter registration effort or ‘get out the vote’ campaign matters if you do not have choices on the ballot,” Harter continued. “I hope our Attorney General and Secretary of State do not spend any additional taxpayer money trying to defend this unconstitutional law that works to disenfranchise voters, limit candidates, and silence Hoosier voices. But if this landmark order is appealed, I am confident it will be upheld.”
Indiana Lawyer has also reached out to the Office of the Attorney General for comment.
The case is John Rust v. Diego Morales, et al., 49D12-2309-PL-036487.
Rust isn’t the first to challenge the state’s ballot access law, but he is the first to get a preliminary injunction.
In April, the Court of Appeals of Indiana 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 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.
Eight days later, the appellate court ruled in Thomas Charles Bookwalter v. Indiana Election Commission, Gregory L. Irby and Cody Eckert, 22A-PL-1981, that Thomas Bookwalter failed to establish either that the issues in his 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, like Rust.
In a hearing before the Indiana Election Commission, similar to Rust, 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.
The Marion Superior 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, and his complaint was subsequently dismissed, partly on the basis of mootness.
Please enable JavaScript to view this content.