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The Indiana Supreme Court on Wednesday belatedly released an 84-page opinion upholding Indiana’s law limiting who can run on the Republican and Democrat primary ballots.
The high court previously issued orders in the case but not a full ruling.
At issue is whether the so-called two-primary rule is unconstitutional, as a trial court judge had found. The case was brought by John Rust, who wanted to run for U.S. Senate as a Republican. But he didn’t meet either of the party affiliation parameters—his last two primary votes weren’t Republican and his county chairman wouldn’t sign off on his candidacy.
Rust voted in the 2016 Republican primary and the 2012 Democrat Primary. He was recently removed from the ballot by the Indiana Election Commission, and is seeking judicial review of that ruling.
“With a 3-2 decision this obviously will eventually have to be settled by the United States Supreme Court for the ultimate decision on the law that bars 81% of Hoosiers from running for office,” Rust said in a new statement. “In the meantime the law was not in effect during the filing timeline so we expect the Indiana Election Commission’s unconstitutional removal to be set aside while this is adjudicated”
The 3-2 majority ruling came from Supreme Court Justices Mark Massa, Derek Molter and Geoffrey Slaughter overturning the trial judge, and focused on the “rights of association” of the political parties.
“Rust, conversely, claims First Amendment associational rights of his own, to wield as a ‘sword’ …. to force his way on the ballot. And in that clash today, the shield checks the sword, as we find the minor requirements of the Affiliation Statute reflect an elegant balancing of First Amendment interests and are thus constitutionally sound.”
Massa said Rust doesn’t have a fundamental right to run as a Republican and can still appear on the November ballot as an independent, Libertarian or write-in candidate.
“Make no mistake: Rust could have appeared on the Republican primary ballot this May had he voted in the required primaries, but he elected not to do so. That was his choice. No one stopped him. He stopped himself,” the opinion said.
In addition to Massa’s opinion, Molter wrote his own concurring opinion along with Slaughter.
But Justice Christopher Goff disagreed in a dissent joined by Chief Justice Loretta Rush.
“I couldn’t agree more. And while the State has a legitimate interest in regulating the ballot—to avoid voter confusion or party raiding and to preserve the parties’ associational rights—those interests, in my view, fail to justify the onerous burden imposed on Rust.”
Goff noted Rust is being penalized for a vote from 12 years ago “despite his vote in the Republican Primary in 2016, despite the thousands of dollars he’s contributed to the national Republican Party over the years, and despite his adherence to the core beliefs of the party’s platform—the Affiliation Statute’s durational requirement works an especially significant hardship on Rust.”
Rust seeks judicial relief
Rust, running to succeed U.S. Sen. Mike Braun, wants to challenge Congressman Jim Banks for the GOP nomination in the May 2024 primary. He sued to gain access to the Republican ballot, saying the measure barred the vast majority of Hoosiers from running under their preferred party.
Marion County Superior Court Judge Patrick J. Dietrick subsequently found Indiana’s two-primary requirement unconstitutional.
Indiana’s high court then heard oral arguments in Rust’s challenge last month.
Benjamin Jones, defending state election officials, maintained before the justices that governments “must substantially regulate elections” to make sure they are “free, fair and honest.” He emphasized that candidates don’t have the automatic right to affiliate themselves with a party.
Michelle Harter, Rust’s attorney, said Indiana’s two-primary law wrongly allows the political party’s work to be handled by the state.
The Indiana Supreme Court blocked Dietrick’s injunction just one day before the state’s deadline to challenge candidacies. That left Rust open to six challenges heard before the Indiana Election Commission last week.
The state panel ultimately voted unanimously to remove Rust from the GOP primary ballot. Commissioners said in their deliberations that Rust could have voted in one of several Republican primaries since 2016 or moved to a county with a “friendlier” party chair who would have signed off on his candidacy.
Banks has already earned an endorsement from the Indiana Republican Party for his Senate bid—marking the first time in recent history that the state party has made an endorsement before primary elections for an open seat.
The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.
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Why is there a statute in the first place. Why is the legislative power of the State involved in the business of the political party to choose its candidates. Absent criteria otherwise forbidden by statutes (race, creed, national origin, age, gender) who is a Republican, a Democrat, a Liberterian, or whomever, is not the business of the State. If Rust has a message to resonate with voters, let him run as other than a Republican. Let him use his wealth to establish his own party.
But other than otherwise forbidden discrimination, the state should not be involved in the decision of a political party as to who is a member of their party and who may run as a candidate.