Oral arguments in the case of Diego Morales, Amanda Lowery and the Indiana Election Commission v. John Rust were presented Monday morning by the Indiana Supreme Court.
Rust filed the lawsuit in September 2023 against Jackson County Republican Party Chairwoman Lowery, Indiana Secretary of State Morales and the Indiana Election Commission. Rust said the Indiana law preventing him from running against Jim Banks in May’s Republican U.S. Senate primary was unconstitutional.
That law states a candidate must have voted in the previous two primary elections for the party they wish to represent. Because of Rust’s voting record, Lowery declined to certify him as a Republican. Rust voted in the Republican primary election in 2016 and in the Democratic primary election in 2012. He did not vote in 2020.
In December, Marion County Superior Court Judge Patrick J. Dietrick ruled the affiliation statute violated Rust’s rights under the First and Fourteenth Amendments to the U.S. Constitution.
Dietrick wrote in his ruling on Dec. 7, “[The law] unduly burdens Hoosiers’ long recognized right to freely associate with the political party of one’s choosing and to cast one’s vote effectively.”
The day after Rust’s injunction was granted, the Indiana Attorney General’s Office filed a notice of appeal of Dietrick’s ruling with the Indiana Supreme Court on behalf of Morales.
On Monday morning, Benjamin Jones served as the attorney for the state, while Michelle Harter served as Rust’s attorney.
Jones said governments must substantially regulate elections in order to ensure they are free, fair and honest. He said reasonable and nondiscriminatory regulations are required and justified by the state’s regulatory interest in elections. Jones also said each of the six reasons the trial court cited for striking down the statute as unconstitutional was wrong.
Justice Geoffrey G. Slaughter asked Jones why a county chair should have the authority to accept or decline candidates for a statewide legislative office as opposed to a state chair. Jones said the local party chair is the person in the best position to know their bona fides and know if a person is sufficiently affiliated with a party.
Jones also said a well-recognized proposition of federal law is states can act and have a compelling interest in allowing parties to self-identify, self-define and include and exclude whom they decide.
Chief Justice Loretta H. Rush asked Jones if Rust would have a meaningful alternative if he could not run as a Republican in the primary, to which Jones said Rust could still run as an independent or a write-in candidate in the general election.
Rush questioned Jones on his answer, noting Indiana law requires independent candidates to not have any party affiliation. Justice Christopher M. Goff said it would cost Rust money to not run as a Republican, noting “there’s a value associated with having an ‘R’ next to a statewide candidate’s name in Indiana.”
Goff then asked Jones what interest the affiliation statute protects. Jones said the state has a compelling interest in allowing parties to exercise associational rights. He also noted a Supreme Court case in which it was asserted candidates cannot force themselves upon a political party by citing the First Amendment.
Harter opened her statements by saying it is the voter’s job — not the state’s job — to elect candidates, and while precedent allows the state to control the time, place and manner of elections, it does not allow the state to choose who is on the ballot.
Harter said the state has no interest in protecting a political party from itself and a political party cannot evoke powers of the state to ensure control over its members and supporters. Harter also said the U.S. Supreme Court has never upheld a ballot access restriction of greater than one year.
Justice Mark S. Massa asked Harter why it is unconstitutional for voting in the previous two primaries to be a candidacy requirement, noting primary elections are not mandated by the U.S. Constitution.
Massa then described a hypothetical situation in which the Indiana General Assembly does away with primaries and instead chooses candidates at a convention made up of party loyalists. Massa said in this hypothetical situation, the Indiana General Assembly could turn Rust away.
Harter agreed with Massa’s thoughts but also said the majority of Hoosiers would not meet even one primary requirement on a good turnout year. She also said the First Amendment allows for freedom of association, to which Massa said “association implies mutual assent.”
Harter said an election is where to resolve whether a candidate is truly affiliated with a party.
Justice Derek R. Molter then asked Harter if Rust could have voted in the 2023 primary election in Seymour. Harter said Rust could not have because he does not live within city limits.
Massa again asked Harter why the affiliation statute is unconstitutional and also asked if it would be unconstitutional to require candidates to have voted in only the most recent primary, to which Harter said she was not sure.
Massa asked what Indiana’s objective primary voting criteria should be replaced with, and Harter suggested replacing it with the petitioning requirements of New Jersey, her home state. In New Jersey, a candidate wanting to get on the ballot for U.S. Senate must gather 1,000 signatures of registered voters and then that candidate signs an affiliation attestation.
Harter concluded her statements by saying there will be no harm done to the state if Rust is on the Republican ballot. She said if he loses, the Republican Party will have rejected him. If he wins, he will have party affiliation.
Rush then asked Harter to clarify the fact Rust was told Lowery would not certify anyone who did not meet the voting requirement, and therefore, Rust could not appeal her decision. Harter said the rules of the affiliation statute were vague and would continue to be interpreted differently by party chairs statewide.
In his rebuttal, Jones said the Indiana Supreme Court has never held that a disagreement about a statute passed by the Indiana General Assembly has authorized the dismissal of it.
“The criticism we heard both from the trial court and from Mr. Rust about the way the party is exercising is actually the very purpose [of the affiliation statute], which is to allow the party to make its own determination on who it is going to certify as a member,” Jones said.
“Elections are for the people to decide,” Rust said outside the courtroom.
In court briefs, the state has garnered support from the Indiana Republican Party, while Rust has received backing from Common Cause Indiana and the League of Women Voters of Indiana.
The justices did not say when an opinion could come down, but the court is likely to rule quickly.
The Indiana primary will take place on May 7, and absentee ballots must be sent to voters who have previously filed an approved application by March 23.
Even sooner is the deadline to challenge a candidate who filed to run in the May 2024 primary, at noon Friday.
Casey Smith with the Indiana Capital Chronicle contributed to this story.