INDIANAPOLIS — Whether U.S. Senate hopeful John Rust can appear on Indiana’s primary ballot is now up to the state’s supreme court justices.

Rust, running to succeed U.S. Sen. Mike Braun, is challenging a law prohibiting candidates whose last two primary votes don’t match the party they wish to represent.

Rust’s two most recent primary votes were Republican in 2016 and Democrat in 2012 — meaning under the questionable law he can’t appear on the Republican ballot for the 2024 May primary election. The law allows an exception, should the county’s party chair grant it. Jackson County Republican Party Chair Amanda Lowery elected not to do so in this case.

“Elections are for the people to decide,” Rust said outside the courtroom Monday morning. His attorney, Michelle Harter, said current law wrongly allows the political party’s work to be handled by the state.

Rust sued Lowery, the Indiana Secretary of State, and Indiana Election Commission in September to gain access to the Republican ballot, saying the measure barred the vast majority of Hoosiers from running under their preferred party — an argument that seemed to sway the court.

Marion County Superior Court Judge Patrick J. Dietrick found in December that the two-primary requirement is unconstitutional.

But the state appealed, and the Indiana Supreme Court expedited the case as a matter of “significant public interest.”

Benjamin Jones, defending state election officials, maintained on Monday that governments “must substantially regulate elections” to make sure they are “free, fair and honest.” He doubled down that candidates don’t have the automatic right to affiliate themselves with a party.

He emphasized that the trial court came to the “wrong conclusion” and “made the crucial mistake of conflating primary elections which are used by parties to determine their candidates for a general election with the general election where Hoosiers will elect their representatives to government.”

Will justices strike down existing state law?

Rust, the former chair of the embattled egg supplier Rose Acre Farms, wants to challenge Congressman Jim Banks for the GOP nomination in the May 2024 primary.

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.

Even so, he has repeatedly attacked Rust over his prior voting record and other matters. Cash-flush Rust has consistently responded with counter attacks against Banks.

While Rust has already gathered the required 4,500 signatures — 500 from each congressional district, the court’s decision could remove him from the ballot.

At the Monday hearing, Justice Mark Massa asked why it was “so hard” for Rust to vote in two consecutive primaries.

Harter said a majority of Hoosiers don’t meet one primary rule, “let alone” two consecutively.

Massa also pointed to conventions where candidates can instead be chosen by “party loyalists” and “close the door” on Rust anyway.

“So why is any sort of ballot restriction of modest requirements to vote in two primaries to demonstrate that you’ve been active in the party — how does that violate the First Amendment?” Massa asked.

Harter said the First Amendment “is freedom of association.”

“Contrary to what the state has claimed, it’s not just to get on the ballot in any way possible,” she said. “It’s to freely associate with the party.”

Rust’s attorney also maintained that he could not have voted in the 2023 municipal primary. She said Rust does not live in the Seymour city limits and therefore did not qualify to cast a ballot.

Massa later said the primary voting record is objective and asked what could replace it. Harter suggested that signatures could have to be from only members of the Republican Party.

If Rust prevails and the injunction remains in place, Harter said Indiana would return to its previous statute — one primary and a party chair certification — or a Hoosier could attest that they are a member of the party.

“If Rust is on the ballot, what’s the harm to the state? If he loses, then the Republican voters have rejected him, right? And so if he wins, then he has party support,” she said. “It’s not some kind of frivolous candidacy. I think we should trust our voters to decide.”

Court appear split

Meanwhile, Jones, with the Indiana Attorney General’s Office, said the statute in question requires a person to demonstrate affiliation with the party before representing the party.

He said parties can choose the candidates they want to run. But Chief Justice Loretta Rush said three different sets of rights are meeting at the same time — that of voters, candidates and parties.

Justice Geoffrey Slaughter further questioned why the county chair is in charge of statewide or federal races, rather than local.

Jones responded that the county chair is in the “best position” to know the person’s bonafides as a party member.

Rush additionally asked if Rust has “a meaningful alternative.” To be an independent, a candidate must state they aren’t affiliated with a political party. Rush said that precludes Rust because he has said repeatedly he is a Republican.

Justice Christopher Goff said there is a “value” associated with having an “R” by a statewide candidate’s name.

Still, Jones said the state has a compelling interest in allowing parties to exercise their associational rights.

“The parties rightfully are able to exclude candidates that they don’t believe are sufficiently affiliated with them,” he told the justices. “It’s allowing voters to understand that if this person is running for my party’s nomination, or in fact has my party’s nomination in the general election, that they are going to generally stand for the principles that the party with which I affiliate stands for.”

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 on Friday, Feb. 16.

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The Indiana Capital Chronicle is an independent, nonprofit news organization dedicated to giving Hoosiers a comprehensive look inside state government, policy and elections. The site combines daily coverage with in-depth scrutiny, political awareness and insightful commentary.

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The Indiana attorney general’s office filed the notice of appeal Friday with the Indiana Supreme Court on behalf of Secretary of State Diego Morales.

The filing came a day after a Marion County judge granted an injunction sought by John Rust, the former chair of the egg supplier Rose Acre Farms who is running to replace Sen. Mike Braun. Rust filed a lawsuit in September against Morales, the Indiana Election Commission and Jackson County Republican Party Chair Amanda Lowery to challenge the law and ensure the possibility of his place on the ballot.

Lowery, the county’s Republican Party chair, said in a July meeting with Rust that she would not certify him, the lawsuit said. Rust has said Lowery later cited his primary voting record.

In a November hearing, Rust said the law keeps legitimate candidates who have recently moved to Indiana or have switched political identifications from running for office.

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