Indiana GOP files brief against Rust in primary challenge

by Whitney Downard, Indiana Capital Chronicle

The Indiana Republican State Committee filed an amicus brief last week supporting a law that limits who can run under major party banners in Indiana.

U.S. Senate candidate John Rust is challenging the statute because it prevents him from filing as a Republican against party favorite Jim Banks, a U.S. Representative.

The 2021 law bars primary ballot access unless a candidate’s two most recent primary votes match the party they wish to represent — a measure that Marion County Superior Judge Patrick J.  Dietrick ruled was unconstitutional in December.

The ruling and injunction was a win for Rust, who wouldn’t qualify for the ballot because of the two-primary rule. Banks and Rust are seeking to succeed U.S. Sen. Mike Braun, also a Republican, who is pursuing the governor’s office in the 2024 cycle.

But the Indiana GOP — filing in support of defendants Secretary of State Diego Morales, the Indiana Election Commission and Jackson County Republican Party Chair Amanda Lowery — said the law poses a “modest test” that “weeds out candidates who are not actually affiliated with the party.”

“Political parties have a constitutional right to determine their own membership and limit the candidates appearing on their primary ballots based on that membership; the State has an interest in safeguarding that right. The Committee has a substantial interest in enforcing and upholding a law that protects its right to freedom of expressive association and promotes election integrity,” the party’s filing said.

A spokesman for the Indiana Democratic Party had no comment at this time.

Indiana GOP arguments

The Indiana Republican Party made its preference for Banks clear when it took the unprecedented step to endorse him, something unheard of in recent modern history.

Despite Banks’ widespread name recognition, campaign war chest and the support from both former President Donald Trump and current seat holder Braun, he also continues to attack underdog Rust.

The state party filing said Rust could run “while describing himself as a Republican or associating himself with the Republican ideology … (but) does not have the constitution right to run for Senate as the Republican Party’s nominee…”

Republican and Democrat nominees for the U.S. Senate are selected via a state-funded primary in Indiana, rather than through a convention.

Both parties use the convention process in Indiana to nominate candidates for state-level positions, including: Lieutenant Governor, Attorney General, Secretary of State, Treasurer of State and State Auditor. That political process used to include other offices, such as U.S. senators.

Minor political parties in Indiana, including the Libertarian Party, may utilize conventions more than the state’s major parties. Libertarians traditionally have nominated their candidates for governor and senator at convention.

Republicans argued the injunction on the 2021 primary law “will have the effect of returning party politics to the old ways,” meaning the convention process, for other political nominations.

The filing said that “chaos and unchecked gamesmanship” would ensue because “those loyal to one political party (could seek) to appear on another party’s primary ballot to confuse or mislead voters.” Several of Indiana’s prominent politicians have switched parties, including leading Democratic nominee for governor Jennifer McCormick and Braun himself.

Other details

The filing rebuffs several arguments from Dietrick, who said the law appeared to benefit political parties over the state and Hoosiers.

“The distinction between wholly internal aspects of party administration on one hand and participation in state run and state financed elections on the other is at the heart of this case. Therefore, it is the State’s asserted interests, not the interests of the Indiana Republican Party,” the ruling said. “There is no compelling or even rational government interest being served here.”

According to the party, Dietrick’s ruling and injunction “consistently conflates the right to run for office with a distinct, but non-existent, right to appear on the Republican primary ballot.”

Rust, the filing noted, could run as a write-in candidate or under a third party but not as a Republican under the 2021 law — “a minor restriction that does not trigger strict scrutiny.”

Republicans acknowledge that the law isn’t “an infallible proxy for party affiliation” but go on to say that no law can determine “the inner-thoughts and beliefs of a candidate.”

“But our entire system relies on the presumption that voters generally vote consistent with their beliefs. It is rational that a candidate’s most recent voting history likely reflects her beliefs, values and party affiliation,” the filing said.

The filing from the Indiana Republican Party must still be accepted before the court may consider it. Rust’s representation has until Jan. 19 to respond to the party and other appellant arguments, according to a Dec. 15 ruling.

The Indiana Supreme Court will hear arguments on Feb. 12, though a ruling in favor of Rust doesn’t guarantee his appearance on the ballot — he must still gather 500 signatures from each of the state’s nine congressional district.