Tensions rise over deposition, judge selection in Senate hopeful John Rust’s ballot access suit

A lawsuit filed by Republican U.S. Senate candidate John Rust appears to be in a stalemate amid the search for a new judge, disagreements over filing timelines and contention over a deposition.

The legal challenge was filed in the Marion County Superior Court last month as part of Rust’s effort to get his name on the May 2024 primary ballot. Rust maintains that a current Indiana law blocking him from the ballot is unconstitutional.

Indiana Secretary of State Diego Morales, the Indiana Election Commission and Jackson County Republican Party Chair Amanda Lowery are named as defendants.

Rust, an openly gay conservative Republican who chairs the Seymour-based Rose Acre Farms, entered the race for the GOP nomination last month. His main challenger is U.S. Rep. Jim Banks, who is the party’s favored contender in the race.

Tensions rise over deposition

In the latest court documents filed by Rust, his attorney, Michelle Harter, said she has “concerns” with the Indiana Attorney General’s Office insistence that her client be deposed.

State attorneys indicated they wanted Rust’s deposition before filing their response to his complaint and request for a preliminary injunction that would allow him access to the 2024 Republican ballot.

According to email correspondence submitted to the court, attorney Jim Bopp — hired counsel by the attorney general — said he was “hopeful” the deposition would take three to four hours, “but we reserve the right” to do a “full,” seven-hour deposition.

Harter emphasized that the lawsuit involves “a legal matter” — the constitutionality of an Indiana statute — and “it is not clear what relevant information can be gained from deposing” Rust himself.

She maintained, too, that such a long deposition is unreasonable.

“(Rust) is not able to answer legal questions,” Harter said in a motion to prevent Rust from being deposed. “It seems the purpose of this deposition is to annoy, oppress or cause expense to Plaintiff and/or to further delay providing a response to his Motion for Preliminary Injunction or otherwise go on a fishing expedition.”

Harter asked the judge to protect Rust “from what seems to be aggressive and unnecessary litigation tactics, or at the very least, put limits on the length and scope of the deposition.”

The court has not yet ruled on the deposition, which is currently scheduled for Wednesday morning in downtown Indianapolis, according to court documents.

Awaiting new judge

The delay is also partly due to an earlier request from Rust that a special judge be assigned to the case.

Although Rust and the attorney general’s office had the opportunity to choose a judge together, Rust’s legal counsel said in court documents that the two parties could not agree on one within the given seven-day timeframe. It’s now up to the court to decide who will preside over the lawsuit.

But Rust and his legal counsel have additionally taken issue with filing extensions requested by the state’s attorneys.

Harter said in court documents that counsel from both parties initially agreed to give the state two extra weeks to reply to Rust’s preliminary injunction motion “as a professional courtesy.”

Rust and his attorney said they object to any more extensions, though, “as time is of the essence … particularly where state defendants are apt to claim the issues in this case are moot and where plaintiff must know as soon as possible whether he is eligible for ballot access so that he may properly campaign and fundraise.”

“While (the Indiana Attorney General’s office) claims they are not trying to ‘hide to ball,’ it seems rather strange that they claim on the one hand that they were too busy to respond to plaintiff’s motion by the deadline and needed 30 additional days,” Harter said in a Thursday court filing, “but now with a shorter extension they have time to and wish to depose plaintiff prior to responding, “and further, that they did not know of this alleged need when filing their motions or discussing the extension with undersigned counsel just one business day prior.”

Rust said he is seeking a hearing on his preliminary injunction motion “at the earliest opportunity.”

The current deadlines in place require state attorneys to respond to Rust’s motion by Oct. 17. Rust has until Oct. 24 to give his reply.

Background on the case

Both Rust and Banks are hoping to take Indiana’s seat currently held by U.S. Sen. Mike Braun. The sitting senator, who nominated Banks earlier this month, is leaving the position to run for Indiana governor.

But because Rust doesn’t qualify to run as a Republican based only on his primary voting history, he needs additional approval from his county party chair.

Lowery has so far indicated she will not approve Rust’s candidacy because of his voting record. Further, Lowery said she would refuse to sign off on any candidate who did not pull a party ballot in the previous two primaries, as required by the state statute.

Rust voted in the Republican primary in 2016 but did not vote in 2020, according to the lawsuit.

An absence of voting in the 2020 and 2022 primaries does not affect a person’s eligibility under the statue. The law indicates a potential candidate’s last two primary votes need to have been cast in the same party’s primary that they’re running in — whenever that might have been — meaning they could miss party primaries and still qualify.

Rust needs a waiver because the last two primaries he voted in were Republican in 2016 and Democrat in 2012.

Rust contends in the lawsuit, however, that recent amendments enacted by the state legislature made him — and a majority of Hoosiers — ineligible to run for office in Indiana due to their voting records. He argues, too, that Lowery has misinterpreted the election law, which unfairly precludes him from running.