John Rust leaves the courtroom Wednesday Nov. 1 after a hearing on his case to get on the Republican primary ballot for U.S. Senate. Photo by Niki Kelly.

By Niki Kelly
Indiana Capital Chronicle

INDIANA — A Marion County judge heard hours of argument Wednesday, Nov. 1, about whether an Indiana law disenfranchises Hoosiers from running on their preferred primary election ballot.

At issue is whether John Rust, of Seymour, can run as a Republican for U.S. Senate in May. But his attorney, Michelle Harter, said the unconstitutional law impacts up to 80% of Hoosiers who would not meet an initial statutory test to run.

“It precludes average Hoosiers who weren’t active in the past from running,” she said.

Harter added that “it’s not clear what the harm to the party is in letting (Rust) run or letting the voters decide.”

The Indiana Republican Party has already endorsed Third District Congressman Jim Banks for Senate in 2024.

Marion Superior Court Judge Patrick Dietrick first heard arguments to dismiss the case. If he allows the case to proceed, he will then have to address the merits of the case and the request for a preliminary injunction allowing Rust on the ballot.

The law in question requires a potential candidate to have voted in the party primary they want to represent in the last two primaries they participated in. Up until 2022, the rule was only one primary.

Rust voted Republican in the 2016 primary but Democrat in 2012. That then leaves his fate to a Republican party chair, who has said she won’t give him an alternate approval needed.

Motion to dismiss

Jim Bopp, a noted conservative attorney representing the Indiana Secretary of State and Indiana Election Commission, said the case should be dismissed because it isn’t “ripe” and Rust hasn’t been harmed.

That’s because he hasn’t yet filed to run — that can’t happen until January 10 at the earliest. And he hasn’t been removed from the ballot — that can’t happen until mid-February at the earliest.

He said theoretically Rust might decide not to run, might fail to gather the required signatures, the county chair might change or the commission might deadlock and not kick him off the ballot.

Dietrick, though, said if the court waits until all those steps occur Rust won’t have enough time to ultimately prevail before the May election.

Bopp disagreed, saying courts can expedite a case. He also noted that a case in which a candidate was removed from running for Congress last year under the law was filed late, and therefore deemed moot by the courts.

Harter argued Rust meets current precedent on ripeness for a constitutional challenge – “the ripening seeds of a controversy and an adequate record.” She said Rust needs to know his legal status to properly campaign and fundraise.

“Of course, the state wants to kick the can down the road so they can later say “oh, it’s moot,” she said.

Harter added that any ruling on a case could come after ballots are printed.

Preliminary injunction

The lawyers then moved on to the merits of the case, with Harter arguing the law has equal protection problems.

For instance, she said the law giving county chairs a backup approval treats Hoosiers disparately because some county chairs might be more willing to sign off than others.

Bopp pointed to a 7th Circuit Court of Appeals ruling that says major political parties have the right to choose their own members.

He said the state can’t force the party to associate with someone they have rejected as not being a member.

The federal case ruling said, “the state has an interest in protecting a party’s right to determine its own membership and limit its candidates to those party members.”

Dietrick then asked, “That’s not an issue for the voters? That’s an issue for the party?”

Bopp noted several times that Rust can run as a Democrat, an Independent or a write-in candidate.

The judge took both matters under advisement and promised to rule as soon as he can.