by Casey Smith
Indiana Capital Chronicle
Republican U.S. Senate candidate John Rust filed a lawsuit Monday, Sept. 18, in an effort to get his name on the May 2024 primary ballot. He maintains that a current Indiana law blocking him from the ballot is unconstitutional.
The legal challenge was filed in the Marion County Superior Court. 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 is Chairman of the Board of Seymour-based Rose Acre Farms, entered the race for the GOP nomination last month. His main challenger is U.S. Rep. Jim Banks of Columbia City, who is the party’s favored contender in the race.
Both candidates are hoping to take Indiana’s seat currently held by Sen. Mike Braun who 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. Indiana Republican Party officials said earlier this month that Lowery had indicated she would not approve his candidacy.
The Jackson County official said she would not certify Rust 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 contends in the lawsuit 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.
“It’s clear to me that this law is in place to protect the power and control that political parties have over elected offices,” Rust said in a news release. “It prioritizes the political elite over Indiana voters and is against the spirit of the 17th Amendment of the United States Constitution, which specifically grants the power to choose United States senators by the people and took that power away from state legislatures. I think you deserve a choice and robust debate. I decided to run to shake up the political establishment, and fighting them on this unconstitutional law is one battle in that fight.”
Issues with his voting record
Rust voted in the Republican primary in 2016 but did not vote in 2020, according to the lawsuit.
At the time of the 2020 Republican primary, delayed until June because of COVID, state law only required that a candidate vote in one GOP primary to have ballot access with that party. That meant that — despite not voting in 2020 — Rust’s 2016 vote made him eligible to run for office with the party, according to the lawsuit.
In 2022, however, the state law was amended to require a potential candidate’s two most recent primary elections to reflect their claimed party affiliation.
Without that voting record, the chairperson of their county’s political party is required to
certify the candidate as a member of that political party and grant them access to the ballot.
According to the complaint, because Rust does not have the required voting record for the first option, he met with Lowery on July 19 to request she provide written certification for membership in the Republican Party.
But Lowery allegedly expressed concerns that Rust previously voted in Democratic primaries. Rust pushed back, saying those votes were for people he knew personally “through church or for those who were pro-agriculture.”
Denying Rust ballot access violates his constitutionally protected rights to freely associate with the Republican party and to cast his vote effectively.
Rust also told Lowery that he had never contributed to a Democratic candidate financially. He additionally pointed to Federal Election Commission records, which indicate that he has donated more than $10,000 to Republican candidates.
“Denying Rust ballot access violates his constitutionally protected rights to freely associate with the Republican party and to cast his vote effectively,” the lawsuit states.
In February 2022, eight candidates were removed from the ballot pursuant to the statute, according to the lawsuit. Two of those candidates filed lawsuits and sought a decision on the constitutionality of the law, but the appellate court declined to address the merits of their cases because the May 2022 election had passed by the time the cases had made it to the appellate court.
Rust said he filed the legal challenge eight months ahead to the primary election so he can obtain “meaningful judicial relief, secure ballot access and be able to cast his vote effectively.”
Rust is ultimately seeking for the state law to be declared unconstitutional under the Indiana and federal constitutions, and for a judge to issue an injunction in the meantime, allowing him access to the 2024 Republican ballot.
The lawsuit further cites Pew Research data showing that 79% of Hoosier adults identify as a Republican or Democrat, but only 24% of registered Hoosiers voted in the 2020 primaries. That could mean many Hoosiers are presumptively ineligible to run for office unless their party chair certifies them, according to Rust’s complaint.
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.
“They do not know that candidates who reflect their values are denied candidacy or deterred from even trying to run for office because of it,” said Michelle Harter, Rust’s attorney. “This time, the courts cannot claim the case is moot. We look forward to a decision on the merits, one that is consistent with the federal and state constitutions. Hoosier voters deserve, and are constitutionally guaranteed, the right to freely associate and vote effectively. The statute denies candidates and voters these fundamental and cherished rights.”