U.S. Senate hopeful John Rust’s last-ditch ballot plea now in the hands of Marion County judge

(INDIANA CAPITAL CHRONICLE) — After a Tuesday court hearing, a Marion County judge is weighing whether the Indiana Election Commission’s decision to deny U.S. Senate hopeful John Rust from accessing Indiana’s GOP primary ballot should be upheld.

Rust’s petition for judicial review was filed in Marion County Superior Court late last month, one day after the commission voted unanimously to block his Republican candidacy. 

The basis for the state panel’s decision was an Indiana party affiliation law that prohibits candidates from running whose last two primary votes don’t match the party they wish to represent.

The Seymour egg farmer’s two most recent primary votes were Republican in 2016 and Democrat in 2012 — meaning under the 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.

Michelle Harter, Rust’s attorney, said the Indiana Election Commission misapplied the law to Rust. She argued that during the entirety of the candidate filing period, Rust was not legally obligated to comply with the two-primary rule because it was put on-hold by a trial judge. 

This court is the last arbiter for whether or not he has ballot access.

– Michelle Harter, attorney for John Rust

A motion from the Indiana State Supreme Court stayed the injunction in time for Rust’s candidacy to be filed, however. The party affiliation law was back in effect as Rust stood before the election commission.

“The commission’s position is that Rust had to comply with an enjoined statute — and because he didn’t, now the commission can reach back and penalize him for not doing so,” Harter said. “This court is the last arbiter for whether or not he has ballot access.”

It’s now up to Marion County Superior Court Judge Kurt Eisgruber to rule on Rust’s request for a preliminary injunction that would block the election commission’s decision — effectively restoring him to the ballot.

Eisgruber did not make clear a timeline for his decision, but emphasized that “we’re kind of in a time constraint of ballots being issued.” Although it varies by county, printing of ballots is expected to begin this month. 

Rust leans on original injunction 

Rust, running to succeed U.S. Sen. Mike Braun, wants to challenge Congressman Jim Banks for the GOP nomination in the May 2024 primary. He sued to gain access to the Republican ballot last fall, saying the measure barred the vast majority of Hoosiers from running under their preferred party.

At a Tuesday afternoon hearing before Eisgruber, Rust’s attorney pointed to a December ruling from another Marion County Superior Court judge who found in Rust’s original legal challenge that the two-primary requirement was unconstitutional. 

The case heard Tuesday is separate, though, and directly appeals the election commission’s ballot decision.

The Indiana Supreme Court heard oral arguments in Rust’s challenge last month and ultimately blocked the trial judge’s injunction one day before the state’s deadline to challenge candidacies. That left Rust open to six challenges heard before the state election commission.

Ultimately, the election panel voted unanimously to remove Rust from the GOP primary ballot. Commissioners said in their deliberations that Rust could have voted in one of several Republican primaries since 2016 or moved to a county with a “friendlier” party chair who would have signed off on his candidacy.

The Indiana Supreme Court then released a belated, 84-page opinion last week upholding the state’s law limiting who can run on the Republican and Democrat primary ballots. The high court previously issued orders in the case but not a full ruling.

Rust and his legal counsel said the high court’s initial action came after the filing period, giving him “no opportunity to go back to Lowery and see if she would change her mind and certify him.”

“By the time of the supreme court order, there was nothing he could do,” Harter said Tuesday, noting too that the court’s decision has yet to be certified. She also said Rust’s removal is invalid because he still retains the right to appeal the matter to the U.S. Supreme Court.

In his appeal, Rust filed an affidavit from LaPorte County Republican chair Allen Stevens, who testified that — had Rust established residency in LaPorte County — he would have certified his candidacy. Rust’s court filing indicates that he has obtained a residence and bank account in LaPorte County. 

Had the state law not been put on hold, he “could have and would have relocated to LaPorte County.” But Rust’s team said the timing of the stay — after the candidate filing period — did not allow him time to relocate or seek certification elsewhere.

“If he would have been able to move and get certification, and then provide the (party) affiliation because the statute wouldn’t have been enjoined, maybe he wouldn’t have been challenged and we wouldn’t be here,” Harter said.

Further, Harter told the court the election commission is barred from removing Rust from a statewide ballot in light of the U.S. Supreme Court’s recent decision in Trump v. Anderson, in which high court justices ruled that states cannot disqualify former President Donald Trump from the ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol.

Referring to the party affiliation rule, Eisgruber asked if “we’re not just throwing out the baby with the bathwater” if Rust prevails.

“John is running for entire State of Indiana, and we can’t say definitively that the whole party has rejected him — that’s not true,” Harter said, referencing different certification decisions from the party chairs in Jackson and LaPorte counties, as well as “thousands of signed petitions” Rust collected from Hoosiers across the state.

Counsel for commission, challengers say Rust had other options

But Trent Bennett, representing the Indiana Election Commission, quoted the state supreme court’s order, which he said “held firmly and clearly” that “Rust should not be on the ballot — full stop.”

Bennett said Rust failed to meet the necessary criteria to receive a preliminary injunction request, and his claim that the commission wrongly enforced the party affiliation statute in question “has no merit.”

Echoing the election commissioners, Bennett said Rust “had every opportunity” to otherwise comply with the statue: “He could have moved to LaPorte and been certified there — he was aware this litigation was ongoing and there were questions about his ability to comply with two party rule.” 

He said Rust also could have “automatically been qualified” had he voted in previous elections.

“The harm to Rust is from himself, not the Indiana Election Commission,” Bennett continued. “And Rust is not prohibited from being the U.S. senator for Indiana — he could run as an independent,  minority party or write-in.”

Even so, Eisgruber questioned if Rust could successfully run without the GOP title.

“He’s put out his bona fides as a Republican, as a conservative, so is it realistic to ask him to run as an independent?” the judge asked.

Regardless, Bennett maintained the commission enforced the law as it was on the day they made their decision.

The commission attorney also argued Rust should be barred “from relitigating the very same issues upon which the Supreme Court has already adjudicated on the merits.”

Bennett pointed to the “res judicata” doctrine which prevents “repetitious litigation of disputes that are essentially the same.” Under that principle, the Indiana Supreme Court’s final judgment is binding.

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.