By Marilyn Odendahl
The Indiana Citizen
June 25, 2025
A split Indiana Supreme Court has declared moot a challenge to the eligibility of a Columbus City Council candidate to appear on the November 2023 ballot, saying the claim, which was filed before the general election, was no longer valid because Election Day had passed.
Ross Thomas, chair of the Bartholomew County Democratic Party, had brought a pre-election challenge against the candidacy of Republican Joseph Foyst for the Columbus City Council District 6 seat. Foyst was nominated by the Bartholomew County Republican Party after the primary and won the general election with 454 votes.
Thomas asserted the county GOP along with Foyst had missed statutory deadlines for a candidacy filing and, therefore, the nominee was ineligible to run for the council seat in the 2023 election. The Court of Appeals of Indiana agreed, finding Foyst was never a “duly selected candidate,” and ordered the Democratic candidate, Bryan Muñoz, be declared the winner of the council seat.
However, a majority of the Supreme Court found Thomas had only filed a pre-election challenge seeking to keep Foyst off the ballot, but that remedy was no longer available because the election was over and Foyst had won. Moreover, because Thomas did not specifically file to set aside the election results, the Supreme Court held that overturning the election outcome was not an option.
Following the appellate court’s lead and reversing the outcome of the election was “an obviously fraught exercise of judicial power,” Justice Derek Molter contended in his opinion for the majority and, in this case, was not warranted because Thomas had not followed the requirements set by the legislature for contesting an election.
“From our perspective, when, as here, an election challenger has not followed the General Assembly’s rules for challenging an election, judicial restraint compels letting the election results stand rather than letting a judicial decision overturning the election stand,” Molter wrote in Ross Thomas v. Joseph Foyst, 24A-MI-00251.
Justice Christopher Goff disagreed.
In his dissent, Goff asserted Thomas’ request for declaratory judgment that Foyst was ineligible to run in the 2023 election is still a pending issue. The justice noted that even though the ballots have been cast, state law does not prevent a pending action to determine whether an individual was properly on the ballot in the first place.
“Thomas’ pre-election challenge to Foyst’s eligibility to appear as a candidate is still a live challenge to his nomination, even after the election,” Goff wrote. “This Court could provide Thomas effective relief by declaring Foyst’s candidacy invalid.”
During the March oral arguments, the justices repeatedly questioned whether Thomas had standing to file the lawsuit. Yet, in the majority opinion and the dissent, all the justices concurred that Thomas could sue because he was acting in his official capacity as chair of the local Democratic party.
Thomas actually filed two challenges to Foyst’s candidacy with the Bartholomew County Board of Elections.
The first challenge came after Foyst was nominated by the Bartholomew County Republican Party to run for the city council seat in the November election. Since no one had run for District 6 in the GOP primary, the party held a caucus on July 1, 2023; however, the Republicans filed the notice with the circuit court clerk nine days before the caucus, one day short of the 10-day notification that is required by state law.
The county election board granted Thomas’ challenge and Foyst was removed from the ballot.
Under state statute, political parties can refill a vacancy that occurs when a candidate is successfully challenged. The county GOP again picked Foyst and filed its certificate of candidate selection with the circuit court clerk on July 5.
On Sept. 6, Thomas challenged Foyst’s second candidacy, asserting the Republicans were required to file the certificate by July 3. This time, the county election board rejected Thomas’ challenge as untimely because he had missed the Aug. 25 deadline for filing that kind of pre-election claim. Foyst filed his second declaration of candidacy the day before the deadline and the Republican Party submitted a certification of candidate selection to the circuit court clerk five days after.
The same day he filed his second administrative challenge, Thomas filed a complaint for declaratory and injunctive relief in the Bartholomew County Circuit Court against Foyst and members of the county election board. He asked the trial court for a declaration that Foyst was ineligible to appear as a candidate for the city council seat and an injunction preventing the Republican from appearing on the ballot.
When a Nov. 1, 2023 hearing made clear that Foyst’s name could not be removed from the ballot before the Nov. 7 election, Thomas abandoned his claim for injunctive relief and voluntarily dismissed the members of the election board from the case. However, his request for a declaratory judgment that Foyst was ineligible to be a candidate remained pending before the general election took place.
Once Thomas missed the deadline to file an election contest, Foyst moved to dismiss the lawsuit. On Jan. 17, 2024, the circuit court denied Thomas’ request for declaratory relief, in part, because no additional challenge to the election had been filed.
The Court of Appeals overturned the election results in its July 2024 opinion, finding that Foyst’s first candidacy “never existed in the eyes of the law.” As the unanimous panel reasoned, Foyst was never a “duly selected candidate” because he filed his paperwork after the July 3 deadline. Consequently, the judges ruled, the county Republican Party could not hold a second caucus as allowed by state law since Foyst was never a candidate in the first place.
The Supreme Court majority was reluctant to overturn the “will of the voters.” They noted, although Thomas did ask them to set aside the results, he did not specifically include that request in the amended complaint he filed with the circuit court.
Also, the majority held, Thomas could not point to any state law that would allow the election results to be tossed on the basis of his challenge to Foyst’s candidacy. “We cannot convert Thomas’ candidacy challenge to an election contest,” Molter wrote for the majority.
Thomas attempted a similar maneuver in 2020, when he lodged a pre-election challenge to a Republican candidate’s eligibility for a Bartholomew County Council seat. The Bartholomew County Superior Court refused to treat the pre-election complaint as a post-election contest, asserting in Schoettmer v. Miller, 03D01-2009-MI-4400, that a lawsuit to overturn an election is an “entirely different legal action” to filing a lawsuit challenging the eligibility of an elected official to serve.
Here, the majority of justices reached the same conclusion.
“This ‘Court has long held that statutes providing for contesting elections should be liberally construed in order that the will of the people in the choice of public officers may not be defeated by any merely formal or technical objections,’” Molter wrote, citing to the Indiana Supreme Court’s 2004 decision in Pabey v. Pastrick. “Thomas is asking us to do the opposite – to forgive his noncompliance with the statutes governing election contests and set aside the election results based on his claim that the rival political party missed a statutory deadline in its nomination process. Because neither the election code nor our case law permits us to do so, we decline his request.”
Justice Goff, in his partial dissent, maintained the Supreme Court should have never taken the case, because the question presented by Thomas v. Foyst will likely never arise again.
Between the trial court’s ruling and the Court of Appeals’ reversal, the legislature stepped in and amended the statute. Where previously a political party could convene a second caucus when a legitimate candidate had been successfully challenged, the new language expanded the law to include any individual filling for a general or municipal election ballot vacancy.
Under the revised law, the Bartholomew GOP could have re-nominated Foyst despite not having been a “duly selected candidate” in the first caucus, Goff argued. However, he noted, the statute is not retroactive, so it does not impact the present case.
“When determining whether to grant transfer, one of the principal considerations is whether the ‘Court of Appeals has decide an important question of law’ that should be considered by this Court,” Goff wrote, quoting the appellate rules. “Because the General Assembly answered the question the parties asked us to answer, and the issue is unlikely to reoccur, I would exercise judicial restraint and deny transfer.”
Dwight Adams, an editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.
