(Photo/Pexels.com)
By Marilyn Odendahl
The Indiana Citizen
February 28, 2024
The attorney for John Rust tried for 20 minutes Tuesday to convince the Indiana Election Commission to let him run in the Republican primary for the U.S. Senate, but the commission members unanimously denied him a place on the May ballot, finding he had not followed the rules required of all candidates.
“Your client could have done all kinds of things to protect his interests, like he could have played by the rules in existence,” Suzannah Wilson Overholt, Election Commission vice chair, told Rust’s attorney, Michelle Harter. “Hope is not a strategy, it’s not a plan.”
Rust has been fighting – all the way to the Indiana Supreme Court – to appear on the May ballot, wanting to run against U.S. Rep. Jim Banks, R-Indiana, for the U.S. Senate seat currently held by Sen. Mike Braun. Braun is leaving Capitol Hill to run for Indiana governor.
Rust, an egg farmer in Seymour, has been blocked from running in the GOP primary by a state law that requires candidates for elected office to have demonstrated their party affiliation by voting on that party’s ballot in the two most recent primary elections in which they voted. According to his voting records provided in court filings, Rust does not meet the statutory requirements to run in the 2024 Republican primary because of the two most recent primaries he participated in, he voted in the Republican primary in 2016 and in the Democratic primary in 2012.
The Indiana Supreme Court heard the case in mid-February. A few days later, the justices issued a one-page ruling upholding the affiliation statute and saying a longer opinion would be coming later.
Hours after the Supreme Court’s ruling, six challenges were filed with the Election Commission against Rust’s candidacy. All of them asserted Rust was not qualified to run in the GOP primary because he has not established he is a Republican.
Harter argued the commission could not be certain how the Supreme Court would ultimately rule since, she said, the justices’ behavior during oral arguments indicated they were split on the issue. The court, she said, could still overturn the affiliation law.
Commission member Karen Celestino-Horseman pressed Harter on that point. She asked how the commission could “get around the fact” that the Supreme Court had said the affiliation statute should be applied as it currently stands.
“The Indiana Supreme Court has spoken to us and they told us to enforce the law as it was originally written,” Celestino-Horseman said. She added she would loved to have seen Rust on the ballot, but said, “as far as I’m concerned our hands are tied so you tell me how we untie them.”
Minutes after the Election Commission denied Rust a place on the Republican primary ballot, the Indiana Supreme Court issued a one-page published order in Rust v. Morales, et al., 23S-PL-371. The order reiterated that the state law keeping him out of the May election is enforceable.
Following the Election Commission’s decision to uphold the challenges to his candidacy, Rust issued a statement Feb. 27 on X, formerly Twitter, calling the outcome “predetermined” and vowing to continue his legal battle.
“Today proved that the political insiders are continuing to rig our elections,” Rust said in his statement. “It’s this kind of disregard for Hoosiers that inspired me to run for the U.S. Senate in the first place. We will be appealing this all the way to the United States Supreme Court if necessary. Especially considering that this hearing had a predetermined outcome.”
Five individuals who filed challenges to Rust’s candidacy were represented before the commission by Ryan Shouse and Paul Mullin of Lewis and Wilkins in Indianapolis. The challengers, from Hamilton, Harrison, Marion, Monroe and Whitley counties, argued Rust was barred by the affiliation statute from running in the Republican primary.
The sixth challenger, Kyle Babcock, spoke before the Election Commission and described himself as a “longtime Republican party person,” who has served on the state party’s platform committee and been to every state party convention since 2008. He questioned Rust’s Republican bona fides, pointing out that Rust did not vote in the 2018 GOP primary, which included what Babcock said was “one of the most hotly contested Republican primaries in history” with Braun, current Indiana Attorney General Todd Rokita and former U.S. Rep. Luke Messer, R-Indiana, vying for the U.S. Senate.
“If he can’t even vote in that primary, that’s a problem to me,” Babcock told the commission.
As a resident of Seymour, Rust had appealed to the Jackson County Republican Party chair, Amanda Lowery, seeking certification so he could run in the GOP’s May primary. She refused because of his inconsistent voting history.
Rust then filed a lawsuit in Marion County Superior Court in September 2023, challenging the constitutionality of the affiliation statute. The defendants in the case included Lowery, Indiana Secretary of State Diego Morales and the Indiana Election Commission. Judge Patrick Dietrick found the state statute unconstitutionally disenfranchised voters and enjoined the law from being enforced.
The defendants directly appealed the ruling to the Indiana Supreme Court. Oral arguments were heard Feb. 12 and, on Feb. 15, the justices issued a stay on the trial court’s ruling, allowing the law to be enforced and Rust to be kept off the ballot.
Harter argued to the Election Commission that the lateness of the Supreme Court’s ruling caused Rust to delay pursuing other actions that could have put his name on the May ballot. For the entirety of the candidacy filing period, Jan. 10 through Feb. 9, the affiliation law was enjoined, Harter said, and the Supreme Court did not act until the day before the Feb. 16 deadline to challenge a candidacy.
“We got through the candidate filing period and it seemed like things were going well,” Harter said. “We couldn’t have anticipated that 23 hours before the close of the challenge period that there would be a stay when, for two months, the Indiana Supreme Court sat on it.”
Harter said if Rust had known sooner that the Supreme Court would uphold the law, he could have made another appeal for certification to Lowery, the Jackson County GOP chair. Also, he could have moved to LaPorte County where, according to Harter, the county Republican chair had said Rust would be certified and could then run in the May primary.
Commission vice chair Wilson Overholt was not convinced. She said Rust did nothing to find another way into the Republican primary, but, rather, he decided to take a risk and hope the Indiana Supreme Court could overturn the affiliation statute.
“The theme of the day is playing by the rules,” Wilson Overholt said, referring to the number of candidate challenges on party affiliation grounds the commission had heard on Tuesday. “We’ve got the same issue here that all these other folks have had which is … if you want to run as a candidate in this state, there are rules you have to follow.”
The Indiana Supreme Court’s Feb. 27 published order was in response to Rust requesting that the trial court’s ruling be allowed to stand while the justices finalized their opinion on the affiliation law.
Immediately after the Supreme Court issued its ruling Feb. 15, staying the ruling from the Marion County Superior Court and making the affiliation statute enforceable, Rust filed a motion for relief from the stay. He argued he should not be blocked from the May ballot when the Supreme Court has not rendered its opinion.
Briefs filed by Morales, the Election Commission and Lowery opposed Rust’s motion. In part, they asserted the stay on the trial court’s ruling is in the public’s best interest. Preserving the affiliation law, they argued, “prevents voter confusion by ensuring that a candidate is sufficiently affiliated with a major party before running in that party’s primary election.”
Also, they asserted, Rust could still run in the November general election either as an Independent, on a minor party ticket or as a write-in candidate.
The Supreme Court’s published order did not provide any reasoning for its decision. It stated “a majority of the court” voted to deny Rust’s motion. Also, it stated, the majority voted to reverse the trial court’s judgment and remanded for the trial court to enter a judgment in favor of the defendants.
Dwight Adams, a freelance 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.
