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By Casey Smith

Indiana Capital Chronicle

 Nov. 2, 2022

A legal challenge to Indiana’s ballot access law will move forward after a federal judge ruled last week that the lawsuit brought by the Indiana Green and Libertarian parties requires a “fact-intensive” review.

The lawsuit was filed in March in the U.S. District Court for the Southern District of Indiana. It alleges that minor parties and independents face “severe and unequal burdens” because of the state’s “unconstitutional” rules dictating how they can qualify for Indiana’s general election ballot.

The Indianapolis judge, James R. Sweeny II, on Thursday rejected a request from Indiana Attorney General Todd Rokita to dismiss the suit. The state argued that Indiana’s election law is constitutional under both the First and Fourteenth Amendments.

But Sweeny said in his ruling that the plaintiffs’ constitutional challenge needs further analysis: “It is far too early for the court to say that no relief is possible on the facts as alleged.”

Indiana election law imposes “ever-greater burdens” on minor parties

Indiana’s current law stipulates that any political party which earns 10% of the vote in the last election for secretary of state can nominate their candidates for federal, state, legislative and local offices in the primary election.

To be guaranteed general election ballot placement in the secretary of state’s race, the party must earn 2% of the total vote cast at the last election for secretary of state in the election district that the candidate seeks to represent.

But without that vote count, minor parties must start from scratch and collect thousands of signatures to participate in the next race.

The number of necessary signatures — which is roughly 45,000 for 2022 — is equal to that same 2% margin.

The law took effect in the 1980s. Before that, the signature requirement was only 0.5% of the secretary of state’s votes in a previous election.

Since then, there have been just eight successful attempts by minor parties or independent candidates to collect the necessary signatures required by Indiana law to secure a spot in a state election, according to the lawsuit.

Plaintiffs in the lawsuit say the requirement is an extra, unfair burden on non-major political parties.

“These separate procedures provide Major Parties guaranteed access to the general election ballot, at taxpayer expense,” lawyers said in the lawsuit, adding that minor parties and Independents only gain that access “if they bear the expense of complying with the burdensome and costly procedures.”

The high cost of meeting state requirements

The necessary signatures have to be pre-verified by county election officials where the petition-signers live before they are sent to the secretary of state, per Indiana law. Nomination petitions have to be collected in-person, by hand on paper and can’t be signed electronically like in other states.

“Indiana’s nomination petition procedure itself is obsolete and inadequate to the task,” the lawsuit says. “Collecting signatures by hand is inherently time-consuming, labor-intensive and expensive. The large number of signatures that Indiana now requires Minor Parties and statewide Independents to collect therefore requires a massive expenditure of funds and resources.”

To obtain the 44,935 valid signatures required in 2022, a minor party or Independent must enlist enough trained petition circulators to work approximately 6,913 hours on a statewide petition drive, according to the lawsuit.

That doesn’t include the additional hours required to organize, review and deliver nomination petitions to each county voter registration office, as well as the time to “retrieve the nomination petitions and deliver them to the Secretary’s office, and the time required for management, training and oversight of the effort.”

The plaintiffs maintain that volunteer petition circulators are usually unable to work full-time on a petition drive. So, to complete a successful statewide petition drive, minor parties and Independents are forced to hire paid petition circulators at a rate of $7.50 per signature or more.

Based on those rates, and including transportation, signature review and other necessary expenses, a successful statewide petition drive in 2022 is expected to cost approximately $465,000 to $565,000, according to the lawsuit.

Those added expenses inhibit minor parties and Independent candidates from instead raising and spending funds to promote their political goals.

“Plaintiffs’ exclusion from the electoral process harms their ability to engage in political speech for purposes of influencing the public debate and prevents them from representing the interests of their voter-supporters within the electoral arena, as well as the interests of all voters who desire more meaningful choices on the general election ballot,” the lawyers said in their complaint.

“It also denies them one of the most valuable opportunities of building voter support for their political platforms – by running candidates for public office – and dissuades voters from supporting them.”