Petition for Writ of Certiorari — John Rust, Petitioner v. Diego Morales, Indiana Secretary of State, et al.

No. 23In the

Supreme Court of the United States

JOHN RUST,

Petitioner,

v.

DIEGO MORALES, IN HIS OFFICIAL CAPACITY AS

INDIANA SECRETARY OF STATE, THE INDIANA

ELECTION COMMISSION, AND AMANDA LOWERY,

IN HER OFFICIAL CAPACITY AS JACKSON

COUNTY REPUBLICAN PARTY CHAIR,

Respondents.

On Petition for a Writ of Certiorari to the

Indiana Supreme Court

PETITION FOR WRIT OF CERTIORARI

Michelle C. Harter

Counsel of Record

Lekse Harter, LLC

3209 West Smith Valley Road,

Suite 134-4

Greenwood, IN 46142

(908) 307-7570

michelle@lekseharter.com

Counsel for Petitioner

June 28, 2024

116701

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Indiana Code section 3-8-2-7(a)(4) (the “Affiliation

Statute”) requires that, in order to run in a primary

election as a Republican or Democrat, a candidate: 1)

must have voted in the primary for the party they wish

to run for in the last two primary elections in which the

candidate voted; or 2) must obtain a written certification of

party membership from their county party chair. Neither

membership nor certification are defined by Indiana law.

Indiana primaries are not closed.

The question presented is:

Whether the Affiliation Statute violates Indiana

citizens’ right to freely associate with the

political party of their choosing pursuant to

the First and Fourteenth Amendments to the

United States Constitution.

ii

PARTIES TO THE PROCEEDING

Petitioner John Rust was the plaintiff-appellee below.

Respondents Diego Morales, in his official capacity

as Indiana Secretary of State, the Indiana Election

Commission, and Amanda Lowery, in her official capacity

as Jackson County Republican Party Chair, were the

defendants-appellants below.

iii

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to this

case within the meaning of Rule 14.1(b)(iii):

Indiana Supreme Court:

• Rust v. Morales, et al., No. 23S-PL-00371

(opinion issued March 6, 2023, rehearing denied

on April 22, 2024)

Marion County Superior Court:

• Rust v. Morales, et al., No. 49D12-2309PL-036487 (order granting injunction entered

December 7, 2023)

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 4

A. Legal Background . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.

This Court’s ballot access jurisprudence . . 4

2.

Indiana’s ballot access . . . . . . . . . . . . . . . . . . 7

v

Table of Contents

Page

3.

Impact of the 2022 statute on Hoosiers

and prior litigation . . . . . . . . . . . . . . . . . . . . 10

B. Factual and Procedural Background . . . . . . . . 11

REASONS FOR GRANTING THE PETITION . . . . 18

I.

There is significant confusion regarding

application of the Anderson/Burdick test

that this Court should resolve . . . . . . . . . . . . . . 18

A. Courts applying Anderson/Burdick are

split regarding whether to use a flexible

balancing test or a two-track scrutiny

standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

B. Courts are also split on what a “severe”

burden is . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. Courts are adopting state interests in

the abstract with no examination of their

strength and legitimacy in application in

contravention to Anderson/Burdick . . . . . 23

D. It is hard to reconcile Anderson/Burdick

with this Court’s ballot access precedent

generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

vi

Table of Contents

Page

1.

R e g a r d l e s s of t h e l e ve l of

scr utiny applied, this Cou r t

has never upheld a temporal

ballot access restriction of a

lengthy duration . . . . . . . . . . . . . . . . . . 27

2. T h i s C ou r t h a s r ep e at e d ly

emphasized that the rights of

parties are not absolute and that

the right of the party means all

party members not just party

leadership . . . . . . . . . . . . . . . . . . . . . . . . 28

3. T h i s C ou r t h a s r ep e at e d ly

stated that access to the general

election ballot is not an adequate

subst itut e for access t o the

primary ballot . . . . . . . . . . . . . . . . . . . . 30

4. While this Court has addressed

ballot access in other contexts,

it has never addressed it in the

present context and guidance

is needed . . . . . . . . . . . . . . . . . . . . . . . . . 33

II. I n d i a n a ’s b a l l o t a c c e s s l a w s a r e

perhaps the nation’s most restrictive,

and this case presents an opportunity

for this Court to resolve both novel and

lingering ballot access issues that will

certainly recur . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE INDIANA

SUPREME COURT, FILED MARCH 6,

2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — FINDING S OF FACT,

C ONC LU S IONS T H ER E ON, A N D

JUDGMENT/ ORDER ON THE PLAINTIFF’S

MOTION FOR INJUNCTIVE RELIEF OF

THE STATE OF INDIANA, COUNTY OF

MARION, MARION SUPERIOR COURT 12,

FILED DECEMBER 7, 2023 . . . . . . . . . . . . . . . . 119a

APPENDIX C — PUBLISHED ORDER OF

THE INDIANA SUPREME COURT, FILED

FEBRUARY 15, 2024 . . . . . . . . . . . . . . . . . . . . . . . 154a

APPENDIX D — PUBLISHED ORDER OF

THE INDIANA SUPREME COURT, FILED

FEBRUARY 27, 2024 . . . . . . . . . . . . . . . . . . . . . . . 156a

APPENDIX E — ORDER of the INDIANA

SUPREME COURT, FILED APRIL 22, 2024 . . 158a

APPENDIX F — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160a

viii

TABLE OF CITED AUTHORITIES

Page

CASES

Anderson v. Celebrezze,

460 U.S. 780 (1983) . . . . . . . . . . . . . . 5-7, 22, 23, 28, 33

Bookwalter v. Indiana Election Comm’n,

209 N.E.3d 438 (Ind. Ct. App. 2023) . . . . . . . . . . . . . 11

Bullock v. Carter,

405 U.S. 134 (1972) . . . . . . . . . . . . . . . . . . . . . . 5, 31, 33

Burdick v. Takushi,

504 U.S. 428 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 23

California Democratic Party v. Jones,

530 U.S. 567 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2008) . . . . . . . . . . . . . . . 1, 7, 15, 17-19, 21

Eu v. San Francisco Cnty. Democratic Cent.

Comm.,

489 U.S. 214 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Fish v. Schwab,

957 F.3d 1105 (10th Cir. 2020) . . . . . . . . . . . . . . . . . . 19

Grayned v. City of Rockford,

408 U.S. 104 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Hero v. Lake County Election Bd.,

42 F.4th 768 (7th Cir. 2022) . . . . . . . . . . . 14, 19, 21, 30

ix

Cited Authorities

Page

Herr v. State,

212 N.E.3d 1261 (Ind. Ct. App. 2023) . . . . . . . . . . . . . 9

Kusper v. Pontikes,

414 U.S. 51 (1973) . . . . . . . . . . . . . . . . . . . . . 4, 11, 27, 33

Lee v. Keith,

463 F.3d 763 (7th Cir. 2006) . . . . . . . . . . . . . . 20, 21, 37

Lubin v. Panish,

415 U.S. 709 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Luft v. Evers,

963 F.3d 665 (7th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 37

Lumm v. Simpson,

207 Ind. 680, 194 N.E. 341 (1935) . . . . . . . . . . . . . . . 13

Mazo v. New Jersey Sec’y of State,

54 F.4th 124 (3d Cir. 2022),

cert. denied sub nom. Mazo v. Way,

144 S. Ct. 76, 217 L. Ed. 2d 13 (2023) . . . . . . . . . . 20, 24

Morales v. Rust,

228 N.E.3d 1025 (Ind. 2024) . . . . . . . . . . . . . . . . . . . . 2

Munro v. Socialist Workers Party,

479 U.S. 189 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 24, 26

NAACP v. Alabama,

357 U.S. 449 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

x

Cited Authorities

Page

Navarro v. Neal,

716 F.3d 425 (7th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 19

New York State Bd. of Elections v. López Torres,

552 U.S. 196 (2008) . . . . . . . . . . . . . . . . . . . . . 14, 33, 34

Norman v. Reed,

502 U.S. 279 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rainey v. Indiana Election Comm’n,

208 N.E.3d 641 (Ind. Ct. App. 2023) . . . . . . . . . . . . . 11

Ray v. State Election Board,

422 N.E.2d 714 (Ind. Ct. App. 1981) . . . . 11, 16, 32, 33

Richardson v. Texas Sec’y of State,

978 F.3d 220 (5th Cir. 2020) . . . . . . . . . . . . . . . . . 19, 23

Rosario v. Rockefeller,

410 U.S. 752 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 27, 33

Schmitt v. LaRose,

933 F.3d 628 (6th Cir. 2019) . . . . . . . . . . . . . . . . . 19, 21

Storer v. Brown,

415 U.S. 724 (1974) . . . . . . . . . . . . . . . . . . . . . 27, 30-33

Tashjian v. Republican Party,

478 U.S. 208 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

xi

Cited Authorities

Page

Thompson v. Dewine,

959 F.3d 804 (6th Cir. 2020) . . . . . . . . . . . . . . . . . 19, 21

Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 24, 26

United States v. Classic,

313 U.S. 299 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Utah Republican Party v. Cox,

892 F.3d 1066 (10th Cir. 2018) . . . . . . . . . . . . . . . 30, 32

Wyatt v. Wheeler,

936 N.E.2d 232 (Ind. Ct. App. 2010) . . . . . . . . . . . . . 11

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . . 3

STATUTES AND OTHER AUTHORITIES

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

9 A.R.S. § 16-311(H) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

10 Ill. Comp. Stat. 5/7-10 . . . . . . . . . . . . . . . . . . . . . . . . . 36

N.J. Stat. § 19:23-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

xii

Cited Authorities

Page

N.J. Stat. § 19:23-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Andrew Vazquez, Updating Anderson/Burdick

to Evaluate Partisan Election Manipulation, 1

FORDHAM L. VOTING RTS. & DEMOCRACY

F. 44 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Bipartisan Policy Ctr., 2022 Primary Turnout:

Trends and Lessons for Boosting Participation

(2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 35

Douglas, Joshua A., “(Mis)Trusting States to

Run Election” 92 Wash. U. L. Rev. 553 (2015) . . . . . 24

Pew Research Center. Party affiliation among

a du lt s i n Ind i a na , va i lable at https: //

w w w.pew forum.org /relig ious-landscapestudy/state/indiana/party-affiliation/ . . . . . . . . . . . . 10

1

PETITION FOR WRIT OF CERTIORARI

INTRODUCTION

This case demonstrates problems with this Court’s

ballot access precedent that need to be revisited and

clarified and are of national importance. That is, this

Court’s Anderson/Burdick test leaves several important

questions unresolved such as: 1) what levels of scrutiny

are available when evaluating a ballot access challenge; 2)

what a severe burden is; 3) how should state interests be

scrutinized; 4) how the test should work with this Court’s

other ballot access precedent; and 5) how far political

party leadership may go with its control over the party

and a state’s ballot access scheme.

This Court addressed the Anderson/Burdick test

most significantly and most recently in Crawford v.

Marion Cnty. Election Bd., 553 U.S. 181 (2008), but the

Court was split with regard to what levels of scrutiny

are available when evaluating state ballot access law,

and therefore, no clear guidance exists. Since Crawford,

courts have continued to struggle with application of the

test and this case presents circumstances never addressed

by this Court—that is, when the issue is primary ballot

access in a state without closed primaries and the state

statute at issue presumptively disqualifies most citizens

from running for office.

The Indiana Supreme Court also struggled with these

issues and issued a split 3-2 decision. The majority opinion

gives sweeping powers to party leadership in Indiana and

disregards not only Indiana’s own long-standing ballot

access precedent but also this Court’s precedent. The

2

dissent and the trial court put the rights of the voters first

and recognized that the state’s interests are distinct from

those of the political party leadership’s interests.

Indiana’s ballot access laws are uniquely harsh, and

Indiana consistently has low voter turnout. This Court

should review and set aside the Indiana Supreme Court’s

decision and clarify ballot access law.

OPINIONS BELOW

The opinion of the Indiana Supreme Court is reported

at Morales v. Rust, 228 N.E.3d 1025, 1030 (Ind. 2024).

(App. 1a-118a.) The opinion of the Marion County Superior

Court is unpublished but included in the Appendix at App.

119a-153a.

JURISDICTION

The Indiana Supreme Court entered judgment on

March 6, 2024. (App. 1a-118a.) Rehearing was denied on

April 22, 2024. (App. 158a.) Petitioner requests a writ of

certiorari pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the government for a redress of grievances.

3

Section 1 of the Fourteenth Amendment provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

state wherein they reside. No state shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Indiana Code section 3-8-2-7(a)(4) provides that in order

for a candidate to run as a Republican or a Democrat,

when declaring their candidacy, he or she must include:

(4) A statement of the candidate’s party

affiliation. For purposes of this subdivision,

a candidate is considered to be affiliated with

a political party only if any of the following

applies:

(A) The two (2) most recent primary

elections in Indiana in which the

c a nd id at e vot ed wer e pr i m a r y

elections held by the party w ith

which the candidate claims affiliation.

If the candidate cast a nonpartisan

ballot at an election held at the most

recent primary election in which the

candidate voted, a certification by the

county chairman under clause (B) is

required.

4

(B) The county chairman of:

(i) the political party with which the

candidate claims affiliation; and

(ii) the county in which the candidate

resides; certifies that the candidate is

a member of the political party.

The declaration of candidacy must inform

candidates how party affiliation is determined

under this subdivision and permit the candidate

to indicate on the declaration of candidacy which

of clauses (A) or (B) applies to the candidate.

If a candidate claims party affiliation under

clause (B), the candidate must attach to the

candidate’s declaration of candidacy the written

certification of the county chairman required

by clause (B).

(See App. 160a, for full statute.)

STATEMENT OF THE CASE

A. Legal Background

1.

This Court’s ballot access jurisprudence

This Court has long held that the First Amendment’s

protection of free speech, assembly, and petition logically

extends to include freedom of association, including

freedom of political association and political expression.

See, e.g., Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973) (the

First Amendment guarantees “freedom to associate with

5

others for the common advancement of political beliefs and

ideas;” a freedom that encompasses the right to associate

with the political party of one’s choice.).

It is also well-settled that “freedom to engage in

association for the advancement of beliefs and ideas is

an inseparable aspect of the ‘liberty’ assured by the

Due Process Clause of the Fourteenth Amendment....”

Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (quoting

NAACP v. Alabama, 357 U.S. 449, 460 (1958).) “[T]he right

of individuals to associate for the advancement of political

beliefs, and the rights of qualified voters, regardless of

their political persuasion, to cast their votes effectively

... rank among our most precious freedoms.” Id. at 787

(internal quotations and citations omitted.) If ballot access

restrictions treat similarly situated parties or candidates

unequally, they may violate the Fourteenth Amendment

right to equal protection of the laws. See Anderson, 460

U.S. at 786 n.7 (1983); Lubin v. Panish, 415 U.S. 709, 713

(1974).

Additionally, “the rights of voters and the rights of

candidates do not lend themselves to neat separation;

laws that affect candidates always have at least some

theoretical, correlative effect on voters.” Bullock v. Carter,

405 U.S. 134, 143 (1972). Indeed, the exclusion of candidates

not only burdens the candidates, but also “burdens voters’

freedom of association, because an election campaign is

an effective platform for the expression of views on the

issues of the day, and a candidate serves as a rallying-point

for like-minded citizens.” Anderson, 460 U.S. at 787-88.

This Court has set forth a balancing test for assessing

the constitutionality of ballot access restrictions, such as

6

those in this case, commonly known as the Anderson/

Burdick test. Under that test, courts must:

1. consider the character and magnitude of

the asserted injury to the rights protected

by the First and Fourteenth Amendments

that the plaintiff seeks to vindicate;

2. identify and evaluate the precise interests

put forward by the State as justifications for

the burden imposed by its rule; and

3. determine the legitimacy and strength of

each of those State interests; as well as

the extent to which those interests make it

necessary to burden the plaintiff ’s rights.

Id. at 789.

Further, when the burden on ballot access is severe,

the statute will be subject to strict scrutiny and must be

narrowly tailored and advance a compelling state interest.

Burdick v. Takushi, 504 U.S. 428, 434 (1992). If it is

“reasonable” and “nondiscriminatory,” the statute will

survive if the state can identify “important regulatory

interests” to justify it. Id.

Since Burdick, courts throughout the country have

applied the Anderson/Burdick test but have struggled

to consistently determine what level of scrutiny applies

or how the test works in any particular situation. Even

this Court has struggled with application of the test. It

addressed the level of scrutiny that should be applied

pursuant to the Anderson/Burdick test most significantly

7

in Crawford v. Marion Cnty. Election Bd., 553 U.S. 181

(2008) and there the Court was split 3-3-3. The Crawford

plurality authored by Justice Stevens announced a sliding

scale, flexible test for balancing interests. It emphasized

that “[h]owever slight [the] burden may appear ... it must

be justified by relevant and legitimate state interests

‘sufficiently weighty to justify the limitation.’” Crawford,

553 U.S. at 191 (quoting Norman v. Reed, 502 U.S. 279,

288-89 (1992)). This is consistent with Anderson wherein

the Court stated that if there is “a less drastic way

of satisfying its legitimate interests,” the state “may

not choose a legislative scheme that broadly stifles the

exercise of fundamental personal liberties. Anderson,

460 U.S. at 806 (internal citation and quotation marks

omitted.)

However, the Crawford concurrence authored

by Justice Scalia rejected a flexible test and instead

asserted that when assessing the level of scrutiny there

is a “two-track approach:” strict scrutiny or a rational

basis standard only, but not an intermediate standard.

Crawford, 553 U.S. at 204-05.

2.

Indiana’s ballot access

Effective January 1, 2022, the Affiliation Statute

provides that in order to run as a Republican (or

Democratic) candidate, a candidate must file a CAN-2

form including a statement of his party affiliation, and

such affiliation is established only the candidate meets

one of two conditions:

(A) The two (2) most recent primary elections

in Indiana in which the candidate voted were

8

primary elections held by the party with which

the candidate claims affiliation. If the candidate

cast a nonpartisan ballot at an election held at

the most recent primary election in which the

candidate voted, a certification by the county

chairman under clause (B) is required. (“Option

A”)

OR

(B) The county chairman of:

(i) the political party with which the candidate

claims affiliation; and

(ii) the county in which the candidate resides;

certifies that the candidate is a member of the

political party. (“Option B”)

Indiana Code 3-8-2-7(a)(4), as amended by P.L. 1932021, SEC 17, eff. 1/1/2022 and PL 109-2021, SEC. 8, eff.

1/1/2022.

The immediate prior version of the statute (effective

from July 1, 2013-December 31, 2021) only required voting

in one primary for the party a candidate seeks to affiliate

with (or party chair approval). The original version of the

statute (effective from 1986 through June 30, 2013) allowed

for three ways to demonstrate party affiliation, including

an option for voters who did not vote in any primaries to

affiliate by choice: “The candidate has never voted in a

primary election and claims a party affiliation.” Ind. Code

§ 3-8-2-7(a)(4) (2013).

9

Indiana’s primary elections are not closed. Indiana’s

primaries have been described as “semi-closed,” a

description that is perhaps misleading. See Herr v. State,

212 N.E.3d 1261, 1264 n.1 (Ind. Ct. App. 2023) (“no

formal membership or enrollment, or registration with

the party is required.”) Indeed, Hoosiers may vote in the

primary of either party, if 1) at the last general election,

the voter voted for a majority of the regular nominees

of the political party holding the primary election; or 2)

if the voter did not vote in the last general election, the

majority of candidates that the voter intends to vote for in

the next general election, are the candidates of the political

party holding the primary election. I.C. § 3-10-1-6. This

requirement is unenforceable. There is no way to know

how a voter previously voted or what a voter intends to do

in the future. Accordingly, voting in an Indiana primary

is not necessarily an indicator of party membership or

loyalty.

In addition to the affiliation requirement, certain

candidates, such as a U.S. Senate candidate, in Indiana

must also meet a petitioning requirement. That is, a

candidate must obtain at least 4,500 signatures from

registered voters statewide—500 for each of Indiana’s

nine congressional districts. I.C. § 3-8-2-8(a).

Indiana uses a convention to elect certain offices such

as state attorney general, secretary of state, auditor of the

state, treasurer of the state and lieutenant governor (I.C.

§ 3-8-4-2); however, to elect state and U.S. representatives

and senators as well as the governor, it uses primary

elections that are taxpayer funded. I.C. § 3-8-2-1 et

seq.; I.C. § 3-5-3-1 et seq.; App. 131a. Republicans and

Democrats in Indiana are required to hold primaries.

I.C. § 3-10-1-2.

10

3.

Impact of the 2022 statute on Hoosiers and

prior litigation

While most Hoosiers identify as either a Republican

or a Democrat, most do not vote in primaries. According

to Pew Research, 79% of Hoosier adults identify as a

Republican or Democrat,1 but only 24% of registered

Hoosiers voted in the 2020 primaries. As such, under

the 2022 amendment to the Affiliation Statute, the vast

majority of Hoosiers (approximately 81%2), including Rust,

became presumptively ineligible to run for office unless

their county party chair certifies them as a member of the

party. The statute provides no guidelines or definitions

for either party membership or certification.

Rust is the third candidate to file a lawsuit regarding

the constitutionality of Affiliation Statute since the statute

1. Pew Research Center. Party affiliation among adults

in Indiana. Available at https://www.pewforum.org/religiouslandscape-study/state/indiana/party-affiliation/

2. Only 24% of registered voters voted in the 2020 primary

election. 24% of%79 = .1896% meaning that approximately 19%

of Hoosiers are primary voters; 81% of Hoosiers are not. This is

a conservative estimate. That someone votes in one primary does

not mean they vote in two and for the same party, consecutively.

Also, Rust uses the higher 2020 voter turnout in this calculation.

There was more turnout in 2020 than in 2018 or 2022. https://

www.in.gov/sos/elections/voter-information/files/2018-PrimaryElection_Turnout_and_Registration_20181129_120427PM.pdf;

https://www.in.gov/sos/elections/voter-information/files/2022PERT.pdf Historically, Indiana voter turnout at primaries is

approximately 15%. See generally, Bipartisan Policy Ctr., 2022

Primary Turnout: Trends and Lessons for Boosting Participation

(2023) at 29-32.

11

was amended to add a second primary. Indiana appellate

courts declined to address the merits of the two cases

prior to this one, citing mootness, as the May 2022 primary

election passed by the time those cases were before the

appellate court. See Rainey v. Indiana Election Comm’n,

208 N.E.3d 641 (Ind. Ct. App. 2023), transfer denied;

Bookwalter v. Indiana Election Comm’n, 209 N.E.3d 438

(Ind. Ct. App. 2023), transfer denied.

A panel of the Indiana Court of Appeals called the

prior, less restrictive version of the same statute (that

required only voting in one primary) “not essential to a

valid election.” Wyatt v. Wheeler, 936 N.E.2d 232, 239-40

(Ind. Ct. App. 2010). In Kusper, this Court struck down

an Illinois statute that “locked” voters into their preexisting party affiliation for a 23-month period following

their vote in any primary. 414 U.S. at 51. Citing Kusper,

the Indiana Court of Appeals questioned even a 30-month

restriction. Ray v. State Election Board, 422 N.E.2d 714,

721 (Ind. Ct. App. 1981) (questioning the constitutionality

of a restriction on a voter’s freedom of association if, after

voting for party A in the 1980 general election, but having

switched their allegiance, and having contributed both

time and money to party B from December 1980 on, a

voter was prohibited from voting in party B’s primary

two and one-half years later). The Affiliation Statute

restricts party members’ votes and ability to run for office

for much longer.

B. Factual and Procedural Background

Petitioner, John Rust, is a farmer from Seymour,

Indiana who sought access to be on the Republican

primary ballot for U.S. Senate in May 2024. (App. 121a)

12

He is also a Republican voter who seeks to cast his vote

effectively. (App. 139a) Rust is a lifelong Republican

who upholds the party’s core principles, always votes for

Republicans in the general elections, and has donated

thousands of dollars to Republican candidates. (App. 85a,

126a) Rust voted in the Republican primary in 2016 but did

not vote in 2020 as that election was moved due to Covid-19.

(App. 125a) Rust voted in Democratic primaries over 10

years ago and he testified during his deposition that each

of those times was for family or friends from church. (Id.)

Because Rust did not have the required voting record

pursuant to Option A in the statute, on July 19, 2023,

Rust met with Jackson County, Indiana Republican

chair, Amanda Lowery, to request she provide written

certification of Rust’s membership in the Republican party

pursuant to Option B. (App 125a) During that meeting,

Lowery expressed concerns about Rust having previously

voted in Democratic primaries and told Rust she would

not certify him or any Republican candidate that that

did not vote in the two primaries pursuant to Option A in

the statute, a position she reported to the media as well.

(Id.) Then once Rust formally announced his candidacy,

Lowery contacted Rust to tell him he was “wasting his

money” and that there was “no way” she would ever

certify him. (App. 125a-126a) Then after Rust filed suit,

Lowery tendered an affidavit to the trial court citing other

reasons she allegedly did not certify Rust. (App. 126a.)

None of these reasons were discussed with Rust prior to

Lowery declining to certify him, and her list of reasons

failed to mention is current positions on the issues and his

Republican donations to non-local Republican candidates.

(Id.)

13

Because Rust was unable to check either box on his

CAN-2 form to demonstrate party affiliation pursuant

to I.C. § 3-8-2-7(a)(4), he filed suit seeking declaratory

and injunctive relief. (App 126a-127a) He argued that the

statute violates the federal and Indiana constitutions in

numerous respects, including that it violated his right

to freely associate. (Id.) After an injunction hearing

combined with a trial on the merits, the trial court issued

an order finding that the statute was unconstitutional

and enjoining its enforcement. (App. 119a-153a) In its

order, the trial court noted what the Indiana Supreme

Court aptly stated long ago about the very purpose of all

election law: “ ... The purpose of the law and the efforts

of the court are to secure to the elector an opportunity to

freely and fairly cast his ballot, and to uphold the will of

the electorate and prevent disfranchisement.” Lumm v.

Simpson, 207 Ind. 680, 683-84, 194 N.E. 341, 342 (1935)

(App. 129a-130a.) With this purpose in mind, and after

noting that primaries are state run and financed, the

Court declared that the statute: 1) violates Rust’s First

and Fourteenth Amendment rights; 2) is vague and overly

broad; 3) violates the Seventeenth Amendment by taking

power away from the voters and giving it to the legislature

and party chairs; and 4) violates the Indiana constitution

in two ways. (App. 130a-153a)

The trial court also made several key factual findings:

1. that the State’s articulated interests were

“disingenuous and inconsistent” (App.

138a-139a);

2. that there was speci f ic, un rebutt ed

evidence in the record that the statute could

14

never serve the alleged State interest of

ensuring party loyalty or membership (App.

135a-136a);

3. that the State could not credibly claim Rust

was excluded as a member of the Republican

party as he was welcomed to participate by

his local party (App. 150a); and

4. that the statute excludes the vast majority

of Hoosiers from the ballot (App. 120a.)

The State appealed and sought a stay of the trial

court’s injunction. The Indiana Supreme Court 3 expedited

the case, and after holding oral argument, it granted a

stay. (App. 154a). Rust sought relief from the stay which

was denied. (App. 156a.) In the order denying relief from

the stay, the Court indicated that it was reversing the trial

court in full and remanding. (Id.)

In a 3-2 split decision, the Indiana Supreme Court

majority reversed the trial court. The majority found

that the statute was only a “minor,” “reasonable and

nondiscriminatory” restriction and focused on the political

party’s First Amendment right to limit its membership

and to choose the best candidate. (App. 3a-4a, 21a). Relying

on New York State Bd. of Elections v. López Torres, 552

U.S. 196 (2008) and Hero v. Lake County Election Bd.,

42 F.4th 768 (7th Cir. 2022), the majority found that Rust

3. Pursuant to Ind. Appellate Rule 4(1)(b), the Indiana

Supreme Court has mandatory and exclusive jurisdiction in appeals

where a state statute has been struck down as unconstitutional.

As such, this case bypassed the Indiana Court of Appeals.

15

has no right to run for U.S. Senate let alone the right to

run as the Republican nominee or to have a “fair shot” to

win the Republican party’s nomination, but that the party

had the right to reject him. (App. 17a, 22a, 26a.)

The majority found that protecting a party’s

associational rights was a state interest. (App. 26a.) And

it noted other state interests such as “preventing voter

confusion by preserving party identifiability, avoid ballot

overcrowding and frivolous candidacies, and maintaining

order, rather than chaos in Indiana’s primary and general

elections.”4 (App. 30a-31a.) After listing these interests,

with further explanation, the majority concluded that

“[w]ith these interests in mind, we conclude the State

has several important interests supporting the Affiliation

Statute.” (App. 31a.) In response to criticism by the dissent

that the majority contains no analysis of how the State’s

interests are necessary to burden Rust’s constitutional

rights, the majority indicated that it applied the two-track

approach offered by the Scalia concurrence in Crawford

and determined that the burden was not severe and that

the state’s claimed interests were “generally sufficient on

their own terms.” (App. 39a-40a)

The majority also rejected Rust’s argument that the

Affiliation Statute was void-for-vagueness because it is

not clear what the party chair must certify under Option

B of the statute (party membership or something more).

(App. 43a) It reasoned that the void-for-vagueness statute

4. See App. 131a, 134a where the trial court notes that the

interests asserted by the State were the interests of the Republican

party, a non-party to the lawsuit. Further, the trial court found

that the State’s articulation of its interest was “disingenuous and

inconsistent with their prior arguments.” (App. 138a-139a)

16

does not apply in a civil ballot access context, contrary to

the Indiana Court of Appeals holding that it did in Ray.

It also distinguished the facts of Ray from the present

facts. (App 44a-47a)

The majority rejected all of Rust’s other arguments

and concluded that:

Political parties do not exist to lose elections.

The blunt lesson of these examples is that if you

fail to comply with voting history requirements

but they think you can win, they will let you in;

if they think you hurt their chances or do not

represent their values, they will keep you out.

(App. 58a-59a)

The concurrence, for its part, admits that “determining

exactly what local party chairs are supposed to certify”

is “another source of confusion.” (App. 64a.) It further

agrees with Rust’s position that “the statute says the

county chair certifies whether a candidate is ‘member

of the political party.’ That’s it. Nothing in the statute

authorizes the county chair to withhold that certification

because the chair doesn’t want the candidate to seek the

party’s nomination for a particular office.” (App. 65a.)5

5. The State previously asserted that party membership

alone was not enough. See App. 137a-139a. Additionally, the

Republican party’s official “certification” form reads as a

“permission to run” letter and clearly limits certification to a time

period and for a particular race only. https://www.indiana.gop/

sites/default/files/CA-1_Declaration_in_Support_of_Candidacy.

pdf. This past primary, candidate Marquest Higgins was removed

because of the statute. A year ago, his party chair certified him

17

Nevertheless, the concurrence faults Rust for not seeking

out-of-court remedies through the party, argues that the

statute needs to be enforced not invalidated, and opines

that because the party alone can decide who runs for office

(if primaries are done away with), Rust’s claims have no

merit. (App. 66a-84a)

Two of the five justices of the Indiana Supreme Court

dissented, because they believe the Affiliation Statute

infringes on Rust’s right to freely associate. (App. 85a.)

The dissent notes Indiana’s shift away from conventions

to primary elections where the voters, not just the party

leaders, select candidates. (App. 85a-91a) It notes that

Indiana has an approximately 15% voter turnout rate and

yet some of the highest hurdles in the nation for primary

ballot access. (App. 91a-92a.)

Unlike the majority, the dissent would apply the

flexible balancing test articulated by the Crawford

plurality authored by Justice Stevens instead of Scalia’s

two-track approach. (App. 95a.) After balancing the

burden on Rust versus the state’s alleged interests, it

determined that the burden on Rust is substantial and

the State’s articulated interests, while legitimate in the

abstract, do not justify the burden. (App. 96a-116a.)

The dissent disagrees with the majority’s position that

the restriction on Rust is minor because he can just run

as an independent or write-in candidate in the general

as a Republican. This year, his party chair is challenging him for

not being certified as that certification was limited in time and

by what office Higgins ran for. https://news.yahoo.com/electionboard-removes-2-candidates-045900421.html

18

election, noting the impracticalities of doing so given

Indiana law and Rust’s Republican bona fides, as well as

the fact that Rust is seeking to freely associate with the

Republican party, not get on the ballot any way possible.

(Id.) It further examines in detail each of the state’s alleged

interests, explaining in detail how they are not relevant or

applicable given the record and Indiana’s entire election

scheme. (App. 101a-115a) It also notes that the state has

a limited interest in protecting the political parties. (App.

107a-116a) The dissent notes how the certification option

in the Affiliation Statute is vague and arbitrary as party

membership is undefined and the standardless statute

encourages discrimination and resolution on an “ad hoc

and subjective basis.” (App. 113a-114a quoting Grayned v.

City of Rockford, 408 U.S. 104, 108-109 (1972).) Finally, the

dissent states that the majority “would seem to discard the

Anderson/Burdick test altogether, giving the legislature

unrestricted authority to regulate the primary ballot any

way it sees fit.” (App. 116a)

REASONS FOR GRANTING THE PETITION

I.

There is significant confusion regarding application

of the Anderson/Burdick test that this Court should

resolve.

A.

Courts applying Anderson/Burdick are split

regarding whether to use a flexible balancing

test or a two-track scrutiny standard.

As demonstrated by this Court’s split Crawford

opinion, courts are split on what levels of scrutiny are

available when applying Anderson/Burdick. That is, some

courts apply a flexible, sliding scale balancing test. The

Sixth Circuit recently articulated this approach:

19

W hen States impose reasonable

nondiscriminatory restrictions, courts apply

rational basis review and the State’s important

regulatory interests are generally sufficient to

justify the restrictions. But when States impose

severe restrictions, such as exclusion or virtual

exclusion from the ballot, strict scrutiny applies.

For cases between these extremes, we weigh

the burden imposed by the State’s regulation

against the precise interests put forward by the

State as justifications for the burden imposed

by its rule, taking into consideration the extent

to which those interests make it necessary to

burden the plaintiff ’s rights.

Thompson v. Dewine, 959 F.3d 804, 808 (6th Cir. 2020)

(internal citations and quotations omitted). See also,

Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019); Fish

v. Schwab, 957 F.3d 1105, 1124 (10th Cir. 2020).

But other courts omit the intermediate level of

scrutiny and apply the two-track approach set forth in

Justice Scalia’s Crawford concurrence:

First, we determine whether the law imposes

severe or reasonable and nondiscriminatory

rest r ictions on cand idat es’ and vot ers’

constitutional rights so that we can ensure

application of the appropriate level of scrutiny.

Navarro v. Neal, 716 F.3d 425, 430 (7th Cir. 2013) See

also, Hero, 42 F.4th 768, 775; Richardson v. Texas Sec’y

of State, 978 F.3d 220, 235 (5th Cir. 2020).

20

In other courts it is not clear if the court is adopting

a flexible standard that includes intermediate scrutiny

or not. For instance, in Lee v. Keith, 463 F.3d 763, 768

(7th Cir. 2006) the court notes that is applying a “flexible

standard” on the one hand, but then mentions only strict

scrutiny and rational basis (and not intermediate scrutiny)

as options for that flexible standard. And it seems that the

Third Circuit has adopted its own approach. That is, first

the court determines whether there is a severe burden

triggering strict scrutiny but if the law imposes only

“reasonable, nondiscriminatory restrictions ... the court

may use Anderson/Burdick’s sliding scale approach under

which a State need only show that its legitimate interests

... are sufficient to outweigh the limited burden.” Mazo

v. New Jersey Sec’y of State, 54 F.4th 124, 137 (3d Cir.

2022), cert. denied sub nom. Mazo v. Way, 144 S. Ct. 76,

217 L. Ed. 2d 13 (2023) (internal quotations and citations

omitted).

In this case, the Indiana Supreme Court majority

applied the two-track approach, and the dissent would

apply the more flexible balancing approach, each coming

to opposite outcomes about the constitutionality of the

Affiliation Statute. That courts, including this one, cannot

articulate one clear approach to what levels of scrutiny

available under Anderson/Burdick test is confusing to the

bench and bar and leads to conflicting and unpredictable

results.

B. Courts are also split on what a “severe” burden

is.

In addition to courts being split on what levels of

scrutiny are available under Anderson/Burdick, they are

21

also split on what constitutes a severe burden that would

trigger strict scrutiny. Indeed, defining what “severe”

is has been a nebulous and highly subjective task. In

Crawford, Justice Scalia characterized a severe burden

as one that goes “beyond the merely inconvenient.” 553

U.S. at 205.

Some courts have held that a law which operates to

exclude from the ballot an otherwise qualified candidate

is a severe burden. See Lee, 463 F.3d at 770-71 (exclusion

from the ballot is a “severe” burden, rejecting clam

that alternative means of qualifying for ballot access

which themselves impose onerous access requirements

can operate as a “constitutional safety valve”); see also

Thompson, 959 F.3d 804, 808 (exclusion or virtual

exclusion from the ballot is a severe burden). Conversely,

a burden is minimal when it “in no way” limits access to

the ballot. Schmitt, 933 F.3d at 641.

But other courts have been dismissive of burdens that

would seem to go far beyond the “inconvenient” including

those that result in exclusion or virtual exclusion from

ballot access. See, Hero, 42 F.4th at 776 6 (“The decision to

strike Hero’s name from the ballot imposed only a minor

restriction on his ballot access,” noting he could run as an

Independent candidate instead.)

In this case, the Indiana Supreme Court majority

applied the Hero approach, finding that because Rust

6. Hero did not involve a state statute but rather an internal

Republican party ban. It is Rust’s position that Hero gives parties

the right to an internal party ban of a candidate without state

interference; it does not give the state the right to presumptively

disqualify the majority of candidates who do not have the required

voting record.

22

could run as an independent or write-in, the burden was

minimal. But as the dissent aptly points out, these are not

feasible alternatives under Indiana law. That is, a person

may run as an independent candidate in Indiana only if

the individual states that he or she is “not affiliated with

any political party.” I.C. § 3-5-2-26.6. Rust is Republican,

however, and he has repeatedly asserted his Republican

bona fides and has consistently declared his intent to run

as a Republican. (App. 99a) If Rust runs as an Independent

and “touts his Republican virtues” as the majority

suggests he should (App. 21a), he is violating Indiana

election law. Claiming affiliation with a major political

party is expressly prohibited by Indiana’s election code,

for both independent candidates and write-in candidates

alike. I.C. § 3-8-6-5.5; I.C. § 3-8-2-2.5(b)(4). These

candidates may face legal challenges if their statements

could lead a voter to confuse them with a candidate from a

major political party. See, e.g., I.C. § 3-8-1-2.7 Additionally,

if Rust ran as a “write-in” candidate, he would not actually

appear on the ballot and this Court has recognized this is

not a suitable alternative. Anderson, 460 U.S. at 799 n.26.

Further, Rust is not seeking to vindicate his right to

run for office but rather his right to freely associate with

the Republican party. He should not have to abandon

his party affiliation to gain ballot access. And if he did

so, he would face being banned by the Republican party

just as Hero was. Indeed, the Indiana Republican party

recently banned an elected state precinct committeeman

7. This is not to mention the significant financial and logistical

hurdles that an independent candidate in Indiana faces including

the requirement that an Independent U.S. Senate candidate

would need to obtain nearly 8 times the number of signatures as

a Republican or Democrat candidate. (See App. 99a.)

23

and delegate from the party because he previously ran as

a Libertarian candidate. 8

In any case, this Court should provide guidance as to

what a severe burden is, at least with regard to the issue

here—whether denial of primary ballot access is minor if

there is some hypothetical general ballot access available,

even if such access requires a candidate to abandon their

party affiliation.

C.

Courts are adopting state interests in the

abstract with no examination of their strength

and legitimacy in application in contravention

to Anderson/Burdick.

Another problem with application of the Anderson/

Burdick test is that once courts determine that the

burden is not severe, they are skipping the second and

third steps of the test which require a court to: identify

and evaluate the precise interests put forward by the

State as justifications for the burden imposed by its rule

and determine the legitimacy and strength of each of

those State interests; as well as the extent to which those

interests make it necessary to burden the plaintiff ’s

rights. Anderson, 460 U.S. at 789. That is, once courts

identify that the burden on the plaintiff is not severe, they

assume the legitimacy and strength of the state interests

without analysis. See Richardson v. Texas Sec’y of State,

978 F.3d at 239 (“We next determine whether the State’s

important regulatory interests are ... sufficient to justify

the restrictions, and they generally are, under Burdick, if

8. https://www.yahoo.com/news/gop-official-party-rulesmore-130527946.html

24

the burden of the voting restriction is not severe.”). Even

this Court has stated with regard to the state interests

that “elaborate, empirical verification of weightiness is not

required.” Timmons v. Twin Cities Area New Party, 520

U.S. 351, 352 (1997); Munro v. Socialist Workers Party,

479 U.S. 189, 195-96 (1986).

This is problematic, especially when the plaintiffs are

held to an opposite, harsher standard:

Evidence is key to the balancing of interests at

the heart of the Anderson/Burdick framework

... A court assessing whether a plaintiff has

met his or her burden in a facial challenge

“must be careful not to go beyond the statute’s

facial requirements and speculate about

‘hypothetical’ or ‘imaginary’ cases ... we need

evidence of both the existence and prevalence

of such unconstitutional applications.

Mazo, 54 F.4th at 152.

So, while the State may assert hypothetical and

speculative interests, ones that come from case law

upholding other ballot access statutes—and not from

operation and impact of the statute at issue itself—a

plaintiff cannot so do which results in elevating the state

interests over the plaintiff ’s interests. Indeed, law review

articles have been critical of courts accepting the state

interests without analysis, particularly when those “state”

interests align with the partisan interests of the party that

controls the state government. See, e.g., Douglas, Joshua

A., “(Mis)Trusting States to Run Election” 92 Wash. U.

L. Rev. 553 (2015); Andrew Vazquez, Updating Anderson/

25

Burdick to Evaluate Partisan Election Manipulation, 1

FORDHAM L. VOTING RTS. & DEMOCRACY F. 44

(2022).

Here, the Indiana Supreme Court dissent aptly points

out in detail how and why the alleged state interests

are merely speculative and abstract. (App. 101a-112a)

For instance, one asserted state interest on appeal was

ballot overcrowding. In response to Rust and the dissent

pointing out that there is no ballot overcrowding here,

the concurrence points to the fact that there could be this

problem in the future. But the concurrence and the State

do not explain how the statute works to prevent ballot

overcrowding. It excludes candidates who did not vote in

primaries, for sure, but if 1,000 people in a county vote

in the two required primaries, under the statute, there

could be 1,000 eligible candidates on the ballot. The statute

does nothing to prevent this. To accept the state’s ballot

overcrowding argument, we must believe that only those

who do not vote in primaries can overcrowd the ballot such

that a party chair is needed to screen them.

Similarly, with regard to the state’s alleged interest

in preserving the identifiability of the two major parties,

a candidate could vote in every Republican primary,

but always vote Democrat in the general election. This

candidate would be permitted to run as a Republican and

the State has somehow made a value judgment that this

candidate is Republican while someone who voted in just

one Republican primary but always votes for Republican

candidates in the general election is somehow not a party

member. The State nor the majority explain this or the

factual findings of the trial court regarding specific

examples of how someone can run for one party when they

are actually another party. (App. 135a-136a)

26

There is also no explanation of how the voting

requirement ensures party membership given that

anyone can vote in any primary, how decades old votes

are somehow indicative of current party membership, or

the State’s admission at trial that the voting option of the

statute violates the parties’ constitutional rights. As the

trial court found: “[c]ounsel for the State Defendants even

admitted at the hearing that Option A under I. C. § 3-8-27(a)(4) would likely be struck down as unconstitutional if

it were challenged by the political parties instead of Rust.

As such, the statute cannot be said to be tailored to meet

the asserted state interest.” (App. 136a)9

Additionally, the trial court found the State’s

articulated interests to be “disingenuous and inconsistent

with their prior arguments.” (App. 139) That the State

in this case raised new arguments for the first time on

appeal, arguments different than any of the arguments it

has made across three cases regarding the same statute,

demonstrates a lack of precision, legitimacy and strength

with regard to the state’s alleged interests, at the very

least. And by not conducting a thorough analysis of the

state’s interests as applied and disregarding the trial

court’s factual findings, the Indiana Supreme Court has

disregarded the Anderson/Burdick test. (App. 116a)

Confusion about application of the test has made this

possible and this Court’s own precedent in Timmons

and Munro lends itself to the conclusion that Anderson/

Burdick test is not viable, if the applying court may

just accept any proffered state interest without further

9. The State disowned this admission on appeal without

explanation.

27

analysis or inquiry. If Anderson/Burdick is no longer

viable, lower courts need guidance on how to consistently

address ballot access challenges.

D.

It is hard to reconcile Anderson/Burdick with

this Court’s ballot access precedent generally.

1.

Regardless of the level of scrutiny applied,

this Court has never upheld a temporal

ballot access restriction of a lengthy

duration.

In cases dealing with ballot access, this Court has

never upheld a temporal restriction greater than one

year, and even then, only in the context of closed-primary

states. See Rosario v. Rockefeller, 410 U.S. 752, 762 (1973)

(upholding law requiring party registration 8 and 11

months prior to primary); Storer v. Brown, 415 U.S. 724,

736 (1974) (upholding ‘anti-sore loser law’ requiring that

independent candidates have not been registered as a

member of either party in previous year). In Kusper, this

Court struck down an Illinois statute that “locked” voters

into their pre-existing party affiliation for a 23-month

period following their vote in any primary. 414 U.S. at 51.

The Affiliation Statute locks voters who may one day

wish to run for office into their pre-existing party affiliation

for 48 months or longer. This temporal restriction exceeds

what this Court declared unconstitutional in Kusper. And

in Indiana, statewide primaries occur every 2 years.

I.C. § 3-5-1-2; I.C. § 3-10-1-3. Some Hoosiers are able to

vote more often in municipal primary elections if they

28

live within a municipality,10 but not every Hoosier lives

in one. That some Hoosiers will necessarily have more

opportunities to vote in primaries creates yet another

equal protection problem. The location of one’s residence

has absolutely nothing to do with their political affiliation

and there’s no justification for why there is disparate

treatment based on this arbitrary distinction.

Given that this Court has never upheld a temporal

restriction greater than one year, it is hard to reconcile

those holdings with the present case that applies

Anderson/Burdick but allows for a temporal restriction

that could be for four years or more. And this is true no

matter what level of scrutiny is applied.

2.

This Court has repeatedly emphasized that

the rights of parties are not absolute and

that the right of the party means all party

members not just party leadership.

The application of the Anderson/Burdick test in

this case also does not align with this Court’s holdings

regarding what level of control political parties may

exercise. For instance, this Court has recognized that

while states could regulate elections in an effort to prevent

“splintered” parties and “unrestrained factionalism” it

also explained that it “did not suggest that a political party

could invoke the powers of the State to assure monolithic

control over its own members and supporters.” Anderson,

460 U.S. at 803. And the Affiliation Statute indeed gives

the two major political parties “monolithic control.” That

is, a majority of Hoosiers do not vote in primaries, let

10. I.C. § 3-10-6.5-2

29

alone two consecutively for the same party. Thus, they will

need their county party chair to certify them, leaving the

decision about whether they can run for political office to

an unelected single party leader.

The majority of the Indiana Supreme Court has now

declared that the party leadership may select its preferred

candidate prior to the primary election, taking this

decision away from voters who are party members but not

in leadership positions. This position is contrary to this

Court’s holding that a political party’s associational rights

and interests do not begin and end with party leadership.

Tashjian v. Republican Party, 478 U.S. 208, 215 (1986) (“A

major state political party necessarily includes individuals

playing a broad spectrum of roles in the organization’s

activities.”).

To the extent that the State is asserting an interest

in protecting the two major parties, this Court in Eu v.

San Francisco Cnty. Democratic Cent. Comm., 489 U.S.

214 (1989) recognized that “[s]tates must act within limits

imposed by the Constitution when regulating parties’

internal processes,” and the state has no interest in

protecting the integrity of the party against the party

itself. 489 U.S. at 215, 232; See also California Democratic

Party v. Jones, 530 U.S. 572-73 (2000). But that is what

the State and the Supreme Court majority are focused

on here—protecting the integrity of the party leadership

from the party members (voters). Noticeably absent from

both the state’s alleged interests and the Indiana Supreme

Court’s majority opinion is any concern for the rights of the

voters. It is not clear why protecting the rights of voters is

not the state interest. As the Tenth Circuit acknowledged:

“ ... the right of the people to cast a meaningful ballot ...

30

is one of the rights through which all other rights are

protected.” Utah Republican Party v. Cox, 892 F.3d 1066,

1084 (10th Cir. 2018).

Given this Court’s holdings about the rights of parties

and a state’s interest (or not) in protecting those rights,

it would seem that an Anderson/Burdick analysis (under

any of scrutiny) would include evaluating and scrutinizing

the state’s interests when they assert the party interests

as their own, but in practice, as discussed herein and

demonstrated by this case, this is not what happens. In this

case in particular the Indiana Supreme Court’s majority

completely defers to the party’s interests (actually, the

party leaders’ alone, and not even both parties, but the

Republican party11) without considering the state’s unique

and separate role, existing precedent from this Court or

the Constitution.

3.

This Court has repeatedly stated that

access to the general election ballot is not

an adequate substitute for access to the

primary ballot.

Additionally, the Indiana Supreme Court’s majority

opinion and other case law (e.g., Hero) that applies

Anderson/Burdick only to find that denial of ballot

access for the primary is a minimal restriction because of

hypothetical opportunities to run in the general election,

contradicts this Court’s precedent. For instance, in Storer,

the Court addressed the relationship between primary

11. The Indiana Republican State committee filed an Amicus

Curiae brief below; the Democratic State Committee did not

participate in the case at all.

31

elections and general elections and their relationship to

the voters’ selection of the ultimately successful candidate:

The direct party primary ... is not merely an

exercise or warm-up for the general election but

an integral part of the entire election process,

the initial stage in a two-stage process by which

the people choose their public officers.

415 U.S. 724, 735 (1974). And in Bullock, this Court aptly

held:

... [A]ppellants rely on the fact that the filingfee requirement is applicable only to party

primaries, and point out that a candidate can

gain a place on the ballot in the general election

without payment of fees ... Apart from the fact

that the primary election may be more crucial

than the general election in certain parts of

Texas, we can hardly accept as reasonable an

alternative that requires candidates and voters

to abandon their party affiliations in order to

avoid the burdens of the filing fees imposed by

state law.

405 U.S. 134, 147 (1972).

Indeed, the Indiana Supreme Court majority opinion

requires Rust to abandon his party affiliation to gain

ballot access and denies voters choices on the primary

ballot. And in Indiana, like in Texas, because Indiana is

a Republican supermajority state, the primary election

often is the election. And as the Tenth Circuit explained:

32

a survey of the modern political landscape and

its decreasing number of truly competitive

legislative districts demonstrates that [the right

of the people to cast a meaningful ballot] can

be impaired or even rendered meaningless if

not protected at the primary level. Now, more

than ever, “we cannot close our eyes to the fact

... that the practical influence of the choice of

candidates at the primary may be so great as

to affect profoundly the choice at the general

election ... and may thus operate to deprive the

voter of his constitutional right of choice.”

Cox, 892 F.3d at 1085 (quoting United States v. Classic,

313 U.S. 299, 319 (1941).)

Indiana has not demonstrated that its ballot access

scheme is either reasonable or necessary to achieve the

alleged goals. Rust presented unrebutted evidence that

the Affiliation Statute cannot achieve those goals. (App.

135a-136a) Further, if the Indiana Legislature was truly

concerned with protecting the parties from unwanted

members, a closed primary system would be far more

effective and less burdensome than the Affiliation Statute

which presumptively excludes the majority of Hoosiers

from candidacy. Indiana case law acknowledges that a

restriction on candidates based on party membership—

even without regard for primary voting history—could

better deter “party-raiding,” without infringing on the

rights of candidates and voters. See Ray, 422 N.E.2d

at 720 (“[t]he decisive difference between California’s ...

[durational party requirement upheld by the United States

Supreme Court in Storer v. Brown] ... and ... [Indiana’s

law preventing ‘cross-filing’ based on party membership,

33

which the Ray panel held to be unconstitutional] ... is

that ... the California Election Code provides a definite

statutory means of determining party membership.”)

4.

While this Court has addressed ballot

access in other contexts, it has never

addressed it in the present context and

guidance is needed.

This Court has addressed ballot access from different

perspectives: voters (Kusper; Rosario), third-party

candidates (Anderson), as well as situations where there

is a party convention to select candidates (López Torres),

or high filing fees to run in a primary (Bullock), and closed

primaries (Rosario; Kusper; Storer) it has never before

squarely addressed the circumstances here where a state

statute allows anyone to vote in any primary and the

matter involves the two major parties (not third parties)

and tax-payer funded primary elections.

Guidance in these circumstances is important as

demonstrated by the majority’s misapplication of current

precedent to this case. That is, the majority opinion

misapplies López Torres, a convention case that challenges

the propriety of the convention system. The ballot access

at issue here is for primary ballot access.

López Torres was a candidate at the state convention.

She argued she did not have a fair chance of winning

because she was not the party leadership’s favored

candidate. 552 U.S. at 201. The Indiana Supreme Court

majority asserts Rust has no right to win either (so he

should just seek general ballot access as an independent

or write-in), and that “the blunt lesson” is that party

34

leadership does not have to support candidates they do

not think will win. (App. 58a) The opinion asserts that the

party leadership has some state protected right to have

their chosen candidate win, but Rust, whose opponent had

been endorsed by the party leadership long before this

litigation, not only has no right to win, but he also has

no right to even enter the race at all. (Id.; App 21a-22a)

But this isn’t what López Torres stands for. Indiana has

not chosen a convention; Indiana law requires primaries

for the major parties. I.C. § 3-10-1-2. If Indiana did use

a convention, under López Torres, Rust would be able to

be a candidate at the convention, even though he is not

the party leadership’s preferred candidate. And, under

Indiana’s primary election system, he should be on the

primary ballot even though the party leadership has

endorsed his opponent. Voters should decide, not the party

leadership.

The Court was also clear in López Torres that party

interests and state interests are not one in the same and

that the party’s interests are limited when the state gives

the party a role in the election process:

A political party has a First Amendment right

to limit its membership as it wishes, and to

choose a candidate-selection process that

will in its view produce the nominee who best

represents its political platform. These rights

are circumscribed, however, when the State

gives the party a role in the election process

... Then ... the State acquires a legitimate

governmental interest in ensuring the fairness

of the party’s nominating process, enabling it

to prescribe what that process must be.

López Torres, 552 U.S. at 202-03.

35

Despite this, the Indiana Supreme Court majority

gives the parties sweeping, state-funded power to use the

ruse of a primary but also get the benefit of a conventionlike system where a single party chair decides before the

primary who can run, taking that decision away from

voters. There is no “elegant balancing” of rights as the

majority claims (App. 4a) where the state interferes in

the rights of both the parties and candidates, or where

the state chooses the party leadership over the party as

a whole, the candidates and the voters.

Because application of Anderson/Burdick leads to

outcomes that contradict this Court’s other ballot access

jurisprudence regarding temporal restrictions, the roles

of party leadership, and the importance of ballot access for

primary elections, Anderson/Burdick should be revisited

and clarified. Further, this Court has not yet addressed

the circumstances here and existing case law does not

squarely apply. Guidance from this Court is needed.

II. Indiana’s ballot access laws are perhaps the

nation’s most restrictive, and this case presents an

opportunity for this Court to resolve both novel and

lingering ballot access issues that will certainly

recur.

As Rust notes above, the majority of Hoosiers do

not vote in primaries. Indeed, the Indiana Supreme

Court dissent notes that from 2010 until 2022, the

average turnout for primary elections in Indiana is

approximately 15%. (App 91a-92a); See Bipartisan Policy

Ctr., 2022 Primary Turnout: Trends and Lessons for

Boosting Participation (2023) at pp. 29-32; Indiana Bar

36

Foundation Civic Health Index12 (noting on page 7 that in

2022, Indiana ranked 50 out of 50 for voter turnout in the

nation). As such, a requirement that a primary candidate

needs to have voted in two elections, consecutively, and

for the same party, severely limits candidates in Indiana

primaries. Limited choices and uncontested races leads

to voters not participating. Indiana has created a cycle of

voter/candidate disenfranchisement.

Moreover, no other state requires a candidate to meet

an affiliation requirement quite like the one in Indiana.

Other states have closed primaries and/or require only

that a candidate file a declaration attesting to their party

membership or affiliation. See, e.g., 10 Ill. Comp. Stat.

5/7-10; N.J. Stat. § 19:23-7; Iowa Code § 43.18; 9 A.R.S.

§ 16-311(H) (Arizona law requires party registration and

a declaration statement).

Freedom of association necessarily requires that ballot

access laws accommodate changes in party allegiance and

political views. However, the Affiliation Statute makes

no allowance for changes in party allegiance. To access

the ballot for either major party, a candidate is locked

into voting in that party’s primaries for up to four years

or more under the statute. Potential candidates are not

free to change their mind, make their voices heard on

individual issues, or vote their consciences if doing so

breaks party lines. This denies most Hoosiers freedom

of association and the ability to vote effectively.

Additionally, party affiliation is not the only hurdle to

primary ballot access in Indiana. Indeed, to run for U.S.

1 2 . ht t p s: // w w w. i n b a r fo u n d a t i on . o r g / w p - c ont e nt /

uploads/2024/01/2023-Indiana-Civic-Health-Index-Report.pdf

37

Senate in the Indiana primary, a candidate needs 4,500

signatures—500 from each of the nine congressional

districts. I.C. § 3-8-2-8(a). Other states do not require

nearly as many signatures, including New Jersey,

which is much more populous than Indiana. New Jersey

only requires a U.S. Senate candidate to collect 1,000

statewide. N.J. Stat. § 19:23-8. To the extent the state

claims Indiana’s Affiliation requirement is necessary to

prove a candidate has support and is not frivolous, the

petitioning requirement already serves that purpose as

the dissent here noted. (App. 102a)

Indeed, the petitioning requirement alone precludes

many candidacies. Collecting ballot signatures is time

consuming and expensive. And the Affiliation Statute here

should be evaluated based on Indiana’s entire ballot access

scheme, including taking the petitioning requirement into

account. Luft v. Evers, 963 F.3d 665, 675 (7th Cir. 2020)

(electoral provisions cannot be assessed in isolation);

Lee, 463 F.3d at 769 (ballot access restrictions are to be

evaluated together rather than individually to assess

their combined effect on voters’ and candidates’ political

association rights).

Given Indiana’s low voter turnout, general voter

disenfranchisement, and harsh ballot access laws, this

case presents a unique opportunity for this Court to

issue guidance on primary ballot access. As the Indiana

Supreme Court dissent aptly stated: “[p]rimaries are

not meant to be opportunities for the party leaders to

crown their favored candidates—and certainly not in

uncontested ballots.” (App. 86a) But this is what has

happened in Indiana as a single party chair decides

whether most Hoosiers who are not primary voters can

appear on the primary ballot. If Indiana’s Affiliation

38

statute passes any level of constitutional scrutiny, then

just about any onerous state ballot access law can pass

constitutional scrutiny under Anderson/Burdick as it is

currently applied and (mis)understood.

Further, the issues presented in this case are

important and timely given the highly polarized political

climate in this country and the general sentiment of

many Americans that their vote/voice does not matter. As

evidenced by the three lawsuits in less than three years

in Indiana regarding the Affiliation Statute alone, this

matter will continue to recur.

This Court should grant review, hold that the Affiliation

Statute is unconstitutional, and revisit and clarify the

Anderson/Burdick test which leaves many unanswered

questions, leads to conflicting and inconsistent results in

courts throughout the country, and does not fit well with

this Court’s other precedent regarding ballot access.

CONCLUSION

This Court should grant the petition.

Respectfully submitted,

Michelle C. Harter

Counsel of Record

Lekse Harter, LLC

3209 West Smith Valley Road,

Suite 134-4

Greenwood, IN 46142

(908) 307-7570

michelle@lekseharter.com

Counsel for Petitioner

June 28, 2024

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE INDIANA

SUPREME COURT, FILED MARCH 6,

2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — FINDING S OF FACT,

C ONC LU S IONS T H ER E ON, A N D

JUDGMENT/ ORDER ON THE PLAINTIFF’S

MOTION FOR INJUNCTIVE RELIEF OF

THE STATE OF INDIANA, COUNTY OF

MARION, MARION SUPERIOR COURT 12,

FILED DECEMBER 7, 2023 . . . . . . . . . . . . . . . . 119a

APPENDIX C — PUBLISHED ORDER OF

THE INDIANA SUPREME COURT, FILED

FEBRUARY 15, 2024 . . . . . . . . . . . . . . . . . . . . . . . 154a

APPENDIX D — PUBLISHED ORDER OF

THE INDIANA SUPREME COURT, FILED

FEBRUARY 27, 2024 . . . . . . . . . . . . . . . . . . . . . . . 156a

APPENDIX E — ORDER of the INDIANA

SUPREME COURT, FILED APRIL 22, 2024 . . 158a

APPENDIX F — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160a

1a

Appendix A

APPENDIX A — OPINION

OF THE INDIANA

SUPREME COURT, FILED MARCH 6, 2024

IN THE INDIANA SUPREME COURT

Case No. 23S-PL-371

DIEGO MORALES, IN HIS OFFICIAL

CAPACITY AS INDIANA SECRETARY OF

STATE, THE INDIANA ELECTION COMMISSION,

AND AMANDA LOWERY, IN HER OFFICIAL

CAPACITY AS JACKSON COUNTY

REPUBLICAN CHAIR,

Appellants,

v.

JOHN RUST,

Appellee.

Argued: February 12, 2024 | Decided: March 6, 2024

Appeal from the Marion Superior Court

No. 49D12-2309-PL-36487

The Honorable Patrick J. Dietrick, Judge

OPINION BY JUSTICE MASSA

Justices Slaughter and Molter concur.

2a

Appendix A

Justice Molter concurs with separate

opinion in which Justice Slaughter joins.

Justice Goff dissents with separate

opinion in which Chief Justice Rush joins.

Massa , Justice.

John Rust seeks the Republican nomination for United

States Senator from Indiana in 2024. Concerned he would

be denied access to the May primary ballot for failure to

comply with state law, he sought preemptive relief in the

Marion Superior Court. The law in question, commonly

called “the Affiliation Statute,” contains objective criteria

for determining eligibility to appear on the primary ballot

of a major political party1 and discretion for a party to

allow the candidacy regardless of compliance. A judge

blocked enforcement of the law, finding it unconstitutional

for a variety of reasons, triggering direct appeal to this

Court. Focusing primarily on the weighing of First

1. Indiana law defines a “major political party” as follows:

(1) With respect to the state, either of the two (2)

parties whose nominees received the highest

and second highest number of votes statewide

for secretary of state in the last election; or

(2) With respect to a political subdivision, either

of the two (2) parties whose nominees received

the highest and second highest of number of

votes in that political subdivision for secretary

of state in that last election.

Ind. Code § 3-5-2-30.

3a

Appendix A

Amendment “rights of association” of both Appellants

and Appellee, we first stayed the trial court’s ruling on

February 15, 2024, 2 and reversed it entirely on February

27, 2024, remanding with an order to enter judgment for

Appellants on all claims. 3 Today, we explain why.

Neither the Constitution of the United States nor the

Constitution of the State of Indiana mentions political

parties, but the Founders were keenly aware “that

splintered parties and unrestrained factionalism may do

significant damage to the fabric of government.” Storer v.

Brown, 415 U.S. 724, 736, 94 S. Ct. 1274, 39 L. Ed. 2d 714

(1974) (citing Federalist, No. 10 (Madison)). The United

States Supreme Court fifty years ago accordingly found

“the State’s interest in the stability of its political system”

to be “compelling,” id. at 736, and later recognized that

“[a] political party has a First Amendment right to limit

its membership as it wishes, and to choose a candidate2. We point out that, while the State originally requested a

stay with our Court, it bypassed Appellate Rule 39, which provides

that “a motion for stay pending appeal may not be filed . . . unless

a motion for stay was filed and denied by the trial court. . . .”

Ind. Appellate Rule 39(B) (emphasis added). That condition was

not satisfied. While we nonetheless stayed the trial court’s order,

we admonish the State to follow the proper procedures in the

future. See Hardiman v. Cozmanoff, 4 N.E.3d 1148, 1151 (Ind.

2014) (explaining that appellate courts place special “trust in the

trial court to exercise sound discretion” in deciding motions for

stay). To be clear, we did not grant the State’s motion, but instead

ordered a stay on our own accord.

3. The bipartisan State Election Board unanimously upheld

challenges to Rust’s candidacy on February 27, formally denying

him access to the primary ballot.

4a

Appendix A

selection process that will in its view produce the nominee

who best represents its political platform,” N.Y. State Bd.

of Elections v. Lopez Torres, 552 U.S. 196, 202, 128 S. Ct.

791, 169 L. Ed. 2d 665 (2008) (citing Democratic Party

of U.S. v. Wis. ex rel. La Follette, 450 U.S. 107, 122, 101

S. Ct. 1010, 67 L. Ed. 2d 82 (1981)). The political party

seeking the law’s enforcement and the State Appellants

defending its legitimacy thus wield the First Amendment

as a “shield,” López Torres, 552 U.S. at 203, to deny Rust

entry to the ballot.

Appellee Rust, conversely, claims First Amendment

associational rights of his own, to wield as a “sword,” id.,

to force his way on the ballot. And in that clash today, the

shield checks the sword, as we find the minor requirements

of the Affiliation Statute reflect an elegant balancing of

First Amendment interests and are thus constitutionally

sound.

Facts and Procedural History

A. Indiana’s Affiliation Statute

The Framers of the United States Constitution

“conceived of a Federal Government directly responsible

to the people, possessed of direct power over the people,

and chosen directly, not by the States, but by the people.”

U.S. Term Limits Inc. v. Thornton, 514 U.S. 779, 821, 115

S. Ct. 1842, 131 L. Ed. 2d 881 (1995) (citation omitted).

This ideal, which was “extant from the beginning of

the Republic,” id., was constitutionalized in Article I,

Section 2, which authorized Members of the House of

Representatives to be “chosen every second Year by the

5a

Appendix A

People of the several states,” U.S. Const. art. I, § 2, cl. 1.

By direct contrast, Article I, Section 3, provided that the

“Senate of the United States shall be . . . chosen by the

[state] Legislature[s].” Id. § 3.

In 1913, the Seventeenth Amendment adjusted that

arrangement by amending Article I, Section 3 to allow

voters to directly vote for senators. U.S. Const. amend

XVII. Because of its ratification, states established their

own primary systems. López Torres, 552 U.S. at 206.

Indiana enacted the Primary Election Law in 1915, giving

Hoosiers the chance to hold primaries for state and federal

candidates, including United States senators. Charles

Kettleborough, The Direct Primary in Indiana, 10 Nat’l

Mun. Rev. 166 (1921); Kelso v. Cook, 184 Ind. 173, 110 N.E.

987, 989 (Ind. 1916).

After a series of modifications, the General Assembly

eventually expanded its election laws to provide Hoosiers

broad access to become a party-affiliated candidate in a

primary election. Before appearing on the party primary

ballot, that would-be candidate must satisfy Indiana Code

section 3-8-2-7 (“the Affiliation Statute”). The Affiliation

Statute requires a would-be candidate to file a declaration

of candidacy, Ind. Code § 3-8-2-7, between January 10 and

12:00 p.m. Eastern Standard Time on February 9, 2024,

see id. § 3-8-2-4 (a declaration must be filed not later than

noon 88 days and not earlier than 118 days before the

primary election).

Additionally, a would-be party-affiliated candidate

must establish their party affiliation by one of two ways:

(A) having voted for the party with which they claim

6a

Appendix A

affiliation in the two most recent primary elections in

which they voted (“Option A”); or (B) filing a certification

from their county party chair affirming their membership

in the party (“Option B”). Id. § 3-8-2-7(a)(4).

A previous iteration of the Affiliation Statute, by

contrast, allowed a candidate seeking certification under

(a)(4)(A) to qualify so long as he voted for the party with

which he claimed affiliation in the last primary election in

which he voted. Id. § 3-8-2-7(a)(4)(A) (2021). The original

version of the statute, effective from 1986 through June 30,

2013, allowed a candidate to establish party affiliation in

three ways: (A) voting in the most recent primary held by

the party in which the candidate claimed affiliation; (B) the

candidate claimed a party affiliation despite never having

voted in a primary election; or (C) filing certification from

their county party chair affirming their membership in

the party. Id. § 3-8-2-7(a)(4), as amended by Pub. L. No.

194-2013, § 12 (eff. July 1, 2013).

B. Procedural History

John Rust of Seymour seeks to be a candidate on the

May 7, 2024, Republican Party primary ballot for United

States Senate. Rust last voted in the Republican primary

in 2016. He did not vote in the 2014, 2018, 2020, or 2022

primaries and voted as a Democrat in the 2006, 2008,

2010, and 2012 primaries. Because he last voted in the

2016 Republican primary, Rust could not qualify under

Option A of the Affiliation Statute and had to seek party

certification under Option B.

7a

Appendix A

In July 2023, Rust met w ith Jackson County

Republican Party Chair Amanda Lowery requesting

certification to fulfill Option B. Lowery told Rust she

would not certify his party membership because of his

voting record. Despite not satisfying either option of the

Affiliation Statute, Rust announced his candidacy.

Rust then filed a complaint for declaratory and

injunctive relief naming Lowery, the Election Commission,

and Secretary of State Morales as Defendants (collectively,

“the State”). He also sought a preliminary injunction

enjoining the enforcement of the Affiliation Statute,

arguing it violated the federal and state constitutions.

The State moved to dismiss the complaint under Trial

Rule 12(B)(1) and moved to consolidate the hearing on the

preliminary injunction motion with a trial on the merits.

The trial court consolidated the motions and after

a hearing found the Affiliation Statute unconstitutional.

The trial court explained that if the State “imperils a

sacred and cherished right of [its] citizens,” then it must

act “for an articulated compelling and pressing reason,

and it[s action] must be exercised in the most transparent

and least restrictive and least intrusive ways possible.”

Appellants’ App. Vol. 2, p. 10. The trial court concluded

that the 2021 amendment to Indiana Code section 3-8-27(a)(4) “fails in this regard.” Id. Specifically, the trial court

found that the Affiliation Statute: (1) violated Rust’s First

and Fourteenth Amendment rights; (2) raised vagueness

and overbreadth concerns; (3) violated the Seventeenth

Amendment by improperly taking away rights from

voters and giving them to the state legislature and party

chairs; (4) violated Rust’s Article 1, Section 23 right to

8a

Appendix A

equal privileges and immunities; (5) improperly amended

the Indiana Constitution without going through the

proper process; and (6) violated the canons of statutory

interpretation.

Because the trial court’s final judgment declared the

Affiliation Statute unconstitutional, we have mandatory

and exclusive jurisdiction. Ind. Appellate Rule 4(A)

(1)(b). And since this appeal was filed, this Court has

received amicus briefs from the Indiana Republican State

Committee, and Common Cause Indiana and League of

Woman Voters of Indiana.4

Standard of Review

We review statutory and constitutional questions

de novo. City of Hammond v. Her man & Kittle

Properties, Inc., 119 N.E.3d 70, 78 (Ind. 2019). Here, the

Affiliation Statute is cloaked with “the presumption of

constitutionality until clearly overcome by a contrary

showing.” Horner v. Curry, 125 N.E.3d 584, 588 (Ind.

2019).

Discussion and Decision

To begin, we address the threshold issue of whether

this matter is justiciable for resolution. The State alleged

ripeness and standing as procedural concerns, but

conceded during oral argument they were now satisfied.

Oral Argument at 3:17-4:10. We agree.

4. We thank Amici for submitting briefs in this case.

9a

Appendix A

Rust sued the State under our Declaratory Judgment

Act, which provides in part: “any person . . . whose rights,

status, or other legal relations are affected by a statute

. . . may have determined any question of construction or

validity arising” under such law. I.C. § 34-14-1-2. While

the General Assembly has been silent on what “affected

by a statute” entails, this Court in Holcomb v. Bray

ascribed concrete meaning to that phrase by suggesting

it “requires a plaintiff must have standing and that their

claims be ripe.” 187 N.E.3d 1268, 1285 (Ind. 2022) (citation

omitted). Standing asks “whether a litigant is entitled to

have a court decide the substantive issues of the claims

presented,” id. at 1285 (citing Solarize Indiana, Inc. v.

Southern Gas & Elec. Co., 182 N.E.3d 212, 216 (Ind. 2022)),

while ripeness questions “whether the claim is sufficiently

developed to merit judicial review,” id. at 1285 (citing Ind.

Dep’t of Env’t Mgmt. v. Chem. Waste Mgmt., Inc., 643

N.E.2d 331, 336 (Ind. 1994)).

Standing is a key component of Indiana’s tripartite

system, which dispels aggregations of power. Horner,

125 N.E.3d at 589. Our standing jurisprudence requires

plaintiffs to show “their rights are implicated in such a way

that they could suffer an injury.” Holcomb, 187 N.E.3d at

1287. “An injury is personal, direct, and one the plaintiff

has suffered or is in the imminent danger of suffering.” Id.

at 1287; Solarize Indiana, 182 N.E.3d at 217 (explaining

that standing requires “a party showing that they have

suffered or were in immediate danger of suffering a direct

injury as result of the complained of conduct”) (cleaned

up). Without a cognizable injury, a court cannot review

the merits. Holcomb, 187 N.E.3d at 1286.

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Claims must also be ripe for adjudication. See, e.g.,

Zoercher v. Agler, 202 Ind. 214, 172 N.E. 186, 189 (1930). As

such, claims must not be merely academic or “theoretical,”

but must reflect a “real or actual controversy, or at least

the ripening seeds of such a controversy.” Holcomb,

187 N.E.3d at 1287 (quoting Zoercher, 172 N.E. at 189).

The issues, thus, must originate from “actual facts,” not

“abstract possibilities.” Id.

Any lingering doubts about standing or ripeness

have been quelled because Rust alleges the Affiliation

Statute infringes on his constitutional rights. Rust filed

his declaration of candidacy on February 5, well before

the February 9, 2024, at 12:00 p.m., deadline. See I.C.

§ 3-8-2-4(a). He also filed a petition signed by at least

4,500 Hoosier voters, including at least 500 voters from

each of Indiana’s congressional districts. Id. § 3-8-2-8.

We therefore conclude that Rust is in “imminent danger

of suffering” a real—not theoretical—injury to his rights.

Holcomb, 187 N.E.3d at 1286. He has standing and his

claims are ripe for review.

I.

Rust’s First and Fourteenth Amendment challenges

fail because the Affiliation Statute imposes a minor,

reasonable and nondiscriminatory restriction that

advances a litany of important state regulatory

interests.

With justiciability established, we turn to the merits.

Rust successfully challenged the Affiliation Statute on

First and Fourteenth Amendment grounds, arguing it

violated his rights of association. Today, we reach the

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opposite conclusion, and hold the Affiliation Statute

survives this constitutional attack.

A.

First Principles of Free Association

We start with first principles of free association. The

First Amendment, “applicable to the States through the

Fourteenth Amendment,” Reed v. Town of Gilbert, 576

U.S. 155, 163, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015),

prohibits the government from “abridging the freedom of

speech, or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a redress

of grievances,” U.S. Const. amend. I. The United States

Supreme Court has long embraced the axiom that “implicit

in the right to engage in activities protected by the First

Amendment [is] a corresponding right to associate with

others.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 104

S. Ct. 3244, 82 L. Ed. 2d 462 (1984).

At its core, the First Amendment safeguards “the

freedom to join together in furtherance of common

political beliefs.” Tashjian v. Republican Party of

Conn., 479 U.S. 208, 214, 107 S. Ct. 544, 93 L. Ed. 2d

514 (1986). This freedom, which implicitly flows from

the constitutional text, “presupposes the freedom to

identify the people who constitute the association, and

to limit the association to those people only.” La Follette,

450 U.S. at 122. If liberty exists, differences exist; and

where differences exist, factions and groups emerge. See

Federalist, No. 10 (Madison) (“As long as the reason

of man continues to be infallible, and he is at liberty to

exercise it, different opinions will be formed.”). Individuals

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have diverse views, preferences, and commitments. See

Anderson v. Celebrezze, 460 U.S. 780, 787, 103 S. Ct. 1564,

75 L. Ed. 2d 547 (1983) (explaining that free association

involves “an inseparable aspect of the ‘liberty’ assured by

the Due Process Clause of the Fourteenth Amendment”).

Protected association, therefore, plays an instrumental

role in carving out space for the advancement of “a wide

variety of political, social, economic, educational, religious,

and cultural ends.” Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373, 210 L. Ed. 2d 716 (2021) (quoting Jaycees,

468 U.S. at 622).

But the implication of the right to associate is the

“corollary” right not to associate. Cal. Democratic

Party v. Jones, 530 U.S. 567, 574, 120 S. Ct. 2402, 147

L. Ed. 2d 502 (2000). Without this feature, the purpose

of free association would be undermined. Both rights—to

associate and not associate—are two sides of the same

coin. Otherwise, free association “would prove an empty

guarantee if associations could not limit control over their

decisions to those who share the interests and persuasions

that underlie the association’s being.” La Follette, 450

U.S. at 122 n.22 (cleaned up). Our First Amendment

jurisprudence consecrates a “special place” for “the

processes by which a political party ‘selects a standard

bearer who best represents the party’s ideologies and

preferences.’” Jones, 530 U.S. at 575 (quoting Eu v. San

Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214,

224, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989)). Why?

Because the party’s nominee serves as its “ambassador to

the general electorate,” tasked with winning votes. Jones,

530 U.S. at 575. “In no area is the political association’s

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right to exclude more important than in the process of

selecting its nominee,” as a party sets forth the criteria

and vision for its agenda. Id. Indeed, the “moment of

choosing the party’s nominee” for office, Jones, 530 U.S.

at 575, represents a pivotal stage when principle becomes

practice—”the crucial juncture at which the appeal to

common principles may be translated into concerted

action, and hence to political power in the community,”

Tashjian, 479 U.S. at 216.

Against this backdrop, the core First Amendment

question before us today is: Who decides? That is, who

decides whether Rust can run as a Republican on the

2024 primary ballot for United States Senate in Indiana?

Himself ? Or the Republican Party? The Affiliation Statute

says both: Rust decides if he votes in two primaries; the

party decides if he does not.

We find solid footing in the broad principle pronounced

in López Torres: “A political party has a First Amendment

right to limit its membership as it wishes, and to choose

a candidate-selection that will in its view produce the

nominee who best represents its political platform.”

552 U.S. at 202 (emphasis added). Two ideas merit brief

explanation. First, limitation of membership suggests

that some individuals will not represent the party and its

platform. Thus, the party has a right to restrict association.

This point hardly needs dissertation: a northern Democrat

who opposed Lyndon Johnson’s landmark civil rights law

would likely have been unwelcomed in his party in 1968; a

Republican opposing Ronald Reagan’s tax reforms could

likewise be shunned decades later, as parties would have

the right to limit association with critics.

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Second, a party’s choice over the candidate-selection

process allows it to work within the real-world constraint

that differences exist among candidates. The Founders

rightfully embraced in the Declaration of Independence

the notion that “all men are created equal.” But that

premise of equality does not ensure that each candidate

will be equal in every respect. Some are better equipped

for a party nomination than others. This could stem from

a variation in a candidate’s views, charisma, experience,

or timing.

And that brings us to the fundamental purpose of

candidate-selection: it allows parties to decide who would

be the best “ambassador,” Jones, 530 U.S. at 575, of its

“ideologies and preferences.” Id. (cleaned up). History

shows that party primaries were not the only valid

method of selection. Instead, selection by “smoke-filled

rooms” dictated by party bosses was constitutionally

permissible. López Torres, 552 U.S. at 206. Such a method

was not constitutionally infirm, but part-and-parcel of free

association. Id. And to be sure, this method “has never

been thought unconstitutional,” even though delegates

were selected by party caucuses. Id.

Indiana’s history confirms its own vacillation in

candidate-selection. In response to the Seventeenth

Amendment, Indiana enacted the Primary Election Law

in 1915, establishing candidate nominations by party

primary election for both state and federal candidates.

Charles Kettleborough, Direct Primary in Indiana at

166. This statewide requirement applied to all parties

casting over ten percent of the total vote in the preceding

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general election. J.F. Connell, Indiana Primary Laws,

18 Ind. Mag. Hist. 224, 230 (1922). In 1929, however,

Indiana abandoned primaries and returned to nominating

candidates for United States Senate and Governor at

state political party conventions. Id. Finally, in 1975,

Indiana law was amended to return once again to primary

selection for these candidates. I.C. § 3-1-10-3 (1975). In

short, these alterations in candidate selection over sixty

years reflect different value-laden policy choices by

the political branches about how much choice the State

was willing extend to parties, consistent with the First

Amendment’s broad guarantee of associational rights.

To be sure, a party’s associational rights are not

infinite and without limitation. For example, if states

give a party a seat at the table in “the election process,”

the party’s rights are constitutionally “circumscribed.”

López Torres, 552 U.S. at 203. In such an event, if a

party committed a racially discriminatory act, it could

come within state action and thus result in a Fifteenth

Amendment violation. Id. at 798. On the flip side, the

State, having given a party a seat at the table, would also

have “a legitimate . . . interest in ensuring the fairness

of the party’s nominating process,” and thus could define

“what the process must be.” Id. Of course, it is “too plain

for argument,” Am. Party of Tex. v. White, 415 U.S. 767,

781, 94 S. Ct. 1296, 39 L. Ed. 2d 744 (1974), that states may

enact procedures and decide the “party use of primaries

or conventions to select nominees who appear on the

general-election ballot,” López Torres, 552 U.S. at 203

(citing White, 415 U.S. at 781).

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This principle of free association was explained in

López Torres. In that case, the United States Supreme

Court confronted a 1921 New York election law that

“required parties to select their candidates for the

Supreme Court [the trial court of general jurisdiction in

New York] by a convention composed of delegates elected

by party members.” Id. at 200 (citation omitted). Under

that law, the nominees chosen at the party conventions

“appear[ed] automatically on the general-election ballot.”

Id. at 201. López Torres had been elected to “a court of

more limited jurisdiction” in 1992 with the support of the

Democratic Party, but fell out of favor with party leaders

over her resistance to their patronage hiring demands.

Id. at 201 According to López Torres, her continued

resistance led to the local party opposing her unsuccessful

candidacy at the Supreme Court nominating conventions

in 1997, 2002, and 2003, respectively. Id. She later brought

suit—along with other candidates who failed to secure

party nominations—against the New York Board of

Elections, arguing that this law “burdened the rights of

challengers seeking to run against candidates favored by

the party leadership,” and as a result “deprived voters

and candidates of their rights to gain access to the ballot

and to associate in choosing their party’s candidates.” Id.

The Supreme Court rejected this novel argument on

arrival. Justice Scalia, writing for the Court, reasoned

these challengers were “in no position to rely on the

right that the First Amendment confers on political

parties to structure their internal party processes and

to select the candidate of the party’s choosing.” Id. at

203. And this is where the “shield” and “sword” imagery

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Appendix A

came to life: Democratic and Republican parties in New

York both intervened to defend the election law and thus

use the First Amendment as a “shield” of associational

protection. Id. López Torres, by contrast, employed

the First Amendment as a “sword” as an attempt to

gain entry into the party to obtain “a certain degree of

influence” within it. Id. She argued that use of the sword

was needed to ensure that she and others would have a

“fair chance” in prevailing in their primary candidateselection process. Id. at 203-04. But this implausible and

strained reading of the First Amendment was unmoored

from federal precedent authorizing states to impose

reasonable limitations on voting. Id. at 204; see, e.g.,

Jenness v. Fortson, 403 U.S. 431, 442, 91 S. Ct. 1970, 29

L. Ed. 2d 554 (1971) (recognizing that states may require

a person to show “a significant modicum of support”

before giving them access to the general-election ballot);

Norman v. Reed, 502 U.S. 279, 295, 112 S. Ct. 698, 116

L. Ed. 2d 711 (1992) (approving rule of 25,000 signatures,

or two percent of the electorate); White, 415 U.S. at 783

(approving condition of one percent of the vote cast for

Governor in preceding general election, which was around

22,000 signatures).

The Court rejected this request to ensure candidates

have a “fair shot,” because opening the doors to an

“unpredictable theater of election jurisprudence” would

require constitutionalizing a policy preference about

candidate selection. López Torres, 552 U.S. at 206-07.

While New York could make a policy decision about

whether its candidate-selection regime that dated to 1921

was still “desirable,” the First Amendment did not compel

that outcome. Id. Properly understood, the Constitution

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vests authority in the political branches to ratify those

policy decisions.

B. Application of Anderson-Burdick Framework

With the First Amendment principles established,

we turn to the Anderson-Burdick framework to evaluate

whether the Affiliation Statute survives Rust’s First

Amendment challenges. Under this standard, we assess

the competing rights of both parties and candidates. Based

on our application of this standard, the Affiliation Statute

passes constitutional muster, despite Rust’s insistence to

the contrary.

To start, we acknowledge a key distinction between the

rights of voters and the rights of candidates. “[T]he political

franchise of voting . . . is regarded as a fundamental

political right, because preservative of all rights.” Yick

Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 30 L. Ed.

220 (1886). By contrast, the rights of candidates is less

defined and has not been awarded a fundamental status.

See Bullock v. Carter, 405 U.S. 134, 142-43, 92 S. Ct. 849,

31 L. Ed. 2d 92 (1972) (“the Court has not heretofore

attached such fundamental status to candidacy as to

invoke a rigorous standard of review” but “laws that

affect candidates always have at least some theoretical,

correlative effect on voters”); see also Clements v.

Fashing, 457 U.S. 957, 963, 102 S. Ct. 2836, 73 L. Ed. 2d

508 (1982) (explaining there is no fundamental right for

a candidate to run for office). In this arena, precedent

affording protection for candidacy “can be best described

as a legal morass.” Randall v. Scott, 610 F.3d 701, 710 (11th

19a

Appendix A

Cir. 2010). We can thus confidently say that Rust does not

have a fundamental right to run for United States Senate

in Indiana, let alone as “the Republican Party’s nominee”

for that place on the ballot. Ind. Republican State Comm.

Amicus Br. at 9.

But just because he lacks a fundamental right to run

for United States Senate as the Republican nominee

does not mean he lacks a right to run as a candidate for

United States Senate. Id. The First Amendment generally

protects the rights of political parties and the rights

of citizens to participate in the electoral system. See

Norman, 502 U.S. at 288 (identifying the “constitutional

interest of like-minded voters to gather in pursuit of

common political ends”). Thus, we must still determine

whether the Affiliation Statute infringes Rust’s First

Amendment rights.

We look to Anderson-Burdick for instruction.

See Tully v. Okeson, 977 F.3d 608, 615 (7th Cir. 2020)

(explaining that the Anderson-Burdick “test applies to

all First and Fourteenth Amendment challenges to state

election laws.”) (emphasis in original). This framework

descends from two Supreme Court cases, Anderson v.

Celebrezze, 460 U.S. 780, 103 S. Ct. 1564, 75 L. Ed. 2d 547,

and Burdick v. Takushi, 504 U.S. 428, 112 S. Ct. 2059,

119 L. Ed. 2d 245. The balancing test from Anderson

requires three inquiries: First, the Court must “consider

the character and magnitude of the asserted injury

to the rights protected by the First and Fourteenth

Amendments.” 460 U.S. at 789. Second, the Court “must

identify and evaluate the precise interests put forward

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Appendix A

by the State as justifications for the burden imposed [by

the law].” Id. Third, in weighing the rights burdened and

the state’s interests, the Court “also must consider the

extent to which those [state] interests make it necessary to

burden the plaintiff ’s rights.” Id. Burdick later recognized

two applicable standards: when the burden on ballot access

is severe, the restriction triggers strict scrutiny and

must be narrowly tailored to advance a compelling state

interest. 504 U.S. at 434. But if the burden is “reasonable”

and “nondiscriminatory,” the restriction will survive

constitutional attack if the state can identify and put

forth “important regulatory interests” to justify it. Id.

(emphasis added). Under the more deferential AndersonBurdick standard, the regulation still “must be justified by

relevant legitimate state interests sufficiently weighty to

justify the limitation.” Crawford v. Marion Cnty. Election

Bd., 553 U.S. 181, 191, 128 S. Ct. 1610, 170 L. Ed. 2d 574

(2008) (cleaned up).

The trial court, in reviewing this challenge, concluded

there was (1) “no compelling or even rational government

interest being served here,” and (2) the statute was

not “tailored” to meet the State’s purported interests.

Appellants’ App. Vol. 2, p. 20. We disagree. Because

the Affiliation Statute imposes a minor, reasonable and

nondiscriminatory restriction on Rust’s rights, justified

by the State’s catalogue of legitimate interests, it survives

this attack under the Anderson-Burdick standard. 5

5. Because we resolve this challenge under the AndersonBurdick standard, we need not analyze this challenge under strict

scrutiny. Rust did not directly assert that the Affiliation Statute

was not reasonable and instead assumes the more exacting strict

scrutiny applies. We disagree.

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Appendix A

1.

The Affiliation Statute imposes a minor,

rea sonable a nd nond iscr iminat or y

limitation on Rust’s associational rights.

First, the Affiliation Statute imposes a reasonable

and nondiscriminatory restriction on Rust’s right to be

on the primary election ballot. At most, this restriction

is a minor impediment, satisfied by simply voting in the

last two primaries (or less, actually, so long as in the last

two primaries in which Rust voted—whenever they were

held—he requested a Republican Party ballot). We do not

find this modest objective criterion for demonstrating

party bona fides to be a significant burden.

Moreover, to reiterate, Rust does not have a

fundamental right to run for United States Senate as the

Republican nominee. See Clements, 457 U.S. at 963. But

the Affiliation Statute does not foreclose his opportunity

to run as a candidate for United States Senate anyway.

He still enjoys a statutory right to appear on the generalelection ballot as an independent, Libertarian, or writein candidate, where Hoosiers can still vote for him. I.C.

§§ 3-8-4-10(b); 3-8-6-3; 3-8-2-2.5(a). True, Rust cannot

run on the Republican primary ballot—admittedly, his

“first choice”—but he can still run as an independent, for

example, and “tout his Republican virtues, tell voters he

supports Republicans, put up yard signs to that effect, and

run on a platform identical to any political party.” Hero v.

Lake County Election Board, 42 F.4th 768, 776 (7th Cir.

2022). Still, Rust argued that even if he could “run as an

independent or write-in candidate, a severe restriction of

his right to freely associate would [still] exist.” Appellee’s

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Appendix A

Br. at 32. We disagree. Even though independents or

write-in candidates may not have the greatest likelihood

of electoral success, see Anderson, 460 U.S. at 799 n.26

(explaining the limitations of a write-in candidacy), the

Supreme Court has rejected similar fairness arguments

requesting that the First Amendment’s free association

jurisprudence be calibrated to maximize the electoral

chances of candidates for office, see López Torres, 552 U.S.

at 205 (pointing out that “none of our cases” recognize a

“constitutional right to have a ‘fair shot’ at winning the

party’s nomination”).

Though ballot access laws can impose burdens on the

“right of individuals to associate for the advancement of

political beliefs,” even restrictions on general elections

do not automatically trigger strict scrutiny. Navarro v.

Neal, 716 F.3d 425, 430 (7th Cir. 2013) (quoting Williams v.

Rhodes, 393 U.S. 23, 30, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968)).

The Seventh Circuit in Navarro, for example, upheld an

Illinois law requiring candidates for state legislature to

secure 500 to 1,000 signatures to appear on the generalelection ballot, reasoning that this restriction was not

severe and therefore qualified as minor. 716 F.3d at 428-30;

see also Burdick, 504 U.S. at 434 (applying a more lenient

standard to Hawaii’s prohibition on write-in voting in

primary and general elections); Clingman v. Beaver, 544

U.S. 581, 593, 125 S. Ct. 2029, 161 L. Ed. 2d 920 (2005)

(applying a more lenient standard to Oklahoma’s semiclosed primary system that allowed independent voters

but blocked other parties’ members from voting in the

Libertarian Party’s primary election).

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Appendix A

At most, the Affiliation Statute is a minor restriction.

It simply governs the procedures to access the party’s

primary ballot by requiring Rust to establish sufficient

party affiliation by showing (1) he has an adequate

primary voting record with the party, or (2) he has

attached a written certification of party membership from

the county party chair to his declaration of candidacy. I.C.

§ 3-8-2-7(a)(4). Unlike Navarro, 716 F.3d at 428-30, none

of these conditions impact Rust’s access to the generalelection ballot. At bottom, he can still run his campaign,

express his views, put forth his agenda, and appear on

the general-election ballot in November. See Anderson,

460 U.S. at 788 (“[A]n election campaign is an effective

platform for the expression of views on the issues of the

day, and a candidate serves as a rallying-point for likeminded citizens.”). And Hoosiers can still vote for him.

Thus, we are satisfied this restriction is indeed minor,

as that term has been defined in election law challenges.

Our conclusion finds refuge and support in the Seventh

Circuit’s decision in Hero. In that case, Joseph Hero

“voted in Republican primaries for decades, and even

ran for office as a Republican with occasional success.” 42

F.4th at 770. After a local policy disagreement about his

town’s use of eminent domain to seize property from lowincome residents, Hero supported a group of independent

candidates running for town council. Id. In response, the

local Republican Party deprived Hero of his ability to run

for reelection as precinct committeeman and delegate

to the Republican State Convention. Further, the State

Republican Party took a bolder step in that direction and

banned him for ten years from “seeking elected office in

Indiana as a Republican.” Id. at 770-71.

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Appendix A

Unmoved, Hero attempted to appear as the Republican

candidate for town council in the 2019 election. Id. at 771.

He satisfied all requirements under Indiana law,6 but the

local party objected and challenged his candidacy. Id. The

Lake County Election Board sustained the challenge and

removed Hero from the Republican primary ballot. Id. On

appeal, the Seventh Circuit held that the Election Board

“did not violate Hero’s First and Fourteenth Amendment

rights” because its decision to strike his name from the

primary ballot was simply a “minor restriction” on his

rights, as Hero could still access the general-election

ballot. Id. at 776.

In short, Hero reinforces our conclusion that the

Affiliation Statute imposes a minor, reasonable and

nondiscriminatory restriction on Rust’s rights as a

candidate. Applying the Anderson-Burdick framework,

Hero determined that enforcement of a ten-year ban on

affiliation—”a patently more severe restriction” than the

one here, Ind. Republican State Comm. Amicus Br. at 16,

was minor given Hero’s alternative access to the generalelection ballot. Like Hero, Rust, too, has other routes to

the general-election ballot, I.C. §§ 3-8-4-10(b); 3-8-6-3;

3-8-2-2.5(a), even if they are not his “first option,” Hero,

42 F.4th at 776. We are thus satisfied Hero supports our

6. At the time of Hero, the previous iteration of the Affiliation

Statute provided that a candidate of a major political party could

file “a declaration of candidacy” for a party if either he voted in

the last primary election, or the county chairman certified that

the candidate is a member of the political party. 42 F.4th at 771

(citation omitted). As explained, the law has since been amended

to require voting in two primary elections. I.C. § 3-8-2-7(a)(4).

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Appendix A

conclusion today that the Affiliation Statute imposes a

minor restriction triggering Anderson-Burdick, applying

less than strict scrutiny.

Rust successfully argued below that Hero could be

distinguished for two reasons. First, Hero did not “involve

a challenge to, or the interpretation of,” the Affiliation

Statute. Appellants’ App. Vol. 2, p. 32. Second, Hero

involved internal banishment by the Republican Party,

whereas Rust has not been banned by the GOP. Both are

unpersuasive.

True, Hero did not challenge the constitutionality

of the Affiliation Statute. But Hero pressed the same

First and Fourteenth Amendment associational rights to

access the Republican primary ballot, see 42 F.4th at 771,

which also undergird Rust’s challenge. And equally true:

the ten-year ban in Hero originated with the party, id.,

whereas Rust feared rejection because he failed to satisfy

statutory requirements. But the final decision to remove

Hero from the ballot was from a state actor—the Lake

County Election Board, which enforced the party’s First

Amendment rights. Id.

While Rust urges we focus narrowly on the thin

distinction between party and state action, Hero explained

more broadly that a political party has a First Amendment

right to exclude those “with whom the party does not wish

to affiliate” and that a state, in turn, can “protect the

First Amendment rights of a political party” by allowing

it to “restrict its standard bearers to members in good

standing.” 42 F.4th at 776-77. Hero thus stands for a

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Appendix A

larger First Amendment principle: a political party may

exclude candidates from their ballot, even if they satisfy

the Affiliation Statute. Id. at 771; see also Ind. Republican

State Comm. Amicus Br. at 17.

2.

The State has impor ta nt interests

supporting this minor restriction on

Rust’s access to the primary-election

ballot.

And this brings us to our second point: The State

has a list of important regulatory interests in protecting

a party’s associational rights that justify this minor,

reasonable and nondiscriminatory restriction.

But before we survey the range of state interests,

we again acknowledge a first principle: political parties

have legitimate First Amendment interests in choosing—

and excluding—their members and leaders. “Political

parties enjoy these associational rights like any other

organization.” Hero, 42 F.4th at 776. Its “determination . . .

of the structure which best allows it to pursue its political

goals, is protected by the Constitution.” Tashjian, 479 U.S.

at 224. The Supreme Court has “vigorously affirmed,” and

specifically recognized, this “special place” reserved by

the First Amendment. Jones, 530 U.S. at 575. A party’s

associational rights “presuppose[ ] the freedom to identify

those who constitute the association, and to limit the

association to those people.” Jones, 530 U.S. at 567-68

(citing La Follette, 450 U.S. at 122). Free association

also generally “encompasses a political party’s decision

about the . . . process for electing its leaders.” Eu, 489

27a

Appendix A

U.S. at 229. The Supreme Court has also embraced—

”with increasing firmness”—the view that “the First

Amendment guarantees a political party great leeway in

governing its own affairs.” Maslow v. Bd. of Elections in

N.Y.C., 658 F.3d at 291, 296 (2d Cir. 2011) (emphasis added).

A party thus has an indispensable interest in protecting

itself against “unaffiliated” people who “may seriously

distort [its] collective decisions,” and thus encroach its

“essential functions.” Hero, 42 F.4th at 776 (quoting La

Follette, 450 U.S. at 122). Rightfully so.

Of course, these rights belong to the party, but

states also have a legitimate interest in safeguarding

parties from forced inclusion of unwanted members and

candidates. See Hero, 42 F.4th at 776 (“The state has an

interest in protecting a party’s right to determine its

own membership and limit its candidates to those party

members.”). Allowing an unwanted individual to wield a

“sword” to gain access into a party, López Torres, 552 U.S.

at 203, would invade “the group’s freedom of expressive

association if the presence of that person affects in a

significant way the group’s ability to advocate public or

private viewpoints,” Hero, 42 F.4th at 776 (quoting Boy

Scouts of Am. v. Dale, 530 U.S. 640, 648, 120 S. Ct. 2446,

147 L. Ed. 2d 554 (1984)). While a party may use the

First Amendment as a “shield,” López Torres, 552 U.S.

at 203, to protect itself from “intrusion by those with

adverse political principles,” La Follette, 450 U.S. at 122,

states may also further “protect the First Amendment

rights of a political party,” as the Election Board did in

Hero, “by allowing the Republican Party to determine its

membership and restrict its standard bearers,” 42 F.4th

at 777-78.

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This principle—that the Constitution allows states

to guard a political party’s preferences—finds support

elsewhere. Two federal circuit opinions from the Eleventh

Circuit, which both concerned a party’s effort to exclude

an odious candidate from its primary ballot, provide

illustration. In Duke v. Cleland, 954 F.2d 1526 (11th

Cir. 1992), the Eleventh Circuit applied a “reasonable

restriction standard” to find that, while David Duke, a

former Klansman, had satisfied the statutory requirements

for ballot access, the Republican committee had the First

Amendment right to keep him off, and Georgia “has an

interest in maintaining the autonomy of political parties,”

because the Republican Party enjoys “a constitutionally

protected right of freedom of association.” Id. at 153132. Four years later in Duke v. Massey, 87 F.3d 1226

(11th Cir. 1996), the Eleventh Circuit again denied Duke

relief, but this time it applied strict scrutiny. Id. at 1234.

The court concluded that the “state has a compelling

interest in protecting political parties’ right to define

their membership.” Id. Hero thus does not find itself on

an island of its own jurisprudence.

States also have an important interest in sustaining

the identifiability of political parties. The integrity and

legitimacy of a political party “depend[ ] upon its ability

to place before voters, under the party insignia, a list of

candidates for office who stand for those tenets concerning

government that the organization is supposed to

represent.” State ex rel. Garn v. Bd. of Election Comm’rs

of Marshall Cnty., 167 Ind. 276, 78 N.E. 1016, 1018 (Ind.

1906). Thus, party identifiability embodies “the highest

importance to the electors, to the end that they might not

29a

Appendix A

be misled into indorsing principles in form to which they

were opposed in fact.” Id.

States also have a “strong interest” in fostering

the health and “stability of their political systems.”

Timmons v. Twin Cities Area New Party, 520 U.S. 351,

366, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997) (emphasis

added). As such, states may “enact reasonable election

regulations that may, in practice, favor the traditional

two-party system and that temper the destabilizing

effects of party-splintering and excessive factionalism.”

Id. at 367 (citation omitted). The strength and vitality of

“established parties,” Elrod v. Burns, 427 U.S. 347, 383,

96 S. Ct. 2673, 49 L. Ed. 2d 547 (Powell, J., dissenting),

present voters “with understandable choices and the

winner in the general election with sufficient support to

govern effectively,” Storer, 415 U.S. at 735. By contrast,

“splintered parties and unrestrained factionalism” could

impose “significant damage to the fabric of government.”

Id. “[T]he importance of political parties [is] self-evident,”

serving “a variety of substantial government interests,”

including effective implementation of programs and

policies, accountability, and identifiability for voters in

down ballot, lower profile races. Branti v. Finkel, 445 U.S.

507, 528, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980) (Powell, J.,

dissenting); id. at 531 (explaining that “[v]oters with little

information about individuals seeking office traditionally

have relied upon party affiliation as a guide to choosing

among candidates,” but a “decline in party stability” has

left them “less able to blame or credit a party for the

performance of ” its officials).7

7. While these sentiments appeared in dissents from opinions

holding wholesale patronage firings unconstitutional, that context

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On a more general level, states have other essential

interests in cabining ballot access rights to protect the

integrity of the election process. The Supreme Court has

affirmed that states have important regulatory interests

in imposing ballot access requirements to prevent ballot

overcrowding, voter confusion, and election fraud. Storer,

415 U.S. at 732-33. In short, states have a robust “interest

in having orderly, fair, and honest elections,” rather

than allowing circus-level “chaos” and confusion. Storer,

415 U.S. at 730. Because the state has an interest in

preserving the integrity of its election process, it may pass

laws that “promote the integrity of primary elections.”

Eu, 489 U.S. at 231; see also Rosario v. Rockefeller, 410

U.S. 752, 761, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (1973) (states

may impose waiting periods before voters change party

registration and participate in another party primary;

Bullock, 405 U.S. at 145 (states may also prevent “frivolous

or fraudulent candidacies”); Norman, 502 U.S. at 290

(states have an interest in thwarting “misrepresentation”

and electoral confusion).

Here, the State put forth several “precise interests”

to justify the Affiliation Statute’s restriction on primary

ballot access. Anderson, 460 U.S. at 789. These interests

included “protecting a political party’s right to determine

makes them no less relevant and persuasive today. Indeed, the

Elrod and Branti dissents were prescient in predicting today’s

political environment where celebrity can trump organization. It

is simply historical fact that “smoke-filled” convention halls when

parties were stronger gave us Lincoln, the Roosevelts, Truman,

and Eisenhower, to name several, though causation and correlation

can always be debated.

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Appendix A

its own membership,” Tr. at 154, and preventing “voter

confusion by preserving party identifiability, avoiding

ballot overcrowding and frivolous candidacies, and

maintaining order, rather than chaos, in Indiana’s primary

and general elections,” Appellants’ Br. at 27. With these

interests in mind, we conclude the State has several

important interests supporting the Affiliation Statute,

which imposes a minor, reasonable and nondiscriminatory

limitation on Rust’s rights.

The Affiliation Statute provides a reasonable balancing

to access the primary ballot: Option A provides that a

candidate, like Rust, may establish sufficient association

with a major political party if his two most recent primary

votes in Indiana were in the party’s primary. I.C. § 3-82-7(a)(4)(A). This option affords candidates control over

affiliation through primary election voting. Here, Rust

had that choice, but did not exercise it. He voted in the

Republican primary in 2016, and yet he did not vote in

the 2014, 2018, 2020, or 2022 primaries. Appellants’ App.

Vol. 2, pp. 57-59. Thus, he failed to exercise his rights to

affiliate with the Republican Party under the Affiliation

Statute. By contrast, Option B provides Rust a potential

safe harbor by allowing him to request certification by his

county party chair. I.C. § 3-8-2-7(a)(4)(B). But his request

for affiliation with the Republican Party is cabined by the

county party’s discretion, which reflects the party’s right

to decide whether to use its rights as a “shield,” López

Torres, 552 U.S. at 203, against Rust if it desires not to

be affiliated with him. See infra Section II.E. In short,

Option B advances the party’s associational right to “limit”

candidates, Hero, 42 F.4th at 776, which in turn protects

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its identifiability, Garn, 78 N.E. at 1018, and ensures the

enduring “stability” of the political system, Timmons,

520 U.S. at 366.

Both options reasonably balance the rights of

candidates and parties consistent with the Constitution.

As a matter of first principles, the First Amendment does

not give Rust a license to “fight freestyle” to access the

Republican primary ballot, while requiring the Party to

“follow Marquis of Queensberry rules.” R.A.V. v. City of St.

Paul, 505 U.S. 377, 392, 112 S. Ct. 2538, 120 L. Ed. 2d 305

(1992). This statute embraces that principle and further

ensures an equal fight.

The dissent rejects this equal fight by implicitly

appealing to policy arguments about fairness. 8 At first

glance, our disagreement may seem to turn on whether

the Affiliation Statute imposes a minor or severe burden

under Anderson-Burdick, which triggers the level of

scrutiny. But upon closer reflection, this conflict is really

a clash about the judicial role.

The fundamental question today is who decides

whether Rust should be on the Republican primary ballot

for United States Senate. The plain text of the Affiliation

Statute is clear: Rust decides to be on the primary ballot

if he votes in two Republican primaries; the party decides

if he does not. I.C. § 3-8-2-7(a)(4). The facts are equally

clear: Rust did not vote in the required primaries, nor

8. We assign the election policy choices of Illinois and New

Jersey, for example, zero weight in our constitutional analysis.

Post, at 7 n.6. (opinion of Goff, J.).

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Appendix A

did Chairperson Lowery certify him. Thus, based on the

terms of the statute, Rust should not be on the ballot—full

stop.

So, why are we here? Because Rust believes the

Affiliation Statute is unconstitutional under the First

and Fourteenth Amendments (though it is unclear if he

brings a “facial” or “as-applied” challenge). The dissent

sympathizes, and raps Indiana for imposing “some of the

highest hurdles for primary-ballot access in the nation,”

while observing that “the General Assembly recently

amended [the] election code to make it even harder for

potential candidates to add their names to the primary

ballot.” Post, at 6 (opinion of Goff, J.). The dissent also

judges the State for offering “no meaningful opportunity

for Rust to exercise his associational rights as a candidate

or a voter.” Id. at 10 (emphasis added).9 If we are talking

about Rust as a candidate, the State could abolish its

primary system altogether and provide no opportunity for

Rust to exercise his associational rights if it so desired.10

9. Rust brings this claim as both a candidate and as a voter.

App. Vol. 2, p. 37. But precedent confirms the rights of voters and

rights of candidates are distinct and thus do not share the same

status. Compare Yick Wo, 118 U.S. at 370 (describing voting as

“a fundamental political right”), with Bullock, 405 U.S. at 142-43

(explaining that a “fundamental status to candidacy” has not been

“attached” to such a right). Rust presents no meaningful line of

distinction here—he baldly asserts his rights as a candidate and

voter without demarcation.

10. Rust’s counsel acknowledged during oral argument that

abolishing the primary selection of candidates in Indiana would

be constitutionally permissible. Oral Argument at 19:26-19:40.

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Since the selection of candidates through “smoke-filled

rooms” has never been viewed as unconstitutional, López

Torres, 552 U.S. at 206, the argument is unpersuasive,

especially since Rust can exercise his rights on the

general-election ballot this fall. But even if we are talking

about Rust’s rights as a voter,11 the Supreme Court has

typically reviewed these restrictions “and their reasonably

foreseeable impact on voters generally,” not on the

individual burden. Crawford, 553 U.S. at 206 (Scalia,

J., concurring in the judgment) (emphasis in original).

Burdick, for example, concluded that the Hawaii laws at

issue “impose[d] only a limited burden on voters’ rights to

make free choices and to associate politically through the

vote.” 504 U.S. at 439. But Burdick did not review whether

the restrictions had a severe effect on Burdick’s right to

vote under his personal circumstances. See id. at 436-37.

In fact, that view was embraced by the Burdick dissenters

who would have applied strict scrutiny to the laws because

of their impact on “some voters.” Id. at 446 (Kennedy, J.,

dissenting) (emphasis added); see also id. at 448 (“The

majority’s analysis ignores the inevitable and significant

write-in ban imposes on some individual voters. . . .”).

But properly understood, precedent “refute[s] the view

that individual impacts are relevant to determining the

severity of the burden it imposes.” Crawford, 553 U.S.

at 206 (Scalia, J., concurring in the judgment); see also

11. Rust brought this claim as an individual voter because he

“seeks to cast his vote effectively.” App. Vol. 2, p. 37 (emphasis

added). But the dissent extrapolates from this complaint that the

burden is not simply about Rust’s rights as an individual voter,

but also about “his prospective supporters’ rights.” Post, at 10

(opinion of Goff, J.) (emphasis added).

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Appendix A

Clingman, 544 U.S. at 590-91 (examining voting burdens

generally rather than individually).

We are acutely aware of our limited constitutional

role as judges and thus avoid any “pretense of knowledge”

about what is best for Hoosiers as a matter of policy when it

comes to primary elections.12 Out of this posture of judicial

humility, we presume the constitutionality of statutes

“until clearly overcome by a contrary showing.” Horner,

125 N.E.3d at 588. At the same time, we also recognize

our power of judicial review—that it is “emphatically the

province and duty of the judicial department to say what

the law is.” Marbury v. Madison, 5 U.S. 137, 1 Cranch

137, 177, 2 L. Ed. 60 (1803) (emphasis added); see also

Federalist, No. 78 (Hamilton) (“The interpretation of the

laws is the proper and peculiar province of the courts.”).

As such, civics teaches that the legislature makes the law

and courts interpret law as written. But the dissent would

collapse the judicial and legislative functions and flout

the separation of powers by announcing its own policy

preference: “Primaries are not meant to be opportunities

for party leaders to crown their favored candidates—and

certainly not in uncontested ballots.” Post, at 2 (opinion

of Goff, J.). But the First Amendment says nothing of the

sort, and the Supreme Court has never embraced this

12. F.A. Hayek expressed this sentiment in his famous “The

Pretence of Knowledge” 1974 Nobel Lecture: “To act on the belief

that we possess the knowledge and the power which enable us to

shape the processes of society entirely to our liking, knowledge

which in fact we do not possess, is likely to make us do much harm.”

Friedrich August von Hayek, The Pretence of Knowledge, Nobel

Memorial Lecture (Dec. 11, 1974), in 79 Am. Econ. Rev. 3, 7 (1989).

36a

Appendix A

policy and transformed it into a formal rule or standard

for constitutional law. See López Torres, 552 U.S. at

205-06 (explaining that determining a candidate’s “fair

shot” is “hardly a manageable constitutional question for

judges—especially for judges in our legal system, where

traditional electoral practices give no hint or even the

existence, much less the content, of [such] a constitutional

requirement”). Thus, the dissent’s position is untethered

from the First Amendment.

Elsewhere, the dissent points to the “lack of

competition” in elections, which “has resulted in extremely

low voter turnout in recent years.” Post, at 5-6 (opinion of

Goff, J.). In highlighting this concern, the dissent shares

data about the “average turnout rate for eligible voters

at primary elections” in Indiana. Id. at 6. Admittedly,

low voter turnout presents a legitimate concern for

Hoosiers—a concern that all members of this Court

share. At any rate, this problem is best addressed in the

legislature, where elected officials can debate and discuss

the efficacy and desirability of policies affecting voter

turnout. Courts should not be drawn into the vortex of

hotly-contested social and political disputes, which they

are ill-equipped to handle, due to limited institutional

competence in evaluating such information and rendering

judgments.13 Simply put, the legislature is in the best

13. We believe that courts are not well suited to resolve policy

debates based on legislative facts, i.e., empirical studies, statistics,

or social scientific theories. Charles Reich captured this point

about the limitations of courts well: “Courts have no sources of

information other than the record before them, and judges have

no special knowledge to assist them in evaluating information of

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Appendix A

position to “weigh the costs and benefits” of a given

ballot restriction and voter turnout. Crawford, 553 U.S.

at 208 (Scalia, J., concurring in the judgment). Courts, in

contrast, should stay in their lane and not make broad,

values-based pronouncements about election policy. The

Constitution did not assign us that job. As always, the

legislature can amend its primary-selection method. Post,

at 2-6 (opinion of Goff, J.). “But to say that the State can

require this is a far cry from saying that the Constitution

demands it.” López Torres, 552 U.S. at 206. It does not.

The dissent also expresses policy preferences when

it generally concludes that the Affiliation Statute fails

to serve the State’s interests because “[t]here’s no

potential for ballot overcrowding,” post, at 13 (opinion of

Goff, J.), and “likewise no potential for party raiding or

a frivolous candidacy,” id. at 14. In acknowledging the

State has “a legitimate interest in seeing that ballots

are not encumbered by the names of candidates with

no substantial support,” id. at 13, the dissent contends

that the Petition Statute, Indiana Code § 3-8-2-8,

“adequately serves” the State’s interests in preventing

ballot overcrowding, id. (emphasis added). Two points

stand out. First, is the dissent implying the Affiliation

Statute can never serve the State’s interest in preventing

ballot overcrowding? Or is it concluding that the Petition

Statute is simply better at serving the State’s interests?

Either way, both explanations involve a policy assessment

of the Affiliation Statute. Cf. Munro v. Socialist Workers

a social or political nature if they were able to obtain it.” Charles

A. Reich, Mr. Justice Black and the Living Constitution, 76 Harv.

L. Rev. 673, 740 (1963) (emphasis added).

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Party, 479 U.S. 189, 195-96, 107 S. Ct. 533, 93 L. Ed. 2d 499

(1986) (stating the legislature may “respond to potential

deficiencies in the electoral process with foresight rather

than reactively, provided that the response is reasonable

and does not significantly impinge on constitutionally

protected rights”). But such value-laced judgments are

properly left to the legislature.14

The dissent accuses the Court of giving “ the

legislature unrestricted authority to regulate the primary

ballot.” Post, at 23 (opinion of Goff, J.). Not so. Two points

merit attention from this sweeping conclusion.

First, the Constitution—not five appointed lawyers

on the Indiana Supreme Court—grants the General

Assembly broad authority to shape election policy. U.S.

Const. art. 1, § 4. True, this power is not unrestricted,

14. The dissent also points out that, since Indiana’s “semiclosed” primary system does not require “formal membership,

enrollment, or registration with the party” in order to vote in

a party primary, Herr v. State, 212 N.E.3d 1261, 1264 n. 1 (Ind.

Ct. App. 2023), the State “created” any attendant risk of “party

raiding” because there is “no way of determining what a voter

intends to do [because] voting is not necessarily indicative of party

membership or loyalty.” Post, at 14-15 (opinion of Goff, J.). Indeed,

primary voting may not be dispositive of party membership or

loyalty, but that type of normative assessment is reserved for

the legislature—which, in this instance, has deemed primary

voting to be probative evidence of party affiliation. Cf. Munro, 479

U.S. at 195 (“To require States to prove actual voter confusion,

ballot overcrowding, or the presence of frivolous candidacies as a

predicate to the imposition of reasonable ballot access restrictions

would invariably lead to endless court battles over the sufficiency

of the ‘evidence’ marshaled by the State to prove the predicate.”).

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Appendix A

but we have recognized that unremarkable principle of

constitutional law. Supra at 11. Of course, the First and

Fourteenth Amendments impose independent limitations

on the exercise of government power against individuals.

And indeed, courts have a first principles duty to enforce

those limits as “the bulwarks of a limited Constitution.”

Federalist, No. 78 (Hamilton); see also Horner, 125

N.E.3d at 610 (Rush, C.J., concurring in part and

dissenting in part) (explaining that courts are “responsible

for safeguarding against legislative overreach”). But we

must enforce limits when the Constitution requires us to

do so. In this case, it does not.

Second, not all ballot restrictions demand strict

scrutiny under Anderson-Burdick. The dissent implies

otherwise. It contends the Court contains “no analysis”

of how the State’s interests “are necessary to burden

Rust’s constitutional rights.” Post, at 23 (opinion of Goff, J.)

(emphasis in original). But this broad assertion overlooks

the “primacy” of the Supreme Court’s “two-track

approach” in applying Anderson-Burdick. Crawford,

553 U.S. at 205 (Scalia, J., concurring in the judgment).

Before we balance rights and interests, courts must

first “identify” the burden imposed. Id. If the burden is

“severe,” strict scrutiny applies, “and we uphold them only

if they are narrowly tailored to serve a compelling state

interest.” Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 451, 128 S. Ct. 1184, 170 L. Ed. 2d

151 (2008) (quotations omitted). But if it is minor, “then

the State’s important regulatory interests are generally

sufficient to justify reasonable, nondiscriminatory

restrictions on elections procedures.” Id. at 452 (quotations

40a

Appendix A

omitted); see also Crawford, 553 U.S. at 205 (Scalia, J.,

concurring in the judgment) (“Ordinary and widespread

burdens [that require] nominal effort of everyone, are not

severe.”) (quotations omitted).

That is precisely what the Court did here. We first

concluded the Affiliation Statute imposes a minor,

reasonable and nondiscriminatory restriction on Rust’s

access to the primary ballot. Supra at 15-18. We therefore

rejected the dissent’s novel premise—one that derives

from policy notions of fairness—that the burden imposed

is somehow “severe.” Id. at 16. It is not. The Affiliation

Statute has “eminently reasonable” requirements.

Crawford, 553 U.S. at 209 (Scalia, J., concurring in the

judgment). Make no mistake: Rust could have appeared

on the Republican primary ballot this May had he voted in

the required primaries, but he elected not to do so. That

was his choice. No one stopped him. He stopped himself,

a dispositive point the concurrence properly emphasizes.

Post, at 17 (opinion of Molter, J.). The First Amendment

does not “shield” Rust from his choices. Id. We next

pinpointed several legitimate regulatory interests that

support this restriction, supra at 18-22, which “are

generally sufficient” on their own terms, Washington

State Grange, 552 U.S. 452, but that also directly balance

the rights of Rust and the Republican Party under Option

A and B, supra at 22. Option B, specifically, advances

the party’s right to limit its candidates, which in turns

protects its identifiability and ensures stability in the

political system. Each of these is a sufficiently weighty

interest. Id.

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Appendix A

The dissent’s ambitious quest to convert these minor

restrictions into “severe” burdens requires the “sort

of detailed judicial supervision of the election process”

that defies the judicial role and constitutional structure.

Crawford, 553 U.S. at 208 (Scalia, J., concurring in

the judgment). In so doing, the dissent takes Indiana’s

established presumption of constitutionality of statutes

and flips it on its head. Cf. Horner, 125 N.E.3d at 588.

Indeed, our Court must apply strict scrutiny when severe

burdens are at play. Clingman, 544 U.S. at 592 (“strict

scrutiny is appropriate only if the burden is severe”).

But the flip side is also true: we must lower our standard

and defer to the legislature when it imposes a minor,

reasonable and nondiscriminatory restriction that is

justified by several legitimate state regulatory interests

in elections. To hold otherwise would be a sheer act of

political will, not legal judgment. Cf. FEDERALIST NO.

78 (Hamilton) (courts may exercise “neither force nor will

but merely judgment”).

On a fundamental level, the dissent today takes

a policy dispute, about which reasonable minds may

disagree, and constitutionalizes it “into the language

of competing rights,” thus recasting this debate into

“something ripe for judicial decree rather than resolution

by democratic processes.” Randall T. Shepard, A Bill of

Rights for the Whole Nation, 26 Val. U. L. Rev. 27, 32

(1991). Yet a judge who protests that “the [C]onstitution

made me do it,” often simply means that “things will be

better if I do it.” Id. Maybe so. But today we render our

decision within a more limited authority by confining our

analysis to the text of the Constitution and corresponding

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Appendix A

precedent interpreting the First Amendment, which

neither prescribes nor endorses a one-size-fits-all policy

regime for primary elections. The dissent suggests that

the Court today “forsakes its role as a check and balance

to the legislature” by deferring to its judgment. Post,

at 24 (opinion of Goff, J.). Wrong. This Court will check

government power when an act of the legislature runs into

conflict with the Constitution. See Holcomb, 187 N.E.3d at

1273-74 (declaring unconstitutional a law that allowed the

legislature to call itself into emergency session). But we

will not reinvent the constitutional wheel and invalidate

a statute based on our preferences about the fairness of

primary elections in Indiana.

We therefore need not second-guess the wisdom of

the Affiliation Statute—the expression of a majority of

Hoosiers who are represented by legislators they elected

who passed this law, and by a Governor who signed it. See

Columbus, Chi. & Ind. Cent. Ry. Co. v. Bd. of Comm’rs of

Grant Cnty., 65 Ind. 427, 438 (1878). These citizens—and

their wishes as expressed in the Affiliation Statute—

would have their will undermined if the dissent’s policy

preference won out today. But that assertion of raw judicial

power, ironically, made in the people’s name, would in the

end diminish their power by enlarging ours. While the

legislature may change the law, the First Amendment

does not compel us to invalidate it.

Because the Affiliation Statute imposes a minor,

reasonable and nondiscriminatory restriction on Rust’s

First Amendment rights, which is justified by the State’s

interests, it satisfies Anderson-Burdick standard.

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Appendix A

II. Rust’s other arguments fail on the merits.

We address Rust’s remaining arguments in turn and

conclude that none of them are successful on the merits.

A.

Vagueness and Overbreadth

Rust’s void-for-vagueness challenge turns on the

theory that “it is not clear what a party chair must certify”

under Option B of the Affiliation Statute. Appellee’s Br. at

35. He points to Ray v. State Election Board, 422 N.E.2d

714 (Ind. Ct. App. 1981), to conclude that this doctrine

applies in the ballot access election context. He also argues

that it provides “no guidelines for determining party

membership,” Appellee’s Br. at 36, and thus suffers from

constitutional infirmities. Today, we question the premise

that the doctrine applies and reject the conclusion even

if it does.

To begin with, we are reluctant to find the void-forvagueness doctrine applies in the civil ballot election

context. Traditionally, this doctrine has been generally

applied to statutes that prohibit certain conduct.

See Karlin v. Foust, 188 F.3d 446, 458 (7th Cir. 1999)

(explaining that “a statute is void for vagueness if it fails

to provide ‘fair warning’ as to what conduct will subject

a person to liability”); see also Kolender v. Lawson, 461

U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)

(describing this doctrine “requires that a penal statute

define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is

prohibited”). It “requires only that the law give sufficient

44a

Appendix A

warning so that individuals may conduct themselves in a

manner which avoids the forbidden conduct.” Chandley

Enterprises, Inc. v. City of Evansville, 563 N.E.2d 672,

675 (Ind. Ct. App. 1990).

The Affiliation Statute does not fit within this

traditional understanding of void-for-vagueness because

it does not prohibit certain conduct, nor is it enforced by

civil or criminal penalties. See I.C. § 3-8-2-7(a)(4). We are

thus averse to applying this doctrine outside the criminal

context. See, e.g., Johnson v. St. Vincent Hospital, Inc.,

273 Ind. 374, 404 N.E.2d 585, 596 (Ind. 1980) (declining to

rely on a case from another jurisdiction where the statute

had a “clear penal nature” to “establish the proposition of

law that the void for vagueness doctrine is applicable to

testing non-penal statutes”), overruled on other grounds

by In re Stephens, 867 N.E.2d 148 (Ind. 2007); Brunton

v. Porter Mem. Hosp. Ambulance Serv., 647 N.E.2d 636,

640 (Ind. Ct. App. 1994) (citing Johnson for the view that

void-for-vagueness applies “only to penal statutes, not to

non-penal civil statutes”).

But even if this doctrine applied in this context,

we would be unpersuaded that it would invalidate the

Affiliation Statute.

Void-for-vag ueness is about ensuring that an

“ordinary person exercising ordinary common sense”

has the chance to “sufficiently comply with the statute.”

Neudecker v. Neudecker, 566 N.E.2d 557, 562 (Ind. Ct.

App. 1991), aff ’d, 577 N.E.2d 960 (Ind. 1991). Simply put, it

helps ensure fair notice. See Grayned v. City of Rockford,

45a

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408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)

(“Vague laws may trap the innocent by not providing fair

warning.”). But the Affiliation Statute gives Hoosiers

fair notice about the conditions required to appear on

a primary ballot: either the candidate (1) has a recent

primary voting record with the party, or (2) the candidate

attaches a written certification of party membership from

the county party chair to their declaration of candidacy.

I.C. § 3-8-2-7(a)(4). These two options are “explicit” enough

to avoid a void-for-vagueness violation. Grayned, 408 U.S.

at 108. Either the conditions are satisfied or they are not;

there is no vagueness about it.

Rust relies on Ray to argue the Affiliation Statute

is vague and overbroad. But Ray is distinguishable.

First, in Ray, the court found a statute prohibiting

individuals from seeking placement on both Republican

and Democratic Party ballots unconstitutional. 422 N.E.2d

at 715. The court found the phrase prohibiting persons

who “belong[ ] to any other party” from participating

in a primary election to be vague because it contained

no standard on which to judge that determination. Id.

But here, the Affiliation Statute provides an objective

metric to determine whether a candidate has established

sufficient affiliation with a party to appear on the primary

ballot: Rust has two options—(a) primary voting or (b)

party certification. Thus, they are either met or not. Both

options yield clear, not vague, standards. Second, Ray

involved a situation where the State Election Board—not

the party—applied the language of the applicable statute

to determine who belonged to which party. Id. Here, the

party—acting through its county chair—has the power

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to determine party membership. The Affiliation Statute

properly lodges party determinations with the right

actor—the party, not the state. See Eu, 489 U.S. at 224

(“a political party has a right to identify the people who

constitute the association,” subject to constitutional limits)

(cleaned up).

Nor is the A ffiliation Statute overbroad. The

overbreadth doctrine safeguards constitutional freedoms

from freefalling into “the ambit of a statute written

more broadly than needed to proscribe illegitimate and

unprotected conduct.” Matheney v. State, 688 N.E.2d

883, 905 (Ind. 1997). Recently, this Court rejected an

overbreadth challenge and underscored that “invalidation

for overbreadth is strong medicine that has been employed

sparingly and only as a last resort.” State v. Katz, 179

N.E.3d 431, 460 (Ind. 2022) (cleaned up). And “the mere fact

that one can conceive of some impermissible applications

of a statute is not sufficient to render it susceptible to an

overbreadth challenge.” Id. (quoting Members of City of

Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789,

800, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)). Against this

risk avoidance posture, see Katz, 179 N.E.3d at 460, we

find the Affiliation Statute is not overbroad. It provides

two reasonably crafted ways to establish party affiliation

for a primary: a candidate may choose to affiliate with

the Republican by voting in the two Republican Party

primaries. I.C. § 3-8-2-7(a)(4). If he elects not to do so, he

can still become a candidate in that primary, provided his

county party’s chair permits it. Id.

At its core, the Affiliation Statute strikes a reasonable

balance of associational rights for both Rust and the

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Republican Party. It thus does not require “strong

medicine” as a dose of “last resort.” Katz, 179 N.E.2d at

460; see also United States v. Williams, 553 U.S. 285, 292,

128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008) (explaining the

Supreme Court has “vigorously enforced the requirement

that a statute’s overbreadth be substantial”) (emphasis

in original).

Because the Affiliation Statute is neither vague nor

overbroad, it survives Rust’s void-for-vagueness and

overbreadth challenges.

B. Seventeenth Amendment

Rust also argues that the Affiliation Statute violates

the Seventeenth Amendment to the United States

Constitution because it “improperly takes rights away

from voters and gives them to the state legislature and

party chairs.” Appellee’s Br. at 38. He concludes this

“indirectly” limits candidate choices, id. at 39, and thus

“leads to voter disenfranchisement and an inability to cast

votes effectively,” id. at 38. We disagree.

The Seventeenth Amendment provides in part:

The Senate of the United States shall be

composed of two Senators from each state,

elected by the people thereof, for six years; and

each Senator shall have one vote. The electors in

each state shall have the qualifications requisite

for electors of the most numerous branch of the

state legislatures.

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U.S. C onst. amend. XVII. Indeed, this amendment

superseded the original rule in the Constitution that

senators be “chosen by the [state] Legislature[s].” Id.

at art. 1, § 3. In 1913, the Seventeenth Amendment

became law. 2 Treatise on Const. L. § 10.10(b)(iv). But

the Seventeenth Amendment did not amend the entire

Constitution: it did not strip states of their power to

regulate the “Times, Places, and Manner of holding

Elections for Senators and Representatives.” Id. at art.

1, § 4. Indeed, Article 1, Section 14 (“Elections Clause”)

equips states with broad “authority to enact the numerous

requirements as to procedure and safeguards which

experience shows are necessary in order to enforce the

fundamental right involved.” Thornton, 514 U.S. at 834

(cleaned up).

Rust argues that the United States Supreme Court’s

decision in Thornton, 514 U.S. 779, is “instructive” given

the lack of Seventeenth Amendment precedent. Appellee’s

Br. at 39. True, Thornton is instructive, but not for the

reasons cited by Rust. To be clear, this is not a Thornton

case, or else Rust could not run at all, including in the

general election.

In Thornton, the Supreme Court held unconstitutional

an Arkansas constitutional amendment that limited the

number of times an otherwise-eligible candidate could run

for Congress. 514 U.S. at 783. This state constitutional

amendment collided with the Seventeenth Amendment’s

Qualification Clauses. Id. at 831. In reviewing the Arkansas

amendment, the Thornton majority underscored that the

Constitution established “fixed” qualifications that could

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not be amended by states, id. at 790, without the proper

Article V amendment process, id. at 837. Thornton

concluded that the text of the Constitution was enduring

and thus it required constitutional amendment for it to be

changed. Id. at 783.

But Thornton also drew a key distinction between

subst a ntive cha nges t o m i n i mu m cong ressiona l

qualifications and state regulations of election procedures.

Under the Election Clause, art. 1, § 4, states are “entitled

to adopt ‘generally applicable and evenhanded restrictions

that protect the integrity and reliability of the electoral

process itself.’” Thornton, 514 U.S. at 834 (quoting

Anderson, 460 U.S. at 788 n. 9). The Supreme Court has

ratified other state regulations of elections procedures,

w ithout finding them to contain “any substantive

qualification rendering a class of potential candidates

ineligible for ballot position.” Id. at 835; see, e.g., Storer,

415 U.S. at 724 (upholding California law forbidding

ballot access to independent candidates who registered

with a qualified political party within one year before

the preceding primary election); Munro, U.S. at 19495 (upholding Washington law requiring a minor-party

candidate receive at least one percent of votes cast in

the primary election before their name would be placed

on the general-election ballot); Burdick, 504 U.S. at 433

(upholding Hawaii’s prohibition on write-in voting). At

base, these procedural regulations were calibrated to

ensure that elections are “fair and honest . . . and [that]

some sort of order, rather than chaos, . . . accompan[ies]

the democratic processes.” Id. (cleaned up). And, in each

of these cases, the Supreme Court recognized the central

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“state interest in protecting the integrity and regularity of

the election process,” independent of “any attempt to evade

the constitutional prohibition against the imposition” of

other qualifications. Thornton, 514 U.S. at 835.

The State argues that the constitutional amendment

in Thornton is “far removed” from the Affiliation Statute,

which merely creates a procedural condition for access

to a party’s primary ballot. Appellants’ Br. at 40. We

agree this is the proper characterization. Simply put, the

Affiliation Statute exists within a broader election code

ecosystem, where procedures are designed to regulate “the

time, place, and manner of holding primary and general

elections, the registration and qualifications of voters,

and the selection and qualification of candidates.” Storer,

415 U.S. at 730. Rust overlooks this critical distinction

identified in Thornton, and argues the Affiliation Statute

“indirectly violates” the Seventeenth Amendment.

Appellee’s Br. at 39. But the Affiliation Statute does not

substantively add minimum qualifications for the general

election or to hold the office of United States Senator. And

it does not block Hoosiers from voting for a Senator in the

primary or general elections. It simply erects a minor

procedural bar for primary ballot access consistent with

the Constitution.

Because the Affiliation Statute is a mere procedural

regulation that does not substantively change the minimum

qualifications for United States Senate, it survives Rust’s

Seventeenth Amendment challenge.

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C.

E qu a l P r ot e c t io n u n d e r t he I n d i a n a

Constitution

Rust presses a state constitutional claim that the

Affiliation Statute violates his equal protection rights

under Article 1, Section 23 of the Indiana Constitution.

Appellee’s Br. at 41. He argues that he suffered from (1)

“disparate treatment” and that (2) this treatment was

“not related to inherent characteristics.” Id. at 44. Id. at

44. We disagree.

Article 1, Section 23 of the Indiana Constitution

states: “The General Assembly shall not grant to any

citizen, or class of citizens, privileges or immunities,

which, upon the same terms, shall not equally belong to

all citizens.” IND. CONST. art. 1, § 23. In Collins v. Day,

644 N.E.2d 72 (Ind. 1994), this Court adopted a two-part

test for determining whether a statute is valid under this

constitutional provision:

First, the disparate treatment accorded by

the legislation must be reasonably related to

inherent characteristics which distinguish the

unequally treated classes. Second, preferential

treatment must be uniformly applicable and

equally available to all persons similarly

situated.

Id. at 80 (emphasis added).

Indiana courts presume the statute in question is

constitutional. Id. The burden is then placed “on the

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challenger to negate every conceivable basis which might

have supported the classification.” Whistle Stop Inn, Inc.

v. City of Indianapolis, 51 N.E.3d 195, 199 (Ind. 2016)

(cleaned up). In an Article 1, Section 23 challenge, “it

is the disparate classification alleged by the challenger,

not other classifications, that warrants review.” Myers v.

Crouse-Hinds Div. of Cooper Indus., Inc., 53 N.E.3d 1160,

1165 (Ind. 2016).

Rust raises an as-applied challenge that “he is

being treated differently than candidates who were able

to be on the ballot prior to the July 2021 Amendments

and differently than those candidates who have a more

reasonable party chair that certifies based on party

membership alone.” Appellee’s Br. at 41. The State

counters that the statute is not unconstitutional “because

it imposes the same requirements on anyone seeking to

declare candidacy in a party’s primary.” Appellants’ Br.

at 41.

We agree with the State there is no equal protection

violation as applied to Rust. The Affiliation Statute applies

the same requirements on everyone who desires to run in

a party’s primary election, including Rust. I.C. § 3-8-2-7(a)

(4). Two reasons reinforce our conclusion today.

First, Rust lacks an inherent characteristic to

qualify for the ballot because he elected not to vote in

the last three primary elections. But these choices do not

reflect an “inherent” characteristic cognizable under our

Privileges and Immunities Clause jurisprudence. See, e.g.,

Whistle Stop Inn, 51 N.E.3d at 200 (citing Collins for the

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proposition that “the prevalence of sole proprietorships

and small employment units” and “the distinctive nature

of farm work” were “inherent characteristics of Indiana

agricultural employers”); Gambill v. State, 675 N.E.2d

668, 677 (Ind. 1996) (acknowledging “mental illness”

as an inherent characteristic); Horseman v. Keller, 841

N.E.2d 164, 172 (Ind. 2006) (confirming that not being

present at the polling site on Election Day was inherent

of an absentee voter).

Second, Rust did not allege a valid classification.

Here, he alleges two disparate classifications. But both

fail. At first, he claims that he is being treated differently

than candidates who ran before July 2021 under the

previous iteration of the Affiliation Statute. Yet this is

not a valid classification because it compares candidates

under different statutes. See Collins, 644 N.E.2d at 78.

Any candidate seeking placement on the 2024 primary

ballot—Republican or Democrat—must comply with the

current version of the Affiliation Statute. See I.C. § 3-8-27(a)(4). Candidates before the July 2021 amendments are

thus not similarly situated to Rust.

Next, Rust alleges that he is being treated differently

than candidates who have “more reasonable [county]

party chairs.” Appellee’s Br. at 41. This is also not

a valid classification because the Affiliation Statute

treats all candidates the same: without satisfying the

primary voting condition, all potential candidates must

be certified by their county party chair. I.C. § 3-8-2-7(a)

(4). And supposed differences based on the proclivities or

idiosyncrasies of county chairs—including amorphous,

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indeterminate notions of “reasonableness”—are based on

the party chair’s discretion, not on the operation of the

Affiliation Statute. Appellants’ Reply Br. at 29. Thus, we

are hard pressed to find this alleged class valid.

Because the Affiliation Statute does not treat Rust

unequally, it survives his equal protection challenge under

Article 1, Section 23.

D.

I mpr op er A mend ment t o t he I nd ia n a

Constitution

Rust advances another state constitutional claim,

arguing that the Affiliation Statute “improperly” amends

Article 4, Section 7 of the Indiana Constitution, which

establishes eligibility requirements to run for the State

Senate and House of Representatives. Appellee’s Br. at

45. His argument is that the Affiliation Statute modifies

this provision without following the amendment process.

Unusually, this claim is about Rust’s status as a voter—

not as a candidate for federal office—as “he seeks to have

all willing and constitutionally eligible candidates on the

ballot so that he may have meaningful choices and cast his

vote effectively.” Id. at 46. He argues that the Affiliation

Statute “adds extra requirements” to our Constitution.

Id. at 45. The State objected, in part, because Rust lacks

standing. We share the State’s concern.

We thus decline to reach the merits of this claim

because Rust lacked standing as a voter in Indiana. He

has not asserted a direct injury that he has “suffered” or

is “in immediate danger of suffering . . . as a result of the

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complained-of conduct.

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