Diego Morales v. John Rust

IN THE FILED
Indiana Supreme Court Mar 06 2024, 2:47 pm

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

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.
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 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

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.
2 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.
3The bipartisan State Election Board unanimously upheld challenges to Rust’s candidacy on
February 27, formally denying him access to the primary ballot.

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aware “that splintered parties and unrestrained factionalism may do
significant damage to the fabric of government.” Storer v. Brown, 415 U.S.
724, 736 (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 candidate-selection process that
will in its view produce the nominee who best represents its political
platform,” N.Y. State Bd. of Elections v. López Torres, 552 U.S. 196, 202 (2008)
(citing Democratic Party of U.S. v. Wisc. ex rel. La Follette, 450 U.S. 107, 122
(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 (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 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.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 3 of 41
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, 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 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(4), as amended by Pub. L. No. 194-2013, § 12 (eff. July 1, 2013).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 4 of 41
 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.

In July 2023, Rust met with 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 3-8-2-7(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 equal privileges and immunities; (5)

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 5 of 41
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. Herman & 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.

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).

4 We thank Amici for submitting briefs in this case.

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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.

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.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 7 of 41
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
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 (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 (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 (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 have diverse views, preferences, and commitments.
See Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (explaining that free
association involves “an inseparable aspect of the ‘liberty’ assured by the

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 8 of 41
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.” Am. for Prosperity Found. v.
Bonta, 141 S. Ct. 2373 (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 (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 (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 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

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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.

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 general election. J.F. Connell, Indiana Primary Laws, 18
Ind. Mag. Hist. 224, 230 (1922). In 1929, however, Indiana abandoned

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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
(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).

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

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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 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 candidate-selection 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 (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 (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 vests
authority in the political branches to ratify those policy decisions.

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 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 (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 (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 (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 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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 13 of 41
laws.”) (emphasis in original). This framework descends from two
Supreme Court cases, Anderson v. Celebrezze, 460 U.S. 780, and Burdick v.
Takushi, 504 U.S. 428. 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 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 Anderson-
Burdick 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 (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

5Because we resolve this challenge under the Anderson-Burdick 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.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 14 of 41
 1. The Affiliation Statute imposes a minor, reasonable and
nondiscriminatory 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 general-election ballot as an independent,
Libertarian, or write-in 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 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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 15 of 41
scrutiny. Navarro v. Neal, 716 F.3d 425, 430 (7th Cir. 2013) (quoting William
v. Rhoades, 393 U.S. 23, 30 (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 general-election 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 (2005)
(applying a more lenient standard to Oklahoma’s semi-closed primary
system that allowed independent voters but blocked other parties’
members from voting in the Libertarian Party’s primary election).

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 general-
election 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 like-minded 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 low-income
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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 16 of 41
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.

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
general-election 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 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.

6At 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).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 17 of 41
 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 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 important 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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 18 of 41
also generally “encompasses a political party’s decision about the . . .
process for electing its leaders.” Eu, 489 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 Election 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 (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.

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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 19 of 41
constitutionally protected right of freedom of association.” Id. at 1531–32.
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., 78 N.E. 1016, 1018 (Ind.
1906). Thus, party identifiability embodies “the highest importance to the
electors, to the end that they might not 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 (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 (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 (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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 20 of 41
them “less able to blame or credit a party for the performance of” its
officials).7

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 (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 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.

7 While these sentiments appeared in dissents from opinions holding wholesale patronage
firings unconstitutional, that context 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.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 21 of 41
 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. § 3-8-2-
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 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 (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.

8We 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.).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 22 of 41
 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 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 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

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.
10Rust’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.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 23 of 41
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 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

11Rust 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).
12F.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).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 24 of 41
what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (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 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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 25 of 41
such information and rendering judgments.13 Simply put, the legislature is
in the best 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 Party,
479 U.S. 189, 195–96 (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

13We 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 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).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 26 of 41
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,
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.

14The dissent also points out that, since Indiana’s “semi-closed” 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.”).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 27 of 41
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 (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 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.

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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 28 of 41
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
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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 29 of 41
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.

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-for-vagueness doctrine
applies in the civil ballot election context. Traditionally, this doctrine has
been generally applied to statutes that prohibit certain conduct. See Karlin
v. Faust, 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
(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 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).

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 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., 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-vagueness 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, 408 U.S. 104, 108 (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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 31 of 41
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 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 Affiliation 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 (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 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 (2008) (explaining

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 32 of 41
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.

U.S. CONST. 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,

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 33 of 41
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 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 substantive changes
to minimum congressional 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, without 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
194–95 (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 “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.

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 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.

C. Equal Protection under the Indiana 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

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 35 of 41
 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 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 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).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 36 of 41
 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. § 3-8-2-7(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, 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. Improper Amendment to the Indiana 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.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 37 of 41
 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
complained-of conduct.” Solarize Indiana, 182 N.E.3d at 217 (cleaned up);
see also Holcomb, 187 N.E.2d at 1286 (explaining that, without an injury, a
court cannot review the merits of a claim). To be precise, Rust is not
running for State office and “he has not identified a new resident or . . . a
Hoosier that is . . . adversely affected by” the Affiliation Statute that Rust
would vote for. Appellants’ Br. at 44. He lacks standing to press this issue.

Because Rust lacks standing to bring this claim as a voter under Article
4, Section 7, his claim will not be reviewed on the merits.

E. Invalid Use of Discretion under Affiliation Statute
Finally, Rust argued that Chairperson Lowery’s discretion in applying
the Affiliation Statute was invalid and illegal because it “violates multiple
canons of statutory construction.” Appellee’s Br. at 48. Rust argues that
her discretion: (1) conflicts with the purpose and spirit of the law; (2)
engrafts words onto the statute; (3) renders a portion of the statute
meaningless; and (4) conflicts with Indiana Code Section 3-10-1-2.

Rust is mistaken: the canons of interpretation support—not
undermine—Lowery’s discretion. When interpreting words in a statute,
this Court’s “first task” is to assign words their “plain meaning,” ESPN,
Inc. v. University of Notre Dame Police Dept., 62 N.E.3d 1192, 1195 (Ind.
2016), to unlock the legislature’s intent. Nicoson v. State, 938 N.E.2d 660,
663 (Ind. 2010). If we neglected this elemental task, “we would be
rewriting” unambiguous language, and therefore disrupting our
“separation-of-powers because it is the legislature that writes and revises
statutes while [courts] merely interpret and apply them.” Indiana Right to
Life Victory Fund v. Morales, 217 N.E.3d 517, 524 (Ind. 2023); see also Ind.
Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm’n,
695 N.E.2d 99, 108 n.21 (Ind. 1998) (“On the other hand, separation of
powers prevents a court from effectively rewriting a statute to save it from
constitutionality infirmity.”). And, of course, statutory language itself is
the best indication of legislative intent. Nicoson, 938 N.E.2d at 663.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 38 of 41
 The Affiliation Statute’s plain language compels our conclusion that
Lowery’s discretion was not invalid or illegal. Option B states: “a
candidate is considered to be affiliated with a political party only if . . .
[t]he county chairman of: the political party with which the candidate
claims affiliation; and the county in which the candidate resides; certifies
that the candidate is a member of the political party.” I.C. § 3-8-2-7(a)(4)
(emphasis added). By its terms, Lowery has broad discretion to certify that
Rust is a member of the Republican Party. Her broad discretion is a
feature—not a bug—of the Affiliation Statute, for it again recognizes a
party’s First Amendment rights in the exercise of associational discretion.

There were concerns raised in oral argument that the Affiliation
Statute lacked any criteria to guide or cabin the county chair’s discretion,
but such an attempt to restrict that exercise of discretion may raise First
Amendment concerns, as well. Moreover, the power to reject obviously
assumes the power to welcome. In modern times, we have seen
candidates with fame, fortune, or a following nominated by state and
national parties with little or no prior affiliation, in an exercise of
legitimate party self-interest and discretion. In 2016, the Indiana
Republican Party welcomed Trey Hollingsworth on the primary ballot for
Indiana’s 9th District congressional seat—although he never voted in an
Indiana primary—because he secured certification from the Clark County
party chair.15 Other historical examples illustrate the broad sweep of party
discretion. After defeating Hitler, General Eisenhower was courted by
both national parties in 1948 and 1952 for the presidential nomination16; in
1964, Massachusetts native Robert Kennedy became a Senator from New

15See Tim Evans and Mark Alesia, Trey Hollingsworth for Congress—rich carpetbagger or breath of
fresh air?, Trey Hollingsworth for Congress — rich carpetbagger or breath of fresh air?
(indystar.com) [https://perma.cc/Y4PM-U2LG].
16Before the 1948 election, President Truman proposed in a private meeting with Eisenhower
that they both run on the Democratic ticket, with Eisenhower as the presidential candidate
and Truman as his running mate. After Truman won in 1948, Senator Henry Cabot Lodge Jr.,
of Massachusetts began a campaign in the Republican Party to draft Eisenhower as the GOP
presidential nominee in 1952, which proved successful. See Chester J. Pach, Jr., Dwight D.
Eisenhower: Campaigns and Elections, https://millercenter.org/president/eisenhower/campaigns-
and-elections [https://perma.cc/VS4E-9MD3].

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 39 of 41
York, without having lived in the state. Just under four decades later,
Hillary Clinton of Washington, D.C., by way of Arkansas and Illinois, did
the same. If, for instance, the Obamas were to return to their native
Chicagoland and move across the street to Hammond, the Affiliation
Statute would not bar Democratic Party officials from allowing either to
run in a Senate primary, despite a lack of primary voting history in this
state, so long as they satisfied modest residency requirements.17 The
Affiliation Statute—by its terms—unassailably allows for this outcome.

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. The
Affiliation Statute reasonably recognizes and respects that reality without
offending the Constitution or any canon of construction.

Conclusion
Because the Affiliation Statute is not unconstitutional, and
because Rust’s remaining arguments lack merit, we reverse the trial
court and remand with instructions to enter judgment for the State.

17The United States Constitution fixes the substantive qualification requirements to run for
United States Senate. See U.S. CONST. art. I, § 3 (“No person shall be a senator who shall not
have attained to the age of thirty years and been nine years a citizen of the United States, and
who shall not, when elected, be an inhabitant of that state for which he shall be chosen.”).
States, in turn, cannot add substantive congressional candidacy qualifications not specified in
the Constitution. See Thornton, 514 U.S. at 783. But they can impose “evenhanded” restrictions
to protect the integrity of the electoral process. Id. at 834. Thus, to be declared a candidate for
United States Senate in Indiana, state election law provides that a petition must contain,
relevant here, “the residence address of each petitioner as set forth on the petitioner’s voter
registration record.” I.C. § 3-8-2-8(b)(3) (emphasis added). Further, Indiana law provides
further modest protection that “[t]he county voter registration office in the county where a
petitioner is registered must certify whether each petitioner is a voter at the residence
addressed listed in the petition at the time the petition is being processed, and whether that
address is located within the election district for office.” I.C. § 3-8-2-9 (emphasis added). Put
simply, the bar for establishing candidate residency for United States Senate in Indiana is low.
Certainly, you could establish residency without having to vote in two party primaries.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 40 of 41
Slaughter and Molter, JJ., concur.
Molter, J., concurs with separate opinion in which Slaughter, J., joins.
Goff, J., dissents with separate opinion in which Rush, C.J., joins.

ATTORNEYS FOR APPELLANTS, DIEGO MORALES AND INDIANA
ELECTION COMMISSION
Theodore E. Rokita
Attorney General of Indiana
Angela N. Sanchez, Chief Counsel of Appeals
Benjamin M.L. Jones, Section Chief, Civil Appeals
Kyle Hunter, Assistant Section Chief, Civil Appeals
Office of the Indiana Attorney General
Indianapolis, Indiana

ATTORNEY FOR APPELLANT, AMANDA LOWERY
E. Ryan Shouse
Lewis and Wilkins LLP
Indianapolis, Indiana

ATTORNEY FOR APPELLEE, JOHN RUST
Michelle C. Harter
Lekse Harter, LLC
Greenwood, Indiana

ATTORNEYS FOR AMICUS CURIAE, THE INDIANA REPUBLICAN
STATE COMMITTEE, INC.
Jackie M. Bennett, Jr.
Vivek R. Hadley
Hayley A. Sears
Taft Stettinius & Hollister LLP
Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE, COMMON CAUSE INDIANA
AND LEAGUE OF WOMEN VOTERS OF INDIANA
William R. Groth
Daniel Bowman
Bowman & Vlink, LLC
Indianapolis, Indiana

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 41 of 41
Molter, J., concurring.

I agree that all of John Rust’s claims fail for the reasons the Court’s
opinion explains. For Rust’s First Amendment claim, the volleys between
the Court’s opinion and the dissenting opinion continue great debates our
country has been having since its founding about how democracy
functions best and the role of judges in our divided government. I take no
position on the best way to run elections, and between the competing
views of the judicial role, I align more closely with the Court’s opinion.

But I write separately to demonstrate that when we walk through the
First Amendment analysis with smaller steps, we can resolve this case
without having to resolve those bigger debates. The bottom line boils
down to this: the Affiliation Statute limits primary candidates to those
who are either party members or who vote in the party’s primary
elections, and the United States Supreme Court interprets the First
Amendment as compelling that sort of limitation rather than prohibiting it.
The Affiliation Statute does not impermissibly burden Rust’s First
Amendment rights because its requirement to either become a party
member or vote in the party’s primaries was not too onerous for Rust to
satisfy. Instead, Rust did not satisfy the requirement because the party
exercised its own First Amendment right to deny his membership, and he
chose not to vote in the party’s primaries.

I. The Affiliation Statute’s Operation
Evaluating the Affiliation Statute’s constitutionality becomes easier
after recognizing three key aspects of the statute’s operation.

First, the statute provides two paths to appear on a party’s primary
ballot: a party‐controlled membership path, and a candidate‐controlled
voting history path. Those are alternative paths reflecting legislative
balancing; neither option is an exception to or a relief valve from the other.

Second, for the party‐controlled membership path, the local party chair
certifies only party membership. The chair does not have broader
discretion to decide whether the party gives one of its members
permission to run for a particular office.

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 1 of 18
 Third, if the aspiring candidate disagrees with the local party chair’s
membership decision, the candidate can, at a minimum, appeal that
decision through the party’s internal appeal process.

A. The Affiliation Statute provides alternative routes to the
primary ballot that reflect legislative balancing.

As the Court’s opinion explains, the Affiliation Statute provides two
paths onto a primary ballot—one over which the party has complete
control, and the other over which the aspiring candidate has complete
control. The option the party controls is for the county chair where the
candidate resides to certify that the candidate “is a member of the political
party.” Ind. Code § 3‐8‐2‐7(a)(4)(B). The option the candidate controls is to
cast their two most recent primary ballots in the primary election for the
party with which they claim affiliation. Id. § 3‐8‐2‐7(a)(4)(A). Those ballots
can be in recent elections or elections long ago; elections that were close
together, or far apart. All that matters is that both ballots were for the
party with which the candidate claims affiliation.

There seems to be confusion over how these two options relate to each
other. Sometimes they are discussed as though one is an exception to or a
relief valve from the other. But that isn’t how the statute is written.

Instead, the two options are alternatives that reflect a legislative
balance. The party‐controlled membership option reflects the State’s
legitimate interest in protecting political parties’ First Amendment rights
to determine their own membership, representatives, and leadership. N.Y.
State Bd. of Elections v. López Torres, 552 U.S. 196, 202 (2008) (“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.”).

But a political party’s First Amendment rights over control of its
candidate‐selection process “are circumscribed” when “the State gives the
party a role in the election process” by administering a state‐run primary
election. Id. at 203. Then “the State acquires a legitimate governmental

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 2 of 18
interest in ensuring the fairness of the party’s nominating process,
enabling it to prescribe what that process must be.” Id.

The candidate‐controlled voting history option reflects the State’s
interest in fair elections. To advance that interest, the State made the
policy choice to broaden the candidate pool so that it includes those who
are affiliated with a political party through their primary voting history,
even if the party does not count them as members. The State didn’t have
to broaden the candidate pool, but having done so, requiring some
measure of party affiliation was appropriate. Cal. Democratic Party v. Jones,
530 U.S. 567, 567 (2000) (holding that California’s blanket primary for
determining a political party’s nominee for the general election violated
the political parties’ First Amendment rights).

So the candidate‐controlled voting history option is not “a restriction
on an individual’s ability to choose and to change his or her party
affiliation.” Post, at 15 (emphasis omitted). The parties and individuals
remain free to associate to whatever extent they agree. The voting history
option merely limits which candidates who claim party affiliation will be
listed on a primary ballot, even though the party does not necessarily
acknowledge the candidates as party members.

Rust complains that one reason Lowery gave for refusing to certify his
party membership is that his two most recent primary votes were not in a
Republican primary. (Four out of his last five votes were in the
Democratic primary.) He says Lowery, in effect, adopted the candidate‐
controlled voting history criteria as the criteria for party membership. And
that is improper, he argues, because it renders the party‐controlled option
“meaningless/useless.” Appellee’s Br. at 50.

But the political parties have the First Amendment right to limit their
membership however they wish, including by adopting a statutory
standard as their own. López Torres, 552 U.S. at 202. Here, that means the
parties remain free to adopt the voting history criteria as their own
membership criteria, even if that makes the party‐controlled option
redundant of the candidate‐controlled option.

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 3 of 18
 While the party‐membership option leaves it to the parties to define
their membership however they wish, that leads to another source of
confusion, which is determining exactly what local party chairs are
supposed to certify.

B. For the party‐controlled option, county chairs certify
only party membership, not permission to run for a
particular office.

Rust contends some county chairs are not following the statutory
provision for the party‐controlled membership option because they read
words into the statute. More than just certifying whether an aspiring
candidate is a party member, Rust says those chairs mistakenly believe
they have broader power to decide whether to give candidates the party’s
permission to run for a particular office.

At oral argument, Rust’s attorney fleshed this out with some good
examples. She said she represented another client who had a Republican
Party membership card, who was listed on the party website as a sponsor,
and who wanted to run for state representative. The county chair would
certify the candidate as a party member if the candidate ran for a county
office, but not if the candidate ran for a state office. Another client
reported a similar experience. He could run on a Republican primary
ballot as a candidate for delegate to the Republican Party State
Convention, but the county chair would not certify his party membership
if he ran for Congress.

Those cases aren’t before us now, so we don’t know whether that is the
fairest representation of the facts or not. But even just considering them to
be hypothetical examples, they are illustrative. The plain meaning of the
Affiliation Statute’s text does not delegate that sort of discretion to county
chairs. The statute says the county chair certifies whether the candidate is
“a member of the political party.” I.C. § 3‐8‐2‐7(a)(4)(B). 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.

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 4 of 18
 Consistent with the political parties’ First Amendment rights, the
statute lets the parties determine who their members are, and the statute
delegates to county chairs the responsibility to certify that a candidate is a
party member. But as Rust bluntly puts it: “The statute does not provide
for either the [Indiana Election] Commission or a county party chairman
to make decisions about who should run.” Appellee’s Br. at 49. He is right
about that much.

Once a party includes someone as a member, the statute requires the
party to let them run for any office if they satisfy the remaining statutory
and constitutional requirements.

C. A candidate can challenge a local party chair’s
membership decision through the party’s internal
appeal process.

Even when local party chairs properly limit their decisions to whether
aspiring candidates are party members, disputes can arise about whether
the chairs made the right decisions. Here, Lowery says she consulted with
other Jackson County Republican Central Committee members, and her
reasons for concluding Rust was not a party member included that he had
voted in Democratic primaries twice as often as Republican primaries. Her
decision to deny Rust’s party membership also aligned with the party’s
definition of a “Qualified Primary Republican,” which is “a voter who cast
[a] Republican Party ballot at the two (2) most recent primary elections in
Indiana which the voter voted, and who is a Republican in Good‐
Standing.” Rules of the Ind. Republican State Comm. Rule 1‐24.1

But Rust argues that Lowery and her colleagues should have instead
evaluated his party membership against the party’s definition of a
“Republican in Good Standing,” which is “a Republican who supports

1See Rules of the Ind. Republican State Comm. (2023), available at
https://www.indiana.gop/sites/default/files/10%2012%2023%20Rules%20of%20the%20Indiana
%20Republican%20Party.pdf [https://perma.cc/KA3E‐4N39].

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 5 of 18
Republican nominees and who does not actively or openly support
another candidate against a Republican nominee.” Id. R. 1‐25. Rust
believes he satisfies that definition.

We can’t know whether Lowery or Rust is correct about which
definition the party would apply for its membership and whether the
party would agree with Lowery’s application of that definition because
Rust didn’t appeal Lowery’s decision to higher levels of the party. Of
course, the fact that the Republican Party filed an amicus brief in our
Court supporting Lowery’s decision is a strong indication that it agrees
with her membership determination. Regardless, the same party rules
Rust cites to establish his party membership also provide an internal party
appeal process. And for candidates like Rust who disagree with the
county chair’s decision whether to certify their membership, the party
provides a hearing and appeal process. The appeal goes first to the party’s
District Committee, and then to its State Committee. Id. R. 1‐30 to ‐35.

The Indiana Democratic Party defines its membership differently, but it
has a similar internal appeal process. That party has decided: “Any legally
qualified Indiana voter who supports the purposes of the Party may be a
member.” Rules of the Ind. Democratic Party Rule 8(a).2 And as with the
Republican Party, someone who disagrees with a lower‐level decision
about their membership can appeal the decision all the way to the Indiana
Democratic Party’s State Committee. Id. at R. 20.

Rust suggested at oral argument that he wasn’t aware of an internal
party appeal process. But that process is spelled out in the very same
party rules that the Republican Party publishes on its website and which
Rust has been citing throughout the litigation to show that he is a member
of the Republican Party.

Perhaps Rust instead thought an internal party appeal would be futile
because the party already endorsed Representative Banks and would

2See Rules of the Ind. Democratic Party (2023), available at https://indems.org/wp‐
content/uploads/2023/10/IDP‐Rules‐April‐2023.pdf [https://perma.cc/6GU8‐BE7A].

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 6 of 18
therefore exclude Rust as a member so he couldn’t run for the party’s
nomination to the Senate. But whether an appeal over Lowery’s
membership decision would be futile, the party still gets to decide for
itself who its members are. López Torres, 552 U.S. at 202 (“A political party
has a First Amendment right to limit its membership as it wishes . . . .”).
And the Seventh Circuit’s decision in Hero v. Lake County Election Board
demonstrates there are mechanisms for political parties (not just the
party’s county chair) to determine who its members are for purposes of
the Affiliation Statute and to communicate those membership decisions to
election officials. 42 F.4th 768, 776–77 (7th Cir. 2022).

II. The Affiliation Statute’s Constitutionality
After establishing how the Affiliation Statute operates, the
constitutional analysis rests on stronger footing. Rust’s argument that
some county chairs are not complying with the Affiliation Statute is a
reason to enforce the statute, not to invalidate it as unconstitutional. While
Rust disagrees with Lowery’s decision that he is not a party member, he
opted not to pursue the party’s internal appeal process or to seek relief in
the courts to compel Lowery’s certification. And he cannot skip to the
nuclear option of invalidating the statute before exhausting all other
options for compelling statutory compliance consistent with the
Constitution.

As for the merits of Rust’s First Amendment challenge, both the Court’s
opinion and the dissenting opinion appropriately decline Rust’s invitation
to declare the statute unconstitutional on its face. Rust’s as‐applied
challenge fails because his own concessions foreclose any claim that the
statute unduly burdens his First Amendment rights. He acknowledges the
State can limit primary candidates to party members, so the party‐
controlled membership option does not impose an unconstitutional
burden. That concession alone defeats his First Amendment claim because
adding a second path to an independently sufficient path to the primary
ballot cannot impose an undue burden. But even if we evaluate the voting
history option too, Rust’s claim fails because he does not identify any

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 7 of 18
burden keeping him from voting in primary elections. He simply chose
not to.

A. Rust’s claim that some party chairs don’t follow the
statute is a reason to enforce it, not to invalidate it.

Rust argues that Lowery, acting in an official capacity as a state actor,
did not comply with the Affiliation Statute, and if she had, Rust would be
on the ballot. Specifically, Rust contends he qualifies as a party member
under the party’s rules, and the statute therefore required Lowery to
certify his party membership. Lowery has strong counterarguments that
she did follow the statute, but even if Rust is right that she didn’t, that is a
reason to enforce the statute, not to invalidate it.

Rust responds that simply enforcing the statute in his case doesn’t go
far enough because the statute is hopelessly vague, and that vagueness
will lead other county chairs to violate the statute in other elections. But as
explained above, the statute isn’t vague, and it operates just as Rust claims
it should. The party‐controlled membership option requires the local party
chair to certify only party membership, not permission to run for a
particular office. And if the aspiring candidate disagrees with the chair’s
membership determination, the candidate can appeal that decision
through the party’s internal appeal process.

We reach constitutional issues only as a last resort. WTHR‐TV v. Milam,
690 N.E.2d 1174, 1176 (Ind. 1998) (declining the parties’ invitation to
“reach a constitutional issue as [a] matter of first not last resort”). And
here, Rust had other options available to him to compel Lowery’s
compliance with the statute short of asking the courts to invalidate it. At a
minimum, he could have exhausted the party’s internal appeal process to
challenge Lowery’s membership decision.

Rust also sued Lowery in her “official capacity” because the Affiliation
Statute “empowers her to certify candidates who are members of the
party.” App. Vol. 2 at 37, 39–40. That is, Rust alleges Lowery was a state
actor in an official capacity when she refused to certify Rust’s party
membership. It is unsurprising that, having sued Lowery, Rust alleged

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 8 of 18
she was a state actor because the First Amendment restricts only state
action, not private conduct. Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767,
777 (1986) (recognizing that the First Amendment “by its terms applies
only to governmental action”); see also Manhattan Cmty. Access Corp. v.
Halleck, 139 S. Ct. 1921, 1928–29 (2019) (explaining that “a private entity
may qualify as a state actor when it exercises powers traditionally
exclusively reserved to the State,” that “very few functions fall into that
category,” and one function falling into this narrow category is “running
elections” (quotations omitted)); Finger v. State, 799 N.E.2d 528, 532 (Ind.
2003) (“A private entity is deemed a state actor when the state delegates to
it a traditionally public function.”).

If Rust is right that Lowery was a state actor with a ministerial duty to
certify party membership, then the mandate statute may have authorized
him to sue Lowery to compel her to certify his party membership. I.C. §
34‐27‐3‐1 (“An action for mandate may be prosecuted against any inferior
tribunal, corporation, public or corporate officer, or person to compel the
performance of any: (1) act that the law specifically requires; or (2) duty
resulting from any office, trust, or station.”). Or if that statute didn’t
apply, he may have been able to sue for a mandatory injunction
compelling certification. Warriner Invs., LLC v. Dynasty Homeowners Ass’n,
Inc., 189 N.E.3d 1119, 1126 (Ind. Ct. App. 2022) (“An injunction which
orders a party to take a specific action is referred to as a mandatory
injunction.”).

Those remedies may have ultimately proved unavailable for any
number of reasons, including that Rust may not be right that Lowery was
a state actor with a duty to certify his membership. See Price v. Ind. Dep’t of
Child Servs., 80 N.E.3d 170, 175 (Ind. 2017) (“Judicial mandate is
appropriate only when two elements are present: (1) the defendant bears
an imperative legal duty to perform the ministerial act or function
demanded and (2) the plaintiff has a clear legal right to compel the
performance of that specific duty.” (cleaned up)); Bd. of Comm’rs of Jackson
Cnty. v. State, 46 N.E. 908, 913 (Ind. 1897) (“A duty to be performed is none
the less ministerial because the person who is required to perform it may
have to satisfy himself of the existence of a state of facts under which he is
given his right or warrant to perform the required duty.”). But Rust was

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 9 of 18
the master of his complaint, and after alleging that Lowery was a state
actor refusing to fulfill a statutory duty, he abandoned his pursuit for
relief to compel her statutory compliance. We can’t invalidate the statute
before Rust demonstrates that invalidating the statute on constitutional
grounds is his last resort rather than his first. WTHR‐TV, 690 N.E.2d at
1176.

B. Rust’s First Amendment claim fails as both a facial
challenge and as an as‐applied challenge.

For ballot access cases like this one, courts evaluate First Amendment
challenges through Anderson‐Burdick balancing. Anderson v. Celebrezze, 460
U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). “Election
regulations that impose a severe burden on associational rights are subject
to strict scrutiny, 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 (2008) (quotations omitted). “If a statute
imposes only modest burdens, however, then the State’s important
regulatory interests are generally sufficient to justify reasonable,
nondiscriminatory restrictions on election procedures.” Id. at 452
(quotations omitted).

Critical here, reviewing the constitutionality of an election law requires
attention to whether the plaintiff asserts a facial challenge or an as‐applied
challenge. See generally Joshua A. Douglas, The Significance of the Shift
Toward As‐Applied Challenges in Election Law, 37 Hofstra L. Rev. 635 (2009).
A facial challenge alleges there are no circumstances in which the State
could enforce a statute without violating someone’s constitutional rights,
requiring the court to stop the State from enforcing the statute against
anyone (or at least against a group of people beyond just the plaintiff in a
set of circumstances where applying the statute would never be
constitutional). John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010). An as‐
applied challenge alleges only that enforcing the statute against the
plaintiff would violate the plaintiff’s constitutional rights, requiring the
court to stop the State from enforcing the statute against only the plaintiff,
but not anyone else. Id.

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 10 of 18
 While the trial court invalidated the Affiliation Statute on its face,
Rust’s attorney clarified at oral argument in our Court that Rust asserts
both a facial and an as‐applied challenge. The dissenting opinion adheres
to the guidance from the United States Supreme Court that facial
challenges to election laws are disfavored, and the dissent reaches the
more limited conclusion that the Affiliation Statute is unconstitutional
only as applied to Rust. But I agree with the Court’s opinion that Rust’s
First Amendment challenge fails as both a facial challenge and as an as‐
applied challenge.

1. Rust cannot prevail on a facial challenge.

Prevailing on a facial challenge requires the plaintiff to prove that “no
set of circumstances exists under which the Act would be valid, i.e., that
the law is unconstitutional in all of its applications.” Wash. State Grange,
552 U.S. at 449 (quotations omitted). Rust isn’t challenging the State’s
primary election scheme or the broader statutory scheme for accessing the
general election ballot on the whole. He is just challenging the two options
the General Assembly offers candidates through the Affiliation Statute for
establishing party affiliation so that they can appear on a political party’s
primary ballot: (1) become a member of the party (which the county chair
certifies); or (2) cast the two most recent primary votes for the same party.

Those two options—party membership or voting history—do not, on
their face, violate the First Amendment because they do not severely
restrict aspiring candidates’ access to the ballot, and they are justified by
the sufficiently weighty State interests that the Court’s opinion explains.
Rust disagrees, arguing that the Affiliation Statute is unconstitutionally
burdensome in three ways, but each argument fails.

a. Excluding candidates from the ballot

Rust argues that by providing only these two routes for appearing on a
primary ballot, the Affiliation Statute “severely burdens” candidates’
rights to associate with the Republican Party because the statute excludes

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 11 of 18
some candidates from appearing on primary ballots. Appellee’s Br. at 19.
But that argument confuses the consequence with the burden.

All ballot access cases involve the consequence of excluding a candidate
from a ballot, and courts don’t treat the exclusion as such as the burden.
Instead, the burden is the contested ballot access requirement. See, e.g.,
Anderson, 460 U.S. at 782 (“The question presented by this case is whether
Ohio’s early filing deadline placed an unconstitutional burden on the
voting and associational rights of Anderson’s supporters.”). Here, that
requirement is to be either a party member or someone who votes in the
party’s primaries. And for a facial challenge, we evaluate how onerous
that requirement is generally, without regard to any specific candidates or
specific elections.

Rust stresses that this year’s Republican primary election for the party’s
Senate nomination will be uncontested if he is excluded from the ballot,
but a facial challenge must consider all the other elections too. That
includes all the congressional races this year that include many primary
candidates, and the Republican primary election for governor, which has
five candidates. For the full scope, we should also consider that the
Secretary of State’s 2022 Candidate List for the primary election was 303
pages long.3 Rust doesn’t claim that the Affiliation Statute couldn’t be
enforced consistent with the First Amendment in any of those races, or
even that on balance, the Affiliation Statute’s two options for ballot access
have generally proved too burdensome.

Rust also doesn’t cite any case that stands for or supports the
proposition that a state violates the First Amendment by limiting primary
candidates to those who are members of a party or vote in the party’s
primaries. Just the opposite, the United States Supreme Court has
concluded that political parties’ First Amendment rights compel states to
impose party affiliation requirements for primary elections to select the

32022 Primary Election Candidate List, Ind. Sec’y of State (May 3, 2022),
https://www.in.gov/sos/elections/files/2022_Primary_Candidate_List.pdf
[https://perma.cc/ZU78‐PP72].

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 12 of 18
parties’ nominees for the general election. Cal. Democratic Party, 530 U.S. at
567 (holding that California’s blanket primary for determining a political
party’s nominee for the general election violated the political parties’ First
Amendment rights). That is why Rust concedes that the First Amendment
permits the State to limit ballot access to party members and to defer to
the parties to certify their membership, Oral Argument at 21:00–23:05,
27:55–30:50, which is precisely how the party‐controlled membership
option currently operates.

Bolstering the statute’s constitutionality on its face is the fact that
certification of party membership or primary voting history is a well‐worn
tool for establishing party affiliation. For example, the Affiliation Statute’s
two options are the same two options to establish party affiliation for
appointments to state entities with party‐affiliation requirements.
I.C. § 36‐1‐8‐10(b). And as the Republican Party’s amicus brief
demonstrates, more than three dozen state entities depend on these
methods for establishing party affiliation. See Ind. Republican State
Comm. Amicus Br. at 19–20 n.3 (collecting statutory cites). Some entities—
like police and fire merit commissions—depend on an even longer voting
history, requiring that an individual’s three most recent primary votes be
cast for the affiliated party. I.C. § 36‐8‐3.5‐6(c). Service to those important
public entities is just as important a First Amendment exercise as running
for elected office, and there is no suggestion here that those statutes
violate the First Amendment.

b. Ineligibility for the candidate‐controlled voting
history option

Rust also argues the statute is unconstitutional on its face because he
estimates that 81% of Hoosiers do not qualify for the candidate‐controlled
voting history option. That argument fails for a couple of reasons.

For starters, the percentage of Hoosiers eligible under the voting
history option tells us nothing about the percentage eligible under the
party membership option. Rust seeks to invalidate both provisions on
their face, so he has the burden to prove the Affiliation Statute as a
whole—not just the voting history option—imposes an undue burden.

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 13 of 18
 But even for the candidate‐controlled voting history option, Rust’s
numbers are incomplete. He reaches the 81% figure by citing surveys
stating that 79% of Hoosiers identify as Republican or Democrat, and 24%
of Hoosiers voted in the 2020 primary. Multiplying 79% by 24% yields
19%, which Rust says leaves the remaining 81% of Hoosiers ineligible to
run as a Republican or a Democrat. Looking at how many Hoosiers voted
in one year’s primary tells us nothing about how many Hoosiers’ most
recent two primary votes—in any years—were for the same political
party.

In short, Rust’s statistical extrapolations are incomplete and do not
demonstrate that the statute is unconstitutional on its face.

c. Access to voting history records

Rust also argues that the candidate‐controlled voting history option is
severely burdensome because some people might not have access to
voting history that they need to establish their eligibility, such as voters
who last voted before records were digitized in 2003. That is not a facial
challenge because it is not an argument that the Affiliation Statute is
unconstitutional in all circumstances. It is an argument that the statute is
unconstitutional in limited circumstances where a candidate doesn’t have
access to that voting history. Or, if Rust intends this as a facial challenge in
the sense that the Affiliation Statute is overly burdensome in all
circumstances where the potential candidate is neither a party member
nor has access to their voting history, Rust lacks standing to make that
claim because he is neither such a candidate nor a voter seeking to cast a
vote for such a candidate. Pence v. State, 652 N.E.2d 486, 488 (Ind. 1995).

2. Rust cannot prevail on an as‐applied challenge
either.

The dissenting opinion expressly declines Rust’s request to invalidate
the Affiliation Statute on its face, concluding instead that the statute
should be enjoined only as to Rust. And significantly, the dissent
acknowledges that “the legislature is best suited to weigh the costs and

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 14 of 18
benefits of a given ballot restriction.” Post, at 1. So while our written
opinions engage in larger debates about the role of elections in democracy
and the role of judges in a divided government, the disagreement among
us that matters for resolving this case is much narrower: three of us
conclude that requiring Rust to comply with the Affiliation Statute does
not violate his First Amendment rights, and two of us conclude that it
does.

We all also agree that the State’s interests in the Affiliation Statute “are
certainly legitimate in the abstract.” Id. at 13. So for Rust’s as‐applied
challenge, we must weigh those legitimate interests against the statute’s
burden on Rust’s individual First Amendment rights. As with his facial
challenge, Rust claims the burden on his First Amendment rights is that
he is excluded from the primary ballot. But again, he confuses the
consequence of statutory noncompliance with the burden of compliance. All
ballot access challenges involve exclusion from the ballot. A plaintiff
cannot prevail on an as‐applied challenge just by saying that a
requirement for a filing fee, petition signatures, party membership, party
affiliation, or any other ballot access requirement violates their First
Amendment right to party affiliation because failing to satisfy the
requirement excludes them from the ballot.

Here, the burden on Rust is to either become a member of the
Republican Party or vote in its primary elections. We must therefore
evaluate whether the impediments to Rust either obtaining party member
certification or voting in the party’s primaries are substantial enough that
he has demonstrated the statute’s burdens on him so clearly outweigh its
benefits that the statute violates his First Amendment rights. Rust has not
demonstrated that.

a. Party membership

Rust’s own concessions foreclose any claim that the party‐controlled
membership option is unconstitutionally burdensome. He concedes, as he
must, that Indiana can limit primary candidates to party members, and
that the State can rely on the parties to determine and certify their own
membership. The dissenting opinion likewise acknowledges that the

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 15 of 18
“Republican Party certainly has the right to exclude non‐members and to
bar people it disfavors from officially representing it.” Id. at 17; see also id.
at 20 (acknowledging that “the parties always retain a First Amendment
right to disassociate from any person and thereby block them from the
ballot”); id. at 23 (“To be sure, a party may justifiably seek to prevent
unsavory individuals . . . from becoming a candidate.”).

That should end the analysis of Rust’s as‐applied First Amendment
claim because that is all the party‐controlled membership requirement
does. The statute simply lets the parties determine their own membership
and relies on local party chairs to certify that membership. And that is all
that happened here. Lowery decided Rust wasn’t a member of the
Republican Party, and the Republican Party has backed her up by filing an
amicus brief in our Court supporting her decision. Rust could have
challenged Lowery’s decision through the party’s internal appeal process,
but he chose not to.

Critically, Rust is not claiming it is too burdensome to obtain party
membership certification. He is not, for example, saying he couldn’t
satisfy the party membership requirement because it is just too hard to
track down the local party chair and obtain the certification. He is instead
complaining that the party refuses to acknowledge his membership. That
isn’t a dispute about a burden. That is a dispute about how to resolve a
conflict between Rust’s First Amendment right to seek membership in the
Republican Party and the Republican Party’s First Amendment right to
exclude Rust from the party. And the law is clear and undisputed on that
point. The party has the right to determine its membership for itself. López
Torres, 552 U.S. at 202 (“A political party has a First Amendment right to
limit its membership as it wishes . . . .”).

All agree the First Amendment permits States to limit primary
candidates to party members. Applying the party‐controlled membership
option to Rust does only that, so it does not violate the First Amendment.

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 16 of 18
 b. Voting history

There is no need to go any further. If the party‐controlled membership
option is not unconstitutionally burdensome by itself, then it can’t be
unconstitutionally burdensome to offer candidates a second path to the
ballot that the candidates control. But even if we evaluate the candidate‐
controlled voting history option in isolation, Rust also failed to carry his
burden to prove that the voting history requirement is too onerous for him
to satisfy.

Rust voted in the 2016 Republican primary and four Democratic
primaries before that, so obviously voting in primaries is not unduly
burdensome for him. He simply chose not to vote in the 2020 or 2022
Republican primaries. Had he voted in either of those elections, he would
have satisfied the requirements of the voting history option, would have
established his affiliation with the Republican Party, and would have been
entitled to appear on a 2024 Republican primary ballot.

Rust claims he did not vote in the 2020 primary because “that election
was moved due to Covid‐19.” Appellee’s Br. at 10. But in his deposition,
the State asked Rust why changing the primary’s date prevented Rust
from participating. Rust responded that he “believe[d] [he] had to work
. . . and couldn’t vote the day they moved it to.” App. Vol. 2 at 187. And
when reminded that he could have voted absentee without excuse in that
election, Rust merely stated “I don’t know.” Id.

Nothing prevented Rust from participating in the 2022 Republican
primary either, or at least he didn’t prove there was any unconstitutional
burden on his ability to vote. Again, when asked why he didn’t vote in
that election, Rust said, “I was probably working and could not vote. I
don’t know.” Id. at 240.

Rust’s choice not to vote in the 2020 or 2022 Republican primary
elections was his prerogative, and I agree with the dissenting opinion that
Rust had no obligation to vote in any primary. Post, at 15. But the First
Amendment doesn’t shield Rust from the consequences of his own
choices. His as‐applied challenge requires him to identify a severe

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 17 of 18
restriction on his ability to access the ballot. And because he can’t, his as‐
applied challenge fails.

III. Conclusion
The First Amendment permits States to limit primary election
candidates to those who are party members or vote in the party’s primary
elections. That is all the Affiliation Statute does, and Rust has failed to
carry his burden to prove that requiring him to comply with the statute
violates his First Amendment rights. I therefore agree with the Court’s
conclusion that we must vacate the injunction and that judgment must be
entered for the defendants.

Slaughter, J., joins.

Indiana Supreme Court | Case No. 23S‐PL‐371 | March 6, 2024 Page 18 of 18
Goff, J., dissenting.

Because I believe the application of the Affiliation Statute to John Rust
violates his First Amendment right of association, I respectfully dissent
from the decision of the Court.1

The Republican Party’s 2024 primary election to select their nominee
for United States Senate will feature one candidate. That person’s
nomination will therefore be uncontested. Meanwhile, Rust—who’s
donated thousands of dollars to national Republicans, who adheres to the
Republican Party platform’s core beliefs, and whose participation has
been welcomed by his local Republican party—is barred by the Statute
because he failed to vote in two consecutive Republican Party primaries
and the party’s county chairperson has refused to certify him as a party
member. The burden imposed on Rust by these restrictions, in my view, is
unjustified by the interests advanced by the State. And while the
legislature is best suited to weigh the costs and benefits of a given ballot
restriction, this Court is still responsible for safeguarding against
legislative overreach.

I. Primary elections emerged to divest party leaders
of control over the nominating process, but today’s
system can impose onerous barriers on candidates.
Disputes over the regulation of party primaries “are inherently
intraparty squabbles pitting one component of the party (voters and
candidates) against another (usually the party organization).” Nathaniel
Persily, Candidates v. Parties: The Constitutional Constraints on Primary Ballot
Access Laws, 89 Geo. L.J. 2181, 2185 (2001). In finding no violation of Rust’s
associational rights, the Court focuses on the State’s “legitimate interest in

1 Because I would resolve Rust’s challenge narrowly on as-applied First Amendment grounds,
I refrain from addressing his other claims under principles of constitutional avoidance. See
Indiana Land Tr. Co. v. XL Inv. Properties, LLC, 155 N.E.3d 1177, 1182–83 (Ind. 2020).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 1 of 25
safeguarding parties from forced inclusion of unwanted members and
candidates.” Ante, at 19. But this position, it’s worth emphasizing, stands
in stark contrast to the reason primaries in Indiana emerged to begin with:
to limit the power of party leaders to dictate nominations. Primaries are
not meant to be opportunities for party leaders to crown their favored
candidates—and certainly not in uncontested ballots.

A. Primaries are a chance for the voters (i.e., the party-in-
the-electorate), not just party leaders, to select
nominees.
For much of the nineteenth century, the selection of candidates for
public office took place in caucuses—small, closed-party meetings led by
local party leaders. Trevor Potter & Marianne H. Viray, Barriers to
Participation, 36 U. Mich. J.L. Reform 547, 549 (2003). While excluding the
participation of rank-and-file party members, caucuses allowed the party
itself to control the nominating process with virtually no legal restrictions.
Id.; see also Adam Winkler, Voters’ Rights and Parties’ Wrongs: Early Political
Party Regulation in the State Courts, 1886-1915, 100 Colum. L. Rev. 873, 876
(2000). The lack of state oversight, however, lent itself to widespread
abuses—from vote buying to intimidation at the polls. In Indiana (as in
other states), the parties furnished their own ballots, often printed on a
distinctive color of paper, to ensure that “voters voted as they were paid
to do.” Emma Lou Thornbrough, Indiana in the Civil War Era, 1850-1880,
at 40 (1965).

As caucuses fell under increasing criticism for the level of control they
gave to party bosses, some states, including Indiana, introduced a more
representative method of nomination—the convention system. Lauren
Hancock, Note, The Life of the Party: Analyzing Political Parties’ First
Amendment Associational Rights When the Primary Election Process is
Construed Along a Continuum, 88 Minn. L. Rev. 159, 164–65 (2003); see
generally J.F. Connell, Indiana Primary Laws, 18 Ind. Mag. Hist. 224 (1922).
Under this system, delegates chosen by local party leaders attended state
or national party meetings, charged with “transmitting, from local
assemblies, the wishes and impulses of the mass of party membership to a

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 2 of 25
central point, where the selection of nominees was made.” V.O. Key,
Politics, Parties, & Pressure Groups 373 (5th ed. 1964). While the
convention model quickly took root, it too drew criticism for the degree of
control exercised by party leaders over the ballot. Hancock, supra, at 164–
65. In Indiana, endorsement from the county chairperson remained crucial
for those seeking elected office. “Without such backing candidates had
little hope of winning.” Justin A. Walsh, The Centennial History of the
Indiana General Assembly, 1816-1978, at 359 (1987).

By the 1880s, the intensity of party politics in Indiana generated
“popular questioning about how nominees were endorsed and elected.”
Id. Persistent charges of corrupt practices at the polls “cast doubt over the
entire electoral process,” generating a sense of urgency among lawmakers
to reform the state’s balloting methods. Id.; Clifton J. Phillips, Indiana in
Transition: The Emergence of an Industrial Commonwealth, 1880-1920, at
29 (1968). Indeed, “public faith” in elections had “become shaken,”
Democratic Governor Isaac Gray lamented, leading to a widespread belief
“that the decision at the ballot box no longer reflect[ed] the honest
judgment of a majority of the voters.” S. Journal, 56th Gen. Assemb., Reg.
Sess. 45 (Ind. 1889). Gray’s successor, Republican Governor Alvin Hovey,
expressed similar concerns, warning that, if the “contending parties”
remained free to perpetuate “fraud and corruption” upon the ballot box, a
“moneyed aristocracy” would “control the destinies of our Nation.” Id. at
103. To remedy this evil, he opined, “every means should be taken to
accurately and honestly ascertain the evidence of [the people’s] will.” Id.

The General Assembly’s response was twofold: regulating voting
procedures and expanding voter participation in the nomination process.
The legislature took its first step toward reform in 1889 with the adoption
of the Australian-ballot system. This system created the official state ballot
form and prohibited all persons, except election officials and voters, from
approaching within fifty feet of a polling place, enabling Hoosiers to cast
their votes in secret. Phillips, supra, at 30; Ray Boomhower, “To Secure
Honest Elections”: Jacob Piatt Dunn, Jr., and the Reform of Indiana’s Ballot, 90
Ind. Mag. Hist. 311, 324 (1994). While the parties lost control over the
ballot, they secured equal representation on the election boards. Phillips,
supra, at 30.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 3 of 25
 These reforms prompted a “growing recognition that the individual’s
right to vote included participation in party nominating procedures.”
Winkler, supra, at 881; see also Charles C. Binney, American Secret Ballot
Decisions, 41 Amer. L. Reg. & Rev. 101, 105–06 (1893) (arguing that the
right to vote extended beyond general elections to include “the right to
designate the candidate of one’s choice”). What resulted was a series of
measures, in the first decade of the twentieth century, to gradually replace
party control over the selection of candidates with the popular vote.2 In
1915, primary-election advocates in Indiana won their greatest victory
with the passage of a mandatory, statewide law.3 Walsh, supra, at 360;
Connell, supra, at 228–29. The act required primary elections for all
township, city, county, state, and congressional nominees, and it obligated
delegates to state and national conventions to support any candidate for
president, United States senator, or governor who received a majority
vote. Walsh, supra, at 360–61. So sweeping was its scope, one historian
wrote, that the measure “deprived party machines all over the state of
exclusive power over nominations for public office.” Id. at 517. Indeed,
while subject to its own imperfections, the primary system in Indiana
stood on the idea that “members of the party should have the privilege of
nominating their party’s candidates directly and without unreasonable
dictation from party leaders” who could “not be held legally or morally
responsible for that dictation.” Connell, supra, at 227.

To be sure, as the Court points out, the state has, since 1915, vacillated
in its method of candidate selection—reverting to the convention system

2A 1901 law, which applied only to Marion and Vanderburgh Counties, changed little in the
electoral landscape, as it left primaries optional, with discretion vested in local parties. Walsh,
supra, at 360; Connell, supra, at 228. A 1907 law, applicable only to counties with the largest
populations, made primaries mandatory for the nomination of all county, township, and city
officers, as well as for precinct committeemen and delegates to the congressional and state
conventions. Walsh, supra, at 360; Connell, supra, at 229.
3To further bolster public confidence in the state’s electoral system, the General Assembly
had enacted a corrupt-practices act in 1911, imposing criminal penalties on those found
tampering with voting machines at general and primary elections alike. Connell, supra, at 230.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 4 of 25
in 1929 before returning to primaries in 1975.4 Ante, at 10–11. But such
changes in the state’s approach to the nomination process did not
diminish the role of the voter. As this Court emphasized in 1935, the
purpose of “all election laws” in Indiana—including those “controlling
the activities of political parties, party conventions, and primaries, and
providing for the manner in which the names of candidates may be put
upon the ballots”—is ultimately “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) (emphases added).

B. Indiana’s current primary system features a high barrier
to candidate entry.
While the advent of primaries advanced public participation in the
selection of representatives, “it has long been accepted that states must
necessarily regulate elections, even through restricting candidate access to
the ballot.” Potter & Viray, supra, at 547. After all, a “procedure inviting or
permitting every citizen to present himself to the voters on the ballot
without some means of measuring the seriousness of the candidate’s
desire and motivation would make rational voter choices more difficult
because of the size of the ballot.” Lubin v. Panish, 415 U.S. 709, 715 (1974).

Still, the type and severity of ballot restrictions administered by the
state—e.g., filing fees or petition-signature requirements—may impose
significant barriers to participation for genuine candidates. The most
onerous burdens tend to “undermine the competitive character of an
electoral system,” depriving the voters of “a meaningful range of choices
on the ballot.” Persily, supra, at 2189, 2190. This lack of competition, in

4The General Assembly repealed the statewide law in 1929, marking a “reversion to the
system of the 1890s when party conventions had exclusive control” over most nominations for
public office. Walsh, supra, at 362–63. But given the “wide popular support for direct
primaries” in Indiana, lawmakers restored direct elections for legislative candidates just two
years later. Id. at 517. State conventions, however, retained the power for several years to
endorse presidential candidates and to select nominees for the U.S. Senate. Id. at 517 & n.1.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 5 of 25
turn, has resulted in extremely low voter turnout in recent years. See
generally Bipartisan Policy Ctr., 2022 Primary Turnout: Trends and Lessons
for Boosting Participation (2023). In Indiana, the average turnout rate for
eligible voters at primary elections between 2010 and 2022 hovered at just
above fifteen percent. Id. at 29–32.

Despite these figures, Indiana imposes some of the highest hurdles for
primary-ballot access in the nation. For example, whereas New Jersey and
Ohio require a candidate for U.S. Senator to collect 1,000 signatures,5
Indiana’s election code requires a candidate seeking the same office to
collect at least 4,500 signatures from registered voters statewide—500
signatures from each of Indiana’s nine Congressional districts. Ind. Code §
3-8-2-8(a).

Adding to this burden, the General Assembly recently amended
Indiana’s election code to make it even harder for potential candidates to
add their names to the primary ballot. Before 2021, a person could run as a
primary candidate if the “most recent primary election in Indiana in
which the candidate voted was a primary election held by the party with
which the candidate claims affiliation” or if the county chair of the
political party with which the candidate claimed affiliation certified the
candidate as a member of the political party. I.C. § 3-8-2-7(a)(4) (2017)
(repealed). Effective January 1, 2022, a person is eligible only if the “two
(2) most recent primary elections in Indiana in which the candidate voted
were primary elections held by the party with which the candidate claims
affiliation.” Pub. L. No. 193-2021, § 17, 2021 Ind. Acts 2719, 2731–32
(codified at I.C. § 3-8-2-7(a)(4)(A)) (emphasis added)). If the prospective
candidate fails to meet this two-primary requirement, then the only way
onto the primary ballot is through the county chair certifying the
candidate’s membership. Id. (codified at I.C. § 3-8-2-7(a)(4)(B)). From my
research, it appears that no other state that uses a primary system like

5 See N.J. Stat. Ann. § 19:23-8 (West); Ohio Rev. Code Ann. § 3513.05 (West).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 6 of 25
Indiana’s imposes such an onerous affiliation requirement to run for U.S.
Senate.6

Needless to say, these added hurdles have generated challenges from
prospective candidates in recent years. See, e.g., Bookwalter v. Indiana
Election Comm’n, 209 N.E.3d 438 (Ind. Ct. App. 2023); Rainey v. Indiana
Election Comm’n, 208 N.E.3d 641 (Ind. Ct. App. 2023). Adding to this list of
disaffected Hoosiers, John Rust, a prospective Republican candidate for
the U.S. Senate, sued state election officials and his local Republican Party
chairperson, arguing that the Affiliation Statute violates his
constitutionally protected rights to freely associate with the party and to
cast his vote effectively. App. Vol. 2, p. 45.

II. The Affiliation Statute violates Rust’s right to
associate with the Republican Party as its nominee
for U.S. Senate.
The Court insists that “the State could abolish its primary system
altogether and provide no opportunity for Rust to exercise his
associational rights if it so desired.” Ante, at 23. Though certainly true, this
proposition misses the point. While “states enjoy near absolute authority
in their decisions whether to create democracy, once they do so, they
invite constitutional scrutiny over every aspect of the system they enact.”
Persily, supra, at 2209 (emphasis added). So, “primary elections, while not
constitutionally required, must abide by certain constitutional rules once
the state (or party as state actor) makes them part of the selection process
for representatives.” Id.

6 Most states simply require a candidate to file a declaration of candidacy affirming party
membership or affiliation. See, e.g., 10 Ill. Comp. Stat. Ann. 5/7-10 (West); N.J. Stat. Ann. §
19:23-7 (West); Iowa Code Ann. § 43.18 (West). An Ohio statute renders a candidate ineligible
if they “voted as a member of a different political party at any primary election within the
current year and the immediately preceding two calendar years.” Ohio Rev. Code Ann. §
3513.191(A) (West). But this restriction applies only to persons holding an elective office for
which candidates are not nominated at a primary election. Id. § 3513.191(B) (West).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 7 of 25
 When reviewing First and Fourteenth Amendment challenges to state
election laws, courts apply the balancing test established in Anderson v.
Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992).
Under the Anderson/Burdick test, courts weigh “the character and
magnitude of the asserted injury” to the plaintiff’s constitutional rights
against “the precise interests” offered by the state to justify the restriction
and the “extent to which those interests make it necessary to burden the
plaintiff’s rights.” Burdick, 504 U.S. at 434 (internal citation and quotation
marks omitted). Courts will apply a heightened, strict-scrutiny standard—
requiring a narrowly tailored regulation that advances a compelling state
interest—whenever the regulation subjects First Amendment rights to
“severe restrictions.” Id. (internal citation and quotation marks omitted).
If, on the other hand, the regulation “imposes only reasonable,
nondiscriminatory restrictions” upon those rights, “the State’s important
regulatory interests” generally suffice “to justify the restrictions.” Id.
(internal citation and quotation marks omitted). Still, no matter how
“slight [the] burden may appear,” that burden “must be justified by
relevant and legitimate state interests sufficiently weighty to justify the
limitation.” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008)
(internal citation and quotation marks omitted). And if there’s “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).

Here, the Affiliation Statute (or just Statute) bars Rust’s candidacy
because, although the last primary he voted in was the 2016 Republican
Party primary, he voted before that in the 2012 Democratic Party primary.
See I.C. § 3-8-2-7(a)(4)(A). And despite welcoming Rust’s participation in
the party, his Republican county chairwoman decided not to certify him
as “a member of the political party.” See I.C. 3-8-2-7(a)(4)(B).

The State Defendants argue (A) that any limitation on Rust’s ballot
access is minor because, regardless of the Statute’s effect on a party’s
primary election, Rust can still access the general election ballot through
other means; and (B) the State itself has a compelling interest in regulating
elections and preserving parties’ associational rights to govern their own

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 8 of 25
membership. Appellants’ Br. at 15. Even if strict scrutiny applies, the State
Defendants insist, the Statute is still constitutional because it’s narrowly
tailored to balance the rights of all involved and furthers the State’s
allegedly compelling interests. Id. at 16–17.

In my view, the Affiliation Statute substantially burdens Rust’s
associational rights and the State fails to offer precise interests sufficient to
justify this burden under the Anderson/Burdick test.

A. The Affiliation Statute substantially burdens Rust’s
associational rights.
I agree with the Court that Rust does not have “a fundamental right to
run for United States Senate as the Republican nominee.” Ante, at 13. But
Rust is relying on rights that rank among the “most precious freedoms” in
our system of representative democracy: “the right of individuals to
associate for the advancement of political beliefs, and the right of qualified
voters, regardless of their political persuasion, to cast their votes
effectively.”7 Anderson, 460 U.S. at 787 (quoting Williams v. Rhodes, 393 U.S.
23, 30–31 (1968)). And while a state may restrict ballot access in the public
interest, it can do so only by means that do not “unfairly or unnecessarily
burden” the electorate’s right to vote and a candidate’s “equally important
interest in the continued availability of political opportunity.” Lubin, 415
U.S. at 716 (emphasis added).

Still, the State Defendants argue that the restriction imposed on Rust is
“minor” because the Affiliation Statute only limits his access to the
primary ballot. Appellants’ Br. at 22. And his right to access the primary
ballot, they insist, is “less compelling” than his right to access the general-
election ballot. Id. at 20. After all, Defendants emphasize, “Rust can still
run for the U.S. Senate as a Libertarian, a minor party candidate, an

7 Rust brought this claim as both a candidate and as a voter. App. Vol. 2, p. 37.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 9 of 25
independent, or write-in candidate under Indiana law.” Id. at 25 (citing
I.C. § 3-8-4-10(b); I.C. § 3-8-6-3; I.C. § 3-8-2-2.5(a)).8

In my view, these arguments misconstrue Rust’s claim and miss the
point. Rust is not seeking to “vindicate a right to get on the general ballot
any way possible.” Appellee’s Br. at 20. Rather, he seeks the opportunity
to associate with “like-minded” Republican Party supporters by standing
as a U.S. Senate nominee for the Indiana Republican Party. Id. The
alternative paths relied on by the State Defendants offer no meaningful
opportunity for Rust to exercise his associational rights as a candidate or a
voter. Furthermore, Rust’s exclusion from the primary impinges on his
prospective supporters’ rights “to associate for political purposes” and to
“cast their votes effectively.” See Munro v. Socialist Workers Party, 479 U.S.
189, 193 (1986).

In any case, the purported write-in and independent candidacy options
are not equivalent to standing in a party primary.

As a write-in candidate, Rust would need to file the proper forms and a
statement of economic interests, among other things. See generally I.C. § 3-
8-2-2.5. And while he must still “file a declaration of intent to be a write-in
candidate,” I.C. § 3-8-2-2.5(a); see also I.C. § 3-12-1-1.7(a)(1) (specifying that
“only votes cast for declared write-in candidates shall be counted and
certified”), his name would never actually appear on the ballot. This path
to the general election, the U.S. Supreme Court has recognized, is simply

8State Defendants argue further that Rust “could also seek to fill any ballot vacancy for the
Democratic, Libertarian, or Republican parties because the Affiliation Statute does not apply
to the statutory ballot vacancy procedures.” Appellants’ Br. at 25 (citing I.C. § 3-13-1-20). That
may be true, but vacancies open only sporadically, and, in any case, there is no current
vacancy in either of Indiana’s U.S. Senate seats.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 10 of 25
“not an adequate substitute for having the candidate’s name appear on
the printed ballot.”9 Anderson, 460 U.S. at 799 n.26.

To run as an independent candidate, Rust would have to secure the
valid signatures of two percent of the total number of voters who voted in
the most recent election for Indiana Secretary of State. See I.C. § 3-8-6-3(a).
The total number of statewide voters who voted in the most recent
election was 1,847,179, two percent of which equals 36,944. See Amicus Br.
of Common Cause at 26. That latter figure is more than eight times the
number of signatures—4,500—needed to run for U.S. Senate as a major
party candidate. See I.C. § 3-8-2-8(a).

Aside from this hurdle, a person may run as an independent candidate
only if the individual “states” that he or she is “not affiliated with any
political party.” I.C. § 3-5-2-26.6. Rust, however, has repeatedly asserted
his Republican bona fides and has consistently declared his intent to run
as a Republican. App. Vol. 2, pp. 178–80, 184. What’s more, he testified
under oath that he would be lying if he were to run as an independent
candidate.10 App. Vol. 3, p. 29. These statements notwithstanding, Rust
would risk falling out of good standing with the Republican party if he
were to run as an independent (or Libertarian), potentially barring him for
an extended period from seeking elected office in Indiana as a Republican.
See Rules of the Ind. Republican State Comm. 1-6 (stating that a person is
“not in good standing in the Party and may be removed for cause” if he
“openly supports a candidate” who “oppos[es] a Republican Candidate”);
Hero v. Lake Cnty. Election Bd., 42 F.4th 768, 770–71 (7th Cir. 2022) (noting a

9Even assuming he could mount an effective write-in campaign, there are several provisions
of the election code that would disqualify a vote for such candidates. For example, “the name
or office of a candidate written in a place on the ballot other than the place reserved for write-
in voting may not be counted for that office.” I.C. § 3-12-1-1.7(a)(2). A write-in vote is likewise
void “if the voter attempts to cast the vote by a means other than printing the name of the
candidate in ink or lead pencil.” I.C. § 3-12-1-1.7(a)(3).
10Rust’s failure to declare party affiliation under the Affiliation Statute would not free him to
run as an unaffiliated independent. The Affiliation Statute’s criteria for party affiliation apply
to that provision only. See I.C. § 3-8-2-7(a)(4) (laying down the two-primary rule and
certification option “[f]or purposes of this subdivision”).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 11 of 25
long-time Republican’s ten-year bar from the party for his support of
independent candidates). The State Defendants appear to have
acknowledged as much in the trial court. See Tr. Vol. 2, p. 25 (discussing
the circumstances of the Hero case).

Still, the Court suggests that Rust may, as an independent candidate,
“‘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.’” Ante, at 15 (quoting Hero, 42 F.4th at 776). But campaigning in
such a manner presents further risks to the candidate. 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). And 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.

In short, there is no realistic way for Rust to hold himself out to others
as a Republican in the general election, other than standing in the
Republican Party’s primary. The Affiliation Statute therefore imposes a
heavy burden on his associational rights.

B. The State’s alleged interests are insufficiently weighty
to justify the ballot restrictions as applied to Rust.

For this Court to sustain the Affiliation Statute, the constitutional injury
to Rust must be justified and counterbalanced by the “precise interests”
offered by the State that “make it necessary to burden” his rights. Burdick,
504 U.S. at 434 (internal quotation marks and citation omitted). Here, the
State Defendants invoke the need to prevent “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; see also id.
at 15–16 (citing the need to maintain fair and honest elections, preserve
party identities, enhance party-building efforts, guard against party
raiding, and avoid voter confusion, ballot overcrowding, and frivolous
candidacies).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 12 of 25
 While these interests are certainly legitimate in the abstract, they fall far
short, in my view, of justifying the Statute’s ballot-access restrictions as
applied to Rust.

1. There’s no potential for ballot overcrowding.

The United States Supreme Court has long recognized a state’s “interest
in keeping its ballots within manageable, understandable limits.” Lubin,
415 U.S. at 715. That overcrowded ballots “discourage voter participation
and confuse and frustrate those who do participate is too obvious to call
for extended discussion.” Id. Here, however, the potential for ballot
overcrowding isn’t even an issue. Rust’s exclusion from the primary ballot
means that the remaining Republican contender will run unopposed. To
be sure, a state need not prove actual voter confusion or ballot
overcrowding. Munro, 479 U.S. at 195. To impose such a requirement
would require a state’s “political system [to] sustain some level of damage
before the legislature could take corrective action.” Id. But with nothing
here to suggest that the “election ballot was becoming cluttered with
candidates” in recent years, the idea of the Affiliation Statute as a response
to “potential deficiencies in the electoral process” simply lacks merit. Cf.
id. at 195–96.

I also recognize that the state has a legitimate interest in seeing that
ballots are not encumbered by the names of candidates with no
substantial support. Lumm, 207 Ind. at 683, 194 N.E. at 342; see also Munro,
479 U.S. at 197–98 (candidates must show that “they enjoy a modicum of
community support in order to advance to the general election”). But the
petition statute, in my view, adequately serves this interest. See I.C. § 3-8-
2-8 (requiring a potential candidate for U.S. Senator to collect at least 500
signatures from registered voters in each of Indiana’s nine Congressional
districts).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 13 of 25
 2. There’s likewise no potential for party raiding or a
frivolous candidacy.
The state’s interest in guarding against party raiding and frivolous
candidates likewise fails to carry the day. For one thing, this concern
carries little weight at the primary stage, given the other ballot-access
requirements and the fact that the voters—i.e., the party-in-the-
electorate—can simply vote against a candidate who does not represent
their values. In any case, as noted above, Rust repeatedly asserted his
Republican bona fides and testified under oath that he would be lying if
he were to run as an independent candidate. App. Vol. 2, pp. 178–80, 184.
What’s more, when presented with certain “core beliefs” listed in the
Republican Party platform, Rust explicitly stated that he adhered to each
of them. App. Vol. 3, pp. 19–20. To be sure, Rust may have voted years
ago in Democratic primaries for people he knew personally through his
church or for those who were pro agriculture. But he testified to having
never contributed to a Democratic candidate financially (while donating
over $10,000 to Republican candidates), and he’s always voted for
Republican candidates in the general elections. App. Vol. 2, pp. 40, 42.

Beyond these points, the State Defendants’ purported interest in
protecting against the risk of party raiding is highly suspect because the
State itself created that risk in the first place through the primary voting
method it adopted. While often deemed a “closed primary” system,
Indiana’s system is more akin to a “semi-closed” primary, “in which a
political party’s primary is open not only to members but also to
independent voters,” given that “no formal membership, enrollment, or
registration with the party is required.”11 Herr v. State, 212 N.E.3d 1261,
1264 n.1 (Ind. Ct. App. 2023). Moreover, there’s no way to determine
whether a voter intends “to vote at the next general election for a majority

11To vote in a party’s primary in Indiana, a person must be registered to vote and must have
“at the last general election, voted for a majority of the regular nominees of the political party
holding the primary election.” I.C. § 3-10-1-6(1). Alternatively, the registered voter must
intend “to vote at the next general election for a majority of the regular nominees of the
political party holding the primary election.” I.C. § 3-10-1-6(2).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 14 of 25
of the regular nominees of the political party holding the primary
election.” See I.C. § 3-10-1-6(2). And with no way of determining what a
voter intends to do, voting is not necessarily indicative of party
membership or loyalty.

Still, the Court and the concurrence conclude that the Affiliation Statute
imposes no burden on Rust because he simply could have voted at either
the 2020 or 2022 Republican primaries to supplement the vote he cast at
the 2016 Republican Primary. Ante at 22; id. at 17 (opinion of Molter, J.).

This conclusion, in my view, misses the point.

For one thing, Rust had no obligation to vote at these previous primary
elections. Unlike some jurisdictions in other parts of the world, “[w]e have
no compulsory voting laws in Indiana.” Spickermon v. Goddard, 182 Ind.
523, 532, 107 N.E. 2, 5 (1914); see Eric Lund, Compulsory Voting: A Possible
Cure for Partisanship and Apathy in U.S. Politics, 31 Wis. Int’l L.J. 90, 94–101
(2013) (discussing compulsory voting laws in Belgium and Australia).

Second, and more importantly, the idea that Rust could simply have
voted in the 2020 or 2022 Republican Primaries fails to appreciate the
Statute for what it actually is—a restriction on an individual’s ability to
choose and to change his or her party affiliation, which unmistakably
implicates the associational freedoms guaranteed by the First
Amendment. See Storer v. Brown, 415 U.S. 724, 731 (1974); Kusper v.
Pontikes, 414 U.S. 51, 57 (1973). The Affiliation Statute, in effect, locks
voters into their party affiliation for at least two years after voting in a
primary, if not longer (depending on when they last voted in a primary).
See Kusper, 414 U.S. at 57, 61 (invalidating a statute which locked voters
into their party affiliation for twenty-three months after they voted in their
party’s primary).

To be sure, the U.S. Supreme Court has recognized a state’s interest in
imposing a durational party-affiliation requirement, but only to protect
against “candidacies prompted by short-range political goals.” Storer, 415
U.S. at 735 (emphasis added). The idea of party raiding, “its potential
disruptive impact, and its advantages to one side” over another, the Court
has explained, “are not likely to be as apparent to the majority of enrolled

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 15 of 25
voters” or even the “professional politician just prior to a November
general election when concerns are elsewhere as would be true during the
‘primary season.’” Rosario v. Rockefeller, 410 U.S. 752, 761 (1973) (quoting
the appellate court). What’s more, “[f]ew persons have the effrontery or
the foresight to enroll as say, ‘Republicans’ so that they can vote in a
primary some seven months hence, when they full well intend to vote
‘Democratic’ in only a few weeks.” Id. (quoting the appellate court). And
only the “rare politician” could effectively “urge his constituents to vote
for him or his party in the upcoming general election, while at the same
time urging a cross-over enrollment for the purpose of upsetting the
opposite party’s primary.” Id. (quoting the appellate court).

Based on this reasoning, courts have struck down long-term party-
affiliation requirements while upholding those that are relatively short in
duration and that focus on preventing the political opportunism that
arises just before an election campaign. Compare Kay v. Brown, 424 F. Supp.
588, 591, 593, 595 (S.D. Ohio 1976) (holding unconstitutional a state statute
barring primary-ballot access if the candidate voted for a “different
political party at any primary election within the next preceding four
calendar years”), with State ex rel. Billings v. City of Point Pleasant, 460
S.E.2d 436, 437, 443–44 (W. Va. 1995) (upholding a requirement for a
candidate to file a verified statement that he or she “has not been
registered as a voter affiliated with any other political party for a period of
sixty days” before announcing his or her candidacy for public office). As
the United States District Court for the Southern District of Ohio aptly
observed, the “state’s interest in promoting party loyalty and party
attachment is not in preserving the status quo within a party, but is in
assuring the integrity of a party’s candidate selection process.” Kay, 424 F.
Supp. at 593 (emphasis added).

By effectively penalizing him for having voted in the Democratic
Primary twelve years ago—despite his vote in the Republican Primary in
2016, despite the thousands of dollars he’s contributed to the national
Republican Party over the years, and despite his adherence to the core
beliefs of the party’s platform—the Affiliation Statute’s durational
requirement works an especially significant hardship on Rust. Sure, he
could have voted in the 2020 or 2022 Republican Primaries. But

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 16 of 25
“[r]equiring a voter to decide before casting his ballot in a party primary
whether he might not [several] years in the future want to run for office as
the candidate of another party,” in my view, clearly constitutes a “drastic
means of accomplishing the state’s goals.” See Kay, 424 F. Supp. at 593.

3. The State’s purported interest in protecting the
parties’ associational rights is limited.
Beyond the interests cited above, the State Defendants invoke the need
to preserve the “parties’ associational rights to govern their own
membership.” Appellants’ Br. at 15. The Republican State Committee
agrees, arguing that Rust has no “right to force his inclusion on a
particular party’s primary ballot.” Amicus Br. at 9–10.

The Republican Party certainly has the right to exclude non-members
and to bar people it disfavors from officially representing it. But this
important right does not necessarily align with the State’s interest. The
State’s interest in regulating the primary ballot is to “protect it as a means
of democratic choice” (e.g., by seeking to avoid voter confusion), not to
“produce any particular outcome.” Persily, supra, at 2222. A political
party’s interests in regulating the ballot, on the other hand, “are explicitly
factional and anti-state.” Id. Indeed, for the party, the “primary exists to
further the interests of a subset of the electorate—not the electorate itself.”
Id. Accordingly, the U.S. Supreme Court has emphasized that “care must
be taken not to confuse the interest of partisan organizations with
governmental interests.” Elrod v. Burns, 427 U.S. 347, 362 (1976). More to
the point, the Court has explicitly recognized that “preserving party unity
during a primary is not a compelling state interest.” Eu v. San Francisco
County Democratic Cent. Committee, 489 U.S. 214, 228 (1989) (emphasis
added).

Still, the Court here assumes that state and party interests go hand in
hand. See ante, at 19 (explaining that the state has “a legitimate interest in
safeguarding parties from forced inclusion of unwanted members and
candidates”). In doing so, the Court—improperly, in my view—
transforms a claim of rights versus state interests into a claim of rights

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 17 of 25
versus rights, with the party leaders’ rights coming out on top. See Persily,
supra, at 2184.

Even if the state’s interest did align with the party’s right to exclude,
that right, I conclude, does not justify the Affiliation Statute’s burden on
Rust.

a. Giving Rust primary-ballot access doesn’t impose
his nomination on the Republican Party.
To begin with, the State Defendants’ purported interest overlooks the
fact that a political party’s associational rights and interests do not begin
and end with party leadership. See Tashjian v. Republican Party, 478 U.S.
208, 215 (1986) (noting that a “major state political party necessarily
includes individuals playing a broad spectrum of roles in the
organization’s activities”). “At the stage of preprimary litigation,” one
commentator notes, “no one knows whether the bulk of the membership
of the party wants the names of additional candidates to appear on the
primary ballot.” Persily, supra, at 2186. Indeed, the “precise question in the
litigation is whether party members will even have the opportunity to
express their candidate preferences.” Id.

Simply put, giving Rust primary-ballot access doesn’t impose his
nomination on the Republican Party. That’s for the voters (i.e., the party-
in-the-electorate) to decide at the primary election itself. See Anderson, 460
U.S. at 803 (citing the “conclusive effect” of “the winnowing process
performed by party members in the primary election”); Eu, 489 U.S. at 227
(citing the primary election as the proper means for “contending forces
within the party” to ultimately “settle their differences”) (internal
quotation marks and citation omitted). To conclude otherwise allows the
party leadership to “invoke the powers of the State to assure monolithic
control over its own members and supporters.” Anderson, 460 U.S. at 803.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 18 of 25
 b. The Republican Party has never excluded Rust
from membership.
The Court relies on Hero for the proposition that “a political party may
exclude candidates from their ballot, even if they satisfy the Affiliation
Statute.” Ante, at 18. But that precedent weighs against the need for the
Statute’s two-primary requirement.

In Hero, a longtime member of the Republican Party, Joseph Hero,
“openly campaigned for the defeat of a Republican candidate.” 42 F.4th at
770. The State Republican Party “caught wind of Hero’s efforts” and
informed him that he was “not a Republican in good standing,” thus
“barring him from seeking elected office in Indiana as a Republican” for
ten years. Id. at 770–71. Despite this bar, Hero declared his Republican
candidacy for a seat on the town council. Id. at 771. The chairman of the
county Republican party challenged Hero’s candidacy. While conceding
that “Hero met the qualifications for affiliation” under the statute, the
chairman “maintained that Hero could not run based on ‘an actual order
from the party chairman in Indiana.’”12 Id. The county election board
agreed, as did the Seventh Circuit Court of Appeals, concluding that the
restriction was reasonable and nondiscriminatory because the “State has
an interest in protecting a party’s right to determine its own membership
and limit its candidates to those party members.” Id. at 776.

Unlike in Hero, Rust has not been banned from the Republican party.
To the contrary, the State Defendants have repeatedly emphasized that
Rust could still run as a Republican (before the candidate-filing deadline)
if the current chair of his county’s Republic Party were to “change her
mind” or if she were to “resign, die, or otherwise vacate the county party
chair position” and leave certification discretion to her replacement. App.
Vol. 2, p. 143; see also id. at 149–50; Tr. Vol. 2, p. 10. What’s more, while
arguing that Rust is disqualified under the Affiliation Statute, the State

12The statute in Hero was the pre-2022 version, requiring the candidate to have either voted
for their party in the last primary election or to have secured certification from the county
chairperson. 42 F.4th at 771.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 19 of 25
Defendants expressly rejected the idea that “Rust is an unwanted person
in the Republican Party.” Tr. Vol. 2, p. 66. In fact, they acknowledged that
the county Republican party would “welcome [Rust’s] participation.”
App. Vol. 3, p. 2; see also App. Vol. 2, p. 146.

This distinction aside, the Court, in its analysis of Hero, makes much of
the fact that “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.” Ante, at 18. But the election board was
enforcing, not a statutory restriction on a person’s candidacy but, rather,
the party’s right to exclude a person no longer affiliated with that party
by its own rules.13 See 42 F.4th at 776–77. And “disaffiliation,” whether by
internal party rules or laws defining which voters may participate in a
primary, “is an absolute bar to candidacy.” Storer, 415 U.S. at 737. This
absolute bar, moreover, precludes the need to assess the totality of the
election laws as they affect the candidate’s constitutional rights. Id. Thus,
the Hero court’s discussion of alternative means to accessing the ballot was
entirely irrelevant to that case’s resolution. See id.

Because the parties always retain a First Amendment right to
disassociate from any person and thereby block them from the ballot,
enforcing the Affiliation Statute’s two-primary barrier against Rust does
not serve an essential function in protecting the parties’ rights to limit
their candidacies to members in good standing.

c. Given its potential for arbitrary application, the
certification option fails to mitigate the burden of
the two-primary barrier.
Having failed to vote Republican at two consecutive primary elections,
Rust’s other option to access the primary ballot was to obtain membership

13In fact, the Lake County Election Board made this very point in its briefing before the
Seventh Circuit, arguing that Hero sought “to create a Constitutional question by conflating
the issue of party membership with the issue of access to the ballot.” Br. of Defendant-
Appellee, at *2, Hero, 42 F.4th 768, 2022 WL 510919.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 20 of 25
certification from the county chairperson of the Republican party. See I.C.
§ 3-8-2-7(a)(4)(B). But because this option is entirely discretionary and
potentially arbitrary, it provides no means to mitigate the burden on Rust.

The certification option permits the local “county chairman” of the
party with which a candidate “claims affiliation” to certify “that the
candidate is a member of the political party.” Id. As the Court explains,
this provision allows a party discretion to welcome a candidate who does
not satisfy the two-primary requirement. Ante, at 22. Precisely because of
the party’s discretion, however, the provision does nothing to lessen the
burden of the two-primary requirement on Rust. The provision calls for
certification of party membership but leaves the term “member”
undefined. It is unclear how Rust could ascertain whether he is a
Republican Party member or not. Such a “‘standardless’” statute does not
protect Rust’s First Amendment rights because it “‘authorizes or
encourages seriously discriminatory enforcement.’” See F.C.C. v. Fox
Television Stations, Inc., 567 U.S. 239, 253 (2012) (quoting United States v.
Williams, 553 U.S. 285, 304 (2008)). Lacking any “explicit standards,” the
provision is “vague” and leaves Rust’s rights subject to “resolution on an
ad hoc and subjective basis.” See Grayned v. City of Rockford, 408 U.S. 104,
108–09 (1972). Indeed, any candidate who fails to curry the favor of party
leadership has little chance of accessing the primary by way of
membership certification.

I find support for this conclusion in Duke v. Connell, 790 F. Supp. 50
(D.R.I. 1992). In that case, a presidential hopeful—David Duke—sought to
place his name on the Republican Party’s primary-election ballot in Rhode
Island. Id. at 51. By statute, the state allowed three methods for admitting
a presidential candidate to the primary ballot: (1) an announcement by the
secretary of state of any known “bona fide national candidates for
presidential nominee,” (2) a written request signed by the chairman of the
state committee, and (3) a petition signed by at least 1,000 qualified party
voters. Id. at 51–52. A “bona fide national candidate” was defined as a
person who was “generally recognized nationally as a presidential
contender within his [or her] respective party.” Id. at 52 (quoting statute).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 21 of 25
 Following the recommendation of the State Republican Party Chair, the
secretary of state announced President George H.W. Bush as “the only
person who met the requirements of a bona fide national candidate.” Id.
Duke, for his part, had announced his candidacy via national television.
But while the secretary of state knew of this announcement, she ultimately
decided that he was not a bona fide national candidate. Id. While Duke
could still have secured access to the ballot by submitting a petition of
1,000 qualified signatures, the limited timeframe in which to pursue that
option (eight days) rendered it impractical. Id.

The United States District Court for the District of Rhode Island
concluded that the statutory procedure was “not reasonably necessary to
achieve the legitimate state interest of regulating ballot access.” Id. at 53–
54. In reaching this conclusion, the court identified three potentially fatal
infirmities. First, the procedure lacked meaningful criteria in failing to
specify by whom a candidate must be “generally recognized nationally.”
Id. at 54. Second, the procedure failed to identify “what a candidate must
do in order to comply” with the requirement, leaving a candidate to
“necessarily guess at its meaning.” Id. Finally, the procedure improperly
vested in the secretary of state the authority to “exercise unreviewable
discretion” in determining a person’s candidacy. Id. By basing this
determination on the “disapproval of party leaders,” the court reasoned,
the secretary of state “failed to consider Duke’s support among the
populace, for whom the party leaders [did] not necessarily speak.” Id.
What’s more, the court explained, the procedure set forth “no standards”
for the state party chair to follow in making a recommendation, effectively
permitting the chair to “discriminate against any candidate whose views
he does not approve, even those of an incumbent, while acting under the
guise of statutory mandate.” Id. at 54–55.

Here, just as in Connell, the Affiliation Statute’s certification option
permits a county chair, unelected by Hoosier voters, “to discriminate
against any candidate whose views [they do] not approve, even those of
an incumbent, while acting under the guise of statutory mandate.” See id.
at 55. And given this potential for arbitrary application, it provides no
means to mitigate the burden on Rust.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 22 of 25
 To be sure, a party may justifiably seek to prevent unsavory individuals
like Duke (a former Klansman with extreme right-wing views) from
becoming a candidate. But the Republican Party has taken no such steps
with respect to Rust—a candidate who, unlike Duke, closely adheres to
the “core beliefs” in the Republican Party platform. See App. Vol. 3, pp.
19–20.

III. The Court’s decision gives the legislature
unrestricted authority to regulate the primary
ballot.
The Court characterizes the foregoing analysis as expressing a policy
preference. Ante, at 26. But it carries out exactly what the Anderson/Burdick
test calls for: weighing “the character and magnitude” of the plaintiff’s
asserted constitutional injury against “the precise interests” offered by the
state to justify the restriction and the “extent to which those interests
make it necessary to burden the plaintiff’s rights.” Burdick, 504 U.S. at 434.
The Court, for its part, simply recites the State’s asserted interests—
avoiding voter confusion, ballot overcrowding, frivolous candidacies, and
general “chaos” in Indiana’s elections—with no analysis of how those
purported interests are necessary to burden Rust’s constitutional rights.
See ante, at 21.

Today’s opinion, in fact, would seem to discard the Anderson/Burdick
test altogether, giving the legislature unrestricted authority to regulate the
primary ballot any way it sees fit. See id. at 29 (declining to “second-guess
the wisdom of the Affiliation Statute,” which reflects “the expression of a
majority of Hoosiers who are represented by legislators they elected who
passed this law”). The concurrence goes a step further, suggesting that the
General Assembly need not consider a potential candidate’s voting
history, allowing party leadership alone to establish party affiliation for
ballot access. Id. at 17 (opinion of Molter, J.) (stating that, if “the party-
controlled membership option is not unconstitutionally burdensome by
itself,” then there’s “no need to go any further”).

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 23 of 25
 To be sure, I agree with the Court that “the legislature is in the best
position to ‘weigh the costs and benefits’ of a given ballot restriction.” See
id. at 26 (opinion of the Court) (quoting Crawford, 553 U.S. at 181 (Scalia, J.,
concurring in the judgment)). But we are still “responsible for
safeguarding against legislative overreach.” Horner v. Curry, 125 N.E.3d
584, 610 (Ind. 2019) (Rush, C.J., concurring in part and dissenting in part).
See, e.g., Holcomb v. Bray, 187 N.E.3d 1268, 1273–74 (Ind. 2022) (holding
unconstitutional a law that allowed the legislature to call itself into
emergency session); City of Hammond v. Herman & Kittle Properties, Inc., 119
N.E.3d 70, 73–74 (Ind. 2019) (declaring a statute that allowed certain cities
to charge local landlords any amount to register rental properties to be
unconstitutional special legislation). This is hardly a controversial
proposition, even in the context of analyzing the constitutionality of the
state’s election scheme. As the Supreme Court of Appeals of West Virginia
recognized, “the Legislature, as well as the judiciary, has a role to play in
ensuring the process retains its integrity and functions as an accurate
reflection of the people’s will.” Billings, 460 S.E.2d at 442 (footnote
omitted, emphasis added). Indeed, the Court forsakes its role as a check
and balance to the legislature if it “simply defer[s] to the General
Assembly’s decision on how to weigh the people’s liberty.” Members of
Medical Licensing Bd. of Indiana v. Planned Parenthood Great Nw., Haw., Ala.,
Ind., Ky., Inc., 211 N.E.3d 957, 990–91 (Ind. 2023) (Goff., J., concurring in
part and dissenting in part).

Conclusion
“A fundamental principle of our representative democracy,” the U.S.
Supreme Court once observed, quoting the words of Alexander Hamilton,
“‘is that the people should choose whom they please to govern them.’”
Powell v. McCormack, 395 U.S. 486, 547 (1969) (quoting 2 Elliot’s Debates
257) (emphasis added). And “this principle is undermined as much by
limiting whom the people can select as by limiting the franchise itself.” Id.

I couldn’t agree more. And while the State has a legitimate interest in
regulating the ballot—to avoid voter confusion or party raiding and to

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 24 of 25
preserve the parties’ associational rights—those interests, in my view, fail
to justify the onerous burden imposed on Rust.

For these reasons, I respectfully dissent from the decision of the Court
to uphold the Affiliation Statute as applied to Rust.

Rush, C.J., joins.

Indiana Supreme Court | Case No. 23S-PL-371 | March 6, 2024 Page 25 of 25