INDIANAPOLIS — The Indiana Court of Appeals heard a case last Wednesday that challenges political parties’ right to restrict ballot access.
Under a recent change in state law, county party chairmen have increased power to decide who may appear on their party’s primary ballot. As a candidate for state representative, Amy Rainey was denied a place in the May 2022 Republican primary. She appealed to a trial court in Indianapolis and then to the Court of Appeals, which heard the case last week.
During the 2022 primaries, multiple states faced ballot access disputes. In Michigan, five of the ten Republicans running for governor were denied a place on the ballot due to allegedly fraudulent signatures on their nominating petitions.
The Alabama GOP removed four candidates from its primary ballot for previous involvement in other political parties. In Indiana, a law passed a year ago restricted ballot access for candidates who hadn’t voted in two Indiana primaries.
To appear on the primary ballot in Indiana, candidates must claim affiliation with the Democratic or Republican party. Under the new law, a candidate can claim party affiliation if the two most recent Indiana primaries in which the candidate voted were for that party. Before 2022, only a candidate’s most recent primary vote mattered. Now candidates not qualified under the two-primary rule must have their membership certified by their county party chairman.
The new law affects not only voters who switch parties but those who have recently moved to the state or turned 18. Some Hoosiers who meet the age and residency requirements for office have not yet had the opportunity to vote in two Indiana primaries.
Rainey said she voted in the 2012 Republican primary before moving to South Carolina for several years, where she voted in the Republican primary in 2016. After moving back to Indiana, she missed the 2018 and 2020 primaries due to last-minute work travel and a cancer diagnosis.
Under the new two-primary rule, she needed Elkhart County Republican Chairman Dan Holtz to certify her party membership. Rainey said Holtz told her he would think about it.
A few days later, Rainey received a membership card from the County Republican Party. She included a copy with her declaration of candidacy as the chairman’s certification. Holtz filed a challenge to Rainey’s candidacy, saying she had not voted in two Republican primaries — something she had not claimed on her form.
A number of incumbent candidates won their primaries by default after their only challengers were removed under the two-primary rule. Rainey’s opponent, State Rep. Joanna King, was one of them. With fewer competitive races, voters are less motivated to cast a primary ballot, which leaves fewer candidates eligible to run in the next primary election.
Charles Bookwalter, another candidate challenged under the two-primary rule, told the Election Commission that he had not voted in the 2020 primary because both his U.S. representative and President Donald Trump were running unopposed.
Altogether, the Election Commission heard challenges to ten candidates under the two-primary rule and upheld nine of them. Depending on the office involved, other challenges were handled at the county level rather than by the commission.
Among the issues discussed in Wednesday’s oral argument was the question of party rights versus ballot access.
“The statute walks the line between balancing political parties’ First Amendment rights, which are well recognized in the case law, and candidates’ rights as well, and voters’ rights,” said Melinda Holmes, the state deputy attorney general who was representing the Election Commission. “To have this modest requirement of [two party primaries] or the certification of the county chair isn’t a severe intrusion into ballot access.”
Rainey’s attorney Michelle Harter said the law fails to ensure party loyalty because Indiana essentially has open primaries.
“The articulated interest in the briefing of the Indiana Election Commission was to show party commitment,” Harter told the court. “Well, here the statute can never do that because anyone could vote in any primary. We’ve got single-issue voters, and we’ve also got a state that’s got a Republican supermajority. In many cases, the primary is the election.”
Since 2011, Republicans have controlled both houses of the Indiana General Assembly, as well as the offices of governor, attorney general, and secretary of state. Despite the number of races essentially decided in the primary, only 14 percent of registered voters cast a primary ballot in 2022.
Those who did sometimes had very few choices. For example, in Rainey’s home county of Elkhart, 11 of the 12 countywide Republican primary races had only a single candidate, and countywide voter turnout was only 8 percent. In the one race that was contested, the challenger defeated the incumbent.
Bookwalter was also denied ballot access under the two-primary rule, and the Court of Appeals is scheduled to hear his case on March 30. Harter, who is also representing Bookwalter, said in an email that she expects the court to rule on Rainey’s case in four to six weeks.